Well, McDonald v. Chicago – think of it as “son of Heller v. Washington DC” in terms of its importance to Second Amendment rights – has been argued. I wish they had broadcast the argument in live feed: so much is lost when you only read the cold black and white print of the transcript, and can’t catch all of the inflection in the voices, particularly the voices of the questioning Justices.
And why, with cases impacting literally life-or-death issues, are the advocates allowed only thirty minutes per side to argue their positions?
Initial impressions? For one thing, The Nine were “equal opportunity ruthless” in their questioning of both gun owners’ rights advocate Alan Gura, who successfully argued Heller a couple of years ago, and James Feldman, the lawyer Chicago brought in from Washington to argue their side. They kept cutting off Gura with questions before he could finish making his points, but my favorite part was when Feldman tried to say that since Chicago allows you to own, say, a shotgun but not a handgun, “…it imposes a reasonable regulation standard that is not violated by banning a particular weapon or a particular class of weapons, as long as you are allowing some kind of firearm, and that is not the right that this Court recognized in Heller.”
Justice Scalia responded, “Is that what you are asserting here, that the States have to allow firearms?” Feldman replied, “No.” Scalia: “Is that –“ Feldman: “I – I didn’t think I was.” Scalia: “I didn’t think so, either, so why did your last argument make any sense?”
I dunno what fine legal minds would call that colloquy, but to this non-lawyer it sounds remarkably close to what some folks call a “bitch-slap.”
On another related topic, this lawsuit was brought by Second Amendment Foundation, a group I’ve been proud to serve for many years on its Board of Trustees. I’m also a longtime Life Member of the NRA, which pushed its nose in the door and got ten minutes of the precious half-hour allotted for our side’s argument. I wasn’t too thrilled about that at first, but it turns out to have been for the good: NRA’s voice, Paul Clement, seemed to be better received than either of the other advocates by the Supremes, and made some powerful points for our side on the Due Process argument, to which the highest court in the land seemed much more receptive than to the Privilege and Immunities Clause, which Gura argued along with the Due Process point. I stand corrected. I’m glad Clement was there.
General consensus of the pundits is that we’ll win, and the Supreme Court of the United States will rule that the lesser governmental entities are bound by the previous SCOTUS decision that the Second Amendment is an individual right…but that “reasonable regulations” of that right will still be authorized. Expect the Chicago handgun ownership ban to be struck down, in other words, but don’t expect the Supreme Court to mandate “shall issue” carry permits in Illinois, either.
Most of the fine legal minds are looking at something between a 5-4 win such as we got in Heller, perhaps a 6-3; some see Justice Kennedy as a swing vote, and read his words in the transcript as proof that he sees it the way we do. I’ve seen predictions as high as 8-1, because as noted in my last blog entry here, there are corollary issues that profoundly impact other rights that even the most liberal of our Supreme Court Justices don’t want to see imperiled.
Bottom line: don’t count the chickens until they hatch. The opinion is expected in June or July. Even then, it will still be a fight – one we and our children and our grandchildren can expect to be embroiled in for so long as we hope to keep our rights.
Keep an eye on http://www.oyez.org/cases/2000-2009/2009/2009_08_1521 for the audio recordings of the hearing.
Mas,
Presuming McDonald goes as expected, won’t SAF’s Palmer v. DC (Heller II: Carry Boogaloo) suit regarding mandating some form of carry in DC (based on the “bear arms” wording in Heller) be the case that forces Illinois (and Chicago) to legalize some form of carry upon Incorporation (assuming Gura et al win it as well)?
Oral arguments on Palmer were in January I believe but I haven’t seen an update on SAF’s site on its status.
I think Gura was right when he said that he thought the justices could write a due process incorporation ruling in their sleep. They didn’t even seem to argue the due process claim – the only debate in that area was whether the entire right applied to the states or only portions of it, and only one justice seemed to be really pushing that watered-down version. They seemed to come out ready to argue with Gura entirely because he wasn’t trying to take the “easy” path to incorporation, for all that it makes no sense in terms of why the amendment was actually written.
I’ll say, though, I don’t think I’ve heard anyone sound as haughty as the supreme court justices in these cases. They don’t suffer foolishness at all. Not that their attitude is unjustified.
Where, in the Constitution, is the Supreme Court granted jurisdiction over disputes between an individual and the government of the city or state in which he lives?
After reading the transcript,I think the reason the Court did not allow audio recordings to be released ,was that the Court did not want the world to think they were beating up on Feldman.After reading the breifs submitted by Feldman and Co. on behalf of Chicago they knew he had a weak case,and would not be able to make a strong,coherent case.
I know that I’m not alone when I say that I do not give a hoot what the supremes decide upon,nor do I care what our congress decides upon,nor do I care if the US has an economic collapse that forces us into some global government whose tyrannical European leader invokes the death penalty for gun possession,I shall never relinquish my tools of liberty,including the so-called “assault weapons”.
I have a different take on this. I think the ruling, while undoubtedly progress for the people of Chicago, will be a blow to gun rights at large. A citizen of Chicago will now be “allowed” to pay $500 in licensing fees and training, wait a month, jump through fiery hoola-hoops, and then maybe be allowed to register a revolver. This is the process in D.C. Also, in Heller, Scalia did great damage to the 2nd Amendment. He said that quintessential militia weapons (for example, the full auto M-4) could legitimately be banned by government because they are “dangerous and unusual”. This tells me that Scalia doesn’t really understand or care about the meaning of the 2nd amendment. He thinks it’s about defending yourself from a lone criminal breaking into your home at night, or maybe to go dove hunting. So, everyone knows Chicago is in violation of peoples’ birthright. But now, the Court is going to formally recognize most of those violations, while tossing out just a few to throw freedom a bone. No thanks!
What I would like to know is why this is even an issue? To me it’s a no-brainer when one puts the 2A in the context of the Bill of Rights.
Can a State or City abridge my free speech rights? No. Why? Because of the First Amendment.
Can the Governor of my State house national gaurd troops in my home? No. Why? Because of the Third Amendment.
Can a State or City search me or my property without probable cause or a search warrant? No. Why? Because of the 4th Amendment.
Can a State or County court force me to incriminate or testify against myself? No. Why? Because of the 5th Amendment.
So why is there even a question of what the States can do concerning the Second amendment? Seems to me that no State is allowed to violate THE HIGHEST LAW OF THE LAND.
Dan, some folks would argue that the only presence the Federal Government has in affairs between a State and its Citizens is to bar illegal intrusion into that Citizen’s rights.
The Tenth Amendment states: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
The court used the Tenth Amendment in striking down provisions of the Brady Bill in Printz v. United States, 521 U.S. 898 (1997))
Some people see the Tenth Amendment and the Fourteenth Amendment as giving state courts the jurisdiction to adjudicate improper intrusions on State Citizens’ rights by their states.
I am one of these people.
Dan, I agree with your post. The U.S. Supreme Court should not have jurisdiction over this issue. It should strike down all federal gun laws, but it is up to the people of cities and states to repeal city and state laws.
Inalienable rights like the 2nd amendment are based on natural rights from God and are not subject to the supreme court.
Man did not giveth and man cannot take it way.
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.
I don’t think enough people read and examine the meaning of the second amendment.
To answer Dan A.”s question, I think it is the acursed Fourtheenth Amendment. This should be a state matter, but the SCOTUS has been meddling in state affairs for a long time, long enough to set a precedent that would be difficult to overturn.
If this case goes our way, I hope someone gets Mr. Heller and Mr. McDonald for a celebration party. These two gentlemen need to go down in the history books right next to MLK, Rosa Parks et al. Genuine hero’s of this nations civil rights movement.
“”‘A well regulated militia, …….” we say…
Do we ever really think about that phrase?
Nobody ever mentions the delightful pun in the 2nd amendment.
We all know Jefferson was an avid amateur botanist and Franklin an accomplished wordsmith.
Get one of those dictionaries with a timeline for the etymology.
Around 1760 “Regulation” acquired a botanical meaning:
[quote]Main Entry:
reg·u·la·tion
Pronunciation:
ˌre-gyə-ˈlā-shən, ˌre-gə- also ˌrā-
Function:
noun
Date:
1665
……….
“3 a: the process of redistributing material (as in an embryo) to restore a damaged or lost part independent of new tissue growth b: the mechanism by which an early embryo maintains normal development”[/quote]
http://www.merriam-webster.com/dictionary/regulation
Clearly Franklin and Jefferson wanted the embryonic country to have a lot of small arms about so that a militia could be “well regulated”, that is formed up from the grassroots folk at the drop of a hat; not to mention ‘well regulated’ as in a smooth functioning timepiece.
Anybody know of one word says it better?
The double entendre is surely why those two radical old wags made it the second amendment not the first..
old jim
see: 14th Amendment which says that the feds are responsible for incorporating the so beautifully outlined rights in our Constitution against the states and the local governments… as in, what’s in the constitution is valid no matter what the local yokels think about your 2nd Amendment rights (or 1st or other rights for that matter.)
it’s one of the few things they ACTUALLY should be doing.
Mack’s posting at 10:08 is exactly the way I see it. Rights granted by the US Constitution can not be made subservient to local and state laws. Local and state laws can’t violate rights granted to me by the 1st amendment, how can local and state laws violate my rights granted under the 2nd amendment? Why is it the 2nd amendment seems to be the one in the bill of rights that is viewed as “optional”?
I think that the court did not like the box that both Incorperation and Due Process made, as it hard to wiggle. It was like asking “Which side of your mouth are you going to talk out of this time?” and making a pre-emptive arguments both ways before you get an answer. It is clear that the court does not want to do much “heavy lifting” on the issue because they do not want the political hissy fit that result from saying most of the countries gun laws are unconstitional. I suspect that even some of the friendly members want some gun control, but not much and do not want to have to explain that in light of the constitution.
The issue here should not be just the 2nd amendment, but also the TENTH Amendment, which prohibits powers to states that are reserved to the people.
Since the 2nd Amendment reserves the right of the people to keep and bear arms, then the 10th Amendment PROHIBITS the state power to infringe against it.
I also wished to mention, that state prohibitions against carrying CONCEALED weapons, violate the federal right of privacy– a fact also that needs to brought up.
In my home state, we have “open-carry” laws, which allow a person to carry a firearm OPENLY without a permit; however one needs a CCW permit in order to carry a firearm concealed.
The federal right of privacy, however, guarantees the right to be free from public scrutiny– and this “open-carry” law violates this right.
I think Dan A is right that it is the 14th Amendment that the court is relying on in taking jurisdiction. But the 14th was never LEGALLY ratified. The states that unsuccessfully attempted to secede were coerced into ratifying it before being “readmitted” to the Union. And if they weren’t “in the Union,” how could they ratify an amendment?
Keep in mind that the rights listed in the 1st 10 amendments are not GRANTED by the Constitution. This is a partial listing of some of the (most important) HUMAN rights that the federal government was forbidden from violating.
Generally speaking, w/o the 14th Amendment, the Bill of Rights applies ONLY to the Federal government, not the states. But I like Brian McC’s comment about how the personal right mentioned in the 2nd amendment fits into the 10th.
WE HAVE HERE A BUNCH OF GREAT PEOPLE WITH LIKE FEELINGS. I BET MOST OF US ARE AT LEST OVER 50. I PRAY THAT OUR COUNTRY WILL NOT GO AHEAD , BUT GO BACK TO A BETTER TIME WHEN PEOPLE HAD COMMON SENSE. MY WIFE AND I LEFT CALIF. IN 1998 AND MOVED TO NORTH IDAHO. A GREAT BUNCH OF PEOPLE UP THERE. I ENJOYED MY RIGHT TO CARRY AND SIGN UP FOR MY CCW. TIME PASSED AND MY WIFE AND I HAD TO MOVE BACK TO CALIF. WELL TO BE LEGAL I HAD TO SELL MY AR 15 H-BAR ALL THE MAGS OVER 10 ROUNDS ,PISTOL GRIP SHOT GUN. ALL TO BE LEGAL IN CALIF. EVERY YEAR THEY ADD TO THE THINGS I AM NOT ALLOWED TO HAVE. I HAVE GIVEN UP TRYING TO OBEY THE LAW. JUST KEEP THE GUNS IN THE SAFE UNTIL WE MOVE BACK TO IDAHO AND CAN BE FREE AGAIN..
“# Dan A. Says:
March 6th, 2010 at 1:40 am
Where, in the Constitution, is the Supreme Court granted jurisdiction over disputes between an individual and the government of the city or state in which he lives?”
Dan,
The Supreme Court is the final arbiter of law and can hear any case it chooses.
Paul,
Don’t be too worried. I’m 35 and I’m right there with you, and I know plenty of other my age and younger who are the same.
Personally I escaped California late last year, and now I’m wondering why I didn’t do it sooner.
Just as a knitpicky point to some of the stuff read here:
When looking at the bill of rights, it is of course important to remember that the amendments don’t convey the listed rights, they simply specifically recognize rights that all humans posess from birth.
Likewise, those rights have limits..i.e, you have the right to free speach, but you can’t yell fire in a crouded theatre.
It’s tempting to take the bill of rights at face value, particularly when that interpretation serves your own view point.
The issue being is that rights have limits, especially when abusing them limits the rights of others.
I’m with one of the other posters here, it’s my feeling that by upholding the idea that citizens can’t be categorically denied handguns, but by not specifically dealing with the “reasonable” limits and restrictions of firearms, this ruling may preserve the letter of the law while doing serious long term dammage to it’s spirit.
The comment about automatic weapons above is a great example.
By not premtively dealing with the specifics of what is both the spirit and letter of the second amendment, we’ve prolonged a legal battle that could have been clerified in this case and heller.
My two cents anyway.