The McDonald Decision

[Brian Pfleuger]

Originally Posted by grey sky

The "Reasonable restrictions" argument has always bothered me as whats reasonable to one can be so far out to another.
Take religious practices for instance. for a particular religious group to have tax exempt status there has to be a certan number of followers, before the government recognises it as legitimate (I can't claim my house to be a church with me the only member to get tax exempt status. Reasonable?). Such as what guns are in common use are protected by the second but NFA are not in common use so are not protected.
Am I way off base here???

You (we all) have to stop restricting out thinking of "arms" to "firearms". I don't think that there are ANY "normal" firearms that should be banned/illegal.

What about an F22 Raptor? TOE anti-tank missile? Nuclear Bomb? See? Those are reasonable restrictions.

If I can own a 10 round 9mm pistol, with 90 ten round magazines, then why can't I own a 100 round pistol? Makes no sense. That restriction is not reasonable.

If I can own a gun that holds 30 rounds and will fire as fast as I can pull the trigger then why not full-auto? In most cases, an active shooter with a full auto would likely do LESS damage than the same shooter with a semi. There's simply no compelling reason for drawing this distinction.

The AWB... why is a rifle with a wooden stock and iron sights legal but the EXACT same gun with an EEEEvil black plastic stock and pistol grip illegal? No good reason.

Logic people can tell the difference.

[Frank Ettin]

Originally Posted by grey sky

The "Reasonable restrictions" argument has always bothered me as whats reasonable to one can be so far out to another...

In fact, "reasonable" is not the standard. See post 71.

Originally Posted by fiddletown, post 71, emphasis added

...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....

[Aguila Blanca]

Originally Posted by Tom Servo

We can assume by her silent and tacit alliance with Breyer on his dissent that Sotomayor is just as anti-gun as many claimed.

We don't have to look at her signing onto the dissent. She did, of course, but that's just confirmation. All we really need to know is that, even after Heller established that the 2A does, indeed, protect an individual right, Justice Sotomayor chose to vote against "extending" that right to the citizens of the fifty states. How much MORE anti-gun can she get than that?

[Brian Pfleuger]

Was there really ever any doubt about Sotomayer?

I actually find myself agreeing, probably for the first time ever, with Diane Feinstein when she said that we can really never know about a judge until they're seated.

She exactly right.... but in todays world, we can pretty well assume that they're going to follow the inclinations of the appointer. 15, 20, 30 years ago, that was slightly less likely, today, I'd say it's all but guaranteed.

Sotomayer is likely to vote what amounts to straight down party lines, and Kagan will do the same. I'm just glad that neither of them represents a shift in the court. A lost chance for an entire generation or even two, but not shift.

[Silver Bullet]

today, I'd say it's all but guaranteed

Souter ?

[Brian Pfleuger]

Souter is from 20 years ago.

[Tom Servo]

Was there really ever any doubt about Sotomayer?

For me, there was. I went over her history during confirmation, and on several occasions, she quite vehemently stood for the rights of the individual over the powers of government.

I gave her the benefit of the doubt in the Maloney decision, since, as the 7th Circuit observed, incorporation would have violated precedent. Essentially, the issue was above the Circuit courts' pay grade.

However, the 2A is obviously a very party-line issue, as you mentioned. I was obviously wrong about her.

[CowTowner]

McDonald and Pending Court Cases
OK, we got the McDonald v Chicago ruling we were hoping for. Maybe not by the margin wanted, but a win is a win in my book.
So here's my question:
With the decision made, what happens to the pending cases in California, the 9th Circuit Court and elsewhere that have been waiting for SCOTUS to rule?
I seem to recall reading about numerous cases all sitting around waiting for this day. Is there a mountain of paperwork being filed?
Are lawyers lining up at court houses to see if they can get other gun laws looked at by the courts?

What about the decision that the 9th Circuit has on hold? Any ideas when that will get revisited?

Moved here due to inclusion of the pending cases in this "mega thread"

[Glenn E. Meyer]

This is from the Chronicle of Higher Ed. today - http://chronicle.com/article/Campus-...&utm_medium=en. The link probably won't work without a subscription.

The gist is that McD won't be the golden key to campus carry. That will have to be accomplished by legislative action in each state. The opposition to such comes from

1. Antigunners on the left
2. So called conservative business types who feel that such a ruling might weaken their case for maintaining bans on private property - which they support not for so-called private property liberty issues but the hypocritical issue of liability.

Here's the piece.

Campus Gun Bans Are Still on Solid Ground, Legal Experts Say
By Eric Kelderman

Washington

The U.S. Supreme Court decision on Monday that struck down handgun restrictions imposed by the City of Chicago was seen as a major victory for gun-rights advocates. Higher-education leaders, however, are optimistic that the ruling will not undermine campus bans on firearms.

The immediate effect of the Supreme Court's opinion is that campus gun restrictions are now open to challenge in federal courts, said Erwin Chemerinsky, dean of the law school at the University of California at Irvine.

But the Supreme Court made clear that an individual's right to bear arms does not undermine state and local government bans in public spaces, such as schools and colleges, said Mr. Chemerinsky, who spoke on a panel at the annual meeting of the National Association of College and University Attorneys that discussed Supreme Court actions affecting higher education.

The majority opinion, written by Justice Samuel A. Alito Jr., quoted the court's 2008 ruling that undid the District of Columbia's handgun ban: "We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as 'prohibitions on the possession of firearms by felons and the mentally ill,' 'laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.'"

"We repeat those assurances here," Justice Alito wrote in the opinion released on Monday in the case McDonald v. City of Chicago.

Another speaker on the panel here, William E. Thro, university counsel at Christopher Newport University, said future legal challenges to campus gun bans could make distinctions between institutions that are self-contained and those that are in the midst of suburban or urban settings where public and private spaces are less distinct.

Derek P. Langhauser, general counsel for the Maine Community College System, agreed that most campus bans would survive court challenges because the ruling is meant primarily to safeguard the rights of individuals to protect themselves in their homes.

However, if campuses run into problems defending firearms restrictions, it will be because they cannot point to specific authority from their state government that gives the institution or its governing board the ability to make those restrictions, he said.

One example of that kind of case is playing out in Colorado, where the state's Court of Appeals ruled in April that a lawsuit against gun restrictions on campuses could go forward. A lower court had dismissed the suit in deference to the University of Colorado regents' policy-making authority, but a unanimous three-judge panel of the state appellate court reinstated it, saying the campus ban appeared to violate state weapons law. "Had the legislature intended to exempt universities, it knew how to do so," the panel's opinion states.

The Board of Regents recently voted to appeal that decision to the state's Supreme Court.

[Maromero]

Maybe not by the margin wanted, but a win is a win in my book.

The McDonald decision is a declaration by the Supreme Court that the wording of the Second Amendment grants an individual the right to bear arms, rather than a collective right of state militias. This is huge.

[Brian Pfleuger]

Originally Posted by Maromero

This is huge.

Huge, philosophically, yes.

Mostly meaningless for actual effect in the short term, or even not too distant long term, IMO.

Unless there's another case already 90% through the system that will radically (and clearly) redefine what is and is not permissible then it's mostly a philosophical victory for the reasonable future, and I know of no such case. There are plenty of cases currently in the system that will help to make small, incremental changes, but I see none that will provide for radical, nation-wide rewrites of existing laws and policies.

[Glenn E. Meyer]

Not being a legal scholar - it seems to me that one central point in the current debate is the role of firearms in personal self-defense.

But what about defense against tyranny? Was it or is it still important?

A letter to the NY Times today made that point:

To the Editor:

Our Supreme Court apparently believes that the Second Amendment, including the right to keep and bear arms, is based on personal protection. Your article states, “The majority said little more than that there is a right to keep handguns in the home for self-defense.”

It is clear to me that the Second Amendment is intended to protect the citizenry from its own government, not from the local criminals. A militia, free of government control, retains the right to keep and bear arms, so the government cannot confiscate guns and have a monopoly on arms.

Protection from one’s own government was the reason for our civil rights then, as it continues to be now. So why does our Supreme Court keep talking about defense of one’s home?

E. Ware Cady III
Charlestown, Mass., June 29, 2010

Now, Clarence Thomas' opinion clearly points out that gun control laws were designed in part to deprive blacks of the instrumentality to protect themselves against racists who were in part supported by Southern local governmental structures.

See http://www.law.cornell.edu/supct/html/08-1521.ZC1.html

His opinion speaks to the issue:

The use of firearms for self-defense was often the only way black citizens could protect themselves from mob violence. As Eli Cooper, one target of such violence, is said to have explained, “ ‘[t]he Negro has been run over for fifty years, but it must stop now, and pistols and shotguns are the only weapons to stop a mob.’ ” Church Burnings Follow Negro Agitator’s Lynching, Chicago Defender, Sept. 6, 1919, in id. , at 124. Sometimes, as in Cooper’s case, self-defense did not succeed. He was dragged from his home by a mob and killed as his wife looked on. Ibid. But at other times, the use of firearms allowed targets of mob violence to survive. One man recalled the night during his childhood when his father stood armed at a jail until morning to ward off lynchers. See Cottrol, 354. The experience left him with a sense, “not ‘of powerlessness, but of the “possibilities of salvation” ’ ” that came from standing up to intimidation. Ibid.

In my view, the record makes plain that the Framers of the Privileges or Immunities Clause and the ratifying-era public understood—just as the Framers of the Second Amendment did—that the right to keep and bear arms was essential to the preservation of liberty. The record makes equally plain that they deemed this right necessary to include in the minimum baseline of federal rights that the Privileges or Immunities Clause established in the wake of the War over slavery. There is nothing about Cruikshank ’s contrary holding that warrants its retention.

He ties self-defense to the preservation of liberty. The governmental support of the oppression of blacks (even through 'private' militias) is clearly an instance of tyranny.

So, are we losing one part of the reason for the 2nd - the defense against liberty in the majority view and most of the discussion.

On this forum, I've pointed out the defense of liberty and some say that we could not defend against the might of the armed forces. But that's a touch of a red herring. Defense against actions such as Thomas describes (which were a form of governmental tyranny) is certainly possible. In history, we certainly see how ruling parties fund and use terror against opponents on their way to power or to maintain power. Kristallnacht (certainly an instance of government approved terror and tyranny) might have been a different story with an armed populace.

Just my thoughts for today.

Glenn

[stargazer65]

Huge, philosophically, yes.

Mostly meaningless for actual effect in the short term, or even not too distant long term, IMO.

The anti-gun lady who said "Oh my God, now every crazy right winger on the planet is going to be walking around my child's school with AK-47 machine guns in their pockets tomorrow!" is probably exagerating. Reality will be less extreme and more incremental.

[Frank Ettin]

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.

In real world terms, that is huge.

When we all went to bed last Sunday night, we had little prospect for successfully challenging in court many of the most restrictive state gun laws. That all changed by breakfast time, of at least our mid-morning coffee break, on Monday morning. Now we have something to work with.

[natman]

The McDonald decision is a declaration by the Supreme Court that the wording of the Second Amendment grants an individual the right to bear arms, rather than a collective right of state militias. This is huge.

A slight nitpick. Heller did what you describe, but it only applied to the Federal government. McDonald extended Heller's reach to the states/local governments.

Between the two decisions a firm foundation has been laid that will serve as a powerful weapon against gun bigotry. And yes, despite the complaints from people who are unhappy because they can't carry a bazooka concealed without a permit today, it IS huge.

[Tom Servo]

So, are we losing one part of the reason for the 2nd - the defense against liberty in the majority view and most of the discussion.

Sadly, I've noticed that as well. The 2nd Amendment used to be about the National Guard. Now it's about handguns in the home.

We've won, but to quote Al Pacino, this is a battle of inches.

Though the idea of an armed populace as a bulwark against tyranny has been brought up in supporting arguments, all we've gotten from the Supreme Court so far is the right to keep a gun for the "core right" of self-defense of the individual.

I can't really think of a case we could bring that would force the courts to accept the 2nd Amendment as a last resort against tyranny. Frankly, if we have to invoke the right, it may be too late for courts.

[Glenn E. Meyer]

I agree, a ban on ARs would be quite constitutional under a view of the handgun in the home for self-defense.

Granted the decision is a great step forward as compared to the view that NO guns, no way for self-defense.

But, given our own rhetoric suggests that we can do almost all the self-defense we need with a wonder handgun like the Judge (), one could see bans being successfully promoted for other guns.

Such rules would have to be fought on the political and legislative level as compared to the constitutional one, if I understand the decision.

Nor can gun bans on campus or other locations be constitutionally challenged, in the near future.

[Tom Servo]

I seem to recall reading about numerous cases all sitting around waiting for this day. Is there a mountain of paperwork being filed?

There's a great deal that's already been filed. Nordyke v. King was placed on hold pending the results of McDonald and should be reheard soon.

Peña v Cid should be picking up momentum soon as well.

[CowTowner]

OK, I'll concede it was a major win.
But, do we have any notion as to when the cases waiting in the wings will start to proceed through the system?
Perhaps I was under the misconception that these were ready to launch and simply waiting on the McDonald button to be pushed.

I guess I don't type as fast as Tom Servo. That post was made while I was typing and is exactly what I was thinking about. But I seem to recall more than 2 cases were waiting.

[zukiphile]

Originally Posted by Glenn E. Meyer

I agree, a ban on ARs would be quite constitutional under a view of the handgun in the home for self-defense.

Granted the decision is a great step forward as compared to the view that NO guns, no way for self-defense.

But, given our own rhetoric suggests that we can do almost all the self-defense we need with a wonder handgun like the Judge (), one could see bans being successfully promoted for other guns.

Such rules would have to be fought on the political and legislative level as compared to the constitutional one, if I understand the decision.

Nor can gun bans on campus or other locations be constitutionally challenged, in the near future.

I see the consequence of Heller/McDonald somewhat differently.

Neither decision indicates that the right is solely for self defense. As an analytical matter, the right is not linked to service in a particular active militia unit. However de-linking the right from service does not mean that the prefatory clause is useless in describing the scope of the right as suggested in Miller. So an AR might be less than optimal for defense in a small apartment, but no one is foreclosed from arguing its coverage under the right; a ban could still face constitutional difficulty.

I agree both that we could see successful bans for some classes of weapons, and that the political arena is where much of the contest can still take place. However the modest of Heller/McDonald does not mean that a continuing incremental approach would not have good results.

[Frank Ettin]

Originally Posted by CowTowner

OK, I'll concede it was a major win.
But, do we have any notion as to when the cases waiting in the wings will start to proceed through the system?
Perhaps I was under the misconception that these were ready to launch and simply waiting on the McDonald button to be pushed...

Several have been on hold in California. Not only Nordyke but a couple challenging "may issue", one challenging the approved handgun list and one attacking the ammo law due to come into effect next February.

Also, for a somewhat different perspective, litigation is only the tip of the iceberg. By now the many meeting to come have already started -- in the offices of State Attorneys General and among senior members of legislatures. What laws are most vulnerable to judicial challenge? How much is dealing with the litigation going to cost? What can be done to deal with the costs and head things off? And senior people in state RKBA groups and NRA representative are, or soon will be, meeting to discuss not only litigation plans, but legislative advocacy strategies to best capitalize on McDonald.

[Glenn E. Meyer]

One argument that the dissenters made was that different areas had different circumstances, Chicago being different from the Wild West locales that some of us live in. Thus, Chicago might be unable to fight off a total ban on handguns but still maintain an AR ban as not being suited for apartment defense. Defense against tyranny being a different beast as tyranny is not locale specific.

In TX, Dr. Gratia-Hupp made a compelling case for handgun carry after the Luby's incident. However, during the AWB hearings, a woman who used an AR to defend herself was not convincing. That probably was due to several factors, including aggressive priming and gender stereotypes.

I'm just concerned that the self-defense focus is limiting but I might just be a worry-wart. Current political currents seem to indicate that large scale federal bans aren't going to fly. Local bans seem to be supported by the populace in those areas. NY, CA, and IL for instance could vote the bums out. But now the bums are restrained to some extent from banning all handguns. They will throw up obstacles, so you can't get that wonder HD Judge.

[zukiphile]

NY, CA, and IL for instance could vote the bums out. But now the bums are restrained to some extent from banning all handguns.

I am not sure about that. To the degree those places have bums, it is because the elctorate in those places like bums.

I think it is more likely that voters who like restrictive gun laws will continue to like them and vote for people who back them.

One argument that the dissenters made was that different areas had different circumstances, Chicago being different from the Wild West locales that some of us live in. Thus, Chicago might be unable to fight off a total ban on handguns but still maintain an AR ban as not being suited for apartment defense. Defense against tyranny being a different beast as tyranny is not locale specific.

You are correct that Breyer made the argument, but I don't see a persuasive argument for local tailoring of a federal right. One might also argue that some parts of the country would be better served by limiting jury trials or requiring defense counsel to be provided to criminal defendants, but that kind of policy consideration is largely removed from local political control.

[Glenn E. Meyer]

The local tailoring argument is in part racist. It implies that the denizens of that area are so unlawful that it is better to take away the guns or forbid ownership of guns even to the law-abiding folks in that area. These are usually the areas with large minority populations.

Thus, Breyer wants to restrain their constitutional rights in some kind of paternal view.

In the past, as Thomas pointed out the race card was played to make minorities defenseless against oppression. Today, it is to protect them from themselves. And of course, protect the priviledged classes from the spill over if some of those minorities commit crime against the priviledged. So poor old Mr. McD had to be defenseless for the greater good of his cohort, as decided by Breyer, Sotomayer, etc.

[Tennessee Gentleman]

Originally Posted by Tom Servo

Though the idea of an armed populace as a bulwark against tyranny has been brought up in supporting arguments,

Don't look for much traction in the courts for that idea. I for one don't think that was EVER part of the Second Amendment and I think the courts, legislature and American people will find the insurrection theory about as appealing as full auto and crew served weapons for all without restriction. It scares folks because it smacks of lawlessness. But that is another argument we have hashed out before.