The McDonald Decision

[raimius]

I hate to be nit-picky, but there is STILL no firm standard. The ruling may indicate that the 2nd should be considered at an equal level as other fundamental rights, but they never actually agreed upon a standard of review. We certainly know some justices profess to "respecting" the 2nd, but would happily apply something like "rational basis" when reviewing infringements to the RTKBA (and maybe even call it "intermediate scrutiny.")

On a different line,
Does anyone see anything in Heller and/or McDonald that could be used against the new Chicago ordinance?

[Bogie]

Right now I think that the best thing that "gun people" could do would be to confront the activities of the Chicago council as being racist, besides transparently unconstitutional.

Which will need publicity.

[Glenn E. Meyer]

It's easy to say they are racist or unconstitutional in a post but I would ask for a specific as to why.

I've said that the locale rationale is racist. Thus, I'd agree that pointing out that this rationale was to deprive people of color the right to defend themselves.

Also, we are stuck with reasonable restrictions and the SCOTUS has the opinion that counts. Chicago now will allow you a gun at home for self-defense (SCOTUS likes home defense). It has a test but TX and quite a few states have concealed carry tests - so is that an unreasonable restriction?

Unless we go back to the argument that any restrictions are unconstitutional, it would be hard to argue that Chicago's are in violation of the SCOTUS ruling. The remedy is legislative.

This would take quite a bit of time. TX - a gun friendly state can't get off the dime on parking lot guns because of business interests blocking it and getting their legislative buddies to keep the bill from a vote.

[Bogie]

I think part of it is a matter of public relations and shocking media into actually thinking - I don't think most of them are malevolent - they're just LAZY.

We need to send out a picture of Otis, with the caption (and story around it...) "Black Man Victim of Chicago Gun Laws."

[Glenn E. Meyer]

I recall actually seeing that point made on some nightly news - could have been Diane Sawyer. The point was made that an elderly African-American wanted to defend himself.

Thomas made the point of laws being used to deprive blacks of the ability to defend themselves against racists and government supported racists.

However, I think the left is paternalistic towards people of color and would try to disarm all of them for their own good. However, this paternalism is covering a fear of people of color.

Complicated, isn't it?

I agree that I would like to see someone call out a left wing anti on the racist view of depriving people of color. However, some of the classic gun world probably have their own racial issues and this doesn't appeal to them.

I might be skirting our rules when I say this and after to delete myself but that's my read of the research on guns and some attached attitudes from some sections of the gun world. Sigh -

[grey sky]

Now chicago will continue its ban by having convoluted expensive restrictions same as DC. Looks like it to me. Reasonable restrictions?

[Al Norris]

Google Palmer v. D.C.

If Sir Gura wins here, it will set some fine precedence at what type of regulations are permissible.

There is a plan. It is being fought in a wholly systematic manor.

[mack59]

Yes, Gura talks about the second amendment in treatment much like the first amendment - their are limits to free speech and the freedom to worship - but no agent or agency of government can ban the right to speak one's opinion or to publish one's thoughts or to limit one's church attendance to once a month. I love Gura's comment - "In the glass-two-drops-full department, opponents of the right to arms find refuge in statements recalling that the Second Amendment “does not imperil every law regulating firearms.” We can all breathe easier knowing that airport metal detectors are going nowhere."

You can find his full take on the RKBA and McDonald here:

http://www.scotusblog.com/2010/06/mc...ond-amendment/

[Frank Ettin]

Originally Posted by Antipitas

...There is a plan. It is being fought in a wholly systematic manor.

And it's being very well managed. You'll notice that each case is meticulously set up to focus on one issue, and each issue then leads to the next case and the next issue.

[grey sky]

Baby steps are frustrating but thats how we got here. It will take baby steps to correct the current regulations. The control camp has realy made alot of changes over the years. How much can be rolled back is the question. Still very frustrating that it has taken so long for a couple of real wins.

[Al Norris]

Has it really taken so long?

Parker, et al. v. D.C. was filed in February of 2003. It morphed into Heller and was decided by the SCOTUS in 2008. That was only 5 years. McDonald was filed and the 2A incorporated in 2 years.

Chicago changed their laws before the ink was even dry on that decision!

Contrast that with Nordyke v. King, which was filed in 1999 and was pretty much a dead case until Parker was decided (by the D.C. Circuit) in 2007.

While we are waiting for the en banc Nordyke case to resume (which may help to define the "sensitive places" issue), the following cases have been filed:

• Pena v Cid Challenge to Roster of Handguns, April 2009 (Donald Kilmer, SAF, CalGuns, Alan Gura).
• Sykes v. McGinness Carry in Yolo and Sacramento Counties, discretionary concealed weapons permits, May 2009 (Alan Gura, Donald Kilmer).
• Peterson v. LaCabe Carry in The City and County of Denver, non-resident permits/residency requirements, January 2010 (John Moore, GA Carry).
• Hodgkins v. Holder Challenge to Federal residency requirements to acquire firearms in DC Circuit, March 2009 (Alan Gura, SAF).
• Palmer v. District of Columbia, Carry in District of Columbia, August 2009 (Alan Gura, SAF).
• Jackson v San Francisco, Gun storage, May 2009 (NRA coalition).

Of course, there's Heller II (Stephen Halbrook, NRA), currently on appeal to the D.C. Circuit.

Newly filed case: State Ammunition v. Lindley Challenge of AB962 (CA), CA Handgun Ammunition Regulations violates Commerce Clause, June 2010.

Did I mention the case in North Carolina that the SAF and Alan Gura filed, immediately after the McDonald decision was presented?

Things moving too slow, huh?

[gc70]

Originally Posted by grey sky

Still very frustrating that it has taken so long for a couple of real wins.

In the long view, reducing gun regulation has only started.

• The 1800s to 1860s produced the broad adoption of laws against concealed carry.
• The 1870s to 1920s produced restrictions on possession by "undesirable" population groups (former slaves and non-Protestant immigrants), often under the guise of discretionary permitting.
• The 1930s saw the rise of attempts toward general prohibitions (NFA of 1934) under the banner of fighting mobsters.
• By the late 1950s, 60% of the respondents to a Gallup Poll survey favored banning private possession of handguns.
• From the mid-1960s, national controls (GCA of 1968 and Brady Act of 1993) increased dramatically, culminating in the AWB of 1994.

The tide of public opinion and resulting relaxation of restrictions has only turned in our favor in the last 25 years.

• In the mid-1980s, only a handful of states had no requirements or shall-issue permitting for concealed carry; today, that relationship is exactly the opposite.
• The AWB expired in 2004, without enough votes for renewal.
• In 2008, the Supreme Court recognized the Second Amendment as an individual right.
• In 2010, the Supreme Court incorporated the Second Amendment against the states.

After two centuries of increasing infringement on the RKBA, the progress in the last decade really looks pretty stunning.

[maestro pistolero]

In the mid-1980s, only a handful of states had no requirements or shall-issue permitting for concealed carry; today, that relationship is exactly the opposite.

Indeed:
http://www.handgunlaw.us/images/righ...ry-history.gif

[grey sky]

That helps thanks

[Sefner]

Originally Posted by Antipitas

Newly filed case: State Ammunition v. Lindley Challenge of AB962 (CA), CA Handgun Ammunition Regulations violates Commerce Clause, June 2010.

Hahahaha. I love this irony. I guess if they are going to fabricate the meaning of the Commerce clause, we might as well use that for ammo. Pun definitely intended. I wonder if we could apply this to anything else since the Commerce Clause seems to cover well... everything else.

[Aguila Blanca]

Originally Posted by Glenn E. Meyer

Also, we are stuck with reasonable restrictions and the SCOTUS has the opinion that counts. Chicago now will allow you a gun at home for self-defense (SCOTUS likes home defense). It has a test but TX and quite a few states have concealed carry tests - so is that an unreasonable restriction?

Unless we go back to the argument that any restrictions are unconstitutional, it would be hard to argue that Chicago's are in violation of the SCOTUS ruling. The remedy is legislative.

I don't think Chicagoans are stuck. The new ordinance only allows for "keeping" a firearm in the home. The 2nd Amendment guarantees "A" right (singular) to keep AND bear arms. Heller, in particular, addressed only the "keep" portion because that's what the case was about -- what Heller asked for was to be allowed to keep a firearm in his home. Mr. McDonald basically asked for the same thing, but in McDonald I think Justice Alito was well aware (from the way Washington, DC, tried to cheery pick the Heller decision to basically ignore the intent of the court) that Chicago would do their best to do an end run, so in his opinion he noted that "the" right to "keep and bear" arms IS (singular, not "are," plural) "A" fundamental right.

That, to me, says that McDonald both affirms and applies to the states a requirement that the People must be allowed not only to keep a firearm in their home, but to carry one when outside of the home. Chicago's new ordinance does not provide for that, and for that reason I believe it will have to be ruled unconstitutional.

[zukiphile]

...the progress in the last decade really looks pretty stunning.

I agree. The one-step-at-a-time approach is only frustrating if you come to the issue with an unrealistic expectation of complete vindication of all associated rights in a single case.

I agree that I would like to see someone call out a left wing anti on the racist view of depriving people of color. However, some of the classic gun world probably have their own racial issues and this doesn't appeal to them.

I might be skirting our rules when I say this and after to delete myself but that's my read of the research on guns and some attached attitudes from some sections of the gun world. Sigh -

My anxiety about that is tempered by my observation that what people say about racial issues and how they conduct themselves vis avis these matters is only loosely related. I had a client with ponytail and tattoos that used some pretty foul epithets, but actually did some real good in helping people of that very same background. I've also known some officeholders whose racial attitudes when no camera is around merits contempt.

I think the population to which you refer feels sufficiently disenfranchised that they would find the discriminatory history of restrictions compelling.

I hate to be nit-picky, but there is STILL no firm standard. The ruling may indicate that the 2nd should be considered at an equal level as other fundamental rights, but they never actually agreed upon a standard of review. We certainly know some justices profess to "respecting" the 2nd, but would happily apply something like "rational basis" when reviewing infringements to the RTKBA (and maybe even call it "intermediate scrutiny.")

This reminded me of an interesting comment from Scalia or Thomas that differing levels of scrutiny are not themselves enshrined in the COTUS and that a constitutional prohibition may be just that, and not a prohibition unless the government makes a showing as to why it should not be prohibited.

[USAFNoDak]

Just a small correction: the Court did not rule that the RKBA was "fundamental."

I will defer to you since I did not commit the decision in Heller to memory and haven't had the time to go back and read the actual and official opinion of the court. However, in McDonald at least, as you pointed out in your earlier post, Alito discusses the fundamental right protected by the second amendment. He talks about the paladium of liberties being the right to keep and bear arms. He talks about the common laws. He waltzes entirely around the RKBA being a fundamental right, even if he doesn't explicity say that in his opinion.

I think the mindset of most americans, in light of both Heller and McDonald, is that the USSC has decided that the 2nd Amendment protects an individual and fundamental right to keep and bear arms, and the states and local governments must also respect that, even if the USSC did not specifically state that the right was "fundamental". We may have won that position based upon public perception, right or wrong from a purely legal perspective. I tend to smile when such things occur.

[Tom Servo]

He talks about the paladium of liberties being the right to keep and bear arms. He talks about the common laws. He waltzes entirely around the RKBA being a fundamental right, even if he doesn't explicity say that in his opinion.

It's true that he never says, "the right to keep and bear arms is fundamental," but it's clear enough. From the syllabus alone:

This is powerful evidence that the right was re-garded as fundamental in the sense relevant here.

A survey of the contemporaneous history also demonstrates clearly that the Fourteenth Amendment’s Framers and ratifiers counted the right to keep and bear arms among those fundamental rights necessary to the Nation’s system of ordered liberty.

Evidence from the period immediately following the Amendment’s ratification confirms that that right was considered fundamental.

The [Heller] Court is correct in describing the Second Amendment right as “fundamental” to the American scheme of ordered liberty

Not to worry--I think we're on solid ground with that

[Al Norris]

First, I would caution anyone from taking anything from the syllabus to heart. It is written by one of the clerks and is not binding.

Having made that observation, let's look at the below wording, from the first paragraph of Justice Alito's decision. I have marked up the relevant parts:

Two years ago, in District of Columbia v. Heller (citation omitted), we held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense, and we struck down a District of Columbia law that banned the possession of handguns in the home. .... We have previously held that most of the provisions of the Bill of Rights apply with full force to both the Federal Government and the States. Applying the standard that is well established in our case law, we hold that the Second Amendment right is fully applicable to the States.

No one can read the above and come away with anything less than that the 2A is a fundamental right, as regards the core purpose of the right. Therefore, the core purpose, as stated above, is that of self-defense.

Any legal challenge to that purpose will attach strict scrutiny. The further from that purpose we travel, scrutiny will become less strict.

[Brian Pfleuger]

Originally Posted by Antipitas

No one can read the above and come away with anything less than that the 2A is a fundamental right, as regards the core purpose of the right. Therefore, the core purpose, as stated above, is that of self-defense.

Any legal challenge to that purpose will attach strict scrutiny. The further from that purpose we travel, scrutiny will become less strict.

Is there still room in there for "more" fundamental right?

If not, what is to stop the antis from banning ever weapon that is not SD oriented at it's core?

Seems like virtually every weapon except handguns would be fair game.

[Tom Servo]

First, I would caution anyone from taking anything from the syllabus to heart. It is written by one of the clerks and is not binding.

Very true, but it's all over the decision. On page 19,

In sum, it is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty

In the conclusion,

Unless considerations of stare decisis counsel otherwise, a provision of the Bill of Rights that protects a right that is fundamental from an American perspective applies equally to the Federal Government and the States. pp. 44-45

Any legal challenge to that purpose will attach strict scrutiny. The further from that purpose we travel, scrutiny will become less strict.

That's what the Skoien decision intimated: the "core" right of possession of a firearm for defensive use triggers strict scrutiny, while "not-so-core" rights like deer hunting trigger "intermediate" scrutiny.

[Al Norris]

Peetza, banning an entire class of firearms "in common use" would violate Heller.

It wouldn't be too hard to make the argument that a subclass, say AR-15's (and its many clones), are in fact, in common use.

On the other hand, the anti's will have to make the argument that literally millions of AR-15's, held by the public, constitute an unusual and dangerous weapon. I wish them good luck with that.

Tom, just wanted to make sure we are all on the same page. Quoting from a syllabus allows error to creep into our analysis.

[Tom Servo]

Quoting from a syllabus allows error to creep into our analysis.

So does caffeine, and lots of it. Darn Starbuck's instant...

We know Nordyke was on hold pending the McDonald decision, and I believe Skoien is as well. The "Skoien Test" could become precedent if the case is reheard in the light of this decision.

If self-defense is now the "core" of the 2nd Amendment, then challenges to carry-licensing restrictions could stand a chance.

[Brian Pfleuger]

Originally Posted by Antipitas

Peetza, banning an entire class of firearms "in common use" would violate Heller.

It wouldn't be too hard to make the argument that a subclass, say AR-15's (and its many clones), are in fact, in common use.

On the other hand, the anti's will have to make the argument that literally millions of AR-15's, held by the public, constitute an unusual and dangerous weapon. I wish them good luck with that.

What's to stop them banning through attrition? Not much to be done about the ones that are already out there, but why couldn't they say that all new rifles may not hold more than two rounds? That AR would be a blast with a two round capacity, wouldn't it? 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, must have the serial number stamped on ALL removable parts and must have micro-stamping on the breech face and firing pin.

Technically, there would not be any real "ban".