The McDonald Decision

[Frank Ettin]

Originally Posted by peetzakilla

What's to stop them banning through attrition? ...why couldn't they say that all new rifles may not hold more than two rounds? ... What's to stop all sorts of new "micro-stamping" type nonsense. One simple law that said all new firearms sold or any firearms imported into XYZ state may not have a magazine capacity exceeding two rounds,...

Remember that now that the Second Amendment has been confirmed by SCOTUS to both describe a fundamental right to keep and bear arms and to be applicable against the States, any regulation much be justified and must satisfy at least intermediate scrutiny (the law or policy being challenged furthers an important government interest in a way substantially related to that interest) or, more likely, strict scrutiny (no broader than necessary to satisfy a compelling government interest).

There will no doubt be regulation that will satisfy the applicable test. But some of the more outlandish regulations, like a two round magazine capacity limitation, most likely will not be sustainable.

[Brian Pfleuger]

Originally Posted by FiddleTown

Remember that now that the Second Amendment has been confirmed by SCOTUS to both describe a fundamental right to keep and bear arms and to be applicable against the States, any regulation much be justified and must satisfy at least intermediate scrutiny (the law or policy being challenged furthers an important government interest in a way substantially related to that interest) or, more likely, strict scrutiny (no broader than necessary to satisfy a compelling government interest).

Right.... but the discussion has been that the right is specific to self defense, particularly in the home. The "bear" issue is still to be decided I suppose, but it seems likely to me that if "bearing" goes with SD then the most applicable type of weapon is a handgun.

I can easily see the antis saying that bolt action rifles are not "defensive", no rifle is really "bear-able", so they will make all sorts of restrictions.

This is not to say that I believe that they will hold up to scrutiny, but it will take years to find out... in the mean time, we'd be SOL.

[Frank Ettin]

Originally Posted by peetzakilla

...but the discussion has been that the right is specific to self defense, particularly in the home....

And that was because that was what the cases were about.

Heller and McDonald both sued because they claimed they wanted to keep a gun at home for self defense. The Court said, that because the Second Amendment describes an individual right to keep and bear arms (not connected with service in a militia), and because the Second Amendment right to keep and bears arms is fundamental, and because the Second Amendment right to keep and bear arms is fundamental and applicable, through the 14th Amendment, to the States, neither the District of Columbia (in Heller), nor the City of Chicago (in McDonald) can completely bar Heller or McDonald from doing so.

But go back to post 139

Originally Posted by fiddletown, post 139

I see a fair amount of "hand-wringing" about Heller and McDonald only finding a right to keep a gun in the home for self defense. But that was the underlying factual context for each case, and courts decide the cases in front of them.

We need to remember that in the course of deciding Heller and McDonald, the rulings made by the United States Supreme Court on matters of Constitutional Law, as necessary in making its decisions in those cases, are now binding precedent on all other courts. 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 other restrictions on the RKBA, and the rulings on matters of law necessarily made by the Supreme Court in Heller and McDonald will need to be followed by other courts in those cases....

Originally Posted by peetzakilla

...This is not to say that I believe that they will hold up to scrutiny, but it will take years to find out... in the mean time, we'd be SOL...

And that's sometimes the was things are in real life.

But if also often happens that after a significant court decision, legislative bodies start to become reluctant to enact laws that are unlikely to survive challenge. It's not perfect, but there does seem to be some synergistic effect -- court decision tend to discourage the enactment of laws which would fail to survive legal challenge based on those court decisions.

[Brian Pfleuger]

Originally Posted by fiddletown

But if also often happens that after a significant court decision, legislative bodies start to become reluctant to enact laws that are unlikely to survive challenge. It's not perfect, but there does seem to be some synergistic effect -- court decision tend to discourage the enactment of laws which would fail to survive legal challenge based on those court decisions.

Ordinarily, or should I say historically, I would agree. In fact, I wouldn't have probably even raised the question if we were back a few years (maybe decades), but there are a number of legislators, Congress not the least of which and executives, Obama not the least of which, that seem to be laser focused on not only an agenda but also on ignoring precedent. Beyond that, the lack of basic competence among many of our elected officials is astounding and, I think, unprecedented in scale.

These are the things that worry me.

[USAFNoDak]

But if also often happens that after a significant court decision, legislative bodies start to become reluctant to enact laws that are unlikely to survive challenge. It's not perfect, but there does seem to be some synergistic effect -- court decision tend to discourage the enactment of laws which would fail to survive legal challenge based on those court decisions.

In addition, the rulings by the USSC tend to become somewhat "ingrained" in the general populace. Many people will now walk away from the argument saying, "The Supreme Court has already decided that issue. The people have an individual right to keep and bear arms and the states and local governments must respect that." That, in and of itself, is a huge blow to the gun control proponents, and an even bigger blow to proponents of gun bans in general. I'm sure they'll continue to try and close the gun show loophole and continue to try and push for an assault weapons ban. Cripes, even Obama recognized that was out of reach and he has a like party controlled congress. I believe this helps our cause tremendously, even if both decisions were only 5-4. That still leaves me a little uneasy, I must admit.

[Frank Ettin]

Originally Posted by peetzakilla

...These are the things that worry me.

Originally Posted by USAFNoDak

...That still leaves me a little uneasy, I must admit.

Of course we're always going to have things to worry about, and we should continue to be uneasy. The gun control crowd isn't going "gently into that good night." They will be out there forever, and so we can't afford to become complacent or self satisfied. Heck, even some 80 years after Prohibition had proven to be such a total flop, we still have "dry" counties in the United States.

But we shouldn't despair either. Of course everything didn't change overnight with McDonald, but it wasn't going to either. And we will have a lot of work to do for a lot of years. But we now have two powerful new tools to help us do that work -- Heller and McDonald.

[mack59]

McDonald is not the end, it is a beginning. It is a foundation on which to build. A foundation to use to educate the general public that the RKBA is a fundamental individual right. A foundation from which to litigate against unconstitutional laws. A foundation from which to pressure legislators to acknowledge the RKBA. A foundation with which to hold the mass media and talking heads accountable.

I too feel frustration at the obstructionism practiced by politicians and gun control advocates and government bureaucrats. But as has been said, we are winning, and we must continue the fight.

"If you will not fight for right when you can easily win without blood shed; if you will not fight when your victory is sure and not too costly; you may come to the moment when you will have to fight with all the odds against you and only a precarious chance of survival. There may even be a worse case. You may have to fight when there is no hope of victory, because it is better to perish than to live as slaves." Churchill

That quote reminds me of all those who fought for freedom - when their victory was not assured - when it meant taking up arms - when many paid the ultimate price to win or preserve liberty.

Speaking only for myself - I have no room to complain - this is the work of liberty - and my burdens are surely light compared to my fathers and fore-fathers and those today who take up arms in defense of our nation and our homes.

When I think of McDonald, I do not think only of the court case, I think of Mr. McDonald himself - a genuinely humble, honest, decent, and honorable man. I think of the man I met and the effect this simple man has had on our country and our fight for liberty. I know that Mr. Gura and the ISRA/SAF brought this case and that without them the would be no decision - but Mr. McDonald sought out the ISRA for help - he found them and they recommended him as a plaintiff to Mr. Gura. Mr. McDonald has been an inspiration to many people before and after this case - even the main stream media - predisposed to paint him as an uncle tom - were disarmed upon meeting him - as his real humility, sincerity, and dignity shown through. His example reminds me that we all may have an important role to play, that we all must be willing to put our shoulders to the wheel of freedom and push.

Thus, when I feel frustrated or discouraged - I remember the sacrifices and the work done by those who have gone before - and I remember that it is not just the powerful and privileged who make a difference - but also the humble, honest, and sincere.

[USAFNoDak]

Mac 59:McDonald is not the end, it is a beginning. It is a foundation on which to build. A foundation to use to educate the general public that the RKBA is a fundamental individual right. A foundation from which to litigate against unconstitutional laws. A foundation from which to pressure legislators to acknowledge the RKBA. A foundation with which to hold the mass media and talking heads accountable.

Good points. McDonald and Heller are two pillars of the new freedom building we must now construct through sweat, hard work, and money. We can now stand on the front stoop, with the two steps of Heller and McDonald and proclaim that we are now embarking on our full blown project to reconstruct the building of freedom which had been run down by leftists who would rather live in big government projects than own their own property, free and clear.

We are going to restore at least one facet of freedom, but it will take hard work. Nothing will be easy. There are still very powerful forces aligned against us. They will use every tool in their own arsenals to try and roll back our freedoms. We must continue to be wary and continue our hard work. We've got some sunshine on our backs for now. Let us take advantage of it and move forward. I hear a new lawsuit has already been filed against Chicago's new ordinance. We already have a thread discussing it. This is the synergy that we must continue to exploit against the anti-gun and pro-gun-control forces. While still feeling a bit uneasy regarding the future and the 4 justices aligned against us, I'm also feeling emoldened by our recent successes. Add to that the increasing number of states with liberalized concealed carry laws, and the fact that several states have already told the feds that any guns built entirely within those states are out of reach of federal gun control statutes. That battle will be fought eventually, but our side is already locking and loading. That's a good sign. I believe the fear of defeat has started to shift towards our enemies, and away from us.

[Musketeer]

I can easily see the antis saying that bolt action rifles are not "defensive", no rifle is really "bear-able", so they will make all sorts of restrictions.

While it would be a nice secondary effect to see my Fudd neighbor cry about the outlawing of his respectable deer rifle while my "useless" handgun was protected this will never happen as you suggest.

Yes, the "respectable" arms could be banned but the political will to do so would have to follow the long process of removing those "evil" self defense arms. Politically it is not possible with the current rulings and landscape.

[maestro pistolero]

I can easily see the antis saying that bolt action rifles are not "defensive", no rifle is really "bear-able", so they will make all sorts of restrictions.

Of course that would be laughable. And whether weapon is offensive, (we STILL have a militia clause, even if self-defense is now a legitimate purpose for the right) or defensive, doesn't matter. It's still just a tool to fire a projectile out of a tube, no matter what the purpose.

[Brian Pfleuger]

Originally Posted by maestro pistolero

Of course that would be laughable. And whether weapon is offensive, (we STILL have a militia clause, even if self-defense is now a legitimate purpose for the right) or defensive, doesn't matter. It's still just a tool to fire a projectile out of a tube, no matter what the purpose.

"Laughable", maybe, but it's the antis that would be laughing for the 5 years it took to get it over turned by the SC, one little change to comply, and it's 5 more years...

We "won" Heller.. how many handguns are in DC? A year later?

[Maromero]

Pete. Where is all this negativity stemming from? Dude! Quit the gloom! In this moment in history where the tide is turning against the anti gun movement and two of the biggest cases concerning the 2nd Amendment have set the cornerstones and foundation for much further progress you ferrously, repeatedly and furiously adhere to such negativity?

Rome was not built overnight.

[natman]

peetzakilla, you have to be a little patient. Heller and McDonald were great victories, but you can't expect social change overnight.

Just to put it into perspective, Brown v Board of Education outlawed school segregation in 1954, but George Wallace vowed "segregation forever" nine years later in 1963 and schools weren't actually segregated until the mid 60's. There's a lot of social inertia to overcome.

The gun bigots in Chicago and DC will drag their feet as long as they can, but the tide has turned and they will eventually be defeated.

[Brian Pfleuger]

You guys are seeing this backwards....

I'm not all doom and gloom and impatient. I'm trying to temper the over-excitement of the people who act like we just won the war and there'll be high-cap handguns on every hip in Chicago by next weekend.

Philosophically, Heller and McDonald are a big deal. Practically, for a good while, they're meaningless.

"Foundation", "building blocks", "Rome wasn't built in a day", yes. Rome will be a great place, for our children. That's great, but there's no reason to get all up in a tizzy about it today. I'd be surprised if I can still see well enough to shoot by the time there's a major change on the ground, and I'm 35.

[Tennessee Gentleman]

Originally Posted by peetzakilla

We "won" Heller.. how many handguns are in DC? A year later?

I've read about 800 which is 800 more than there were legally in 2008.

[Silver Bullet]

Philosophically, Heller and McDonald are a big deal. Practically, for a good while, they're meaningless.

Not to me. Consider the situation if we lost those two cases.

[Brian Pfleuger]

Originally Posted by Silver Bullet

Not to me. Consider the situation if we lost those two cases.

That's the philosophical meaning. What if we lost? We didn't. We won. What does it mean to you, practically? Nothing. If you're in DC or Chicago it's means almost nothing, on the ground in every day life.


Philosophically, huge.

Practically, "foundation" "cornerstone" "building blocks" "...Rome..."... all great. All without practical significance until the rest is built.

[Maromero]

Pete you say you're not doom and gloom but you're making a tougth case against yourself. Vive la diference.

[Brian Pfleuger]

You call it "Doom and Gloom", I call it realism.

[Maromero]

And you are entitled to call it anyway you like. Great nation that guarantees the right to free speech. It wasn't allways like that you know. Great nation indeed.

[baldeagl1]

Originally Posted by peetzakilla

We "won" Heller.. how many handguns are in DC? A year later?

According to NICS, 959 from November 30, 1998 - June 30, 2009. But keep in mind that DC residents could easily buy guns in Virginia (2,353,496) or Maryland (884,509) and they were trying to as soon as the ink on Heller was dry. Considering that handguns were completely banned in DC pre-Heller, I would think that the number of available gun stores would be very low. The DC Zoning Commission passed an emergency measure that allows gun stores, with some very strict guidelines, late in 2008, but even that could be rescinded by the City Council.

[Silver Bullet]

What does it mean to you, practically? Nothing

Wrong. I'm feeling some very real, non-philosophical, relief that I don't have to worry about what the next shoe to come down is going to be.

[Aguila Blanca]

I am also cautiously optimistic that some jurisdictions may turn out to be more rational than Chicago and D.C. Some of the states that are currently "may issue" could easily be looking at the fine print in both Heller and McDonald and recognizing that "may issue" may not pass muster if/when challenged. Not every such jurisdiction is ruled by demagogues like Daley and Bloomie -- some of them may decide on their own initiative that it would make more sense to get with the program and make their permits "shall issue" rather than engage in lengthy (and costly) court battles they're virtually guaranteed to lose.

Hey ... a guy can hope, can't he?

[Glenn E. Meyer]

http://www.nytimes.com/2010/07/11/op...ml?ref=opinion

This is a strange editorial in some senses. First, the Times denies the right to keep and bear arms for the citizen. However, since it is settled law (for now), the Times criticizes Chicago's new rules as they shift training and selling out of the city to the burbs. See:

Cities and states have a need to be extremely tough in limiting access to guns, but they need to do it with more forethought than went into the Chicago ordinance. Lawmakers there sensibly limited residents to one operable handgun per home, with a strict registration and permitting process. But residents are not allowed to buy a gun in the city. They must receive firearms training, but ranges are illegal in the city. Chicago lawmakers sloughed off on the suburbs the responsibility to regulate sales and training. As a result, more people will travel more miles to transport guns.

The law is likely to draw heightened equal-protection scrutiny from skeptical judges at all levels. Chicago would have been better off allowing gun sales under the strict oversight of the police department, which could then better check the backgrounds and movements of every buyer and seller. The District of Columbia passed a largely similar ordinance last year after its law was struck down by the court. But it permits sales at the few gun shops in the district, and a federal judge upheld that ordinance after it was challenged. It could stand as a model for other cities.

Huh? Mixed messages or feeble attempts to maintain control?

But they get back on track! Old women can't defend themselves and should just call the law:

As flawed as the Chicago regulation is, the lawsuit challenging it is entirely over the top. It disputes virtually every aspect of the law as a violation of the Second Amendment and poses ludicrous hypothetical situations to show that everyone needs a gun. “If an elderly widow lives in an unsafe neighborhood and asks her son to spend the night because she has recently received harassing phone calls,” the lawsuit complains, “the son may not bring his registered firearm with him to his mother’s home as an aid to the defense of himself and his mother.” Putting granny in the middle of a neighborhood firefight is preferable to having her simply call the police?

So they can find chopped up Granny later? Call Chicago CSI!

[gc70]

Originally Posted by Glenn E. Meyer

Mixed messages or feeble attempts to maintain control?

In some respects, I see the direction in the editorial as realistic from the perspective of gun controllers. I suspect they are correct that Chicago's bans on gun shops and ranges will fall to equal-protection challenges. They seem to be saying the gun control movement should retreat just far enough to have a more defensible position and not give us easy targets.

Consider just the fees and costs aspects of the DC and Chicago laws. Both cities have built structures that effectively attempt to make guns too expensive to own. By going overboard, they tempt the courts to find the aggregate fees and costs to be an unconstitutional tax on the exercise of a right. Starting with more modest fees and costs would not present us with a good opportunity for such a result.