Just a little something I noticed from the transcript of yesterday's oral arguments in the McDonald v. Chicago that I found...interesting...
See, this is the kind of unrealistic expectation that happens when someone unsophisticated and unschooled in the law—like me—intrudes into the mystic arts with quaint, simplistic notions.
Oh, us extremists, always taking things so literally...
For more info:
- Chicago gun case argued before Supreme Court today
- Court likely to rule right to keep and bear arms extended
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 | Fort Smith: Steve D. Jones | Grand Rapids: Skip Coryel | Knoxville: Liston Matthews | Los Angeles: John Longenecker | Minneapolis: John Pierce | National: David Codrea | Phoenix: Douglas Little | Pittsburgh: Dan Campbell |Seattle: Dave Workman | St. Louis: Kurt Hofmann | Tucson: Chris Woodard
Comments
I noticed that too... "shall not be infringed, but granted by the political process under due process."
Another cut - one of a thousand by which we'll die.
I believe there's ample evidence over the history of the Supreme Court that points to the fact that no lawyer should ever be permitted to be a member of the Supreme Court.
Probably because that one was excised during Heller.
Take heart, gang. The beauty of the situation now is that we can hoist them by their own petard. Reasonable restrictions? Well, now, that's all in the eye of the beholder, now ain't it? And guess what... public opinion is thanks to the hard work of folks like our esteemed host Mr Codrea strongly on our side. And seems to be getting moreso, not less.
Keep pounding away at the unabashed pro-rights position, and I think we can keep any "restrictions" reasonable even by our standards. And to quote someone David links to, "When democracy becomes tyranny, I still get to vote."
Keep your powder dry, folks, and it won't come to that. If there's one thing Heller and now McDonald demonstrates with stark clarity, it is that they political elite are scared of us little guys who understand our rights and are prepared and willing to act.
'Shall not be infringed' means just that, regardless of what a bunch of political hacks say.
They can due process those thoughts, or would they rather we reach for the ammo box...
Ummm....maybe perhaps the second amendment wasn't mentioned because the case wasn't about the 2nd amendment?
Actually, Tom, the term "Second Amendment" is mentioned like 63 times in this transcript alone. And you did read the petitioner's brief? Not the whole thing, just this part:
QUESTION PRESENTED
Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment’s Privileges or Immunities or Due Process Clauses.
But thanks for playing.
So you were saying that the court didn't refer to the entire amendment? Again, my point stands. The case was about getting the Court to overrule precedent established in the late 1800s that allowed state and local governments to place restrictions on gun ownership. The case was not about the interpretation of the second amendment so it is entirely reasonable (given that every lawyer and justice in the room could certainly recite it) that the text of the amendment wouldn't have been said during hearings.
Tom, if they are so well versed in the Second Amendment, which ends in "shall not be infringed," then why was so much time expended arguing the degree to which states would still be allowed to infringe on the right if it the right is incorporated against the states? I believe that's what David is getting at. A significant amount of time is spend on the lawyers and Justices horse trading on what sort of laws states may still erect to impair citizens' ability to exercise their Second Amendment protected rights rather than just reading it and saying "Hmmm...shall not be infringed...well that's pretty clear so no more of that 'But Chicago did this and Oak Park did that,' Mr. Feldman. Why should we not incorporate the Second Amendment based on the Constitution and our jurisprudence? Your statistics and precious little feelings do not apply here."
I noticed it as well. Hopefully, this will become a part of future litigation. First we get the right incorporated (what a stupid thing, to have to demand that governments reconize a right that the founding document clearly places out of government's reach) then we demand that the whole amendment be applied. There aren't any clauses after "shall not be infringed". Having established that "the right of the people" actually means everyone.
You miss the point Cordrea as another pointed out. The topic of discussion was whether the uninfringeable right holds true in the states as well as federal enclaves. Heller already decided that people had the right.
The question is whether they will categorize the right as fundamental under the 14th amendment and set strict scrutiny as the standard of review.
Tom and Dan--The word "reasonable" was used throughout. Guess why?
For you to maintain the scope of the right was not a part of the conversation is simply not factual. If it doesn't trouble you that they spend time discussing ways to infringe but no time acknowledging that there is no Constitutional authority to do so, then I won't try to persuade you otherwise. If you're saying there is no place for that to even be a discussion point, you won't convince me.
I'm no legal scholar, but I believe in order to bring a case before the Supreme Court you have to make a claim for why the lower court's decision should not stand. The lower court followed established SC precedent in ruling that Chicago had the right to place restrictions on gun ownership. So, in order to get the lower court to reverse their decision, the plaintiffs here were trying to get the SC to say that their precedents were invalid and that the lower court could rule otherwise. They weren't challenging the 2nd amendment so much as they were challenging that all amendments cannot be superseded by local laws. Given that, why would the plaintiffs bother arguing anything based on the text of this or any amendment? If these guys were successful in their venture, we'd have to revisit all local laws in light of the new precedent. That's why Scalia himself was so antagonistic to the plaintiffs. Who wants to have to review every local zoning ordinance for violations of the 1st?
I'm mad they didn't argue "nor deny to any person within its jurisdiction the equal protection of the laws."
No law can exempt police or politicians. The right of the police to carry concealed handguns is protected. I want equal protection.
"Who wants to have to review every local zoning ordinance for violations of the 1st?"
Who cares if they "want" to do so or not? If it's an undue burden, they should have had the foresight not to pass unConstitutional laws and ordinances. The Constitution is here for our protection, not their convenience. Otherwise their argument would have to be, "We admit we've been implementing unConstitutional restrictions for decades, but to review them now would be HARRRD!" Call the wambulance.
Can you imagine the impact on society if suddenly no local laws could restrict free speech? People yelling "fire" in movie theaters is just the start. How would you like a pornographic billboard next to your house? We all live with constraints that our local communities have adopted. Eliminating the right of local ordinances to create their own zoning ordinances would be more than inconvenient. Indeed, it is this very concept that the plaintiffs were arguing in the case. They want the SC to say that they erred in distinguishing amendments that can't be superseded vs. those that can be.
Tom- I am not concerned with the difficulties of being a tyrant when people are serious about exercising their rights. Notice that there is no right to harm anyone, with your free speech or with your gun, but no government anywhere has the legitimate authority to violate the rights of even one person, whether they are a pleasant person or not.
RK - "We admit we've been implementing unConstitutional restrictions for decades, but to review them now would be HARRRD!"
Interestingly enough, that's exactly what the SCOTUS did in the Slaughterhouse Cases. The court just ?couldn't believe? that the authors of the 14th and We The People who ratified it really meant to make such a "radical" change in the Federal:State relationship.
The states actually realized what was happening to them and at least the Southern states under threat of continued martial law gave in and ratified the 14th. Some Northern states refused to ratify it. One northern state had a senator removed and another one substituted into the congress in order to obtain the necessary number of ratifying states.
The 14th was forced upon the states but however it managed to be ratified, it was and is as much a part of the Constitution as the first word of the first article. Like it or not.
[W-III]
Cordrea,
I'm not arguing that the scope of the right wasn't part of the discussion, I'm arguing that the question on review didn't entail a decision on the scope of the right. That is something that will be litigated throughout the years to come.
The first step was getting the court to acknowledge that there is an individual right to keep and bear arms. The second step is to get that right recognized in every jurisdiction. This, then, is where is becomes complicated because of the 14th Amendment and the jurisprudence surrounding it.
As to the Amendment itself, the 2nd, as I'm sure you know, reads, "the right of the people...shall not be infringed." There is a plausible argument, that neither Gura nor the NRA made but Scalia (as a Justice) hinted at, that one doesn't need the 14th Amendment to incorporate the 2nd to the states because the language of the Amendment treats the right as a natural right inherent in all human beings - that is, it is not restricted...
...to the federal government only because it contains no provision such as "Congress shall make no law..." or other such provision. Check the transcript, Scalia alludes to that during one of his questions to Gura (I believe it was Gura).
The problem of the 14th Amendment comes up because since its inception, the court has rarely looked outside of it to enforce individual rights. So in the 100+ years of the Amendment's existence, the purely nationalistic inclinations of the SCOTUS (especially the Warren court of the 50s and 60s - also ever since Lochner) forbid the expansion and mandated the restriction of personal rights. Prior to Lochner and the more heady nationalist days of WWII and after there is plenty of precedent and dicta indicating that the 2nd Amendment was considered an inalienable and inseparable right. However, since the court has mainly relied on the 14th Amendment to force the states to recognize individual rights so as to limit their impact and growth...
...we now have Substantive Due Process and Procedural Due Process; Strict Scrutiny, Intermediate or Rational Basis w/Bite scrutiny, and Rational Basis scrutiny. The Court will likely use Substantive Due Process to "incorporate" the right to the states, but then they must set the level of protection the right will have. Is the RKBA simply a right or is it a fundamental right more deserving of protection? Should the court allow the states to make any law they desire restricting the RKBA so long as they have a rational basis for the law? Should the court so protect the right that they restrict the states' ability to curtail the right to the point that the state must demonstrate a compelling least restrictive basis for the restrictions on the RKBA? Should it be somewhere in the middle? This is the quagmire that the court is wading into by using 14th Amendment incorporation as a means of forcing the states to recognize the right. It would be more feasible if they used the 10th...
...Amendment which reads as follows, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Combining this text with the 2nd, its clear that the fed is not granted the power to restrict the RKBA, nor are the states since the amendment states that "the right...shall not be infringed."
So to conclude, the SCOTUS is simply addressing in this case the means of how to force the states to recognize the RKBA. Court rules make it hard for them to take up extraneous issues (such as the extent of the RKBA) not brought before the court, especially under the more restrained Roberts court. Once they have set the method whereby the states must recognize the RKBA, and once a standard of review is determined for use in determining the breadth of the right, then local federal jurisdictions and state jurisdictions can commence the process of determining the breadth of the right
Awesome job of picking up the memes I started at KABA yesterday. Thanks. :-)
Really, it is good to see that my uncoomon ideas do strike other people too. Especially people so much better at expressing them.
Dan TuRcker: I'm not making legal arguments here. Some of us know what the intent is, and we don't need black robes--or you--to tell us. But go ahead and have the last word if you like.
Gruhn--tell us what you said and where, because you make it sound like I'm plagiarizing you. I just did a quick scan of yesterday's Newslinks and didn't see what you're referring to.
...Amendment which reads as follows, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Combining this text with the 2nd, its clear that the fed is not granted the power to restrict the RKBA, nor are the states since the amendment states that "the right...shall not be infringed."
So to conclude, the SCOTUS is simply addressing in this case the means of how to force the states to recognize the RKBA. Court rules make it hard for them to take up extraneous issues (such as the extent of the RKBA) not brought before the court, especially under the more restrained Roberts court. Once they have set the method whereby the states must recognize the RKBA, and once a standard of review is determined for use in determining the breadth of the right, then local federal jurisdictions and state jurisdictions can commence the process of determining the breadth of the right
Cordrea,
I'm just explaining the legal framework the SCOTUS has to work in so that readers here can understand, and not take affront, the fact the SCOTUS cannot simply declare something by virtue of hearing a case tangentially related to it.
I understand and completely agree with your argument. The Amendment is clear and there shouldn't be all this legal wrangling over it. However, if you want to be upset because I took the time to explain something most people don't understand, that's your choice.
I think it is safe to assume that since it was the States that wanted included into the constitution the 2nd amendment ... the 2nd amendment applies to the States as well ... not just the federal government.
The theory that because the states ratified the second amendment they meant it to be binding on themselves is just faulty. The constitution is a document specifying the limitations of the powers granted to a central government. Ratification signified approval of those limitations on the central government, not on all government. Several states actually maintained official state religions for decades after ratifying the constitution.
I too realized the absence of any discussion regarding the "shall not be infringed" clause of the 2A in the Oral Argument transcript.
We ALL should send letters to the individual justices asking them why they so ardently avoid the discussion of this concept.
My letter will go out Monday!
Dan, it's possible David's just sore at you continuing to misspell his name. :-)
Incoporating by the "P & I" clause means the words "shall not be infringed" come along with it. Incorporating by "due process" means the states or cities can use due process to kill any practical effect incorporation may have.
It's really simple and the court is going for another Heller.
I am opposed to the use of the 14th amendment, Hell, I'm opposed to the amendment. The rest of the constitution is crystal clear, and every state had to agree to abide by it to become a state. The 14th says "you gotta do watchya said ya wud do, but if ya don't, hey, we got nothin'. anyway we may not like some parts of liberty under the rest of the constitution so, we'll use the 14th like a chinese restuarant menu."
It's a pretty sorry state of affairs when reliance on a subsequent amendment is required to honor the original plain as day "shall not be infringed" amendmnent. Yeah I know we should feel fortunate that we are getting a second bite of the apple. And I would, if I didn't (cont)
(cont)recognize the fact that like the Heller decision, this one too is subject to be only correct enough to forestall armed insurrection without really dismantling any of those prohibited infringements.
Infringements from which we had already been indemnified by the second amendment that was part and parcel of the original document. The original document which every state was compelled to honor as regards the rights of citizens anywhere and everywhere in the United States. Look it up.
Sorry, I can't get too excited that much will change. I remember the road map provided to abusers in Heller. I also remember Kelo. I am not inclined to place much trust in people who can arrive at either decision.
The justices asked one question repeatedly of Gura and Clement and both missed their opportunity to clarify the issue.
The question in various forms regarded whether a right incorporated against the states had to be incorporated in its entirety or would piecemeal and/or altered (cont)
(cont)versions of those rights (meaning restricted) be justified.
Both attorneys missed the answer. Of course, every time Gura tried to answer some black-robed nancy boy interrupted him. However, the response should have been simple. Incorporation had to be complete and identical to the federal right as laid out in the constitution because to incorporate the 2nd amendment means the words "shall not be infringed" must also be incorporated. Anything else is a defacto amendment to the constitution requiring a constitutional convention and very high requirements for ratification.
Secondly the court is determined to maintain the myth of infallibility even if they must endorse bad law (Slaughterhouse) using the stupid excuse that "It has been wrong for 140 years and has become sacred".
David the court has been swayed by public opinion in the past and perhaps it can still be swayed today.
David I encourage a letter writing campaign to the SC with the intent of letting the Court know what we the people expect and demand.
David as a sovereign citizen I want All the Immunities and Privileges and rights of Due Process as intended by the Founding fathers.
I don’t think that’s too much to ask
My apologies Mr. Codrea if my mispelling offended you. I really thought there was an "r" there, it was not intentional.
Thanks Mr. Tucker for your explanation.Some of us need the laymans terminoligy.
Said it before and I’ll say it again. Local issues should be settled on the local level by any means necessary.
Congress on the Fed. level brought about alcohol prohibition and the unintended consequences resulted in the creation of a whole new criminal class and gov’t corruption in Chicago that’s rampant to this very day. While many admired the Chicago mobsters and gangsters, when a little girl got caught in gangland crossfire, men in Chicago marched in the street with open-breech double-barreled shotguns over their arms and threatened gov’t, telling them if they didn’t solve the problem with the gangsters, they would.
So those in the Fed. Gov’t directly violated the IIA, maneuvering around it and enacted the ‘34 NFA under the Dep’t. of Treasonry, setting the stage for all Fed. gun control laws devoid of any actual legal authority.
Many legislator's votes for more gun control laws from the Fed. Level are direct violations of both their own State & the Federal Constitution.
Out of Chicago comes what amounts to a legal plea for the SCOTUS to find one part of existing law that’s well, uh, not exactly constitutional, all-the-while maneuvering to protect legal precedent and avoid ruling on the law as written in the Constitution and by chance altering any Federally-assumed but irrefutably unconstitutional powers.
I’d expect to see the Brady's take up muskets and go after the street-thugs themselves before I’d expect SCOTUS to render any opinion that effectively diminishes the actual powers of any government.
Time, energy and more millions of dollars of taxpayer’s money wasted in litigation attributable directly to the immoral gov’t tyrants in Chicago and failure of the citizens to protect their own rights. Maybe Mr. McDonald will eventually be afforded the privilege of being permitted to ‘legally’ have a handgun in his home. He then obeys the laws, leaves his home for the grocery store unarmed and the gang-bangers shoot him in his driveway.
Oh well.
Henry Bowman,
BS, have you ever actually READ the Bill of Rights?
You mention that several states had official religion, as if that would be against the 1st amendment. Oddly enough as I recall the first amendment states that "CONGRESS, shall make no laws..." That says to me that the 1st amendment specifically applies to the FEDERAL gov't alone. However the 2nd amendment states that the "... peoples right to keep and bear arms shall not be infringed". The language is very specific and only an utter moron, or someone who doesn't want it to say what it says can misunderstand it.
All The Second Admendment says is .The God goven right to protect your life and all that you hold dear is the first law of nature and no one can deny you or any one that right, in any way no mater how thay feel about it. No one, no matter how many times mommy held them in her arms at night, telling them, theirs nothing in the closet, to make them feel safe so thay can go to congress the next day to make up laws, can tell you, you can not defend your self from them.
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