McDonald Decision Date Bounty

[krucam]

They used the word "Fundamental" in Heller but only to describe the origins of the right. Breyer specifically picked on the lack of declared scrutiny in that case. The answer from Scalia in Heller to that specific charge was, "we got time".

Also, Gura didn't ask the question in Heller. While it may seem plodding to us, he has a plan and is sticking to it. He's building up over time.

But to answer your question, yes - fundamental rights are typically deserving of strict scrutiny. The court has said as much. But many argue that though fundamental, the issues in 2A revolve around weapons and as such a lower standard is required. The decision in what is called "Heller II" came to that conclusion, specifically claiming that 2A/Heller required no more than intermediate scrutiny and that DC's current laws meet that threshold. This was not a surprise as it did come from a strongly liberal judge who is openly anti-2A. He cherry picked arguments from Steven's dissent in Heller.

There is a chance the Court is worried about more than the BoR's here. The fact is a newly recognized right is a bit of a Pandora's Box. Previous courts have also taken their time and let things flow out over several cases (1A is an example of this) so as to adjust mid-stream if required.

I am also impatient and would love to see strict scrutiny guidance flow from this case, but the question asked is really less about guns and more about the 14th. The next couple of cases (Nordyke/Sykes/Palmer) put the scrutiny question more directly in the lap of the court, because they rely on a strict interpretation of the right.

There is a line of opinion that by dispensing with the issue of Privileges or Immunities and the jurisprudence that comes from it, the court will spend more of their focus on the actual details of the gun laws in question. But the fact is, such a question was not asked.

Nordyke and Sykes are both being argued in California. Nordyke is already in the 9th Circuit and they are waiting on McDonald for an incorporation decision. The Nordyke complaint does hinge somewhat on a stricter scrutiny - an interpretation that will fall to the 9th if not defined here. That will influence Sykes likewise. Palmer is a different circuit, and as a result the case could be decided differently. The 9th is one of those circuits that many kinda ignore when it comes to precedent, as they are the most frequently overturned circuit by a large margin.

If we see "Substantive Due Process" come out of McDonald, we should all be happy and buying beers. Anything less leaves open a lot of doors (and doubt). We'll see.

From the Heller Decision:

SCALIA Dissing BREYER:
JUSTICE BREYER moves on to make a broad jurisprudential point: He criticizes us for declining to establish a level of scrutiny for evaluating Second Amendment restrictions.
He proposes, explicitly at least, none of the traditionally expressed levels (strict scrutiny, intermediate scrutiny, rational basis), but rather a judge-empowering “interestbalancing inquiry” that “asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests.” Post, at 10. After an exhaustive discussion of the arguments for and against gun control, JUSTICE BREYER arrives at his interest balanced answer: because handgun violence is a problem, because the law is limited to an urban area, and because there were somewhat similar restrictions in the founding period (a false proposition that we have already discussed), the interest-balancing inquiry results in the constitutionality of the handgun ban. QED.

QED indeed. We'll get more than that..He's just getting warmed up...

We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon.
A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.

The Heller Court acknowledged that its opinion left “many applications of the right to keep and bear arms in doubt,” but stated that it intends to clarify the scope of the right in subsequent cases.

Come Monday, it'll be alright...I spent 4 lonely days in a brown LA haze

$ to Jimmy Buffet

 

[ezliving]

Countdown: 56.5 Hours.

 

[Oreo]

A very fun and well-written post on Calguns, regarding Alito and PorI. Monday is going to be interesting, the anticipation is killing me.

http://www.calguns.net/calgunforum/showthread.php?t=315322

Man was that a good read. Let's hope this guy's interpretation is on the money.

 

[Boxcab]

Have you considered that SAF and Gura may be way ahead of you? Have you had any conversations with either?

SAF and Gura have plans, but not one of them will take place within the confines of Maryland. The Maryland Governor, General Assembly and States Attorney will not give in without an extended battle wasting our time and our tax dollars. I'm not getting any younger. Hell, I’m over 45 and do not qualify as “Militia” any more.

I really hope that McDonald gets some guidance to expedite the return of our 2nd Amendment rights.

My sig says it all.


-Boxcab

 

[teratos]

SAF and Gura have plans, but not one of them will take place within the confines of Maryland. The Maryland Governor, General Assembly and States Attorney will not give in without an extended battle wasting our time and our tax dollars. I'm not getting any younger. Hell, I’m over 45 and do not qualify as “Militia” any more.

I really hope that McDonald gets some guidance to expedite the return of our 2nd Amendment rights.

My sig says it all.


-Boxcab

That's too bad. Of the States that still do not have CCW, MD is not among the worst. I guess in the end it doesn't matter where this battle is fought, it will still go to the SCOTUS, most likely, and the decision will affect us in the end.

 

[Patrick]

Palmer could be heard in the DC Circuit, which is helpful to us because the DC Circuit is considered the stepping stone the USSC for judges. Also, because it is responsible for most Federal lawsuits regarding regulation/agency litigation, the judges are constantly being watched by the Congress. So you don't get much politicking there otherwise your chance for the big chair is shot. They tend to play it straight down the line, Constitutionally speaking.

If the Court gives decent rationale for scrutiny (Substantive Due Process, for instance), the DC Circuit will probably play it the way we'd like.

This will affect us, because the 4th Circuit will tend to defer to the DC Circuit. We are in the 4th Circuit. Likewise, if the 9th goes our way (the 9th is a heavily liberal circuit), chances are everyone else will hew their line under the rationale that "hell, if even the 9th sees it this way...it must be true".

If the 9th were to support a pro-2A position, Brady/Daley/Bloomsberg would have to melt down.

Keep in mind a lot of Liberals have come to expect we'll get what we want. They are now hoping to make some lemonade from it by using pro-2A arguments (Due Process, possible PoI) in favor of gay marriage, etc. Pistol-packing gay guys getting married is fine by me. We all win.

 

[teratos]

I believe Palmer is gay. I hope he wins the right to pack and marry.

 

[Patrick]

I believe Palmer is gay. I hope he wins the right to pack and marry.

What he does on his own don't affect me one bit. If he wins us recognition of the "right to bear arms", I'll buy him dinner and a beer.

 

[Markp]

What he does on his own don't affect me one bit. If he wins us recognition of the "right to bear arms", I'll buy him dinner and a beer.

Agreed, if having my 2A rights restored means having to live with gay marriage, that's a trade I don't have a problem with. The way I look at it, gay men are awesome... they take 2 guys off the field and leave more women for the rest of us!

Mark

 

[squirrels]

I believe Palmer is gay. I hope he wins the right to pack and marry.

If I can pack heat, they can pack sh**.

 

[kstew]

Agreed, if having my 2A rights restored means having to live with gay marriage, that's a trade I don't have a problem with. The way I look at it, gay men are awesome... they take 2 guys off the field and leave more women for the rest of us!

Mark

I spit out some of my coffee this morning. Awesome

 

[ezliving]

The way I look at it, gay men are awesome... they take 2 guys off the field and leave more women for the rest of us!

Who wants to tell him about lesbians?

 

[Inigoes]

Who wants to tell him about lesbians?

 

[The3clipser]

What he does on his own don't affect me one bit. If he wins us recognition of the "right to bear arms", I'll buy him dinner and a beer.

This. As long as what he does is within the confines of his house and is with a consenting adult, I couldn't care less. Let's hope he gets what he wants, we get what we want, and the ball keeps rolling for the 2A side of things.

 

[Patrick]

Who wants to tell him about lesbians?

Well, I saw a movie once...

 

[Inigoes]

Well, I saw a movie once...

Really, how did it go?

 

[boricuamaximus]

Who wants to tell him about lesbians?

what is a lesbian? I require a long explanation with pics and some video.

 

[Tootall]

what is a lesbian? I require a long explanation with pics and some video.

well here you go it pretty much sums it up

Cant wait for the decision to come down!

 

[teratos]

well here you go it pretty much sums it up

Cant wait for the decision to come down!

Looks like 2 more men off the field to me....

 

[Inigoes]

well here you go it pretty much sums it up

For us dense country bumpkins...
Can you, spell it out for us?