McDonald v. Chicago

I hope they decided based on the other clause people are talking about.

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.

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.

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).

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.

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

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.

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.

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.

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]

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.

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.