McDonald v Chicago (MERGE)

[LoneStarNational]

We fought a war over the degree to which States may legislate away the rights secured in the Constitution for any man and the amount of legislative autonomy they have.  The view of State Sovereignty over Federal Sovereignty lost.  To argue otherwise is to live in a fantasy world that ignores 145 years of history, legal opinions and legislation insisting on arguing a point long since lost.

I hardly think winning a war makes one side of an argument right and the other wrong.  It just means the winning side gets what they want. As such, it should not be used to establish "precedence".
I would also suggest that Constitutional Sovereignty/Supremacy is not the same as Federal Sovereignty/Supremacy (or at least it shouldn't be).

Anywho, yay for this ruling!

[Bud]

Here's why I don't like the decision.

That's because it wasn't a decision it was a remand. The Court didn't issue a blanket order confirming the individual's right to keep and bear arms. They merely remanded the issue to the 7th Court of Appeals for them to reconsider their decision in light of Heller.

That means, you still can't own a handgun in Chicago, the ordinance is still in effect until the 7th Court of Apeeals makes a decision.

I can see endless years of fighting to get this resolved, time I don't have. I am 63 years old and I doubt if I will see a final resolution in my lifetime.

[Beamish]

Here's why I don't like the decision.

That's because it wasn't a decision it was a remand. The Court didn't issue a blanket order confirming the individual's right to keep and bear arms. They merely remanded the issue to the 7th Court of Appeals for them to reconsider their decision in light of Heller.

That means, you still can't own a handgun in Chicago, the ordinance is still in effect until the 7th Court of Apeeals makes a decision.

I can see endless years of fighting to get this resolved, time I don't have. I am 63 years old and I doubt if I will see a final resolution in my lifetime.

Great point - and that is all the because of the use of "Due Process".  If they had followed Clarence Thomas's lead and accepted Gura's arguments for Privileges and Immunities it would not be a remand it would have been a blanket striking down of the Chicago Gun Band and an effective end to all non-shall-issue regulation in the Country.

[moose42]

This is what the SCOTUS should have said.

"Shall not be infringed means shall not be infringed!  Chicago don't you know how to read?"

[Bud]

Here'a another wesapon case that may ne influenced by McDonald:

http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/08-1592.htm

Not a firearm case but it is a weapons case:

http://homepages.nyu.edu/~jmm257/mvc.html

Why this is imnportant is the 2nd amendment guarntees the right to keep and bear arms which doesn't necessarily mean firearms
In this case it is a pair of nunchaku that was found in the defendent's home and he was charged with possessing them

[Ishpeck]

If that is the point then I will absolutely say he is wrong.  It is like saying that a State has the right to censor all media, create a State religion and prohibit residency on the basis of ethnicity.

It is not the same at all.

But let's entertain this idea for a moment.  Let's say that states did establish their own religions.  Let's say that the Church of Missouri grew great and powerful and that this church exercised total control over peoples' lives.  Let's say the Church of Missouri decided that it was illegal to watch TV or home movies on Sundays and helped everyone out in this regard by shutting down all power from 12:00AM Sunday morning until 11:59pm that same day.  The Church of Missouri would argue that the public safety vastly improves when the community is exposed to less consumerism and violence through TV.  They would have BS statistics to back this assertion up.   Then, to further enforce this, they arrested anybody who owned electric generators that weren't licensed by the state.

Then let's say that the Supreme Court heard a case on the unconstitutionality of the Church of Missouri's TV blackout laws.  The Supreme Court said: "You can't arrest people for having generators."  Then the Church of Missouri, to defend their power, concedes the point but then lobbys to Congress saying: "We have improved the safety of our communities by banning televised entertainment once a week.   Think how much better the whole Union would be if you all had our superior tools for fighting weekend crime!"

Just like DC did with Heller, The Church of Missouri would accept SCOTUS's ruling and instead of forbid ownership of generators, they would vastly increase the cost of licensing one and levy ginormous taxes against anybody who wanted to run one.  They would require you to subject yourself to random searches to guarantee that your licensed electric generator was never connected to a TV.  They would forbid all generators that could run on regular gasoline -- requiring you to only have ones with special, proprietary oil mixtures.

Then they'd lobby to Congress to impose those same regulations on all electric generators to make it easier to enforce these laws.  For the safety of their communities!  If any ecclesiocratic legislation comes from Missouri-based representatives/senators, even secular states find themselves subject to the rule of a particular sect.  Then we ~ALL~ have to live with asinine generator regulations under the pretense of keeping us safe.  And all because we decided to invite the Church of Missouri to swim in the federal legislation pond.

We fought a war over the degree to which States may legislate away the rights secured in the Constitution for any man and the amount of legislative autonomy they have.  The view of State Sovereignty over Federal Sovereignty lost.  To argue otherwise is to live in a fantasy world that ignores 145 years of history, legal opinions and legislation insisting on arguing a point long since lost.

Viva la captain straw man.

The assertion that incorporation of one particular amendment is counter-productive is not the same as pretending that the Civil War never happened.  

[FMJ]

Ishpeck, and if we already live in a restricted where asinine rules have existed since before this ruling?  Then what?




I would like to understand, how would the ruling be different if they claimed P&I instead of due process?  I'd like to understand why Beamish is disappointed.

[Thernlund]

I would like to understand, how would the ruling be different if they claimed P&I instead of due process?  I'd like to understand why Beamish is disappointed.

If you look at what Bud said in post #51, and then what Beamish said after, I think therein lies your answer concerning Due Process vs. P&I.



As far as Ishpeck's thing, I've no idea.  I didn't understand I think.  Seemed like a 1A religion issue, which was incorporated 70 years ago.  And yet, I still have a generator and a TV.

Pfff.  I don't know. 


-T.

[springmom]

ISTM that Ishpeck's argument points to the fact that this is not the end of the road for us, in terms of the need to keep fighting.  Yes, Chicago will continue to obfuscate, as has DC.  Yes, it will require going back to courts, likely again and again.  But the fallacy in the argument lies in the fact that precedent is being set that, with each subsequent ruling that depends on it, strengthens the whole structure.  We will indeed have to fight for the right to "fuel the generators with regular gas" (good metaphor, that) but we *will* keep fighting and because of both Heller and now McDonald, each (carefully chosen) subsequent fight will strengthen the foundation of our rights.

The fight's not over, but it's looking up a WHOLE lot more than it was prior to Heller and McDonald.

Jan

[FMJ]

If you look at what Bud said in post #51, and then what Beamish said after, I think therein lies your answer concerning Due Process vs. P&I.


-T.

Ok.

Great point - and that is all the because of the use of "Due Process".  If they had followed Clarence Thomas's lead and accepted Gura's arguments for Privileges and Immunities it would not be a remand it would have been a blanket striking down of the Chicago Gun Band and an effective end to all non-shall-issue regulation in the Country.

Why did they not take Clarence's lead nor accept Gura's arguments for P&I?

[RevDisk]

Here's why I don't like the decision.

That's because it wasn't a decision it was a remand. The Court didn't issue a blanket order confirming the individual's right to keep and bear arms. They merely remanded the issue to the 7th Court of Appeals for them to reconsider their decision in light of Heller.

That means, you still can't own a handgun in Chicago, the ordinance is still in effect until the 7th Court of Apeeals makes a decision.

I can see endless years of fighting to get this resolved, time I don't have. I am 63 years old and I doubt if I will see a final resolution in my lifetime.

 

Bad, Bud!  You did not do your constitutional law homework!   Get thee to the blackboard and write "incorporation" 100 times.  

 

There are three steps to getting a constitutional right.  First is individual or collective (Heller).  Second is determining whether it applies everywhere (McDonald).  Third is the level of judicial review (has not happened yet).  You don't get upset at a single step for not getting you to the top of the ladder.  This is a necessary step in getting 90% of all gun laws invalidated.  

Also, Justice Samuel A. Alito was very bloody smart too.  He knew he couldn't dictate the level of judicial review in this incorporation case.  BUT, he managed to throw into the opinion of the Court that right to have a gun for self-defense in the home is a fundamental constitutional right.  To you or I, that's just another adjective.  So what, right?   In legal speak, that's almost code specifically for "strict scrutiny".  Strict scrutiny means a law infringing upon the right in question must have compelling governmental interest, be narrowly tailored and use least restrictive means to do so.  That's as close as it gets to "absolute right", which does not exist in the American legal system.  Think "voting" level of protection.  Unless you're a felon, no one at any government level is allowed to infringe upon your right to vote without really good bloody cause.

[springmom]

And the Constitutional Law Gold Star goes to RevDisk:

Also, Justice Samuel A. Alito was very bloody smart too.  He knew he couldn't dictate the level of judicial review in this incorporation case.  BUT, he managed to throw into the opinion of the Court that right to have a gun for self-defense in the home is a fundamental constitutional right.  To you or I, that's just another adjective.  So what, right?   In legal speak, that's almost code specifically for "strict scrutiny".  Strict scrutiny means a law infringing upon the right in question must have compelling governmental interest, be narrowly tailored and use least restrictive means to do so.  That's as close as it gets to "absolute right", which does not exist in the American legal system.  Think "voting" level of protection.  Unless you're a felon, no one at any government level is allowed to infringe upon your right to vote without really good bloody cause.

Well put.  'Twas a very slick little addition that will be VERY important in upcoming cases.

Jan

[FMJ]

There are three steps to getting a constitutional right

So when does Round III start?

[Thernlund]

The architects of this campaign haven't yet revealed their hand as far as I can see.  You probably won't see anything for a couple years minimum.


-T.

[Feud]

Why did they not take Clarence's lead nor accept Gura's arguments for P&I?

Gura's argument was a long shot, that's why when everyone was griping at the NRA for pushing due process that the NRA was saying "you'll thank us later".  Basically, Gura's argument went against over a hundred years of judicial rulings, and it was a combination of him not arguing it well enough to convince them and them probably not going to be convinced regardless of what he said.  It was extremely unlikely that it was ever going to work, and I'm a bit surprised that even one Justice agreed with it given that the Heller case made clear that even the affirming Justices agreed that the 2A didn't give one free reign to own anything they want, just like any other right there are reasonable limitations that do not qualify as infringement.  This makes them much more likely to accept a Due Process argument, and reject an open declaration that handguns are "privileged".

Gura is a great lawyer, but P&I was a hail mary pass when all we needed was a one yard gain.  He threw the ball and figured that if it worked then it would be amazing, while the NRA followed up with Due Process as the more practical running option.

By arguing P&I you have to establish just what is a P&I under the 2A, which wanders into extremely murky legal water that the Justices are probably not terribly eager to start wading through (and probably aren't eager to throw the gates open for the lower courts to start determining).  

Due Process however let's them say "the Heller decision must be considered in this matter" and the burden of individual cases is in the hands of the lower courts who have a very limited mandate in what they may include (no postulating on what is and what is not privileged, rather a specific case by which they must now use in their rulings).  The Supreme Court can then pick which cases (if any) from those rulings as they feel necessary to further expound on the issue.

[Crash_AF]

So when does Round III start?

If I were a betting man, I'd say sometime right after King Richard pushes through his draconian response to this ruling and someone gets charged for it. It seems to me like Justice Roberts wants to see this particular matter resolved before he steps down/dies so I wouldn't be surprised to see another ruling in 2012 or 13 on judicial review.

Later,
Joe

[Bud]

Round III has started. Mayor Daley press conference:

http://abclocal.go.com/wls/video?id=7526151&pid=7524163

In the immortal words of the sage, Bugs Bunny:

<a href="http://www.youtube.com/v/C_Kh7nLplWo&amp;ap=%2526fmt%3D18&amp;rel=0&amp;fs=1" target="_blank">http://www.youtube.com/v/C_Kh7nLplWo&amp;ap=%2526fmt%3D18&amp;rel=0&amp;fs=1</a>

[RevDisk]

And the Constitutional Law Gold Star goes to RevDisk:

Well put.  'Twas a very slick little addition that will be VERY important in upcoming cases.

Jan

Appreciated.  

My boss is trying to convince me to go to law school.  I told him I wanted to hold onto my soul for a bit longer.  It's not NIB and it's pretty dinged up, but it's mine and I happen to like it.

The longer more boring version is: http://wethearmed.com/index.php/topic,9908.msg158361.html#msg158361

The architects of this campaign haven't yet revealed their hand as far as I can see.  You probably won't see anything for a couple years minimum.


-T.

Next year or the year after.  No later than 2012.  MAYBE 2013, but I doubt it.

If I were a betting man, I'd say sometime right after King Richard pushes through his draconian response to this ruling and someone gets charged for it. It seems to me like Justice Roberts wants to see this particular matter resolved before he steps down/dies so I wouldn't be surprised to see another ruling in 2012 or 13 on judicial review.

Later,
Joe

I concur.  Roberts wants this thing settled and put to bed.  He's pushing hard for this.  

[Beamish]

Gura's argument was a long shot, that's why when everyone was griping at the NRA for pushing due process that the NRA was saying "you'll thank us later".  Basically, Gura's argument went against over a hundred years of judicial rulings, and it was a combination of him not arguing it well enough to convince them and them probably not going to be convinced regardless of what he said.  It was extremely unlikely that it was ever going to work, and I'm a bit surprised that even one Justice agreed with it given that the Heller case made clear that even the affirming Justices agreed that the 2A didn't give one free reign to own anything they want, just like any other right there are reasonable limitations that do not qualify as infringement.  This makes them much more likely to accept a Due Process argument, and reject an open declaration that handguns are "privileged".

Gura is a great lawyer, but P&I was a hail mary pass when all we needed was a one yard gain.  He threw the ball and figured that if it worked then it would be amazing, while the NRA followed up with Due Process as the more practical running option.

By arguing P&I you have to establish just what is a P&I under the 2A, which wanders into extremely murky legal water that the Justices are probably not terribly eager to start wading through (and probably aren't eager to throw the gates open for the lower courts to start determining).  

Due Process however let's them say "the Heller decision must be considered in this matter" and the burden of individual cases is in the hands of the lower courts who have a very limited mandate in what they may include (no postulating on what is and what is not privileged, rather a specific case by which they must now use in their rulings).  The Supreme Court can then pick which cases (if any) from those rulings as they feel necessary to further expound on the issue.

You completely missed the point in arguing for P&I over Due Process.  The "Due Process" argument was the stuff of first year law student arguments, the case was made in the brief.  The oral arguments did nothing to advance the Due Process clause - it was 10 wasted minutes.

A P&I ruling would have restored a whole class of rights lost in Cruikshank over racism.  This ruling does force States to accept the individual Second Amendment right but allows them to restrict it and regulate it as long they due so following "due Process".  It is only half a win.

[Feud]

Except that the court can't rule on due process unless someone mentions it. P&I failed, so that ten minute "waste" saved the case.

Its first year law stuff becuase it works.

Edit:  I get why one would want a P&I victory over a Due Process, I'm just saying that such a victory wasn't very likely from the start and so Due Process needed to be in there to ensure that we got something out of it.  A half victory is better than a total loss, which is what we would have had if it was solely based on P&I.

[Bo Smith]

Round III has started. Mayor Daley press conference:

http://abclocal.go.com/wls/video?id=7526151&pid=7524163

Jim Crow for the twenty-first century.

[Beamish]

Except that the court can't rule on due process unless someone mentions it. P&I failed, so that ten minute "waste" saved the case.

Its first year law stuff becuase it works.

Are you being intentionally obtuse?  Do you have any idea how a Supreme Court case is actually argued? 

Written brief, followed by 30 minutes of oral arguments to expand on the brief and respond to questions.  That is all.  If you have a complex or far reaching argument you need both a well written brief - and Gura's was extraordinary - and you need to convince the Justices as they question your logic.

Every legal scholar with the exception of the selfish paranoiacs at the NRA knew that the Due Process argument had been made, in total, in the the written brief.  The Oral Arguments added NOTHING to the Due Process case - it was purely about P&I.  And the NRA wasted one third of argument, they did not save jack s___ and they could well have cost Gura the time he needed to win over Scalia or Roberts - who were very interested in the P&I argument.  Instead the very fact that Alito - who was a P&I skeptic from day one - wrote the majority opinion proves just how much was lost when Gura was robbed of that time to convince Scalia and Roberts,

[Feud]

Are you being intentionally obtuse?  

No, I'm trying to be acute.

If you feel the need to work yourself up into a lather then go right ahead, if you really think that after all the briefs and after months of deliberation that ten more minutes of the Judges asking questions they wanted to ask in order to get the answers they want out of the lawyers would have "convinced" Scalia and Roberts then more power to you.  

Personally, I think there was a better chance of a unicorn flying into the Court room, kicking the dissenting judges in the head until they saw the light and voted 9-0, then sinking a half court shot while monster trucking down Pennsylvania Ave then there was of ten more minutes somehow convincing four justices to change their mind on the matter.  

If they were that close and they thought he could do it, it is within their power to extend his time.  It's not unprecedented to give people hours of time during oral arguments, sometimes even days.  But they didn't.  Gura's a great lawyer, but P&I wasn't the right tool for the job.  The NRA didn't blow anything, nor did they rob him or us of anything.  If it makes you feel better to blame them then go right ahead, but even if they weren't there, even if Gura had ten more minutes and we'd still have gotten at least a Due Process win without them, P&I just wasn't going to happen.  

[JesseL]

Even if the odds of Gura having been able to sway a couple more justices to a P&I judgement was low, it would have been nice to give him the chance and know for sure. Incorporation via the 14th was practically guaranteed and hardly needed oral argument.

One more case of the NRA's risk aversion becoming an anchor around our necks.

[Harm]

I have a hard time saying Gura blew it, or it was only half a victory or any other defeatest talk.  Why?  Because Gura is NOT a gun person.  He is a constitutionalist libertarian.  He believe in liberty and that is what motivated him to begin this with Heller.  He's not done, not by a long shot.  But as Jesse mentioned the NRA is the anchor on the necks of the 2nd Amendment.  The problem I fear, realizing any GUN case he'll be saddled with the NRA, Gura will seek constitutional battles in arena's that while beneficial to us, will not directly address 2nd Amendment rights.