The McDonald Decision

[ISC]

At the risk ofhaving my post AGAIN I will repeat the obvious that so many here refuse to acknowledge.

1) Some politicians are very much against gun rights.
2) They tend to appoint and confirm judges that are very much against gun rights.
3) MacDonald was a victory for gun owners and anyone that views the constitution with an original intent viewpoint
4) our victory was by just one vote, that is the narrowest of possible margins
5) Unless we wish to see this decision overturned in the future, we need to do what we can to ensure that the makeup of the court doesn't change with anti gun appointments.

This ia a basic observation about how this decision came to be and how we can keep it from being reversed. Why should my post be deleted for making such elementary observations about the inherent legal process?

[NJgunowner]

I guess nothing will ever scare me then. I expected this vote to be based on "party lines". Your average person is only interested in the bill of rights or constitution when it personally benefits their belief system... Then again isn't that the same with everyone?

I'm sure there are people in the military that don't like the whole Freedom of the press thing, feeling it could be a security risk or just inconvenient.

I'm sure the the 5th amendment annoys the crap out of police, judges, and prosecutors.

In a perfect world everyone would follow and uphold the bill of rights and that's that... but we are all individuals with different view points.

Now the funny thing is my parents lean heavily liberal, but even my mother said "who cares if they want to own guns? It's in the constitution, so let them!"

[Mello2u]

What Justice Scalia wrote in this opinion to answer Stevens' dissent is priceless.

Justice Scalia is anything but diplomatic with the out-going Justice Stevens. Scalia tears Stevens' dissent apart piece by piece. Many times Scalia demonstrates that Stevens wants to impose Stevens' subjective values for the democratic method or for historical evidence.

I hope that Scalia has many more years on the bench.

[mack59]

From reading the decision it appears to me that AW bans, may issue laws, and prohibitions on all legal carry - i.e. bans on both shall issue and open carry will be unconstitutional.

The decision is pretty specific as it identifies as constitutional bans on felons, bans on mentally ill, and bans on weapons in govt buildings, sensitive areas, and in schools as constitutional. It also indicates that some laws regulating what weapon may be carried and where and when they may be carried may be constitutional. Sounds like total bans on carry may be prohitbited but most shall issue ccw and/or open carry regulations are okay as practiced by most shall issue states.

Thus may issue states will have to adopt shall issue or open carry - such as California or Hawaii. And machine guns will probably continue to be highly regulated. So no you probably won't be able to take a machine gun into your kids school or the capital dome in DC for purposes of self-defense.

[Daugherty16]

will be reading these briefs asap. sounds like their debate prior to the decision was rather vigorous, ya think?

[Wildalaska]

From reading the decision it appears to me that AW bans, may issue laws, and prohibitions on all legal carry - i.e. bans on both shall issue and open carry will be unconstitutional.

Absolute incorrect. Even under the most careful liberal reading of the decsion, all of the foregoing would be constituional, especially an AWB that is purely cosmetic, as the last one was.

WildperhapsweshouldstartanotherthreadAlaska ™

[vranasaurus]

So If I understand you correctly, the SCOTUS has ruled we have these rights but sent it back to the 7th Dist. Court to have their ruling applied to the law?

It seems strange..... Why wouldnt the Supreme Court of the land just decide it and be done with it? Any thoughts?

The lower courts decided the case by saying that the second amendment doesn't apply to state and local government.

They never really evaluated the chicago law with regard to the second amendment.

The issue of wehtehr or not the chicago law violated the second amendment was not before the supreme court. They only decided the issue of incorporation.

[mack59]

Well we shall see:

The court has taken rational basis off the table - given their statement that the potential negative impact of a right cannot be reason to restrict it said as part of their destruction of Breyers - proposed balancing test. That leaves only intermediate scrutiny and strict scrutiny. Also the court has again affirmed that the second amendment is a "fundamental right" like other fundamental rights.

Even under intermediate scrutiny the may issue laws run afoul of equal protection. A cosmetic AW ban has no logical basis and both intermediate and strict scrutiny require a level of logic and real justifiable reason. Complete bans on both open and concealed carry would effectively write the word "bear" out of the amendment - and I don't see the court suddenly changing direction to go that way.

Given the courts empahsis on "common use" and self-defense it is probable that will uphold restrictions on (functionally different) machine guns not on mere cosmetics.

[Wildalaska]

A cosmetic AW ban has no logical basis and both intermediate and strict scrutiny require a level of logic and real justifiable reason. Complete bans on both open and concealed carry would effectively write the word "bear" out of the amendment - and I don't see the court suddenly changing direction to go that way.

I have already started another thread so wont answer your contentions, but would note you cant use dicta to necessarily predict a decision on constituionality

WildbangingawayhereAlaska ™

[Tom Servo]

Wildalaska has it right: subsequent battles are going to take place at the ballot box. Specifically, the legislature.

As it stands now, I can read the current state of things as follows:

Blanket bans on handguns in the home are unconstitutional.

Laws regulating, restricting or outlawing carry outside the home are constitutional.

Laws banning specific brands, types or actions (ie, semiautomatic) are still constitutional, so long as some type of handgun is allowed.

Taxes on exercise of the 2nd Amendment right are constitutional. So long as they don't clearly impede the "core right" of self-defense, they'll stand. This includes taxing ammunition, shooting ranges, licensing and hunting grounds. I don't see any challenge to the NFA being successful.

As with Heller, we got a somewhat narrow reading, protecting one specific thing, with leeway left for "reasonable" restrictions.

There will be subsequent lawsuits, but the bulk of the work needs to be done in the legislature.

[SoberSunday01]

Very nice and definately a step forward. But I'm still not going into the city unless absolutely necessary. Just read the paper this morning, '3 die in nearly 30 weekend shootings' in Chicago. 50 or so shot last weekend. With the handgun ban in effect.

[Webleymkv]

OK, I read Alito's delivery of the decision and briefly skimmed over Scalia and Thomas' opinions. As far as how existing laws might be changed, here are the most likely things I see coming:

No-issue CCW like IL is probably in the most danger. Alito noted that the right to self-defense, and thusly the Second Amendment, does indeed extend beyond the home. Under such a statement, I simply do not see how No-issue could stand.

I think that may-issue could also be in trouble. Remember, owning a handgun was not flat-out illegal in either Chicago or D.C. as both cities had registration procedures in place. The issue was that both cities simply refused to register any handguns as allowed by law. The situation really wasn't all that dissimilar to that in many may-issue states. While it is theoretically possible to get a CCL in Los Angeles, New York, or Boston, it is nearly impossible to do so unless you are very wealthy, politically connected, or both.

I also think it may be possible that the '86 machine gun ban might be in danger, though not as great as no-issue and may-issue CCW. Again, this is a case of the government refusing to to register a firearm as allowed by law. The only thing that might save the '86 MG ban would be if SCOTUS decided that a machine gun, being a "dangerous or unusual weapon" can be justifiably banned completely.

Finally, while I think most of the NFA will probably stand, I can see the CLEO signoff requirement being removed as it is completely discretionary. I've seen speculation that the $200 tax might also be removed, but I rather doubt it as $200 is no longer the prohibitive fee that it was in 1934.

Basically, I'm getting that SCOTUS isn't particularly friendly to discretionary laws. While I don't like it, I agree with Wildalaska that AWB's probably aren't in any immediate legal danger although the political support for them seems to be waning.

Also, there may not be as many legal battles ahead as many think. What needs to be remembered about D.C. and Chicago is that those particular cities have power and resources out of proportion to their actual size. D.C., being a federal entity, can draw on many of the resources of the federal government as a whole rather than just those of the city itself. Smilarly, Chicago has had somewhat of a stranglehold on the politics of the state of Illinois for decades due to the lopsided population of the state. Mayor Dailey is one of the most powerful figures not only in Chicago, but in Springfield as well and can thusly draw upon the resources of not only his own city, but the rest of the state as well. Other cities which are in similar circumstances would probably include New York and Boston.

However, in states with more than one major metropolitan area like Florida, Texas, and California, the balance of political power is not so lopsided. The Mayor of Orlando is balanced somewhat by the Mayor of Miami, the Mayor of Dallas is balanced somewhat by the Mayor of Houston, and the Mayor of Los Angeles is balanced by the Mayors of San Francisco and San Diego. Ironically, some of California's more draconian laws may go the quietest as, given the current economic condition of the state, California simply may not be able to afford a plethora of costly legal battles. Should, for example, San Francisco be sued over gun laws, I can see Los Angeles and San Diego not wanting to give up badly needed resources to help SF fight.

The next battles, most likely, will be no-issue probably in IL followed by may-issue most likely in CA or NY.

[TexasFats]

Today's decision is a start, but my prediction is that it will take 20-30 more years of effort and litigation over what constitutes "reasonable restrictions" to try to roll back the damage to our rights that has already been done.

Also, while we have won one more battle, the war is far from over. To quote Winston Churchill, "It is not the beginning of the end, but, perhaps, it is the end of the beginning."

Also, we need to be even more watchful now, since we can expect some real counter-attacks from the left. Furthermore, never kid yourself that these laws have anything to do with reducing crime, except as rhetoric to fool the foolish. Historically, weapons laws have always been about extending the control of some elite over a peasantry, for the fun and profit of that elite. It was true during the Tokagawa Shogunate in Japan, when only Samurai could own swords. It was true in the post-Civil War South, when gun laws were passed to make sure that ex-slaves would be defenseless when the Klan came to call. It was true in Great Britain when the National Firearms Act of 1920 was passed as a crime control measue, but really out of fear of a Bolshevik-style revolution in the aftermath of WW I. It was true in NYC, when the Sullivan Law was used to ensure that only Tammany Hall thugs had guns on election day. The examples could continue almost indefinitely.

Finally, now that McDonald has been decided, we must make sure that we continue to support organizations like the NRA, GOA, SAF, JFPO, and other organizations that work to protect our rights. We can still lose most of them if we allow ourselves to think that the fight is over and let our guard down. The 5-4 means that replacement of one of the five justices who voted our way could result in the court revisiting the issue and reversing itself in the future.

[wally626]

Just finished reading the Ruling. Obviously a good outcome, but I would really have preferred they used Justice Thomas's logic to incorporate as it is really sound. The early courts in this country really screwed up the Bill of Rights, and the current court was too cowardly to do the right thing about it.

I also wish the thoughts on sensitive places and such were left out. Banning guns in sensitive places unless you also provide the means to enforce those bans (i.e. metal detectors and armed guards) does nothing to promote safety.

God Bless Justice Thomas

[KyJim]

I've just read the majority opinion. My observations:

1) Although this is a critical case because it makes the 2A applicable to states, it does not extend or further the scope of the right or test to be used.

2) The Court did underscore at least twice that the Court had rejected an "interest balancing" test. The level of scrutiny is still in doubt but appears to clearly reject the rational basis standard of review. IMO, it is closer to strict scrutiny than intermediate scrutiny. "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.” p. 44, quoting Heller. Alito also reaffirmed regulation of gun possession by the mentally ill or possession of guns in sensitive" areas like schools and government buildings.

3) Although not the linchpin of the argument for incorporation, Alito smacked down "safety" arguments. He first noted the murder rate had risen significantly since the ban (9.65 in 1983 to 13.88 in 2008). p.2l Then, responding to Breyer's argument that the 2A doesn't protect minorities and doesn't deserve to be incorporated:

Second, petitioners and many others who live in high-crime areas dispute the proposition that the Second Amendment right does not protect minorities and those lacking political clout. The plight of Chicagoans living in high-crime areas was recently highlighted when two Illinois legislators representing Chicago districts called on the Governor to deploy the Illinois National Guard to patrol the City’s streets.31 The legislators noted that the number of Chicago homicide victims during the current year equaled the number of American soldiers killed during that same period in Afghanistan and Iraq and that 80% of the Chicago victims were black.

p. 43. Breyer responded with unsupported opinions of the anti-gunners that "experts" had estimated the Chicago ban had save up to 1,000 lives. Alito had hard facts while Breyer had biased and unsupported opinion.

[FALshootist]

This desicion is important for a number of reasons

1. It incorporates the second ammendment into the 14th amendment due process protections and prevents states from denying it.
2. it goes further by making it easier to incorprate the rest of the Bill of rights to the states.

However, like all rights including fundamental rights, like the first amendment rights to free speech, press and religion none are absolute and subject to "resonable restrictions" such as time place and manner.

None the less this is truely an outstanding decision as was Heller.

Always keep this in mind, all the really important decisions from the Supreme Court are usually 5-4 decisions.

[Bruxley]

I haven't logged in here in quite some time. Most here probably don't even remember me, but I had to raise my glass here in a toast to what, in my opinion, will be remembered and a watershed decision cited to summarily eliminate firearms bans across our nation and return the God given right to protect life and liberty personally rather to hope someone else does.

Excuse the religeous tone but I have to say, PRAISE GOD for this decision!

[Maromero]

Amen

[vytoland]

a 5-4 vote from the highest court in the land, on something that should never have needed to be discussed in the first place, is a disgrace.

[mpd61]

This was a good step in the right direction. It has stopped the 2nd Amendment from any further erosion.

As far as Massachusetts, it won't change much. The term "reasonable restriction" will preserve most of the anti gunners prior efforts.

[Frank Ettin]

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.

[Tennessee Gentleman]

Originally Posted by Webleymkv

I also think it may be possible that the '86 machine gun ban might be in danger,

LOL, Webley you love those machineguns don't you?

Seriously, I doubt any SCOTUS decision in our lifetime will make it easier to get FA. Now, legislation? Might be easier especially with a well placed amendment but even then I doubt it. Machineguns are radioactive to the court, the american people and Congress. Anyway, we've covered already those issues

We will see about CCW. I think it may have a chance but not sure "may issue" will go away completely. Depends on whether it is an "Alabama" may issue or a "Hawaii" may issue.

[Al Norris]

The decision is about what I expected. Even though I held out the hope that the Court would do the right thing, it was not to be.

Which decision belies the response Chief Justice Roberts wrote, so recently, in Citizens United:

Stare decisis is instead a “principle of policy.” Helvering, supra, at 119. When considering whether to reexamine a prior erroneous holding, we must balance the importance of having constitutional questions decided against the importance of having them decided right. As Justice Jackson explained, this requires a “sober appraisal of the disadvantages of the innovation as well as those of the questioned case, a weighing of practical effects of one against the other.” Jackson, Decisional Law and Stare Decisis, 30 A. B. A. J. 334 (1944).

In conducting this balancing, we must keep in mind that stare decisis is not an end in itself. It is instead “the means by which we ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion.” Vasquez v. Hillery, 474 U. S. 254, 265 (1986). Its greatest purpose is to serve a constitutional ideal — the rule of law. It follows that in the unusual circumstance when fidelity to any particular precedent does more to damage this constitutional ideal than to advance it, we must be more willing to depart from that precedent.

So much for a principled approach, Mr. Chief Justice.

OK. I've only skimmed the surface of the decision. But I would like to point out something that Prof. Nelson Lund has written, over at SCOTUSBlog:

The most interesting aspect of the decision is Justice Thomas’ concurrence, which rejects the plurality’s reliance on the judicial fiction of substantive due process. Thomas relies instead on the original meaning of the Privileges or Immunities Clause. His opinion is scholarly and judicious, and it cements his standing as the only Justice who is more than a half-hearted originalist. Thomas confines himself to the issue presented, which involves only the right to keep and bear arms, and explains why stare decisis should not foreclose an originalist approach in this case. With appropriate judicial restraint, he declines to decide in advance exactly what implications his analysis may carry with respect to substantive due process precedents involving other provisions of the Bill of Rights.

I have long held that Justice Scalia is a fair weather friend, to the Constitution. I believe I can now add Roberts and Alito to that list. Kennedy is, Kennedy. Flip-flops at the drop of a hat.

I am happy the decision went the way it did. As FALshootist said, the truly important decisions have mostly been 5-4 decisions.

I am not happy that Justice Alito regurgitated most of what Scalia wrote in Heller. The dicta that was in Heller, which pervades McDonald, will now become the defacto limitations upon the right to keep and bear arms.

[overland]

Daley runs Chicago like its his own fiefdom. He will put up a huge amount of hurdles to gun ownership for residents deterring people from getting armed. Other liberal mayors will follow in other cities. Good thing the decision came down now. Obama's political hack Kagan will only make things worse. Hope no one else retires from the court.

[Xfire68]

If IL. passes a CCW law I will have to find another reason to move! Oh, yeah it's high taxes, cold, bad roads, big haired or no haired Governors! I need a gun friendly warm place to live?