A Win in Chicago vs McDonald

[jester]

Unreal. This is an absolute slap in the face of Justice Stevens in his last day on the bench. I'll bet he wishes now he wasn't retiring today so he would have an opportunity to strike back.

As a private citizen he has the same First Amendment rights as you or me. Even if he thinks the Bill of Rights doesn't restrict state and local governments.

[joe817]

Unreal. This is an absolute slap in the face of Justice Stevens in his last day on the bench. I'll bet he wishes now he wasn't retiring today so he would have an opportunity to strike back.

I agree baldeagle! Ripped up one side and down the other. "Scathing" is a proper word. Although I only got through p.65 I got the message loud and clear.

[OldSchool]

Yes, don't you wish you were a fly on the wall in the judges' chambers on occasion....

Frustration finally being let loose, sort of "Goodbye, good luck, and don't let the door hit you on the way out!"

[ELB]

What bothers me is the mention that we have the right to own guns for self defense in our home, Bull we own guns to keep the Govt on its toes and to provide for self defense.

This was purposely not a case about militias, rifles, machine guns, etc. On its face it (and Heller) was a lawsuit seeking to overturn laws that prevented someone from having a handgun in his home, and that is what the courts had to address. But the "mention that we have the right to own guns for self defense in our home" was the KEY to getting the 2A recognized as incorporated about the states.

In Heller, to decide whether a ban on keeping a handgun ban for self-defense was constitutional, the SCOTUS had to first decide whether the right of individual self-defense is protected by the 2A -- or in other words, does the 2A protect an individual right, or just a collective defense-of-the-State-via-Militia? They answered that overwhelmingly yes, it is individual, 9-0. Then they had to decide whether a ban on handguns violated this individual right (to self-defense). At least part of the reasoning was that handguns are the overwhelming choice of Americans for self-defense, particularly in the home. Therefore, banning handguns clearly impinges too much on this right, and therefore a ban on handguns for self-defense, especially in the home, is unconstitutional.

But since this case originated in the the federal enclave of Wash DC, it only applied to D.C.

McDonald is pretty much exactly the same case, but at a state level, and of course this was on purpose. Since the self-defense with a handgun issue was already decided, it would have been lunacy to bring up a case about magazine capacity or "assault rifles" or some other facet of the 2A arena. This allowed Gura to focus on the incorporation issue, instead of fighting three new battles along with it.

To get to deciding whether a state-level ban on handguns is constitutional, the first hurdle is the incorporation issue. Once that was successfully jumped, the rest was already in place. Is there a fundamental right to individual self-defense? Answered in Heller. Is the right to self-defense protected by the 2A? Answered in Heller. Is banning handguns, the most popular/useful means of self-defense in America, in violation of the 2A? Answered in Heller. Now the 7th Circuit has to take this and rethink their previous decision.

Understand that self-defense in the home using handguns was the pole used to vault the 2A into the SCOTUS. This case was not meant to solve all 2A/gun issues -- it was meant to establish the 2A as an individual right, incorporated against the state, using the precedent already established by Heller. Now we can use that to deal with other issues without having to fight the it-only-lets-states-have-a-militia-collective-right nonsense.

[baldeagle]

Heller was a 5-4 decision just as McDonald was. There was no 9-0 "overwhelmingly yes" decision in that case.

[baldeagle]

Justice Thomas' concurring opinion is a splendid read for those "court geeks" among you. He writes extensively of the history of the 2A and its impact on black citizens. In the South after the Civil War, blacks, both slave and free, were denied the right to carry or even own firearms. The result was slaughter by groups supported by the states and enabled by the states' refusal to do anything about the slaughter. Thousands of blacks were murdered, and the murderers committed their deeds with the full support of the state. In that context, arming blacks would not only have been for self defense but for resistance against a government that refused to recognize their inalienable rights.

Cruikshank’s holding that blacks could look only to state governments for protection of their right to keep and bear arms enabled private forces, often with the assistance of local governments, to subjugate the newly freed slaves and their descendants through a wave of private violence designed to drive blacks from the voting booth and force them into peonage, an effective return to slavery. Without federal enforcement of the inalienable right to keep and bear arms, these militias and mobs were tragically successful in waging a campaign of terror against the very people the Fourteenth Amendment had just made citizens.
Take, for example, the Hamburg Massacre of 1876.There, a white citizen militia sought out and murdered a troop of black militiamen for no other reason than that they had dared to conduct a celebratory Fourth of July parade through their mostly black town. The white militia commander, “Pitchfork” Ben Tillman, later described this massacre with pride: “[T]he leading white men of Edgefield” had decided “to seize the first opportunity that the negroes might offer them to provoke a riot and teach the negroes a lesson by having the whites demonstrate their superiority by killing as many of them as was justifiable.” S. Kantrowitz, Ben Tillman & the Reconstruction of White Supremacy 67 (2000) (ellipsis, brackets, and internal quotation marks omitted). None of the perpetrators of the Hamburg murders was ever brought to justice.22

In reading that I had to wonder, how many dead black Americans was "justifiable"?

Tillman went on to not only become the longtime Governor of South Carolina but also a United States Senator. (Shades of the recently-departed Robert Byrd!)

Justice Thomas' exposition makes it quite clear that the RKBA not only allows home defense but is a necessary (and acceptable) prophylactic against abusive governments.

[jester]

Heller was a 5-4 decision just as McDonald was.

Same as Miranda v. Arizona

[ELB]

Heller was a 5-4 decision just as McDonald was. There was no 9-0 "overwhelmingly yes" decision in that case.

As I stated, all nine justices agreed that the 2A protects an individual right. That is pretty overwhelming. You are confusing this with their positions on the handgun ban, which was 5-4 in favor of it being an unconstitutional. Even the dissenters on this issue did not quibble at all over it being an individual right. (Nor did the majority quibble with the idea that the right can be restricted. The argument was over how much it can be restricted.)

http://www.scotusblog.com/wp-content/up ... 07-290.pdf" onclick="window.open(this.href);return false;

[baldeagle]

Heller was a 5-4 decision just as McDonald was. There was no 9-0 "overwhelmingly yes" decision in that case.

As I stated, all nine justices agreed that the 2A protects an individual right. That is pretty overwhelming. You are confusing this with their positions on the handgun ban, which was 5-4 in favor of it being an unconstitutional. Even the dissenters on this issue did not quibble at all over it being an individual right. (Nor did the majority quibble with the idea that the right can be restricted. The argument was over how much it can be restricted.)

http://www.scotusblog.com/wp-content/up ... 07-290.pdf" onclick="window.open(this.href);return false;

The four dissenters, IMHO, cannot be construed to have supported an individual right. They claim it's a federal right but would allow the states to ban it, effectively making the "right" they claim to support a nullity. They may say the believe it's an individual right, but they are not willing to give that right any force of law. It's sort of the same as saying Americans have the right to freely travel anywhere in the United States unless a state restricts that right.

Furthermore, they refuse to apply the right to individuals except as it applies to militias. I don't see how you can call that 9-0 in favor of an individual RKBA.

In point of fact, they refuse to apply the 14th Amendment to the states except where they believe it is appropriate. They are willing to create rights that do not exist in the text of the Constitution while denying us a right clearly written into the Constitution, claiming public safety as their rationale for ignoring the plain truth. The 2A grants us a right that "shall not be infringed". The 14A extends the Bill of Rights to the states. Yet these four refuse to admit that and would grant the states the power to ban handguns entirely if they saw fit (which some do effectively.)

[baldeagle]

ELB, this is directly from Heller, which you linked, quoting from Justice Stevens' dissent, the three others concurring.

The view of the Amendment we took in Miller—that it protects the right to keep and bear arms for certain military purposes, but that it does not curtail the Legislature’s power to regulate the nonmilitary use and ownership of weapons—is both the most natural reading of the Amendment’s text and the interpretation most faithful to the history of its adoption.

No new evidence has surfaced since 1980 supporting the view that the Amendment was intended to curtail the power of Congress to regulate civilian use or misuse of weapons.

Still think they all agreed there was an individual RKBA?

Were these four Justices to be joined by a fifth of like mind, there would no longer be a RKBA. Weapons of all kinds would be banned nationwide, there no longer being any need for state militias. It would be called an anachronism of a bygone era.

One need only to read Justice Thomas' clear articulation of the need for an individual RKBA to protect against government-supported abuse of the citizenry to realize how stunning the positions of these liberal justices are. They would remove from the citizens the one right that allows them to effectively defend against an outrageously abusive government.

[duggy]

From the McDonald vs Chicago decision - page 28:

“
In debating the Fourteenth Amendment, the 39th Congress referred to the right to keep and bear arms as a fundamental right deserving of protection. Senator Samuel Pomeroy described three “indispensable” “safeguards of liberty under our form of Government.” 39th Cong. Globe 1182. One of these, he said, was the right to keep and bear arms:
“Every man . . . should have the right to bear arms for the defense of himself and family and his homestead. And if the cabin door of the freedman is broken open and the intruder enters for purposes as vile as were known to slavery, then should a well-loaded musket be in the hand of the occupant to send the polluted wretch to another world, where his wretchedness will forever remain complete.” Ibid.
Even those who thought the Fourteenth Amendment unnecessary believed that blacks, as citizens, “have equal right to protection, and to keep and bear arms for self defense.”
”
This decision is a great history lesson. I have to confess to not knowing a thing about this aspect of our gun rights. it certainly reinforces that guns were intended to be owned by individuals for personal defense.

[ELB]

You skipped over the very first statement that Stevens et al make in their dissent:

The question presented by this case is not whether the
Second Amendment protects a “collective right” or an
“individual right.” Surely it protects a right that can be
enforced by individuals.

They don't lift a finger to argue the collective right theory. They do not argue that this is a right of the States against the Federal Government. This is a right that the individual can enforce through the courts. This, combined with the opinion of the majority, means that the entire SCOTUS did in fact recognize "keep and bear" arms is an individual right. This drives a stake through the heart of the collective rights nonsense.

Every argument from here on out has to be about the scope of that individual right --- not whether it exists or not, as has been the case up until now. The fact that Stevens et al do not like it and spend their time trying to come up with a militia argument is fascinating reading, but largely irrelevent (and if the logic is pursued far enough, it means we, as individuals, can keep and bear military rifles and bayonets, and yes military handguns -- I'll bet Stevens would not be happy with that!)

If you really think that because Stevens et al want to infringe on the 2A means they don't really believe it protects an individual right, then Heller and McDonald have no meaning at all, because ALL the Justices believe that the 2A can be infringed to some degree, despite the text.

Well, no. All the justices ponied up to the individual right view, however grudgingly, and this changes the landscape from here on out. The legal arguments from here on out will all be about the scope of the individual right, not about whether it exists. Does the individual right encompass handguns? yes. Does it apply to the states? yes. Does it apply during a state of emergency? TBD but pretty obvious. Does it apply to military type rifles? Does it apply outside personal property? In none of these cases will our opponents have a legal basis to deny the right exists, when even the justices that want to restrict it as much as possible lead off their argument with "Surely it protects a right that can be enforced by individuals."

I do not understand why you want to give that away. Remember, striving for the "perfect" is the enemy of the "good," and we live in an imperfect world.

[jester]

The tyrants and criminals have whittled away our rights bit by bit, and we're now recovering them bit by bit.

[baldeagle]

ELB, I don't comprehend collective vs individual rights. I am unfamiliar with the terminology. Perhaps you can enlighten me?

[stevie_d_64]

And then this popped up...

http://www.newsmax.com/InsideCover/US-K ... /id/363394" onclick="window.open(this.href);return false;

Going to post a dedicated thread for this one here in a second...