2 A and SCOTUS

[Patriotic]

I believe a decision by the SC will come this week.

[Dial 1911 for Help]

MacDonald is among four cases still awaiting rulings, all of which will be announced Monday.

[Patriotic]

Here goes; keep your fingers crossed.

[Dial 1911 for Help]

SCOTUS finds for MacDonald (against state infringement)!! Haven't had time to read any of the details yet.

[Aguila Blanca]

Limited win. The decision is based on due process rather than Privileges and Immunities. Nonetheless, it is a win. The 2nd Amendment IS incorporated, and DOES apply to the states. It doesn't invalidate ALL firearms regulations, but it does raise the bar. There can be no blanket bans. And it would appear that there can be no more "may issue" permits. I hope Frank will address this as it applies to states such as California. After all, if bearing a firearm is now recognized as a "right," then the right cannot be arbitrarily denied, it can only be "reasonably" regulated.

Gonna be interesting for the next few years, as state (and local) legislatures wrestle with this.

[Frank]

I've been following this this morning and skimming the opinion --short answer:

[1] This is really a huge win. McDonald was another "all the marbles" case, as was Heller.

[2] I'm not surprised that we didn't get it on "privileges and immunities" grounds. To do so would mean overturning long standing Supreme Court precedent.

[3] We got good language confirming the Second Amendment as describing both an individual right and, very significantly, a fundamental right fully applicable to the States.

I'm going to be out for most of the rest of the day. I hope to be able to expand on the foregoing later.

[Rich-D]

Here a pretty good analysis from the Associated Press: Article (http://news.yahoo.com/s/ap/20100628/ap_on_go_su_co/us_supreme_court_guns)

[Dial 1911 for Help]

Limited win. The decision is based on due process rather than Privileges and Immunities. Nonetheless, it is a win.I have mixed feelings about P&I. Not only was it a long shot re: MacDonald, but had we won MacDonald via that avenue, it could have opened a whole nother kettle of liberal fish. So, as much as Slaughterhouse stinks to high heaven, be careful what you ask for, for the usual reason.

[kenhwind]

I heard about the SCOTUS ruling, but haven't researched their decision yet. I will say that we should be grateful and happy we got what we did, it could very easily have gone the other way.

Remember that the Senate Hearings are underway to nominate Kagan as the next S C justice. Personally I'm not to impressed with her.

[Aguila Blanca]

Here a pretty good analysis from the Associated Press: Article
It's an analysis, but IMHO not a pretty good one. Start with the title: The decision does not "extend" gun rights to the states. The decision recognizes that citizens of the states have always had the RKBA and that the right has unconstitutionally been denied to many citizens by the states.

And then there's this:

New York Mayor Michael Bloomberg, an ardent proponent of gun control, said the ruling allows cities "to keep guns out of the hands of criminals and terrorists while at the same time respecting the constitutional rights of law-abiding citizens."
Bloomberg doesn't have any intention of respecting the rights of law-abiding citizens. He has proven that he doesn't have even a rudimentary grasp of what the RKBA even is.

[Patriotic]

Originally Posted by AB
It's an analysis, but IMHO not a pretty good one. Start with the title: The decision does not "extend" gun rights to the states. The decision recognizes that citizens of the states have always had the RKBA and that the right has unconstitutionally been denied to many citizens by the states.

In other words are they saying the 2A has always been incorporated into the states and that state restrictive laws are unconstitutional? How does that settle the issue that has been going on regarding the idea that the 2A was not incorporated?

I also wonder how this decision affects people who can legally own and carry a firearm in one state who travel into a state where firearm permits are not granted to non-state residents. I would think the “infringement” portion of the 2A would deal with this. Your thoughts.

[Aguila Blanca]

I think this thread needs to be split into two. It started as a discussion about Ms. Kagan.

Speaking of whom:

The committee's seven Republicans used their opening statements to challenge Kagan's judicial experience and her ability to put aside personal politics, and the 12 Democratic members praised Kagan's qualifications and welcomed her possible presence on a court they criticized for what they called conservative activism.
"conservative activism"? Isn't that an oxymoron?

[Aguila Blanca]

Remember, I am not a lawyer. Frank is the attorney around here. (One of 'em, anyway. Don't mean to slight anyone else who might be one.)

In other words are they saying the 2A has always been incorporated into the states and that state restrictive laws are unconstitutional?
Incorporated at least since the enactment of the 14th Amendment. Yes. But, like Scalia in Heller, Justice Alito was careful to leave the door open to "reasonable" regulation by the states. I still don't see the word "reasonable" anywhere in the 2nd Amendment, but that's what the ruling says, so that's what we got. It will take several years of lawsuits to zero in on just what "reasonable" actually is.

How does that settle the issue that has been going on regarding the idea that the 2A was not incorporated?
Simple. It says that those who believed the 2A did not apply to the states (was not incorporated) were wrong.

I also wonder how this decision affects people who can legally own and carry a firearm in one state who travel into a state where firearm permits are not granted to non-state residents. I would think the “infringement” portion of the 2A would deal with this. Your thoughts.
IMHO this is where things will become interesting. Heller established that the RKBA (yes, I know Heller addressed only the 'K' part, but the 'B' part is inextricably joined to the 'K' part) is an individual right. McDonald now establishes that the RKBA is a right in all fifty states, not just in the District of Columbia. So a resident of Pennsylvania has a Constitutionally-guaranteed RIGHT to keep and bear arms in any of the fifty states. I would say that, subject to a few well-considered lawsuits yet to be filed and decided, it will ultimately shake out that

States that now don't allow any form of carry will be forced to do so
States that require licenses to carry but grant them on a "may issue" basis will be forced to issue on a "shall issue" basis (denial must be for specific disqualifying cause, not just because the sheriff didn't like the color of your shirt)
States that neither issue non-resident licenses/permits nor recognize licenses or permits from other states will be forced to do one or the other ... or perhaps both.

But, IMHO, none of the above will fall automatically into place. Each will require new lawsuits to force the states to comprehend what the meaning of "right" and "shall not be infringed" is.

[Dial 1911 for Help]

"conservative activism"? Isn't that an oxymoron?No, a lie. Anything short of rendering homage to Lenin qualifies in their language of lies as "conservative activism". I think the court leans authoritarian (Raich, Kelo, Bean, Stewart, etc.) and occasionally finds the proverbial nut. Thank God for a few nuts.

[Hawkmoon]

I heard about the SCOTUS ruling, but haven't researched their decision yet. I will say that we should be grateful and happy we got what we did, it could very easily have gone the other way.
Agreed. I wasn't surprised by the 5-4 vote in Heller, but I was honestly expecting this one to go 6-3 or possibly even 7-2. Sotomayor showed her colors. I'll be interested to read the dissent she signed onto.

[Dial 1911 for Help]

Each will require new lawsuits to force the states to comprehend what the meaning of "right" and "shall not be infringed" is.Shoot, I'd be happy if SCOTUS comprehended that. Apparently it means "shall not be infringed [out of existence]"

[Patriotic]

I agree with you Hawkmoon. You would think with the Heller decision being settled law this decision would have been a 6-3 or 7-2 decision. As with you, I think the dissent will be quite interesting.

[Frank]

Just over two years ago, the debate was still open about whether the Second Amendment describes an individual or a collective right. The Supreme Court decision in Heller settled that and confirmed that the Second Amendment describes an individual right.

Until shortly after 10:00 am, EDT, this morning, whether the Second Amendment applied to the States was still an open question. In 1833 the Supreme Court of the United States decided that the Bill of Rights did not apply to the States (Barron v. Mayor of Baltimore, 32 U.S. (7 Pet.) 243 (1833)). In United States v. Cruikshank, 92 U.S. 542 (1876), the Supreme Court expressly found that neither the First Amendment right of assembly nor the 2nd Amendment applied to the States. But beginning in the latter part of the 19th Century, the Supreme Court began to apply the Bill of Rights in a piecemeal fashion to the States through the 14th Amendment under a legal doctrine known as incorporation. So until this morning, the Second Amendment did not apply to the States.

Now the Supreme Court has finally confirmed that (1) the Second Amendment describes an individual, and not a collective, right; and (2) that right is fundamental and applies against the States. This now lays the foundation for litigation to challenge at least the most draconian state restrictions on the RKBA.

It has long been settled law that constitutionally protected rights are subject to limited regulation by government. Any such regulation must pass some level of scrutiny. The lowest level of scrutiny sometimes applied to such regulation, "rational basis", appears to now have been taken off the table, based on some language in McDonald. And since the Court in McDonald has explicitly characterized the right described by the Second Amendment as fundamental, we have some reason to hope that the highest level of scrutiny, "strict scrutiny" will apply. Strict scrutiny has thus far been the standard applied to any regulation of a fundamental right enumerated in the Bill of Rights.

There are three prongs to the strict scrutiny test, as follows:

[1] The regulation must be justified by a compelling governmental interest; and

[2] The law or policy must be narrowly tailored to achieve that goal or interest; and

[3] The law or policy must be the least restrictive means for achieving that interest (i. e., there cannot be a less restrictive way to effectively achieve the compelling government interest, but the test will not fail just because there is another method that is equally the least restrictive).

The level of scrutiny between "rational basis" and "strict scrutiny" is "intermediate scrutiny." To satisfy the intermediate scrutiny test, it must be shown that the law or policy being challenged furthers an important government interest in a way substantially related to that interest.

Whichever level of scrutiny may apply, government will at least be able to make its pitch that the regulation challenged satisfies the test. Some will, and some will not. I suspect that now the strategy will be to go after the ones most likely to fall, so as to continue to build a body of pro-RKBA precedent.

My best guess as to how litigation of some of the current regulation of the RKBA will shake out over the next few years:


Complete bans on carrying guns will fall.
Laws requiring a permit to purchase, own or carry, if issued on a "may issue" basis or subject to onerous conditions or restrictions, will fall.
Laws requiring a permit to carry a gun in public will survive, if permits are "shall issue." Laws generally requiring some form of background check and/or some level of training or demonstration of proficiency and knowledge of the rules will survive.
The "prohibited person" provision of the GCA of 1968 will survive.
The NFA will survive. The Hughes Amendment closing the full auto registry will also probably survive.
"Safe gun" lists like those in California and Massachusetts, high capacity magazine bans and AWB based on cosmetic characteristics may well fall, but it's not a sure thing.


In short, adults who are not "prohibited persons" under 18 USC 922(g) will probably be able to buy and own most types of guns, other than fully automatic guns, with minimal folderol. If they want to carry those guns in public, loaded for personal defense, there will be a way for them to do so; but the State will be able to require that as a condition of carrying they (1) get a permit, available on a "shall issue" basis; and (2) demonstrate some reasonable level of proficiency, the ability to safely handle a gun, and some at least basic knowledge of the law relating to the use of force in self defense.

[DoubleTap45]

Hey guys, we have to skin THIS cat one leg at a time. She's lost 2 (Heller, MacDonald) already and next we go after Nanny Bloomberg and the Byzantine NY City licencing board.

-Ray

[Patriotic]

Frank, thank you for your post.

How do you think this SC decision will play out with reciprocity issues where a person has met the requirements for a carry permit in one state and is equal to the requirements in another state? For example: a resident of Ohio with a CCW permit traveling to NY state. Would the Ohio permit now have to be recognized in NY?

Right now NY will not issue a permit to an out of state resident and their process for a pistol permit requires not only residence in the state but also a permit to purchase which the purchase must be made in NY state. The safety, proficiency, fingerprinting, background check and basic legal knowledge of the law are the same.

[Frank]

...How do you think this SC decision will play out with reciprocity issues where a person has met the requirements for a carry permit in one state and is equal to the requirements in another state? For example: a resident of Ohio with a CCW permit traveling to NY state. Would the Ohio permit now have to be recognized in NY? ...I don't think there's a simple or obvious answer. Of course, nothing is automatic. McDonald doesn't immediately change anything, and ultimately the only law directly affect will be Chicago's registration law, and the only parties bound by the final result will be the parties to the litigation.

What Heller and McDonald do is establish law that will be applied in future RKBA litigation. So in any future litigation, some of the law that a court will use to decide the case or controversy before it will be (1) the right to keep and bear arms is an individual right; (2) it is a fundamental right; and (3) it is applicable against the States. And other law will also come into play -- such as the body of precedent regarding the level of scrutiny, and how that level of scrutiny is applied in deciding the validity of laws regulating a fundamental right.

So as of now, the Ohio permit isn't recognized in New York, and it's not going to be just because of McDonald. There may be a variety of ways to challenge that in court. The simplest, but the least desirable, would be for our Ohio permit holder to carry a gun in New York, get arrested and then defend against the prosecution on constitutional grounds. But of course, if you lose, you go to jail. So that's a very bad idea. However, another type of lawsuit, called a declaratory relief suit, might work.

In any case, you would challenge New York's refusal to honor the Ohio permit, and New York would get a chance to make its case that it satisfies the applicable level of scrutiny test. And I'm not prepared right now to make book on the result -- one way or the other.

Bottom line is that we have a whole bunch more lawsuits ahead of us.

[Aguila Blanca]

So as of now, the Ohio permit isn't recognized in New York, and it's not going to be just because of McDonald. There may be a variety of ways to challenge that in court. The simplest, but the least desirable, would be for our Ohio permit holder to carry a gun in New York, get arrested and then defend against the prosecution on constitutional grounds. But of course, if you lose, you go to jail. So that's a very bad idea. However, another type of lawsuit, called a declaratory relief suit, might work.

In any case, you would challenge New York's refusal to honor the Ohio permit, and New York would get a chance to make its case that it satisfies the applicable level of scrutiny test. And I'm not prepared right now to make book on the result -- one way or the other.
One might hope that, with the RKBA now having been declared a fundamental right and an individual right, laws that make it impossible to carry across state lines will have to fall. The result is unlikely to be that each state is forced to recognize permits issued by other states (although that would be an ideal outcome -- not as ideal as universal Vermont carry, but nearly as good), but it should come about that no state will be allowed to refuse to allow anyone from outside carry within their borders. They may be required to establish a "reasonable" way for outsiders to obtain non-resident permits. Some states may see the light and adopt some system for outsiders willingly, and it may include reciprocity. Others will undoubtedly have to be dragged to it, kicking and screaming all the way.

Interestingly, Washington, DC, could be a test. Heller is generally regarded as applicable only to DC residents because the case focused on "keeping" a firearm in the home, and obviously only residents have homes. I have always maintained that Heller actually declared the right to keep AND bear arms is an individual right, since in the 2A "keep and bear" are mentioned together as a single, consolidated right. Now that McDonald has established that the same right applies to the citizens of the fifty states, and Justice Alito specifically mentioned both "keep" and "bear," it could be an interesting wedge in the door for someone who lives in Virginia (for example) to challenge Washington that they should be allowed to "bear" their arms across the Potomac into DC.

[DoubleTap45]

aka "Nanny Bloomberg" has WAAY too much money and too much time on his hands. He is on a jihad against legitimate gun owners and dealers. He refuses to tackle the human element in crime because in this town 90% of them fall within protected demographic groups. To start arresting and imprisoning THEM means running afoul of the various advocacy groups and the gangs as well.

Going after legitimate citizens is easy. Anti-gun politicians LOVE to shoot fish in a barrel and PRETEND they're impacting criminals. :dead_hors

-Ray

[Patriotic]

What I find interesting is that driving a vehicle, as far as I know, has never been declared a “fundamental” right, it does require some kind of license involving testing, proficiency and knowledge of the law; states recognize these licenses from other states. Yet, a CCW permit is not universally recognized. I realize these are two different issues but in effect, doesn’t Article 4, Section 1 of the Constitution enter into this?

[Frank]

What I find interesting is that driving a vehicle, as far as I know, has never been declared a “fundamental” right, it does require some kind of license involving testing, proficiency and knowledge of the law; states recognize these licenses from other states...Because the States have agreed to do so. Some other types of licenses, like many licenses that may be necessary to engage in certain professions or occupations, may or may not be recognized across state lines.

[DoubleTap45]

Absolutely. To assist in a legal case in another state one has to either be granted review and approval by the judge in the case (think "Cousin Vinnie") or sit for the bar and pass it.

-Ray

[Aguila Blanca]

From a link on another forum, here's a discussion of the ruling by another attorney: http://blogostuff.blogspot.com/2010/06/more-thoughts-on-mcdonald-v-chicago.html

[Frank]

From a link on another forum, here's a discussion of the ruling by another attorney: http://blogostuff.blogspot.com/2010...-v-chicago.htmlVery good. I agree with his analysis and conclusions.

[jason8844]

I found this site from the other m1911 forum. I wanted to add my two cents on all this.

Although this was a victory for gun rights, it does not instill confidence in my view of the future. The decision was 5-4. I am not sure how certain justices of the SCOTUS can find rights like flag burning, gay marriage, and abortion in the Constitution under the auspices of the "penumbras" and "emanations" as set forth in the opinion of Justice Douglas in the 1965 case of Griswold v. Connecticut, yet ignore the clearly written our rights like the the 2A.

With liberals and progressives taking over the Democrat Party and the Republicans slowly following suit, I am not sure how long it will be until the balance of the court shifts in favor of the left wing. They will then take up all these decisions and "right the wrongs", just like the current Democrat House and Senate do with thier current majorities. What if Justice Thomas or Scalia got sick? Obama would be more than happy to replace them with another ideologue. What are American's going to do when the SCOTUS completely ignores the enumerated rights and powers of the Constitution? 5-4 is a win for us, but is hardly a win for the American people. This should have been a 9-0 opinion due to the fact the right is clearly written out.

As for ideologues, how come no one is talking about Sotomayor? She told the Senate during her confirmation that she believed that gun ownership is an "individual right". Yet, she signed on to a dissent that says it is not. Kagan will be no different. How long will we let these fools lie to us?

Anyway, thanks for letting me vent a little.

[Patriotic]

I agree with you jason8844 and by the way welcome to the forum. I do not feel there should have been a question of incorporation of the Bill of Rights. It should have been a settled issue when the Constitution was ratified but then again I do not sit on the SC. Clearly the SC was envisioned as a check and balance for the other branches of our government but as you can see, with the majority Party holding the House, Senate and the President’s office there isn’t much balance. I guess the only safeguard is that justices are appointed for life.

I agree the decision should have been a solid 9-0 if the justices were solid Constitutionalists; especially after the Heller decision but it wasn’t and we should be thankful the 2A has finally been declared an individual right and has been incorporated.

Our fundamental right to self defense has been recognized and we can now have the means to defend ourselves in our homes. What is needed is to expand that fundamental right beyond the home.

[DoubleTap45]

That's exactly what Nanny Bloomberg is saying as we speak. He is on a mission from God to rid NYC of legally owned guns. He harasses FLINTLOCK owners like me into getting pistol permits (target/home you can turn to stone waiting for CCW) and knows he can't disarm the gang bangers.

What's more he is a liberal which means he WON'T go after the gangs. They're mostly black and latino. If a liberal mayor wants to stay in off he CAN'T AFFORD to be seen as locking up lots of "poor minorities".

In Philly that other piece of work, Nutter, told reporters "If by getting serious on crime you mean locking people up you can forget it!" :butthead:

-Ray

[Frank]

...I do not feel there should have been a question of incorporation of the Bill of Rights. It should have been a settled issue when the Constitution was ratified ... Well, actually it was settle less than 50 years after the Constitution was ratified when the Supreme Court decided Barron v. Mayor of Baltimore, 32 U.S. (7 Pet.) 243 in 1833. Unfortunately for our interests, what SCOTUS decided at that time, not long after the Bill of Rights was ratified, was that the Bill of Rights did not apply to the States. So we'd have been well behind the eight ball if the 14th Amendment hadn't been adopted and subsequently began to be used, beginning in the late 19th and early 20th Centuries, to apply the Bill of Rights to the States.

[tjh3781]

The City of Chicago just revised there handgun ordinance to allow registration & other control issues. As SCOTUS sent the McDonald issue back to the 7th Circuit, does this new ordinance make the original McDonald issue moot? I am thinking that this is an attempt at an end run around the decision.

[Patriotic]

I would think it will depend on the “other control issues”, if they are deemed “infringement” or not.

[kenhwind]

Found this link:
http://www.nhregister.com/articles/2010/07/03/opinion/doc4c2e9629d7f15949328131.txt
Another link:
http://www.huffingtonpost.com/dennis-santiago/why-the-supreme-courts-ru_b_634478.html

[DoubleTap45]

New Haven Register.

-Ray

[kenhwind]

Just read the comments there. Some people just don't get it. I don't consider Bill O'reilly a loon at all, but then again I watch his program.
Why do the the lefties (not southpaws) think that what they think is OK, but others are LOONIES!!
It would seem to me that "the right of the people" means the same thing everwhere in the Bill of Rights. Maybe the lefties need to look up the word Militia.

From;
THE AMERICAN HERTIGAGE DICTIONARY OF THE ENGLISH LANGUAGE

Militia: 1.a. A citizen army, as distinct from a body of professional soldiers. b. The armed citizenry, as distinct from the regular army. 2. The able-bodied male citizens of a state who are not members of regular armed forces, but who are called to military service in cases of emergency. 3. The whole body of physically male citizens eligible by law for military service.

Therefore by definition; the Militia is composed of the citizens, “We the people”, and “We the people,” the citizens are the Militia. The Militia and the people are one and they are the same.

[Frank]

I just added a comment myself.

[Dial 1911 for Help]

I think BO'R[e] is a loon. He seems to think if he kisses up to the commies enough, they'll come for him last. Did you see him "interviewing" John Stossel?