The McDonald Decision

[Frank Ettin]

Originally Posted by Antipitas

...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...

I suspect, however, that the dicta was necessary to get Kennedy to sign on, and he was crucial. Of course, we'll probably never know for sure. In any case, I seriously doubt that we could expect all gun control fall, and the dicta probably does no more than describe the sort of gun control that would ultimately survive even strict scrutiny.

[Al Norris]

I quite realize that all gun regulations will not fall.

However, I do agree with Ken, that many modes of "infringement" (my terminology) will remain lawful.

[JohnKSa]

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.

Sorry, but this isn't even remotely realistic.

First of all, the 86 law is a federal law and this ruling is simply extending Heller (which applied to federal law) to apply to state/local laws so this ruling has absolutely nothing to do with the 86 law. Any effect on the 86 law would have already come from Heller.

Heller ruled that completely prohibiting ownership/possession of an entire general class of firearms that is commonly used for self-defense by citizens (handguns) was not constitutional.

It's pretty easy to make the point that "machineguns" is not a general class of firearms in the same sense that "handguns" is.

It's also pretty easy to make the point that machineguns are not commonly used for self-defense by citizens.

Even if we concede those two points we STILL can't make Heller apply because the 86 law doesn't completely prohibit ownership/possession of all machineguns.

So NO. It's not going to overturn the 86 law. It's not going to prevent registration or 1 gun a month laws. It won't stop AWB laws and it's not likely to have any effect on CCW laws.

All it does is make it clear that it's unconstitutional to completely prohibit ownership/possession of an entire general class of firearms that is commonly used for self-defense by citizens

[38superhero]

well said john.

[Wildalaska]

All it does is make it clear that it's unconstitutional to completely prohibit ownership/possession of an entire general class of firearms that is commonly used for self-defense by citizens

Which removes the bugaboo should end the screeching about every gun law as a prelude to confiscation of all guns by the Blue Helmets in conjunction with ZOG and the Bilderbergers.

In a certain sense Hennigan is right about the impact of the decision. If VA decides that one gun a month is appropriate, then both sides can work it out knowing that passing the low WONT lead to confiscation and CANT lead to confiscation.


WildthebigpicturehasbeensettlednowworkonthedetailsAlaska TM

[mack59]

Although fiddletown and I have disagreed rather vociferiously in the past - I agree almost completely with his post #71 on this thread it is very logical and well written.

Some here seem disappointed that the court's opinion didn't in dicta at least - start naming all sorts of gun laws as unconstitutional or state that as opposed to Heller - in McDonald on incorporation - that no gun control is constitutional.

The court answered - as this particular court always does - just the specific question in the case before it - no more and no less.

Drink the Brady Koolaid if you wish - this was a huge win and far from what some here postulate - it is just the beginning of a lot of positive changes.

If one reads the text of Heller and McDonald - the specific limitations by which the court defines reasonable or constitutional gun control are very limited themselves.

[RDak]

I was working outside all day yesterday, so I haven't read the actual decision yet. (It is loaded on my desktop now though.)

I do know that the 2A is now incorporated and this has made me happy beyond belief.

After all these decades.........FINALLY!!

The scales have tipped HEAVILY towards our side and the anti-gun movement, as we have known it, will go the way of the dodo bird IMHO.

Millions of people who could not own firearms will now be able to own them. This is a culture changer that will carry on into the future, getting stronger as each generation passes IMHO.

I'm a little disappointed a specific level of scrutiny wasn't provided but we all expected that would be a battle for another day.

For right now, a lifetime battle has been won. And I am as happy as I can get.

[Te Anau]

Its almost impossible to be PC on these divisive rulings.What scares me is the apparent lack of concern among gun owners over the 5-4 ruling.

[alloy]

They probobly felt the need to take it back to simple and easy terms for the gun grabbers. Obviously the court has a few leaning that way....and the description of Stevens' world where corporations and majorities are silenced yet the Supreme court gets to rule on whimsy instead of the Constitution's basic rights was very gratifying.

I heard a snippet of Justice Thomas opinion(I think, no legal eagle here) where he quoted earlier precedent and was speaking of "hoping every house should have a loaded musket to defend against home invaders intent on harm of the type of _______." Grossly paraphrased from memory, I was not listening intently, but he was speaking of lynching type horrors.

But I'm curious, will things like that at some point be used in cases where the castle doctrine or similar is being debated, or someone's use of force in the home is being ruled on?

[mapsjanhere]

I wouldn't be too worried that the court might change that decision because it was a 5-4 ruling. The court usually does not take a settled question for review. Take the famous Slaughter House case quoted, it was a 5-4 decision that no one overturned in 140 years, Thomas's flailing at the windmills notwithstanding. What's a good thing if you have any interest in preserving some form of state rights, a broad interpretation of the privileges and immunity clause could sweep any vestige of those rights away. If you thought the patriot act asking for states to conform to a standard drivers license with fingerprint was bad, wait until you get a national ID under a broad P&I.

[ISC]

Originally Posted by rdak

The scales have tipped HEAVILY towards our side and the anti-gun movement, as we have known it, will go the way of the dodo bird IMHO.

How you you say that? 5-4 is not "tipping heavily" . Even the judges that ruled in our favor couldn't agree why they ruled that way and had to have 2 seperate explanations.

All it will take is one of those judgdes to be replaced by a judge nominated by an anti gun president.

Remember that 2 of the judges that voted against us were nominated by HW Bush who was an NRA life member at the time.

If the party in control of the Senate has a super majority or their leadership are demogogues or idealogues they can ensure that a qualified judge won't be confirmed, forcing the president to nominate a compromise candidate.

I knoe that the staff here hates it when anyone writes about politics, but in this case politics and legal issues are both involved.

I have tried very hard not to mention any political affiliation although everyone will make their own (obvious) associations, but there is a general truth about HOW this decision came about. The mechanics of HOW this decision came about will determine whether it will stand or whether this presedent will be overturned by a later court consisting of judges appointed by future presidents and confirmed by future senates.

Failing to recognize that will lead to a new thread in a few years lamenting why the 2nd amendment suddenly became a right that can only be exercised by joining the police or military organization like the ones hwich will be confiscating and destroying personal weapons.

[Oldjarhead]

I know this decision struck down the Chicago ban, and the Second Amendment is now incorporated to the states. I have one question. Will other local gun bans have to be challenged one by one citing McDonald, or does this decision immediately dismiss all gun ban laws?

[ISC]

each ordinance will have to be challenged seperately, and if antigun politicians like Daly (mayor of Chicago) wants to, they can continuously pass new, slightly different ordinances and wait until each is struck down in turn (2 or 3 years each time) until someone at a higher level files an injunction against the city and that works its way up to a level past Left leaning appeals courts.

[grey sky]

I have to agree with ISC. Just as DC has continued it's ban with burdensom regulations so too will others. Proving each "reasonable regulation" is not will be an ongoing process, uphill all the way.

[Mike Irwin]

"All it will take is one of those judgdes to be replaced by a judge nominated by an anti gun president."

AND a situation where a case comes into the Federal court system that works its way through to the Supreme Court level, AND the court actually accepting a case.

The court overturning a previous courts decision is not a common thing.

It's also, from what I can tell, VERY uncommon for the court to overturn decisions that strive to define an amendment based on the intent of the Framers. It seems to be more common that the court is willing to alter previous court decisions that are based on extension of an amendment.

Is overturn of Heller and MacDonald possible by some future court? Yes.

It it likely to happen in our lifetimes? I sort of doubt it.

[full.tang.halo]

86 law doesn't completely prohibit ownership/possession of all machine guns.

My question in regards to that is, at what point does a closed registry of newly built machine guns, as the 86 law has been read as meaning, become a de-facto ban on ownership via the cost of purchasing one?

I am way to young to have experience with how buying a full-auto pre-86, but from what I read there was little difference in the price of say an full-auto M16 vs an AR-15, sans the $200 tax stamp. Now a transferable M16 is 12k-16k. For some that may not be "a lot of money" but for others that can be 1/3 of what they might make in a year! Where an enthusiast would reasonably be able to afford a $1400-$1800 gun, something being nearly ten times as expensive is excessive to me. I understand the supply and demand economics where a limited supply, and in full-auto's case an actual diminishing supply due to wear-out and breakage, and constant demand will raise prices.

Could the excessive price, as a result of the closed registry be fought at a similar point of a "poll tax" used to deny a right based on economic conditions?

[ISC]

That's assuming that the cases are appealed past a lower level that is dominated by the recent appointees that replaced the nominees that never made it out of congress due to delaying tactics. Our legal system has become more politicized than at anytime in my lifetime, and I was alive during Watergate.

Ever since Bork there has been a concerted effort by many political players to win legal battles by dictating who the judges are.

Consider that the brilliant Scalia, one of the most conservative supreme court judges, was unanimously confirmed after Reagn appointed him. I don't think he could win confirmation today despite his excellent qualifications.

Politics and the courts can 't be completely seperated at that level because they are so inherently linked.

[zukiphile]

However, I do agree with Ken, that many modes of "infringement" (my terminology) will remain lawful.

Indeed. Far more draconian regulation than most of us endure should have no problem surviving a wider application of Heller.

Which removes the bugaboo should end the screeching about every gun law as a prelude to confiscation of all guns by the Blue Helmets in conjunction with ZOG and the Bilderbergers.

In a certain sense Hennigan is right about the impact of the decision. If VA decides that one gun a month is appropriate, then both sides can work it out knowing that passing the low WONT lead to confiscation and CANT lead to confiscation.


WildthebigpicturehasbeensettlednowworkonthedetailsAlaska TM

I do not agree that the big picture is settled. To the degree the matter is political, it is never settled.

"All it will take is one of those judgdes to be replaced by a judge nominated by an anti gun president."

AND a situation where a case comes into the Federal court system that works its way through to the Supreme Court level, AND the court actually accepting a case.

The court overturning a previous courts decision is not a common thing.

It certainly doesn't happen every session, but it has does happen each time the court prefers a different direction. Dred Scott, Lochner and Bowers v. Hardwick were each eviscerated by a subsequent Sup Ct that had a different opinion on a matter.

Is overturn of Heller and MacDonald possible by some future court? Yes.

It it likely to happen in our lifetimes? I sort of doubt it.

Depending on how future replacements work, I could see this changing well before I plan to leave. Lawrence followed Bowers by less two decades. Elections matter. GWB's mattered and so will BHO's.

[mapsjanhere]

fth, the original $200 tax was exactly introduced to make transfers of machines guns unaffordable for all but a few. Since they forgot to adjust the $200 for inflation, it went from several months average salary to a day or two. By closing the register and artificially raising the prices they got back to what they intended originally. Framer's intent for sure.

[Mike Irwin]

LISTEN UP, FOLKS!

I like to think that the membership here is a bit more adult and mature than the residents of other forums on the internet.

Accordingly, I like to think that we've all outgrown the petulant need to resort to childish name calling to express the depth of our angst.

The various foes of the Second Amendment, both real and perceived, have titles and names.

You WILL use the PROPER tile and/or name when you refer to these individuals.

You will NOT resort to cutsey name modifications for said individuals.

If you're not mature enough to express your views and opinions without resorting to such elementary school playground behavior, then you're not mature enough for The Firing Line.

Those who do feel the need to resort to such name calling risk having their TFL posting privileges revoked permanently.

That's your only warning, folks.

[full.tang.halo]

Framer's intent for sure.

The framer's of 1934, 73rd congress that passed the NFA?

My original question of a fight at a similar point of a "poll tax" used to deny a right based on economic conditions still stands as an adjusted for inflation transfer tax would be something on the order of $3200 per transfer.

[Mike Irwin]

"Dred Scott, Lochner and Bowers v. Hardwick were each eviscerated by a subsequent Sup Ct that had a different opinion on a matter."

Uhm...

The Dred Scott decision was never overturned by the Supreme Court.

The decision was rendered moot by adoption of the 13th and 14th amendments to the Constitution, a point which the court itself noted: "The first observation we have to make on this clause is, that it puts at rest both the questions which we stated to have been the subject of differences of opinion. It declares that persons may be citizens of the United States without regard to their citizenship of a particular State, and it overturns the Dred Scott decision by making all persons born within the United States and subject to its jurisdiction citizens of the United States."


Lochner was overturned more than THIRTY years later.

Bowers v Hardwick was overturned 17 years later. And, let's face it, while the subject matter may be objectionable to many people, the original decision in Bowers v Hardwick was flat out wrong in that it criminalized private behavior between consenting adults, behavior that was legal between male/female couples. I'm not one much for the gay life kind of thing, but I'm even less in favor of this kind of twisted logic.

Neither Lochner nor Bowers v Hardwick were cases that defined original intent of the Framers as MacDonald does.

Dred Scott also doesn't address the point I made in that, as noted, the Supreme Court didn't overturn its own ruling, Congress and the states altered the Constitution and that alteration invalidated the Court's ruling.

That seems to have happened quite a bit more than the Court overturning decisions that define and clarify Framer intent.

[zukiphile]

The Dred Scott decision was never overturned by the Supreme Court.

The decision was rendered moot by adoption of the 13th and 14th amendments to the Constitution, a point which the court itself noted: "The first observation we have to make on this clause is, that it puts at rest both the questions which we stated to have been the subject of differences of opinion. It declares that persons may be citizens of the United States without regard to their citizenship of a particular State, and it overturns the Dred Scott decision by making all persons born within the United States and subject to its jurisdiction citizens of the United States."

That's a fair point about Dred Scott and the court thereafter was not bound to it at all.

Lochner was overturned more than THIRTY years later.

Indeed, and as a result of the political process.

Bowers v Hardwick was overturned 17 years later. And, let's face it, while the subject matter may be objectionable to many people, the original decision in Bowers v Hardwick was flat out wrong in that it criminalized private behavior between consenting adults, behavior that was legal between male/female couples.

I do not believe that is true of the Georgia law in Bowers but was true of the Texas law in Lawrence. I don't believe that all consentual behaviour between consenting adults is a matter enjoying categorical constitutional protection, but that is beside the point.

You don't find the reasoning in Bowers compelling, and the people who overturn, limit or modify Heller and McDonald will certainly not have found the reasoning in those decisions compelling.

To consider this issue resolved doesn't give adaequate consideration to the effects of elections and people who already find these decisions "flat out wrong".

[mack59]

The restrictions that DC passed are in the process of being overturned and will be on appeal - yes Chicago will pass onerous restrictions like DC if not worse and they too will be crushed in court. And as someone stated, Mayor Daley may then try to repass more restrictions after that - but there are two factors that will work against him - one he is mortal and not a young man and his reign will end in the not too distant future for that simple reason and two - more immediately - Daley has to expend political capital in support of his gun control agenda - he is rapidly approaching the point of suffering serious political damage over his gun control agenda and even his supporters who like gun control in principle will say enough is enough - quit throwing away time and money on this blackhole of gun control. Violent crime and gangs are out of control in Chicago and even gun control supporters amongst the general population of the city are starting to say that the mayor needs to really do something about the violent crime and killings and stop blabbering about gun control which has had no net positive effect at stopping the violence.

Also Chicago does not exist in a vacuum, downstate legislators are aggitating for less gun control not more - that movement has been growing for the last several years and is still getting stronger. Even the mayor and police chief of Peoria are advocating vocally for a shall issue concealed carry law - deriding the fact that Illinois is the only state that has no provisons for any type of carry for self defense - open or concealed.

Despite Chicago's political power - Illinois is not like CA or NY where gun owners are heavily on the defensive - Illinois is more at a tipping point and gun control advocates statewide have had to play more defense than offense in the last few years.

[mack59]

I agree with Mike Irwin on the likelyhood of McDonald and/or Heller being overturned by a future court - you would need four justices like Breyer to approach that - just like Roe vs Wade was not overturned by a conservative court neither will McDonald or Heller be overturned by a liberal one. The court just doesn't work that way. Also the court doesn't exist in a complete political vacuum - and a reveral would so seriously undermine the legitimacy of the court at this point that I really can't see it happening.

That said, I could well see a liberal court that would verbally acknowledge Heller and McDonald while essentially making decisions that make the individual RKBA an empty suit. In other words that court would verbally acknowledge the RKBA as an individual right - but allow so many infringements on that right that it would become toothless and meaningless.

But I don't see that happening in the short term either - public opinion is powerful and the pendulum of public opinion is still swinging our way - and I believe that it will continue to do so for some time. Guns, gun ownership, the right to carry, and the right to self defense are becoming more acceptable not less in the eyes of the general public. The courts current endorsement of an individual right will only feed and strenghten that view with the public.

Twenty years ago it was fashionable for many politicians to state the there was no RKBA and that guns or handguns should be banned. Today many of those same politicians are at pains to say that there is an individual RKBA and that they don't support banning guns.