McDonald / 2A Incorporation Thread

[ezliving]

I'm currently reading Scalia's direct response to Stevens' dissent. Scalia must be a real thorn in Stevens' side.

Stevens and Scalia were both mud wrestling. I bet the conferences were a scream!

 

[ezliving]

National Rifle Association Executive Vice President Wayne LaPierre, meanwhile, called the decision a "constitutional victory" that could still result in "practical defeat."

"The NRA will work to ensure this constitutional victory is not transformed into a practical defeat by activist judges, defiant city councils, or cynical politicians who seek to pervert, reverse, or nullify the Supreme Court's McDonald decision through Byzantine labyrinths of restrictions and regulations that render the Second Amendment inaccessible, unaffordable, or otherwise impossible to experience in a practical, reasonable way," he said.

The NRA is preparing lawsuits to what it sees as overly-restrictive gun laws based on the decision, chief NRA lobbyist Chris Cox told Politico's Ben Smith. "We're going to be in courtrooms making sure these aren't just words on a piece of paper," Cox said.

http://www.cbsnews.com/8301-503544_162-20009049-503544.html

 

[ezliving]

NRA prepares lawsuits in wake of Chicago verdict

The National Rifle Association is preparing legal challenge to restrictive gun laws in the wake of today's Supreme Court verdict that states — like the federal government — must allow their citizens to carry guns.

Gun control groups are minimizing the verdict, arguing that it doesn't necessarily conflict with carefully written, stringent laws (other than Chicago's). But NRA chief lobbyist Chris Cox said the association sees an opportunity to dramatically expand the rights of citizens in liberal jurisdictions to carry guns, naming New York in particular as a target for change.

"The NRA is preparing [our] next round of legal challenges," Cox told me, declining to specify targets. "What [the Supreme Court] said is what we’ve said all along. Every law-abiding American has a right to a gun regardless of where they live."

"We’re going to be in coutrtooms making sure these aren't just words on a piece of paper," he said, adding that the NRA would also continue to work on loosening gun regulations in federal and state legislatures.

He turned to New York, though, as an example of restrictive laws.

"If you’re a Wall Street buddy of Bloomberg, if you’re a political buddy, if you’re a celebrity, you can carry a gun," he said. "If you're a regular working person in the Bronx who has to walk across parking lots late at night, absolutely not."

http://www.politico.com/blogs/bensm...suits_in_wake_of_Chicago_verdict.html?showall

 

[krucam]

Someone on this forum was approached a few months back by the NRA, wanting people from May-Issue states...hmmm...

 

[Rattlesnake46319]

Wonder how this will affect IL and WI, as they are the only two "no-issue" states. May not at all since this seems to be pointed at ownership vice carry. However, I could be wrong.

edit: Finished the thread. Ok, may not affect "no-issue", but could take care of that pesky FOID problem in IL.

It's not the sweeping freedom that we all want, but damn it, this is a win in my eyes.

BTW, does anyone else have a sudden desire to call the City of Chicago Chamber of Commerce and inquire about opening a gun shop there?

 

[Lex Armarum]

The decision does nothing for MD. It leaves it up to the states to determine if they are following the law in good faith...Much like how things "changed" in DC. Yes you can own a gun in DC now....but the rules makes it hard.

Here is the kicker:

The justices, however, said local jurisdictions still retain the flexibility to preserve some "reasonable" gun-control measures currently in place nationwide.

What is "reasonable" to the states surely may not be reasonable to me as a law abiding gun owning citizen.

That really is the question isn't it. Usually, when these types of cases are decided the Court also assigns a level of scrutiny applied to the offending law that determines whether the law stands or falls:

STRICT SCRUTINY: Under this test the government must show (1) a compelling government interest in the regulation; and (2) the regulation is narrowly tailored to achieve that interest, while leaving open adequate alternate channels of communication.

INTERMEDIATE SCRUTINY: Under this test the government must show (1) an important government interest in the regulation; and (2) the regulation is substantially related to achieving that interest.

RATIONAL REVIEW: Under this test the government must show (1) a legitimate governmental interest in the regulation; and (2) the regulation is rationally related to achieving that interest.

Usually, FUNDAMENTAL rights (as Alito mentioned in re. the 2nd over and over) get STRICT SCRUTINY; however, Alito slides in the notion that "reasonable" restrictions stand. So which is it? I guess we're going to have to litigate it out to get a definite answer from the court.

 

[ATTYSHOOTER]

For those interested in a potential challenge to Maryland CCW law as a result of the Supreme Court's decision today, please see the thread, "Help Change Maryland CCW Law" under Maryland 2A issues.

 

[krucam]

That really is the question isn't it. Usually, when these types of cases are decided the Court also assigns a level of scrutiny applied to the offending law that determines whether the law stands or falls:

STRICT SCRUTINY: Under this test the government must show (1) a compelling government interest in the regulation; and (2) the regulation is narrowly tailored to achieve that interest, while leaving open adequate alternate channels of communication.

INTERMEDIATE SCRUTINY: Under this test the government must show (1) an important government interest in the regulation; and (2) the regulation is substantially related to achieving that interest.

RATIONAL REVIEW: Under this test the government must show (1) a legitimate governmental interest in the regulation; and (2) the regulation is rationally related to achieving that interest.

Usually, FUNDAMENTAL rights (as Alito mentioned in re. the 2nd over and over) get STRICT SCRUTINY; however, Alito slides in the notion that "reasonable" restrictions stand. So which is it? I guess we're going to have to litigate it out to get a definite answer from the court.

Reading between the lines with McDonald and Heller...the majority has alluded to restrictions against felons, carrying in sensitive (ie court rooms) areas, etc. There is not a lot of wiggle room with Strict Scrutiny. A law is basically deemed unconstitutional, it is up to the state to prove its case when trying to infringe.

 

[Lex Armarum]

Reading between the lines with McDonald and Heller...the majority has alluded to restrictions against felons, carrying in sensitive (ie court rooms) areas, etc. There is not a lot of wiggle room with Strict Scrutiny. A law is basically deemed unconstitutional, it is up to the state to prove its case when trying to infringe.

This is true; I was thinking it will end up with Intermediate. Still, the frequency that with which Alito alluded to the 2Amd as a fundamental right, leaves me hopeful that SS will come out of this. It just drives me nuts that they can't just get to the point and say, "This is the test." Instead, they dance around the issue.

 

[ezliving]

That really is the question isn't it. Usually, when these types of cases are decided the Court also assigns a level of scrutiny applied to the offending law that determines whether the law stands or falls:

STRICT SCRUTINY: Under this test the government must show (1) a compelling government interest in the regulation; and (2) the regulation is narrowly tailored to achieve that interest, while leaving open adequate alternate channels of communication.

INTERMEDIATE SCRUTINY: Under this test the government must show (1) an important government interest in the regulation; and (2) the regulation is substantially related to achieving that interest.

RATIONAL REVIEW: Under this test the government must show (1) a legitimate governmental interest in the regulation; and (2) the regulation is rationally related to achieving that interest.

Usually, FUNDAMENTAL rights (as Alito mentioned in re. the 2nd over and over) get STRICT SCRUTINY; however, Alito slides in the notion that "reasonable" restrictions stand. So which is it? I guess we're going to have to litigate it out to get a definite answer from the court.

Two significant statements in McDonald...

The right to keep and bear arms must be regarded as a substantive guarantee, not a prohibition that could be ignored so long as the States legislated in an evenhanded manner.

and...

Municipal respondents assert that, although most state constitutions protect firearms rights, state courts have held that these rights are subject to “interest-balancing” and have sustained a variety of restrictions. Brief for Municipal Respondents 23–31. In Heller, however, we expressly rejected the argument that the scope of the Second Amendment right should be determined by judicial interest balancing, 554 U. S., at ___–___ (slip op., at 62–63), and this Court decades ago abandoned “the notion that the Fourteenth Amendment applies to the States only a watered-down, subjective version of the individual guarantees of the Bill of Rights,” Malloy, supra, at 10–11 (in-ternal quotation marks omitted).

That means, STRICT SCRUTINY even though they never said STRICT SCRUTINY in so many words. This was not a 2nd amendment case. It was a 14th amendment case and this verdict said the 2nd is incorporated against the states. That means, right now, Heller applies to the states. Heller said the 2nd Amendment is a fundemental right.

In Heller, we recognized that the codification of this right was prompted by fear that the Federal Government would disarm and thus disable the militias, but we rejected the suggestion that the right was valued only as a means of preserving the militias. 554 U. S., at ___ (slip op., at 26). On the contrary, we stressed that the right was also valued because the possession of firearms was thought to be essential for self-defense. As we put it, self-defense was “the central component of the right itself.” Ibid.

Smart federal judges should see STRICT SCRUTINY written between the lines. Self Defense is a fundamental right.

 

[Patrick]

That really is the question isn't it. Usually, when these types of cases are decided the Court also assigns a level of scrutiny applied to the offending law that determines whether the law stands or falls:

STRICT SCRUTINY: Under this test the government must show (1) a compelling government interest in the regulation; and (2) the regulation is narrowly tailored to achieve that interest, while leaving open adequate alternate channels of communication.

INTERMEDIATE SCRUTINY: Under this test the government must show (1) an important government interest in the regulation; and (2) the regulation is substantially related to achieving that interest.

RATIONAL REVIEW: Under this test the government must show (1) a legitimate governmental interest in the regulation; and (2) the regulation is rationally related to achieving that interest.

Usually, FUNDAMENTAL rights (as Alito mentioned in re. the 2nd over and over) get STRICT SCRUTINY; however, Alito slides in the notion that "reasonable" restrictions stand. So which is it? I guess we're going to have to litigate it out to get a definite answer from the court.

Strict scrutiny does not mean there are no reasonable restrictions on a right. Think free speech and the ever present "fire in a theatre" analogy. Likewise freedom of religion does not allow you to marry children and claim it is protected activity.

Reasonable restrictions for 2A need to be tested and defined, but the anti groups already know what we do: they Court was not talking about ever creative ways to restrict self defense from law-abiding citizens. Period.

Keeping guns from felons and those deemed mentally insufficient are big classes of restrictions. The SAF outlined several of them in Palmer and Sykes...basically the types of things that cause you to be denied in a NICS check. It is obvious that they are focusing on NICS when they talk about personal restrictions.

Likewise areas to restrict: courthouses, some schools (with possible carve-outs for picking up children), etc. The 1000' "gun free" zones and the like are a thing of the past. Your fundamental rights are not determined by where a municipality decides to build a school.

So "reasonable restrictions" are being over-read here. Everything is subject to a reasonable restriction. The point is that the strict scrutiny defines three tests for "reasonable", and those three tests are hard to beat.

Only 30% of laws that are challenged due to strict scrutiny pass the gauntlet in the courts. Before saying "that is too high", keep in mind these are cases regarding previously recognized non-2A rights: free speech, religion, etc. They were written explicitly to be narrow in scope and pass Constitutional muster. In other words, they were written with Constitutional protections in mind. And still 70% fail miserably.

Nobody would claim that the onerous laws of MD were designed around the Constitution. So that 70% will probably start much, much higher.

 

[Lex Armarum]

Two significant statements in McDonald...
and...
That means, STRICT SCRUTINY even though they never said STRICT SCRUTINY in so many words. This was not a 2nd amendment case. It was a 14th amendment case and this verdict said the 2nd is incorporated against the states. That means, right now, Heller applies to the states.

Smart federal judges should see STRICT SCRUTINY written between the lines.

I don't know about that. Each level of scrutiny balances a governmental interest against the peoples' liberty. The question is how high will the .gov have to jump to justify infringing individual liberty? The whole problem stems from Alito's backing of the "reasonable" restriction argument announced in Heller.

See here:

We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as “prohibitions on the possession of firearms by felons and the mentally ill,” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Id., at ___–___ (slip op., at 54–55). We repeat those assurances here.Despite municipal respondents’ doomsday proclamations, incorporation does not imperil every law regulating firearms.

40 MCDONALD v. CHICAGO
Opinion of ALITO, J.

 

[Lex Armarum]

Strict scrutiny does not mean there are no reasonable restrictions on a right. Think free speech and the ever present "fire in a theatre" analogy. Likewise freedom of religion does not allow you to marry children and claim it is protected activity.

Reasonable restrictions for 2A need to be tested and defined, but the anti groups already know what we do: they Court was not talking about ever creative ways to restrict self defense from law-abiding citizens. Period.

Keeping guns from felons and those deemed mentally insufficient are big classes of restrictions. The SAF outlined several of them in Palmer and Sykes...basically the types of things that cause you to be denied in a NICS check. It is obvious that they are focusing on NICS when they talk about personal restrictions.

Likewise areas to restrict: courthouses, some schools (with possible carve-outs for picking up children), etc. The 1000' "gun free" zones and the like are a thing of the past. Your fundamental rights are not determined by where a municipality decides to build a school.

So "reasonable restrictions" are being over-read here. Everything is subject to a reasonable restriction. The point is that the strict scrutiny defines three tests for "reasonable", and those three tests are hard to beat.

Only 30% of laws that are challenged due to strict scrutiny pass the gauntlet in the courts. Before saying "that is too high", keep in mind these are cases regarding previously recognized non-2A rights: free speech, religion, etc. They were written explicitly to be narrow in scope and pass Constitutional muster. In other words, they were written with Constitutional protections in mind. And still 70% fail miserably.

Nobody would claim that the onerous laws of MD were designed around the Constitution. So that 70% will probably start much, much higher.

Not necessarily. There are many cases that equate "reasonable" restrictions with the "rational basis" test or "rational basis w/bite." I'll believe we have strict scrutiny when the court actually sets the test for it and we won't have to "read between the lines" to discover the true meaning of the text. Reminds me too much of "penumbras and emanations."

 

[Rattlesnake46319]

Too much?



I know we have a long road ahead of us in Maryland, but I believe tonight we should enjoy it.

 

[Lex Armarum]

Strict scrutiny does not mean there are no reasonable restrictions on a right. Think free speech and the ever present "fire in a theatre" analogy. Likewise freedom of religion does not allow you to marry children and claim it is protected activity.

Reasonable restrictions for 2A need to be tested and defined, but the anti groups already know what we do: they Court was not talking about ever creative ways to restrict self defense from law-abiding citizens. Period.

Keeping guns from felons and those deemed mentally insufficient are big classes of restrictions. The SAF outlined several of them in Palmer and Sykes...basically the types of things that cause you to be denied in a NICS check. It is obvious that they are focusing on NICS when they talk about personal restrictions.

Likewise areas to restrict: courthouses, some schools (with possible carve-outs for picking up children), etc. The 1000' "gun free" zones and the like are a thing of the past. Your fundamental rights are not determined by where a municipality decides to build a school.

So "reasonable restrictions" are being over-read here. Everything is subject to a reasonable restriction. The point is that the strict scrutiny defines three tests for "reasonable", and those three tests are hard to beat.

Only 30% of laws that are challenged due to strict scrutiny pass the gauntlet in the courts. Before saying "that is too high", keep in mind these are cases regarding previously recognized non-2A rights: free speech, religion, etc. They were written explicitly to be narrow in scope and pass Constitutional muster. In other words, they were written with Constitutional protections in mind. And still 70% fail miserably.

Nobody would claim that the onerous laws of MD were designed around the Constitution. So that 70% will probably start much, much higher.

Here, as evidence in support of my skepticism, read this: http://volokh.com/2010/06/28/mcdona...-the-standard-of-review-for-gun-control-laws/

All that said, I am not disputing your position so much as I am saying that the tone of the text makes it seem that the question is yet undecided. Volokh expresses my sentiments exactly.

 

[krucam]

Volokh (UCLA Law Prof) sounds off on McDonald. Interesting analysis of Scrutiny level, he leans towards Strict due to the 2A being deemed 'Fundamental'. Great read Rusty....

http://volokh.com/2010/06/28/mcdona...-the-standard-of-review-for-gun-control-laws/

 

[beaglefan]

Just pray that the 5 stay healthy and alive until we get a conservative White House and Congress and Senate.Or this victory will be short lived.One progressive judge away from losing our rights

 

[Maryland Hunter]

Supreme Court gun-control ruling to be tested in Md.

The office of Attorney General Douglas F. Gansler issued a statement that it is “reviewing the court’s must recent decision but … we do not believe that any of Maryland’s laws are so restrictive that they violate the Second Amendment.”

Yeah, okay.

http://mddailyrecord.com/2010/06/28/supreme-court-gun-control-ruling-to-be-tested-in-md/

MH

 

[Boondock Saint]

Get bent, Gansler.

 

[ezliving]

Just pray that the 5 stay healthy and alive until we get a conservative White House and Congress and Senate.Or this victory will be short lived.One progressive judge away from losing our rights

That's a fact, Jack. I don't think a liberal majority will let stare decisis slow them down.