14
   

McDonald v. Chicago

 
 
joefromchicago
 
  0  
Reply Mon 8 Mar, 2010 09:36 am
@maporsche,
maporsche wrote:
I hope they decided based on the other clause people are talking about.

My guess is that Gura's "privileges or immunities" argument will get, at most, a footnote in the majority opinion. It won't even rate a mention in the dissent.
0 Replies
 
Setanta
 
  1  
Reply Mon 8 Mar, 2010 09:45 am
@OCCOM BILL,
Whether or not the state tacitly acquiesced in the murders has nothing to do with how the Court would decide the case. Absent evidence to that effect, the indictment was not valid for the reasons the Court gave. You can argue until you're blue in the face that the Court had some kind of moral duty to find in a way of which you would approve--that won't change the fact that the Court made their ruling based on the legal considerations. Whether nor not you think they made a gross error, and whether or not you think they were motivated by racism is neither here nor there. You continue to ignore that i only mentioned Cruikshank as one of the cases in which the Court asserted that the second amendment binds the national government and not the states. You were too eager to launch yourself on your perfervid moral crusade.

In fact, if you bothered to read the thread before going off on your self-righteous and pitiably ill-considered rant, you'd know that i have already objected that i don't think the second amendment is a candidate for incorporation, and you wouldn't have to ask your witless questions. You'd also see that i stated that i think it likely that this Court may incorporate the second amendment.

I don't claim that i'm an authority, and this has been a case of giving my opinion. I certainly have no reason to assume that you are any authority on these matters, and find you the more contemptible when it's obvious that you've not read the thread, and simply jumped on an opportunity to pick a fight. As usual, in doing so, you get just about everything wrong in your criticism, and damned little right in your analysis.
Setanta
 
  1  
Reply Mon 8 Mar, 2010 09:47 am
@OmSigDAVID,
Once again, tortured reasoning. No part of your belabored argument demonstrates unequivocally that there is any constitutional right of personal self-defense anywhere prior to Heller.
Brandon9000
 
  3  
Reply Mon 8 Mar, 2010 10:02 am
@Setanta,
Setanta wrote:

Once again, tortured reasoning. No part of your belabored argument demonstrates unequivocally that there is any constitutional right of personal self-defense anywhere prior to Heller.

But the Amendment does say that the government is not allowed to deny guns to people. Denying guns to people, and stating reasons for so doing, doesn't qualify as not denying them guns.
wandeljw
 
  1  
Reply Mon 8 Mar, 2010 10:17 am
Quote:
How the Constitution, filtered by the high court, affects guns
(By George F. Will, The Washington Post, March 7, 2010)

It is said, more frequently than precisely, that the reasons the Supreme Court gives for doing whatever it does are as important as what it does. Actually, the court's reasons are what it does. Hence, the interest in the case the Supreme Court considered last week.

It probably will result in a routine ruling that extends a 2008 decision and renders dubious many state and local gun-control laws. What could -- but, judging from the justices' remarks during oral argument, probably will not -- make the ruling momentous would be the court deciding that the two ordinances at issue violate the 14th Amendment's "privileges or immunities" clause. Liberals and conservatives submitted briefs arguing, correctly, that this clause was intended to be a scythe for slicing through thickets of state and local laws abridging fundamental liberties.

The Second Amendment says: "A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." Until 2008, the court had never clarified whether the prefatory clause makes this right conditional: Does the amendment protect an individual's right to own firearms, or does it protect that right only in connection with a state's right to organize a militia?

In 2008, the court struck down a D.C. law that effectively banned possession of handguns even in an owner's home -- it banned all guns not kept at businesses, or disassembled or disabled by trigger locks. The court held, 5 to 4, that the Second Amendment protects individuals' rights.

But the court answered only the question then posed, which concerned the federal enclave of the District of Columbia. Left unanswered was whether the amendment protects that right against severe restrictions by state and local laws.

The oral argument concerned ordinances in Chicago and suburban Oak Park that are indistinguishable from the D.C. law. The court probably will overturn those ordinances by holding that another part of the 14th Amendment -- the guarantee that no state shall deny liberty "without due process of law" -- "incorporates" the Second Amendment. The justices evinced scant interest Tuesday in resurrecting the "privileges or immunities" clause by revisiting an incoherent decision rendered in 1873.

To the drafters of the 14th Amendment, the phrase "privileges or immunities" was synonymous with "basic civil rights." But in 1873, the court held that only some of the rights enumerated in the Bill of Rights restrict states by being "incorporated" into the 14th Amendment's "due process" clause.

Since 1897, the court has held, with no discernible principle, that some rights enumerated in the Bill of Rights are sufficiently fundamental to be "incorporated" but others are not. This doctrine bears the oxymoronic name "substantive due process." Substance is what process questions are not about.

If the court now "incorporates" the Second Amendment right via the "due process" guarantee, that will be progress because it will enlarge the sphere of protected liberty. And even Justice Antonin Scalia, who recognizes that "substantive due process" is intellectual applesauce, thinks it is too late to repudiate 137 years of the stuff. Still, three points argue for using the "privileges or immunities" scythe against the two gun ordinances.

First, protecting the individual's right to keep and bear arms for self-defense was frequently mentioned by those who drafted and ratified the 14th Amendment, the purpose of which was to protect former slaves and their advocates from being disarmed by state and local governments determined to assault their security and limit their autonomy.

Second, the central tenet of American political philosophy is that government is instituted not to bestow rights but to protect preexisting rights, aka natural rights -- those essential to the flourishing of our natures. In its 2008 decision, the court affirmed that the Second Amendment did not grant a right to keep and bear arms, it "codified a pre-existing right."

Third, "privileges or immunities" are all those rights that, at the time the 14th Amendment was ratified, were understood to be central to Americans' enjoyment of the blessings of liberty.

Liberals might hope and conservatives might fear that a revivified "privileges or immunities" clause wielded by liberal justices would breed many new "positive rights" -- to welfare, health care, etc. But conservatives know that "substantive due process" already has such a pernicious potential. And they believe that if -- a huge caveat -- it remained tethered to the intent of its 19th-century authors, the "privileges or immunities" clause would be useful protection against the statism of the states.
0 Replies
 
OCCOM BILL
 
  1  
Reply Mon 8 Mar, 2010 10:29 am
@joefromchicago,
Thanks Joe. That makes a lot of sense, crying shame that it is. If memory serves, theSlaughterhouse Cases read like the court first arrived at the desired conclusion (because it really needed to), and then struggled to justify it and in so doing mucked up precedent from a logical perspective, immediately. I remember thinking they could have found a better way to accomplish that which needed to be accomplished... like an instruction to legislators on how to craft appropriate legislation with fiscal penalties that made the dumping of animal waste in such a fashion, in such a location, illegal or at least prohibitively expensive.
(Wish I had time to re-read the Slaughterhouse Cases and the others you referenced right now!)
0 Replies
 
OCCOM BILL
 
  1  
Reply Mon 8 Mar, 2010 11:39 am
@Setanta,
Further demonstration of your ineptitude, Set. Any damn fool can say that the court did what it did because that’s the law. Of course it is; they made it so. They did NOT have to, which you probably know, but you’d rather just stick to your moronic defense of your naïve blathering about considerations of racism only being found in ignorance, while ducking every question and ignoring the simple fact that most of that bullshit ruling has since been overcome. For over half a century the court has been cleaning up that disaster, the better part of a century too late to benefit the multitudes murdered by like-minded racists… many by the very same murderers of Colfax. What makes you think your repetitious babbling of the obvious is more compelling than an actual argument? Why are you so afraid to answer my question about Incorporation? Why do have to ignore questions about how the 14th was stripped naked by stupid decisions? Answer: You’re either too ignorant, or too proud to voice the truth if you know it will expose your own hypocrisy.

By the way; your copout about not being heavily invested in Cruikshank is just that, as the other cases your argument against incorporation rely on most certainly are. I can hardly wait to read your response, which will, as always when you’ve been caught, be long on insult and short on anything relevant. Rolling Eyes
Setanta
 
  1  
Reply Mon 8 Mar, 2010 12:07 pm
@OCCOM BILL,
You set up another row of straw men, and then congratulate yourself on knocking them down. Your performance is pathetic. If you want to pick a fight with someone about your pet stalking horses, it won't be me. I have not argued against Heller on the basis of a violation of precedent. I have not offered Cruikshank as an argument against incorporation. I mentioned Presser and Miller both in the context of decisions by the Court based on the principle that the amendment does not bind the States, but i don't see you waxing hysterical over those cases. I haven't stated that "considerations of racism [can] only be found in ignorance." I have not addressed the relative moral value of incorporation, and am not obliged to do so just because of your hysterical insistence on it.

In fact, i have never argued against incorporation, the latest overstuffed straw man you've offered. I simply stated that i don't consider the second amendment to be a justifiable candidate for incorporation--and while noting that this Court is likely to think it is.

You have not done anything here but hurl vicious insults at me, while failing to directly address any of the opinions which i have offered. Nothing obliges me to play your witless games, and i won't.
Setanta
 
  1  
Reply Mon 8 Mar, 2010 12:13 pm
@Brandon9000,
So what? I've not argued that the states are entitled to deny people firearms. I don't think the Court's argument about a right of personal self-defense articulated in Heller is sound, but i wasn't terribly worried about, precisely because the effect of the District's ordnance was to deny the right of the possession of firearms. I consider that states have a right to regulate, not to deny firearms. I've never argued that states have the right to deny firearms. Your remarks are a non sequitur to my position. I also don't think that i can be held responsible for your decision to interpret my remarks to mean that states have the right to deny firearms to citizens. I've never said anything remotely like that.
Setanta
 
  1  
Reply Mon 8 Mar, 2010 12:20 pm
By the way, i consider it an insidious tactic of the gun lobby to insist that any regulation of firearms is tantamount to banning them altogether. It is a position without merit.
OmSigDAVID
 
  1  
Reply Mon 8 Mar, 2010 12:23 pm
@joefromchicago,
joefromchicago wrote:
OCCOM BILL wrote:

joefromchicago wrote:
The court has typically taken the view that old precedent has more binding force than new precedent. There are a lot of reasons for that (I won't go into it, unless you're interested),
Interested!
It's largely because society has had time to adjust to and accommodate old precedents. For instance, as the oral argument in McDonald shows, Scalia thinks that the Slaughterhouse Cases were wrongly decided, and that the framers of the fourteenth amendment intended to apply the bill of rights to the states via the "privileges or immunities" clause -- and he's probably not the only justice who holds that opinion. But since the Slaughterhouse Cases were decided nearly 140 years ago, a large body of jurisprudence has developed over those decades, primarily in the area of incorporation under the due process clause, that would be tossed out entirely if the court were to hold that it got everything ass-backwards in 1873. Nobody, least of all Scalia, knows what sort of upheaval that would cause in constitutional jurisprudence, so they are content to leave the precedent in place, even though very few people are genuinely happy with it (or even understand it).
Its a known historical fact, on the Congressional Record in explicit terms,
that the author of the first section of the 14th Amendment, Representative John Bingham
explained on the floor of Congress that he wrote it to OVERTHROW ` BARRON v. BALTIMORE,
thereby to apply the Bill of Rights against, and in curtailment of, State jurisdiction for libertarian reasons.

This was closely in furtherance with the purpose of the federal government in the Civil War,
to bring the Southern States back into the Union (denying that thay had ever left)
and to subject them to greater federal power; this is obvious.
Applying the Bill of Rights against the State governments accomplishes that.

Dr. Stephen P. Halbrook is an author repeatedly cited with favor
by the USSC in HELLER. Quoth he:
"In his concurring opinion in DUNCAN v. LOUISIANA 391 US 145 (1968) Justice Black recalled
the ... words of Senator Jacob M. Howard in introducing the [14th] amendment to the Senate in 1866:
'The personal rights guaranteed and secured by the first eight amendments
of the Constitution such as...the right to keep and bear arms....

The great object of the first section of this amendment is to restrain
the power of the States
and compel them at all times to respect
these great FUNDAMENTAL guarantees.' ... The same two-thirds of Congress
which proposed the 14th Amendment also passed an enactment declaring that
the FUNDAMENTAL rights of 'personal liberty' and 'personal security'
include 'the constitutional right to bear arms.'
Freedmen's Bureau Act §14, 14 Stat. 176 (July 16th, 1866) [emphasis added by David]

"No court has ever considered Congress' declaration, contemporaneously with
its adoption of the Fourteenth Amendment, that the rights to personal security and personal liberty
include the 'constitutional right' - i.e., the right based on the Second Amendment- 'to bear arms.'
Until now, this declaration in the Freedmen's Bureau Act has been completely unknown both to scholars
and the courts." (Dr. Stephen P. Halbrook THAT EVERY MAN BE ARMED U. of New Mexico Press)

By overthrowing BARRON, the Bill of Rights simply means what it says again.





David
0 Replies
 
Brandon9000
 
  1  
Reply Mon 8 Mar, 2010 12:42 pm
@Setanta,
Setanta wrote:

So what? I've not argued that the states are entitled to deny people firearms. I don't think the Court's argument about a right of personal self-defense articulated in Heller is sound, but i wasn't terribly worried about, precisely because the effect of the District's ordnance was to deny the right of the possession of firearms. I consider that states have a right to regulate, not to deny firearms. I've never argued that states have the right to deny firearms. Your remarks are a non sequitur to my position. I also don't think that i can be held responsible for your decision to interpret my remarks to mean that states have the right to deny firearms to citizens. I've never said anything remotely like that.

...or cities. Isn't the Chicago case about setting the requirements so high for gun ownership that it isn't a lot different from denying the right to ownership? From the Wikipedia article about that case, the Chicago regulations:

Quote:

1. Prohibit the registration of handguns, thus effecting a broad handgun ban
2. Require that guns be registered prior to their acquisition by Chicago residents, which is not always feasible
3. Mandate that guns be re-registered on an annual basis, including the payment of a fee
4. Render any gun permanently non-registerable if its registration lapses
0 Replies
 
OmSigDAVID
 
  1  
Reply Mon 8 Mar, 2010 12:50 pm
@Setanta,
Setanta wrote:
Once again, tortured reasoning.
No part of your belabored argument demonstrates unequivocally
that there is any constitutional right of personal self-defense anywhere prior to Heller.
Do u allege that the "personal liberty" protected was only the constitutional right to join a unit of militia?





David
0 Replies
 
OCCOM BILL
 
  1  
Reply Mon 8 Mar, 2010 12:59 pm
@Setanta,
Setanta wrote:

You set up another row of straw men, and then congratulate yourself on knocking them down. Your performance is pathetic. If you want to pick a fight with someone about your pet stalking horses, it won't be me. I have not argued against Heller on the basis of a violation of precedent. I have not offered Cruikshank as an argument against incorporation. I mentioned Presser and Miller both in the context of decisions by the Court based on the principle that the amendment does not bind the States, but i don't see you waxing hysterical over those cases. I haven't stated that "considerations of racism [can] only be found in ignorance." I have not addressed the relative moral value of incorporation, and am not obliged to do so just because of your hysterical insistence on it.
Oooo, hysterical now with straw men because I’m pathetic (Laughing)... soon I'll be pissing my little silk panties right, you back-pedaling phony.? Presser and Miller both relied on Cruikshank, so denying it's importance in your shallow copout of an argument mostly serves to make you look ignorant... and you did indeed reference Cruikshank, while pretending I must be ignorant for believing this ruling has severe racist ramifications... a ruling that's been going through the shredder for over half a century, for precisely that reason, btw. As expected, you're attempting to hide your inability to answer questions with idiotic Sez Me pronouncements designed to fool fools.

Setanta wrote:
In fact, i have never argued against incorporation, the latest overstuffed straw man you've offered. I simply stated that i don't consider the second amendment to be a justifiable candidate for incorporation--and while noting that this Court is likely to think it is.
Right, because arguing against Incorporation doesn't equate to arguing against Incorporation... and questions about whether or why you might disagree with Incorporation of portions of several other amendments as well couldn't possibly be relevant because Setanta says so. Laughing

Setanta wrote:
You have not done anything here but hurl vicious insults at me, while failing to directly address any of the opinions which i have offered. Nothing obliges me to play your witless games, and i won't.
I've asked a multitude of relevant questions that you've systematically ducked while pretending your opinion that someone else must be the ignorant one carries weight. It doesn't. Go back and study Wiki till you can at least answer relevant questions without hiding behind your false sense of superiority. Everyone here knows you can hardly shut up about subjects you understand, and rely almost entirely on evasion on those you don't. Do you really think you’re not obvious?
(Bartender, I’ll have whatever he’s having! Drunk )
Thomas
 
  1  
Reply Mon 8 Mar, 2010 01:22 pm
@Setanta,
Setanta wrote:
By the way, i consider it an insidious tactic of the gun lobby to insist that any regulation of firearms is tantamount to banning them altogether. It is a position without merit.


On that point, I totally agree. For a trivial example, banning the sale of firearms to violent psychotics does not violate the Second Amendment -- and would have made the 2007 Virginia Tech shooting less likely.
maporsche
 
  1  
Reply Mon 8 Mar, 2010 01:28 pm
@Thomas,
The shooter at VT wasn't a known violent psychotic. And I believe he bought his weapons at a gun store, which does background checks.
Thomas
 
  1  
Reply Mon 8 Mar, 2010 01:37 pm
@maporsche,
Known to whom? As I remember the news reporting at the time, he was known as a violent psychotic to law enforcement. But there is no registry of people like him in Virginia where gun dealers can look them up. So his condition wasn't known to the dealer who sold him his weapon. What's more, when Virginia Democrats proposed legislation that would have plugged that hole, the NRA lobbied against it vigilantly and successfully.
Irishk
 
  1  
Reply Mon 8 Mar, 2010 02:03 pm
@Thomas,
Should this Wiki info be corrected, then?

Quote:
The incident also caused Virginia Commonwealth elected officials to re-examine gaps between federal and state gun purchase laws. Within two weeks, Governor Kaine had issued an executive order designed to close those gaps (see Gun politics debate, below). Prompted by the incident, the federal government passed the most significant gun control law in over a decade.[77] The bill, H.R. 2640, mandates improvements in state reporting to the National Instant Criminal Background Check System (NICS) in order to halt gun purchases by criminals, those declared mentally ill, and other people prohibited from possessing firearms and authorizes up to $1.3 billion in federal grants for such improvements.[78] Both the Brady Campaign to Prevent Gun Violence and the National Rifle Association supported the legislation.[79] The measure passed the United States House of Representatives on a voice vote on June 13, 2007. The Senate passed the measure on December 19, 2007. President Bush signed the measure on January 5, 2008.[78] On March 24, 2008, the U.S. Department of Education announced proposed changes in the regulations governing education records under the Family Educational Rights and Privacy Act (FERPA). Certain of the changes address issues raised by the Virginia Tech incident and are intended to clarify for schools the appropriate balance to strike between concerns of individual privacy and public safety.[80]

0 Replies
 
OmSigDAVID
 
  1  
Reply Mon 8 Mar, 2010 02:04 pm
@Thomas,
Thomas wrote:
Setanta wrote:
By the way, i consider it an insidious tactic of the gun lobby to insist that any regulation of firearms
is tantamount to banning them altogether. It is a position without merit.


On that point, I totally agree. For a trivial example, banning the sale of firearms to violent psychotics
does not violate the Second Amendment -- and would have made the 2007 Virginia Tech shooting less likely.
I don 't get the point, Thomas. Is it that u rely on violent psychotics
to obay the anti-gun laws as thay prepare for their murders -- that thay will NOT use the blackmarket?
Do u believe that murders were LESS LIKELY before guns were invented ?
Is it impossible to approach a police officer from behind, render him unconscious and steal his gun?
Have u ever heard of ANY crime that was not perpetrated because a criminal coud not find a weapon? I have not.

Repressionists want to disarm citizens, saying that guns are sometimes used to facilitate crime.
They fail to understand that the actual weapon is the HUMAN MIND, whose cleverness has not been controlled
nor restrained (even in prison). This mind expresses itself perseveringly, into the manifestation of its felt needs
or desires, and it has FOREVER to do the job that it selects (e.g., the art of the gunsmith/gun merchant).
In the 1920s, it was pervasively proven by citizens privately making bathtub gin, or using Speakeasys
(and is proven again now by marijuana users) that Prohibition is futile.

Granted that the 2 A was never intended to defend any rights of violent psychotics,
but where there is a malicious will, there is a malicious way.

The Virginia Tech shootings woud have been over a lot faster,
with fewer casualties, if the victims had not obayed gun control rules.





David
OCCOM BILL
 
  1  
Reply Mon 8 Mar, 2010 02:07 pm
@Thomas,
Thomas wrote:
For a trivial example, banning the sale of firearms to violent psychotics does not violate the Second Amendment -- and would have made the 2007 Virginia Tech shooting less likely.
Agreed; he who's been deemed to be a violent psychotic hasn't been denied due process in route to being denied his constitutional right to bear arms.
 

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