Most observers agree that Justice Antonin Scalia, right,
Chief Justice John Roberts, left, will be cornerstones of at
least a 5-4 majority for incorporation of the 2nd Amendment.
(AP Photo/Charles Dharapak)
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"Unless Justice Kennedy does an about-face," Friedman says, "the chances of the survival of Chicago's ordinance are about as high as Sonny Corleone in the toll booth."
By now, there are few gun owners left who have not heard that the Supreme Court will hear arguments in McDonald v. Chicago this term, with a decision likely to be announced by June of next year. The plaintiffs in the case, together with the Second Amendment Foundation (SAF) and the Illinois State Rifle Association (ISRA), argue that Chicago's famous gun registration and handgun ban violate the 2nd Amendment, while Chicago argues that the 2nd Amendment does not apply to local or state governments.
At present, Chicago's view is technically correct. As the 7th Circuit judges said during oral arguments for McDonald v. Chicago, the appellate courts don't have the power to overrule Supreme Court decisions even if they're pretty sure they know how the Supreme Court would rule, given the chance. So, do the lower courts have a handle on what the Supremes are thinking when it comes to incorporation?
After all, Antonin Scalia himself said in the Heller decision's famous "Footnote 23" that:
“With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.”
Most experts seem to agree that this recitation of ancient cases coupled with the court's eagerness to take up the issue of incorporation even with no conflict among the lower circuits indicate that a majority of Justices are not satisfied with the status quo. Recently, Steve Chapman reported in the Chicago Tribune that "law professor Ronald Rotunda of Chapman University told me that he gives the Chicago law only a one in five chance of surviving." And Rotunda is not alone. Avery Friedman, one of television's favorite civil liberty experts and legal consultants, told the Chicago Gun Rights Examiner yesterday that although he isn't personally opposed to most local gun control ordinances across the country, he sees little hope for Chicago's gun ban at the Supreme Court. "Unless Justice Kennedy does an about-face," Friedman says, "the chances of the survival of Chicago's ordinance are about as high as Sonny Corleone in the toll booth."
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Comments
I'm just curious: why don't people talk about the OTHER condemnation of Cruikshank in the Heller decision?
The part where there's a favorable citation to the book "The Day Freedom Died" (2008) by Charles Lane?
In that book, "the day" is the day the Cruikshank decision came down.
As Mr. Lane documents, the Cruikshank decision effectively pulled the Federal government out of the civil rights protection business, "legalizing" the 100 murders that occurred in Colfax LA by Mr. Cruikshank and his 59 co-conspirators, and over 4,000 lynchings and innumerable civil rights violations over succeeding generations.
In the 9th Circuit, Judge Reinhardt penned a decision in Silveira that tried to build a new structure for gun-grabbing that didn't depend on Cruikshank, because he knew it stank to hell. The Heller decision completely trashed his effort but at it's core, Reinhardt tried to shift gears because he knew Cruikshank was a blowout waiting to happen.
Ladies and gentlemen, Jim March, scourge of corrupt California sheriffs and co-destroyer, with Nadja Adolf, of the Million Mom March.
Jim, I think the main reason is that the passage you're talking about is the one that footnote 23 was written to explain, and the footnote is frankly more direct in its criticism than the passage itself, at least from an incorporation point of view. I don't really consider it the "other" condemnation, since they're both from the same passage. The passage follows in the next comment.
"United States v. Cruikshank, 92 U. S. 542, in the course
of vacating the convictions of members of a white mob for
depriving blacks of their right to keep and bear arms, held
that the Second Amendment does not by its own force
apply to anyone other than the Federal Government. The
opinion explained that the right “is not a right granted by
the Constitution [or] in any manner dependent upon that
instrument for its existence. The second amendment. . .
means no more than that it shall not be infringed by Congress.”
92 U. S., at 553. States, we said, were free to
restrict or protect the right under their police powers. The
limited discussion of the Second Amendment in Cruikshank
supports, if anything, the individual-rights interpretation.
There was no claim in Cruikshank that the
victims had been deprived of their right to carry arms in a
militia; indeed, the Governor had disbanded the local
militia unit the year before the mob’s attack, see C. Lane,
The Day Freedom Died
The bottom line is that if the anti gun crowd could produce one iota of evidence that any of the countless gun control laws actually made the people safer we wouldn't be having this discussion.
The negative correlation between state's Brady rating and their crime rates is prima facia evidence that their fundamental assumptions of "fewer guns less crime" is fatally flawed.
The comments made by Don and Jim sum up the real problems with gun control and this re-interpretation nonsense that the 2A never applied to the States; racism and the fear of a Black man with a gun are the real cause behind the whole gun control debate!
The 1833 Baron v Baltimore case was an effort to give power to the States to control Blacks through a series of laws that we call Black code laws and Jim Crow laws today.
All of this reinterpretation nonsense occurred after the 1831 Turner rebellion, in which a small group of Black slaves killed around 60 white people.
The fear was that these Slaves were aided by free Blacks at the time. By reinterpreting the Bill of Rights as not applying to the States allowed for the creation of these new laws used to control Blacks
I'd like to know why you deleted my comments regarding the legal Quackery of the "Incorporation Doctrine."
Thanks,
Paladin, I haven't deleted any comments in quite awhile. It's possible your comment just didn't go through for some reason, but I haven't seen it--I check a master list of all comments daily to see where the new comments are. I should have seen it.
I don't think I've ever deleted anything except doubles, although I might delete threats and the like if I ever got those. You could re-post it if you like.
How can the hypocrisy of those who ensure that they,and their precious families,are guarded by gun toting drivers and body guards,while desperately pleading for no guns for the poorer
sections of the Illinois Community? Go unmentioned by most of the pundits,msm,etc? An inconvienent truth?
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