USSC to take Chicago case on 2A incorporation

[ezliving]

In a perfect world...

How to Write the Decision in McDonald v Chicago in 1 Page (no footnotes)
[FONT=Trebuchet, Verdana, Helvetica, Arial]
[/FONT][FONT=Trebuchet, Verdana, Helvetica, Arial]Early in March the Supreme Court heard oral argument in the case of McDonald v Chicago, a case pitting one Otis McDonald, a black resident of The Windy City against the city fathers (sic). Otis wants a handgun so that he can protect himself, his family, and his property from the drug dealers who frequent his part of town, the poor part. The city fathers (sic) are opposed to letting the peasants have arms for their defense. You just never know what a peasant might do with such things.
[/FONT]
[FONT=Trebuchet, Verdana, Helvetica, Arial]Alan Gura of Heller v DC fame is lead attorney for the plaintiff and has written a brilliant brief arguing that the Second Amendment should be 'incorporated' against states, counties, and municipalities via the Privileges or Immunities clause of the 14th amendment. If it isn't already plain, let me make it so: I think Gura is 100% correct on this issue and his strategy. There is a problem, however. For SCOTUS to incorporate via 'P or I' will overturn the 1873 Slaughterhouse decision. 'Overturning prior decisions' is something the Supreme Court prefers to avoid if at all possible. Slaughterhouse, most modern Constitutional scholars agree, was decided incorrectly by an obviously biased court and represents 'bad precedent' at its worst. A moral SCOTUS would have burned that decision to the ground decades ago, which tells you something about how long it's been since we had a moral SCOTUS...
[/FONT]
[FONT=Trebuchet, Verdana, Helvetica, Arial]Well, heck, if they don't want to overturn Slaughterhouse, I can help them out. Herewith, the McDonald v Chicago decision in under one sheet of legal paper -- without reference to Slaughterhouse (footnotes omitted):
[/FONT]

[FONT=Trebuchet, Verdana, Helvetica, Arial]* * * * * * * * *
[/FONT]​

[FONT=Trebuchet, Verdana, Helvetica, Arial]Plaintiff McDonald wishes to keep and bear a firearm within the city limits of Chicago for a lawful purpose but fears prosecution under the laws of the City of Chicago based on municipal firearms regulations. Defendant City of Chicago pleads that the city has a 'substantial public safety interest' in minimizing the number of firearms within the city limits.
[/FONT]
[FONT=Trebuchet, Verdana, Helvetica, Arial]This court notes the wording of the Second Amendment to the Constitution of The United States of America which reads as follows (some punctuation eliminated for clarity): "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."
[/FONT]
[FONT=Trebuchet, Verdana, Helvetica, Arial]The court further notes that said Constitution is a limited grant of authority from the people to the federal government and that, together with its amendments, is the Law Of The Land.
[/FONT]
[FONT=Trebuchet, Verdana, Helvetica, Arial]The court further notes that the term "well-regulated" meant (at the time of its adoption) "operating as intended" and retains that same meaning in perpetuity, and that the term "militia" refers to the whole body of the people acting on the basis of that original authority which has been lent (not surrendered) to the federal government. All of this has been thoroughly covered in Heller and there is no need to plow that field again.
[/FONT]
[FONT=Trebuchet, Verdana, Helvetica, Arial]The remainder of the text of the Second Amendment to the Constitution declares that the (pre-existing and naturally-occurring) "right of the people to keep and bear arms" shall not be infringed. Unlike the First Amendment which declares that "Congress shall make no law...", the Second Amendment's requirement is much stricter: "shall not be infringed" certainly by the federal government, but this appears not to be limited strictly to any particular level of government. Presumably the power of the federal government may be used, perhaps is to be used, to ensure that this right is not infringed anywhere.
[/FONT]
[FONT=Trebuchet, Verdana, Helvetica, Arial]We therefore confidently assert that the federal government may not infringe the (pre-existing naturally-occurring) "right of the people to keep and bear arms" as by such devices as the National Firearms Act of 1934 (which imposes significant fees, arbitrary waiting periods and registration of otherwise-useful firearms and other weapons) and the Gun Control Act of 1968 (which prohibits unlicensed interstate commerce in firearms, ammunition and other weapons), and we strike these as unconstitutional in their entirety.
[/FONT]
[FONT=Trebuchet, Verdana, Helvetica, Arial]The court further asserts that a (pre-existing naturally-occurring) "right of the people to keep and bear arms" may not be infringed by States in violation of the Second Amendment to that Constitution which is "the Law Of The Land". As a consequence we strike existing and future schemes at the state-level to restrict, prohibit, tax, and register the acquisition and possession of firearms, ammunition and other weapons by 'the people' in their entirety.
[/FONT]
[FONT=Trebuchet, Verdana, Helvetica, Arial]Consequently, it should be clear that similar restrictions and prohibitions at the county, parish, and municipal levels as well as at all lower levels such as school districts and water districts (to name a few) are equally impermissible and we strike them in their entirety.
[/FONT]
[FONT=Trebuchet, Verdana, Helvetica, Arial]So ordered.
[/FONT]

http://dispatchesfromheck.blogspot.com/2010/04/how-to-write-decision-in-mcdonald-v.html

 

[Boondock Saint]

One can dream, right?

 

[krucam]

We can hope, can't we?

Truthfully, "keep and bear" seems like a slam-dunk to me. This is not going to be a continution of the original Heller. Heller I was deciding whether 3 ordinances were unconstitutional in a Federal District. McDonald is only asking whether the 2nd Amendment is Incorporated against the States.

Cruiskshank & Presser are toast (saying the 2A only restricts Fed action). Restrictions against any form of carry (OC or CCW) will be toast (or I'm out 2 dinners). Miller and the NFA next. GCA-68 will follow.

2010 will be a great year. '11 & '12 will surpass that...

The 3-pronged approach is Grass Roots, Legislative, Judicial. All 3 angles must be used and we must begin the approach now.

Poll needed for the Baltimore Sun: Since all forms of Carry are Unconstitutional after McDonald v. Chicago, how would you prefer Maryland comply: Open Carry or Shall-Issue Concealed Carry?

I bet such a poll might surprise people when given the choices. It is time to wake up the General Assembly for the inevitable. It's a'coming...

 

[Patrick]

I think Miller will stand, as will the ban on MGs. I don't like it, but I think they will pass the test of Strict Scrutiny as this Court views it.

But we all assume they will require Strict Scrutiny. This is a big assumption. Maybe I'm a cynic, but what happens if they go Intermediate Scrutiny?

We're screwed. That's what.

 

[krucam]

I think Miller will stand, as will the ban on MGs. I don't like it, but I think they will pass the test of Strict Scrutiny as this Court views it.

But we all assume they will require Strict Scrutiny. This is a big assumption. Maybe I'm a cynic, but what happens if they go Intermediate Scrutiny?

We're screwed. That's what.

Not 'Strict', perhaps 'Intermediate'. This will more impact the types of arms and accessories. Open or Concealed under any scrutiny IMHO is a gimme WHEN they Incorporate...

MD may follow the CA model (OC Unloaded), but those of us here can only start up with 'Filled' holster rallys vs 'Open Holster' in it's shadow. This is going to happen...

Follow the CA model, and 'persuade' that undecided and antis that CCW would be better in MD.

I just hope MSI & the NRA are planning their MD strategy. The time will never be more ripe for real (realistic) changes in this state.

Assume McDonald incorporates the majority of the Operative Clause of the 2A (exception being the word Infringed). The words from the SCOTUS are all over the place saying CCW might not be protected, which is a clear sign that any form of 'Bear' is not.

 

[ezliving]

I don't believe any enumerated right has or can receive anything less than strict scrutiny.

 

[krucam]

I don't believe any enumerated right has or can receive anything less than strict scrutiny.

This was presented in the McDonald Orals by Gura or Feldman...only hope "The Nine" caught it.

From the McDonald Orals:
http://www.supremecourt.gov/oral_arguments/argument_transcripts/08-1521.pdf

Pg 17

MR. GURA: A legislature should respect the fact that there is a constitutional right at issue, and this Court in footnote 27 in Heller explained that under the Carolene Products paradigm, footnote 4, the rights enumerated in the Constitution are entitled to a greater measure of respect.

 

[Trapper]

my 2 cents:
If dog-fighting and animal-cruelty videos are "protected speech" under the first, then open carry is constitutionally protected, and concealed may be as well. While "gentlemen" of the day carried their arms openly, and it was cowardly to conceal your arms, there was no prohibition against doing so.

 

[krucam]

HELLER, THE SECOND AMENDMENT, AND RECONSTRUCTION: PROTECTING ALL FREEDMEN OR ONLY MILITIAMEN?

A fantastic read from the Santa Clara Law Review for 2A history buffs. It's very current, being written post-Heller and post-McDonald (Orals).

Lots of info regarding the post Civil War history of the 14A and original intent.

It debunks a lot of Stevens' dissenting comments from Heller, begins the dismantling of Cruikshank, which along with Presser, could/should be over-ruled following Incorporation with McDonald.

http://www.independent.org/pdf/research_articles/2010-05-01-halbrook.pdf

 

[Boxcab]

Thanks Krucam, I was jonesing for a McDonald update.

off to read...

 

[Inigoes]

Daley: City anticipating gun ban overturn

http://abclocal.go.com/wls/story?section=news/local&id=7451247

 

[Boxcab]

Just another reason why the SCOUS needs to make a very broad ruling. I hope they are paying attention.

-Boxcab

 

[Inigoes]

The Oddest Omission in McDonald v. Chicago

McDonald v. Chicago presents the first real opportunity in decades for the Supreme Court to place the jurisprudence of Fourteenth Amendment substantive individual rights on solid textual and historical ground. Almost no one believes that the original understanding of the Due Process rights. Most scholars believe the text of the Privileges or Immunities Clause is far more likely to have been understood as the vehicle for protecting individual rights against state action, particularly the rights listed in the first eight amendments. This is exactly how the final version of the Privileges or Immunities Clause was described by the man who framed it—John Bingham. It is surpassingly strange, then, that the petitioners in McDonald v. Chicago omitted John Bingham’s explanation of the final version of the Fourteenth Amendment in both their briefs and their oral arguments before the Supreme Court last month. Bingham’s views certainly support the petitioner’s request that the Second Amendment be enforced as an “incorporated” right under the Fourteenth Amendment.



Then again, perhaps the omission is not so strange. It is clear from their briefs that the petitioners were seeking much more than Second Amendment incorporation. Instead, as Alan Gura insisted at oral argument, the Privileges or Immunities Clause should be read as protecting any right which a majority of the Court deems “fundamental,” regardless of whether it is listed in the text of the Constitution. This claim cannot be reconciled with John Bingham’s more modest understanding of Section One of the Fourteenth Amendment.
Most fundamental rights, or libertarian, interpretations of the Privileges or Immunities Clause stress John Bingham’s first draft of the Clause. That draft used the language of Article IV (“privileges and immunities of citizens in the several states”)--language which libertarian scholars link to antebellum cases like Corfield v. Coryell and Justice Washington’s discussion of “fundamental” common law rights. Although the language of Article IV was removed in the second and final draft of Section One, libertarian scholars believe that the final version of the Privileges or Immunities Clause should nevertheless be read as nationalizing Justice Washington’s vision of “fundamental rights.”

...

Had the petitioners in McDonald v. Chicago presented John Bingham’s theory of the Privileges or Immunities Clause, it is likely they would have received a much warmer response by the Justices. Bingham’s view supports incorporation of the Bill of Rights without opening the door to judicial identification and enforcement of an unlimited set of individual natural rights—a door a majority of the Justices clearly seemed unwilling to go near. Embracing Bingham’s view for the Privileges or Immunities Clause does not even require revisiting the unenumerated rights jurisprudence of the Due Process Clause—that issue can be left for another day or simply left undisturbed indefinitely. What Bingham’s views do not support, however, is a libertarian unenumerated rights reading of the Privileges or Immunities Clause. Perhaps that is why it was omitted. If so, the more’s the pity. This generation may have just lost its last best chance of convincing the Supreme Court to remedy a strained interpretation of the Due Process Clause that is a boon to the Court’s critics and an embarrassment to its friends.



Still, perhaps the Court has been right to avoid John Bingham. Just because he had a limited view of the Privileges or Immunities Clause does not his fellows did—or that his views were shared by the public at large. My posts of this last month are meant only to illuminate the views of the man who actually drafted the clause. Certainly we can all agree that getting Bingham right is at least relevant to understanding the original meaning of the Privileges or Immunities Clause. Alas, there is more work to be done. Bingham is just one (important) piece of the puzzle.

http://prawfsblawg.blogs.com/prawfsblawg/2010/04/the-oddest-omission-in-mcdonald-v-chicago.html

 

[krucam]

There are are some trains of thought that still believe PorI is not dead. The thought being that the Liberal side of the court realizing that the Second will get incorporated one way or the other, would be on board with a PorI vs DP incorporation.

Think Ginsberg, Stevens, Breyer & Sotomayor with their eye on the bigger game and what PorI might offer...

There's a lot of fun reading out there right now, it will only get more interesting within the next 5 weeks...and beyond.

 

[fightinbluhen51]

Part of me wants P&I, but that part of me also realizes that the twisted morons in DC could surly bend it to read ever socialistic Utopian idea in to the Constitution in violation of the 10th Amendment. So, with that said, which is the lesser of evils and gets us to where we want to go? I suppose P&I is the best, in that in conjunction with the 1oth Amendment, then the Fed Gov or State Govs can't violate any right (enumerated or otherwise) that belongs to the people. Of course, then can then read that to mean we can give you everything and also take it away.

 

[Patrick]

There are are some trains of thought that still believe PorI is not dead. The thought being that the Liberal side of the court realizing that the Second will get incorporated one way or the other, would be on board with a PorI vs DP incorporation.

Think Ginsberg, Stevens, Breyer & Sotomayor with their eye on the bigger game and what PorI might offer...

There's a lot of fun reading out there right now, it will only get more interesting within the next 5 weeks...and beyond.

The only way the liberal wing will allow it is if it includes an option for the creation of new "unenumerated" rights like free health care. The only way the conservative wing will allow it is if it strictly prohibits the same. That leaves Kennedy.

Seriously, I don't think many there will sign up for it either way. Too many opportunities to use it for evil in the future. No, history says they're smarter walking away from it. Previous Courts have had field days with much less. These Justices know full well that a door cracked open is a door you can eventually drive a Sherman Tank through.

They'll leave Pandora shut.

 

[krucam]

The only way the liberal wing will allow it is if it includes an option for the creation of new "unenumerated" rights like free health care. The only way the conservative wing will allow it is if it strictly prohibits the same. That leaves Kennedy.

Seriously, I don't think many there will sign up for it either way. Too many opportunities to use it for evil in the future. No, history says they're smarter walking away from it. Previous Courts have had field days with much less. These Justices know full well that a door cracked open is a door you can eventually drive a Sherman Tank through.

They'll leave Pandora shut.

I agree but am just saying there are some thoughts out there on what I 'proposed'. It's an interesting (if not probable) scenario, nothing more...it would be an ideal opportunity to rejuvinate PorI into the Constitution.

 

[Patrick]

Remember my first view on this included a wish they would use PoI, if for no other reason than the chance to watch years and years of Constitutional Soup Making as one group after another argues that their view of the Universe is exceptional enough to warrant itself an "unenumerated right".

It'd definitely be fun to watch.

My favorite almost-unenumerated-right that will now never be? I'm going to have to ponder that one...

 

[krucam]

My favorite almost-unenumerated-right that will now never be?

Stop it...you're making my head spin...

 

[Patrick]

Stop it...you're making my head spin...

I will not.

My favorite almost-unenumerated-right that will now never be?

How about a literal reading of "Life, Liberty and Happiness"? In other words you have a Constitutional Right to receive:

- Life: Free Health Care
- Liberty: Guns, Drugs and Rock and Roll
- Happiness: You need money to be happy. So everyone has an option to go on the government dole.

Don't laugh. Other nations do this, except for the gun part.