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Why wasn't the McDonald v Chicago case decided 9-0?


I was delighted when the Supreme Court case District of Columbia v Heller was decided in favor of the individual's right to keep and bear arms. I understood how that decision could be decided 5-4 by the nine justices. What boggles my mind is that given the decision of the Heller case, the McDonald v Chicago case wasn't decided 9-0. Stare Decisis, Latin for "to stand by that which is decided" is the legal principal that once a case is decided, the logic and decision of that case will be used in the future to decide cases that bear on the same principles of law. To me, Heller was a landmark decision and McDonald should have been decided in a few hours, a slam dunk.

Instead, Justices Stevens, Sotomayor, Bader-Ginsberg and Breyer tried to argue that a right in the constitution only binds the states if it is an indispensable attribute of ANY civilized legal system. They used international examples of societies where they don't have guns as examples of civil society, hoping to prove that the right to keep and bear arms wasn't integral to civil society and therefore not enforceable on the individual states of America. Justice Breyer has in the past suggested that the Supreme Court should look to international law for guidance in cases. Nope. We are a sovereign country with our own laws and our own history. As Justice Thomas said in his opinion, we can find examples among civil societies where the presumption of innocence doesn't exist. Should we therefore delete that from our laws? American judges decide our court cases based on our founding documents, our laws and our history.

Several of the arguments put forward in the minority opinion, such as the international law reality check, were put forward in the Heller case. They were beaten in Heller and DC v Heller became the law of the land. The same arguments should not have been brought up again in McDonald because they were settled. I fear that the allegiance to Stare Decisis among judicial activists only extends to those cases that they like. If Justice Kennedy had swung the other way on McDonald, the Heller case's precedent would have lasted a whole two years.

The opponents also sought to assert that there isn't a consensus about the right to keep and bear arms among the 50 states and thus it should be carefully considered before being enforced across the board. Page 47 of the McDonald decision states "An amicus brief submitted by 58 Members of the Senate and 251 Members of the House of Representatives urges us to hold that the right to keep and bear arms is fundamental." Later on the same page we are told that another brief submitted by 38 States takes the same position. I also believe that the Court is correct to describe the Second Amendment as "fundamental" to the American scheme of ordered liberty. As Justice Clarence Thomas put it, "Rather, the right to keep and bear arms is enforceable against the States because it is a privilege of American citizenship recognized by §1 of the Fourteenth Amendment, which provides, inter alia: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

Thankfully, the reasoning in Heller carried the day in McDonald v Chicago and the anti-gun crowd can look forward to many more cases of a similar nature across the country.

More from Gun Rights Examiners 

Atlanta: Ed Stone  |  Austin: Howard Nemerov  |  Boston: Ron Bokleman  |  Charlotte: Paul Valone  | Cheyenne: Anthony Bouchard  |  Chicago: Don Gwinn  |  Cleveland: Daniel White  |  DC: Mike Stollenwerk  |  Denver: Dan Bidstrup | Des Moines: Sean McClanahan | Detroit: Rob Reed |  Fort Smith: Steve D. Jones  |  Grand Rapids: Skip Coryel  |  Knoxville: Liston Matthews |   |  Los Angeles: John Longenecker | Minneapolis: John Pierce  |  National: David Codrea  | Parkersburg: Nicholas Arnold  | Phoenix: Douglas Little  | Pittsburgh: Dan Campbell  |  Seattle: Dave Workman  |  St. Louis: Kurt Hofmann  |  Tucson: Chris Woodard  |  Wisconsin: Gene German


  • Robert 5 years ago

    On this our day of celebration of our fredoms and independence we have four supreme court justices that have tried to inject their personal opinions and international concepts on civility into our our Constitution and Bill of Rights. These acts by them are treason not because they have their own opinions but that they tried to use them to twist and distort the concepts and rules by which this country was founded. What warring nations could not force us to submit to over the last two hundred years these four justices tried to impose in a treasonous manner. They should not only be impeached they should be tried for treason. I can't believe anyone reading what you wrote would think any differently if they know anything obout our founding documents. These documents were written to reject what was done outside the boundaries of this country and to keep us independent of the rest of the world.

  • yaba 5 years ago

    Why? Because the Marxist/Socialist/Communist party that calls it's self the "Democratic Party", Has succeeded in placing 4 like minded Marxist/socialist/communists upon the court. True they did have some republican help from those who could not see or didn't care where it was leading.

    The end result will be that there is no ability to obtain both justice or unapproved Constitutional rights from this court in the future. Which in the future means that the court is a functionary of tyrant and of tyrannical people.

    Thus are the Constitution and your rights destroyed, your children and grand children enslaved.

  • yaba 5 years ago

    They mean to seize your power first and then to seize everything else. LIES are simply a means of conveyance.

  • straightarrow 5 years ago

    The decision wasn't 9-0 for reasons of hypocrisy and treason. That is really simple to see. No hard complexities, no subtle nuances, but rather blatant hypocrisy and treason on the part of four of our Supreme Court Justices.

    We tend to see complexity where simplicity is the answer. Nothing complex about this.

  • HerbM 5 years ago

    You are correct in this article.

    Every one interested in the subject should read Scalia's concurring opinion, it is nearly entirely devoted to demolishing the intellectually dishonest and illogical dissenters.

    It -- in all legal politeness manages to say "you idiot" a dozen ways to Stevens.

    There are even laugh out loud moments.

  • URU 5 years ago

    Dan, we know you're only pretending to be obtuse for the sake of making a point. Clearly each of the four dissenting S.C. justices (no capital j for them) based their decision on opinion, not case American case law; on a overriding political agenda that has to do with the opposite of that cute slice of the 14th Amendment, all about not abridging the priviliges or immunities of American Citizens. Discussing why always breaks down into quasi-paranoid conspircacy theories, but there it is...

  • Carrie 5 years ago

    This is exactly right. People who carry guns illegally are not going to suddenly give them up because of a new law and they re google to continue to obtain them illegally. Then they will take advantage of law abiding citizens who would then opt not to carry firearms.

  • Emenot 5 years ago

    It seems to me that gun control implies that people that own guns are prone to be criminals, so why are there not more gun using criminals? Its criminals that should be bar from owning guns as all US law had in effect. If people want to own a gun, there are ways, if criminals want to have a gun its like going to 7/11 for them to have access to guns. It seems to me our governments and anti gun fanatic are so out of touch and short sighted and so amazingly stupid!

  • sofa 5 years ago

    Treason times 4. What is the remedy for Treason?

  • straightarrow 5 years ago

    sofa says:
    Treason times 4. What is the remedy for Treason?

    stranded hemp.

  • Jon Weiss 5 years ago

    The decision was not 9-0 because not all of our officials in and out of the SCOTUS actually see a need to abide by their oaths of office. Much like the President and the US Atty Gen, who have violated their oaths by failing in their jobs of upholding the law and enforcing national security.

  • Tom 5 years ago

    Concerning Stare Decisis, America has been building volumes of case law for 200 years now and any particular political point of view can be argued by "something" already on the books. Politicization of the Supreme Court is very dangerous when those appointed FOR LIFE have political agendas other than the best interpretation of the Constitution in mind.

    One thing concerning me about the dissenting opinions was the willingness to disregard the 2A in the name of "social experimentation" in a stated effort to reduce firearm accidents. There are other approaches to accident reduction other than taking guns away with a disregard to 2A.

    Indeed. One could easily determine political inclination by reading the dissenting opinions. Grasping at straws to exercise their Constitutionally negative political desires.

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