McDonald v. Chicago

[highsea]

The Supreme court hears oral arguments in McDonald v. Chicago today.

The big question is whether the court will take on the 14th amendment issues and overturn the slaughterhouse cases. Should have been done years ago.

The case has the potential to fix the gibberish of 2nd amendment violations by the States. If the court rules against Chicago based on the 14th amendment's priveleges or immunities clause, it will put to bed the longstanding nonsense over incorporation, and make the 2nd amendment apply evenly to all the States.

I'm keeping my fingers crossed. This could overturn every gun ban by states and municipalities in the country.

[gunnut]

I have my fingers crossed on this one.

I've said years ago that Bush's legacy will be the 2 justices he appointed to the supreme court. :)

[Proyas]

I've got a lot riding on this considering all the crap gun laws we've got on the books in MD.

When will the verdict be announced?

[highsea]

^^ Don't think we'll hear anything for a couple months at least. It's just oral arguments today.

[highsea]

Court Leans to Pro-Gun-Rights Ruling

WASHINGTON—The Supreme Court seemed ready to rule that gun possession is fundamental to American freedom, a move that for the first time would give federal judges power to strike down state and local weapons laws for infringing Second Amendment rights.

At oral arguments Tuesday, the court considered whether its 2008 decision voiding the District of Columbia handgun ban should be extended to the rest of the country. Because Washington is a federal territory and not part of a state, the legal basis for imposing federal constitutional limits on laws adopted by states had been unclear.

None of the five justices who voted to strike down the Washington ordinance identified any reason to grant state legislatures greater leeway over gun regulations.

On its face, the legal question before the court has little relation to policy views regarding gun control, and much to do with subtle questions of constitutional history.

Before the Civil War, courts held that the Bill of Rights applied only to the federal government. After the Union victory, three Reconstruction amendments were adopted to elevate individual rights over state powers, and cement the federal role in enforcing them.

Constitutional provisions vary in scope, so the court has turned for guidance to the 14th Amendment clause that bars states from interfering with "life, liberty, or property, without due process of law."

The court has held that constitutional rights fundamental to liberty, such as the First Amendment guarantee of freedom of the press, override state laws. The question is whether the Second Amendment right to bear arms is a fundamental right like freedom of speech.

In 2008, after the court voted 5-4 along its conservative-liberal split to strike down the Washington ordinance, gun-rights forces filed suit against weapons laws around the country. Tuesday's arguments involved a challenge to handgun bans in Chicago and Oak Park, Ill.

James Feldman, a Washington lawyer representing Chicago, told the court that because guns can kill innocents and aid criminals, owning them isn't a fundamental right. Moreover, he noted, the Second Amendment right "to keep and bear arms" is prefaced by the statement that "a well regulated Militia" is "necessary to the security of a free State."

Conservative justices said they had already decided in the 2008 case, District of Columbia v. Heller, that the militia clause didn't limit the amendment's scope.

"Its rationale was that because of its fundamental character, the right to bear arms must be understood as separate from the qualifying phrase of the militia clause," said Justice Anthony Kennedy. "If it's not fundamental, then Heller is wrong, it seems to me."

Chief Justice John Roberts agreed.

"I don't see how you can read Heller and not take away from it the notion that the Second Amendment, whether you want to label it fundamental or not, was extremely important to the framers in their view of what liberty meant."

Justice Stephen Breyer, one of the liberal dissenters from Heller, said that gun possession was different in nature from the other rights described in the Constitution.

When state or local lawmakers enact gun regulations, they do so aiming to protect public safety, he said.

"Here every case will be on one side guns, on the other side human life," with statistics on either side, he said. He asked Alan Gura, an Alexandria, Va., lawyer challenging the Illinois laws, why federal judges were better-positioned to make that decision than state legislatures.

"We decide that by looking, not to which side has the better statistics, but rather to what the framers said in the Constitution, because that policy choice was made for us in the Constitution," Mr. Gura said.

Justice Antonin Scalia, who wrote the Heller decision, said that legislatures would still have discretion over some regulations.

A ruling is expected by June.

Supporters of gun rights rallied in front of the Supreme Court building. "It is your right by virtue of being a living, breathing human being to bear arms," said 54-year-old Rob Weaver. "The Second Amendment didn't even give me that right. It is a right that pre-existed the amendment."

Benna Solomon, a lawyer for Chicago, disagreed, saying it should be the choice of states how to define the right to gun ownership.

Otis McDonald, a plaintiff in the case against Chicago, said that if the justices find in his favor, he'll first sigh in relief and then buy a gun. "It gives me a fighting chance in my neighborhood," Mr. McDonald said

High Court Leans to Gun-Rights Side - WSJ.com

Sounds like they were avoiding the meat of the argument, which is the concept of incorporation, and falling back on due process.

The stronger argument is the priveleges or immunities one. The framers of the 14th amendment included that language specifically to guarantee that 2nd Amendment rights were given to blacks in the south during reconstruction. Scalia, as an originalist, should reverse himself and acknowledge this truth.

The whole point of the 14th Amendment was to prevent States from violating the Bill of Rights. Basing a decision on the due process clause allows the States leeway that they wouldn't have under the priveleges or immunities clause.