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Thread: Another 2nd Amendment Case to Supreme Court

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    Member jmg's Avatar
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    Default Another 2nd Amendment Case to Supreme Court

    Saw this article on CNN today. If this has already been posted, I apologize. I didn't see anything. It looks like the Supreme Court may take up the issue of whether the 2nd Amendment in the U.S. Constitution applies to States as well as the federal government. Google "selective incorporation" if you're interested in knowing more about the application of the Bill of Rights to the states.

    http://www.cnn.com/2010/CRIME/03/01/...ex.html?hpt=T3
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    Supporting Member Amigo Will's Avatar
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    I look for a normal court split

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    Premium Member MarineHawk's Avatar
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    Looks like this one might come out right. "Justice Anthony M. Kennedy described the individual right to possess a gun as being of 'fundamental character,' like the right to freedom of speech. 'If it is not fundamental, then Heller is wrong,. Kennedy said ... Chief Justice John G. Roberts Jr. called it an ‘extremely important’ right in the Constitution. Justices Antonin Scalia and Samuel A. Alito Jr. echoed the theme that the court had endorsed an individual, nationwide right in their decision two years ago. The fifth member of the majority, Justice Clarence Thomas, did not comment during the argument, but he had been a steady advocate of the 2nd Amendment." http://www.latimes.com/news/nation-and-world/la-na-court-guns3-2010mar03,0,3193015.story

    If the S.Ct. strikes down the Chicago law, which looks likely, it will be a big deal. Partly because it means that the Court (5-4 no doubt) will have held that the 2A applies to the States, and the opposite result would be a nightmare. Also, around the country something close to 100% of local government officials will comply with court orders. Some will try to side-step or maneuver within the Heller/McDonald holdings, but, instead of (i) allowing the States to ban guns at all levels at will; it will (ii) impose the Heller prohibitions on all States and municipalities. It will be a huge victory that would have been a tragic defeat if one more Dem appointee was on the Court. It won't change things overnight, and it won't invalidate things like CC restrictions, but it will move things (both subjectively and objectively) in the right direction instead of the wrong direction. It's a big momentum and morale victory in addition to the statutes affected. Many laws will be invalidated, many more will be changed voluntarily, and many more will be caught up in challenges. It is a good big thing.

    It likely is going to be 5-4. Hopefully, neither Scalia, Thomas, Roberts, Alito, nor Kennedy die during the next few months before the opinion comes out or while "the one we have been waiting for" still is in office for that matter.

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    Member Phish Finder's Avatar
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    For the lawyers in the crowd, please tell me if I see this correct. It looks like a case of States Rights vs. Constitution.

    Am I way off here? Please explain in ski bum language so I can keep up.
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    Quote Originally Posted by Phish Finder View Post
    For the lawyers in the crowd, please tell me if I see this correct. It looks like a case of States Rights vs. Constitution.

    Am I way off here? Please explain in ski bum language so I can keep up.
    The Bill of Rights applies/applied to, and limited, the federal government. For example, the freedom of speech clause in the 1st amendment originally only meant that the federal government could not curb speech, but the state's could curb speech. As time went on, the Supreme Court looked at the Bill of Rights in various cases - one at a time - and determined that some of the rights in them are so fundamental, so important, they must also apply to the states. This is done through the Due Process Clause of the 14th Amendment. In other words, the Supreme Court at some point determined that the 1st Amendment was "incorporated" (part of) into the 14th Amendment's Due Process Clause.

    The Court has continued to review, on a case by case basis, which of those rights in the Bill of Rights are actually "incorporated" into the 14th Amendment's Due Process Clause, thus it is a process called "selective incorporation." The Court basically cherry picks those rights which it deems are so important, and thus the states should be limited similar to the federal government's limitations.

    The Wiki page actually has a decent explanation.

    http://en.wikipedia.org/wiki/Incorpo...Bill_of_Rights)

    At this point, the 2nd Amendment has not been incorporated into the 14th amendment's due process clause (at least not by the Supreme Court), and therefore, state's still have a great deal of power in limiting a person's right to bear arms. The Chicago case may very well decide the issue.

    So yes, it is a State's rights vs. U.S. Constitution issue. Should the States be allowed to have control over the gun rights of their citizens? Or, does the 2nd Amendment limit what a State can do because it is so fundamental, so important, of a right. Incorporation is definitely an interesting topic, and pretty controversial at times.

    Hope that helps.
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    Member Phish Finder's Avatar
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    Thanks J. That's the information I was looking for.

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    Premium Member MarineHawk's Avatar
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    Quote Originally Posted by jmg View Post
    .... So yes, it is a State's rights vs. U.S. Constitution issue. Should the States be allowed to have control over the gun rights of their citizens? Or, does the 2nd Amendment limit what a State can do because it is so fundamental, so important, of a right. Incorporation is definitely an interesting topic, and pretty controversial at times.

    Hope that helps.
    Phish, JMG's summary is excellent. I would add that, no matter what the Court decides in McDonald, each State will have the right largely to control how firearms are regulated within that State, just like DC still can do post-Heller.

    The Court in Heller noted that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or 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,” and that “of weapons protected [a]re those ‘in common use at the time.’” So that type of regulation either by a State, municipality, or the federal government, would not be precluded by the 2A.

    In determining whether the subject DC law was constitutional, the Court noted that “the law totally bans handgun possession in the home” and that the “handgun ban amounts to a prohibition of an entire class of ‘arms’ that is overwhelmingly chosen by American society for that lawful purpose.” The Court mercifully held that “banning from the home ‘the most preferred firearm in the nation to ‘keep’ and use for protection of one's home and family,’ … would fail constitutional muster.” The Court also held that DC’s “requirement … that [handguns] in the home be rendered and kept inoperable at all times … makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional.”

    Thus, after Heller, and before McDonald is decided, both local governments and the federal (where the law impacts interstate commerce--see below) government can regulate firearms by prohibiting their possession by “felons and [people like Phish*]” or their carrying “in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms,” but they can’t ban “weapons … ‘in common use at the time,’”and can’t require us to lock them up an render them inoperable in our homes. [* I’m just kidding!] McDonald will not change that. That’s about as much guidance the Court gave---as is typical, leaving to the lower courts to work out the fine-line borders of permissible regulations under the 2A.

    Assuming the Court in McDonald incorporates the 2A to apply to the Sates and local governments via either of the due process or privileges and immunities clauses, or both, the States still will be able to regulate firearms in that vague grey area identified above in Heller. In fact, in the Lopez decision in 1995, the S. Ct. held that a federal law prohibiting the possession of firearms within 1,000 feet of a school was unconstitutional because it had no relationship to interstate commerce as most federal laws must have pursuant to the Constitution’s “commerce clause.” The Lopez case was remarkable because that constitutional interstate-commerce requirement was a dormant and purely-hypothetical restriction for many decades. Essentially, after FDR had some of his proffered New Deal laws struck down by the Court in the 1930s, and he responded by threatening to “pack” the court by expanding its numbers to something like 15 members, not one law was struck down as exceeding Congress’ Commerce-Clause powers until the Gun Free School Zones Act was struck down in 1995.

    So, essentially, after McDonald is decided, assuming it comes out as expected, States still will be able to mess with you somewhat as to what you can/can’t do with your guns, but they won’t be able to, as Chicago and DC did, tell you that you can’t have them at all or that you must lock them up in your home. Then, the fun begins as different federal and state courts in various States will issues interesting and likely inconsistent rulings about what Heller and McDonald require/prohibit.

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    You are sure going to see some real reaching by the commie that run the country to prove that the Constitution does not apply to all the States. Remember this, that every State had to agree to the U.S. Constitution and Bill of Rights applied to them before they were allowed Statehood.
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    Quote Originally Posted by Big Al View Post
    Remember this, that every State had to agree to the U.S. Constitution and Bill of Rights applied to them before they were allowed Statehood.
    Conversely, the United States required and ratified each and every State Constitution prior to statehood, yet we have several cases of the United States dishonoring state constitutions later. In Alaska's case, the subsistence controversy comes to mind.

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    Well nobody in DC knows what the definition of “is” is, how can you expect them to understand “shall not be infringed?”
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    That the women did not Blow (IS) the truth

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    MH and JMG: Thanks for your time in posting some good info. I have personally been a little wary of this Chicago case as I have always viewed federalism as the primary backup ground against the anti-gun crowd. The lions share of Americans maintain their sanity on this issue and the problems are in the “enlightened” enclaves (that doesn’t seem to be their only problem these days but I doubt they would see it that way). We unenlightened folks also seem to be able to maintain a little better control of the state and local governments than the federal government. Federalism may not be ideal as it relates to this issue, but as Reagan said “ you can always vote with your feet”. When you attack federalism, it is pretty easy to meet yourself on the backside going in wrong directions which was my concern.

    Your info makes me feel a little better about this case. Hope you are right about the outcome.

    Big Al is right, it will not end here, just a change in tactics.

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    Quote Originally Posted by Big Al View Post
    You are sure going to see some real reaching by the commie that run the country to prove that the Constitution does not apply to all the States. Remember this, that every State had to agree to the U.S. Constitution and Bill of Rights applied to them before they were allowed Statehood.
    I hate to break it to you Al, but "state's rights" is a HUGE issue, and state's do not necessarily want to be bound by the U.S. Constitution. You are looking at this from a very narrow perspective (I don't mean that to offend) - gun rights. It is easy to sit back and say that if the 2nd amendment adopts an individual right to bear arms (as opposed to collective/militia right), then "of course the Constitution must apply to the states." Look outside the gun box though and you will see many, many issues of state sovereignty. Regulation of abortion, marriage, should states be required to take all serious crimes to grand juries (not required presently), drugs (think mj here in Alaska) . . . this list could go on and on and on. The U.S. Constitution is often intertwined in those issues and the fight rages on between the feds and the states. And the idea of state's rights is by no means a "commie idea." In fact, the far right tends to lean far more towards state rights in general than those on the far left (who I assume you refer to as commies). The fact that guns get involved all of a sudden does not make state's rights a "commie issue" at all.

    The current makeup of the court leans more towards state's rights, so the decision should be favorable if the current court decides the case.
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    Member Phish Finder's Avatar
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    Thanks again for the answers. I'm a bit torn on this one. On the one hand, if the Court rules on the side of States, each State is allowed certain abilities. On the other hand, if the Court rules on the Feds' side, wouldn't that open the door for far more control by the Feds?

    This seems like a double edged sword to me. Both sides appear to be a bit slippery and could easily be used to counter (my understanding of) the intent of the Constitution.

    Sometimes, I wish I knew more about this process. A couple of college classes are not enough....
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    Quote Originally Posted by Phish Finder View Post
    ... if the Court rules on the Feds' side, wouldn't that open the door for far more control by the Feds?
    IMHO, I don't think so. The 2A, if incorporated, limits what the States can do to restrict gun ownership and possession. It doesn't expand federal control over those issues. It is a purely limiting force. The commerce clause (a separate issue) governs the scope of federal power over local gun issues--not the 2A.

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    Quote Originally Posted by Phish Finder View Post
    Thanks again for the answers. I'm a bit torn on this one. On the one hand, if the Court rules on the side of States, each State is allowed certain abilities. On the other hand, if the Court rules on the Feds' side, wouldn't that open the door for far more control by the Feds?

    This seems like a double edged sword to me. Both sides appear to be a bit slippery and could easily be used to counter (my understanding of) the intent of the Constitution.

    Sometimes, I wish I knew more about this process. A couple of college classes are not enough....

    MH is correct - this case would not give any more power to the feds at all. The feds are limited by the 2nd amendment (because the 2nd obviously applies to them), and that will not change when the Chicago case goes up to the Court. Rather, the court will simply decide whether Chicago - as an entity of the State of Illinois - is also limited by the 2nd Amendment. The Court already decided in the DC case that gun ownership is an individual right rather than a collective/militia right. But, DC is not a "state," and is thus governed by the U.S. Constitution. Therefore, the 2nd amendment, and the individual right that goes along with it, applies there (at least insofar as the case was decided). The sole question now is whether Illinois, and thus Chicago, must also follow the 2nd amendment.

    An example I gave above is grand juries. The 5th amendment says that people cannot be held to answer for capital "or otherwise infamous crimes" unless they are indicted by a Grand Jury. For the most part, this means that for any felony level crimes, the defendant has the right to have the case heard by a grand jury. But, the 5th amendment only applies to the federal government, so that applies to federal crimes only. An old Supreme Court case said that this grand jury right does not apply to the States - i.e. the right is not "incorporated" into the Due Process clause or any other clause that would apply it to the states. Thus, states are not required to have grand juries for felony level cases. If the Supreme Court decided tomorrow "no, we were wrong, grand jury rights are incorporated into the Due Process clause," that would mean that states would have to do grand juries for felony crimes. It would do absolutely nothing to the process of charging federal crimes, it would only put more of a burden on states. Now, granted, most state constitutions also say that the citizens of the state have the right to a grand jury, so the federal vs. state issue is pretty much irrelevant in those states.

    But, that is essentially why the Chicago case would not give the feds any more power. It would either leave things in Chicago the same (i.e. no grand juries are required = gun ban is valid), or change it (grand juries are required = gun ban is unconstitutional). Hope that makes sense.
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    Member Phish Finder's Avatar
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    It does make a bit more sense. Thanks.
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    I was wondering why this whole thing was being brought before the US Supreme Court anyway. Isn't contesting a gun ban in Chicago more a matter for the Illinois State Supreme Court? I was curious so I looked up what the Illinois Bill of Rights had to say;

    SECTION 22. RIGHT TO ARMS
    Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed.


    "Subject only to the police power"? What the heck does that mean?

    No wonder the plantiffs went Federal!!

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    Quote Originally Posted by .338-06 View Post
    "Subject only to the police power"? What the heck does that mean?
    I would assume that means when a cop says put down the gun they expect you to comply. However the only way to know is to check the case law and see what the Illinois State Supreme Court has said it means in settled law.

    I believe they did go through the State first and are now appealing the dissection to the highest court in the land. Just a guess but it’s likely Illinois has said his rights are not infringed because he can have some type of gun in some state of storage under their law and they appealed the State to the Fed. You don’t need to start in the Federal Courts to end in the US Supreme Court, just keep climbing the latter. The US Supreme Court can hear any case they want from anyplace in the entire system or refuse any case they don’t want, they have the final word (if they wish to weigh in) on how to apply a law, State, county, city, all laws nationwide.

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    Quote Originally Posted by .338-06 View Post
    I was wondering why this whole thing was being brought before the US Supreme Court anyway. Isn't contesting a gun ban in Chicago more a matter for the Illinois State Supreme Court? I was curious so I looked up what the Illinois Bill of Rights had to say;

    SECTION 22. RIGHT TO ARMS
    Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed.

    "Subject only to the police power"? What the heck does that mean?

    No wonder the plantiffs went Federal!!
    I imagine the plaintiffs challenged the Chicago ban for three basic reasons: (1) they are claiming it violates federal law (i.e., the U.S. Const.)--so there is federal subject matter jurisdiction; (2) the state courts might be less receptive; and (3) even a favorable state court order would be of little national consequence, but if McDonald wins in the U.S. S. Ct., he will have vindicated the gun rights of people in all 50 states. I assume the crusader motive plays heavily in these types of cases.

    Also, FWIW, I almost forgot, until I reread Heller, that one of the most comforting quotes by Scalia was: "Putting all of the[] textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment.” (emphasis added).

    That is fairly helpful language suggesting that it is improper for the government to limit gun possession to people's dwellings and/or to prohibit posession when travelling outside of the home or to other states.

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