The proverbial clock is ticking down to the Supreme Court’s much-anticipated ruling in the Second Amendment Foundation’s lawsuit seeking to overturn Chicago’s handgun ban – McDonald v. City of Chicago – while attention is ramping up on the nomination of Solicitor General Elena Kagan to sit on the high court.
The smart money is riding on a Supreme Court slap-down of the handgun ban, and incorporation of the Second Amendment to the states through the 14th Amendment. Whether the court rules that the Second Amendment is incorporated under the privileges and immunities section or the due process clause remains to be seen. Either way, it will open the door to more legal challenges of state statutes and local ordinances all over the country.
In a terse, four-sentence memo, Kagan, now the U.S. Solicitor General and President Obama’s nominee for the Supreme Court, recommended the petition be denied. The petitioner's sole claim, Kagan wrote, “is that the District of Columbia's statutes violate his constitutional right to ‘keep and bear Arms.’ I'm not sympathetic.” –The New American
Kagan’s nomination to the court has direct bearing on this issue, because a slim profile of Kagan’s thinking on the Second Amendment has materialized, and it may not be a good one. She is being called a liberal who, as a clerk for late Justice Thurgood Marshall, wrote that she was “not sympathetic” to a 1987 argument from a man charged under the District of Columbia’s handgun ban that it violated his Second Amendment rights. Twenty-one years later, perhaps her sympathies were shifted by the high court’s Heller ruling. She’s said so, although her remark was somewhat tepid and did not discount possible regulation of the right, but people say a lot of stuff that may not be borne out by their actions. My colleague, David Codrea, wrote about Kagan here.
If confirmed, Kagan will replace retiring ultra-Liberal Justice John Paul Stevens, author of the dissenting opinion in the 2008 Heller ruling. This column discussed Stevens here, and made this prediction: "Obama is almost certain to find a replacement with an equally prohibitionist outlook toward a fundamental civil right that many consider a cornerstone of liberty." Time will tell if this is an accurate assessment. Kagan's confirmation hearings are scheduled to begin June 28, perhaps within days after the high court rules on the McDonald case.
The Washington Post reported that Kagan was “immersed in initiatives on gun control” when she worked for the Clinton administration.
What does this have to do with Washington State? Plenty! Our State Supreme Court has already opined, in State v. Sieyes earlier this year, that the Second Amendment right to bear arms applies to the states through the 14th Amendment. That opinion, written by Justice Richard Sanders, was a significant victory for gun rights, even though the defendant in this case, Christopher Sieyes, was the loser.
Sanders is facing a tough re-election bid to remain on the state high court this year, and Evergreen State gun rights activists are already rallying to keep him on the bench for another term.
The Second Amendment right to bear arms applies to the states through the due process clause of the Fourteenth Amendment.—Justice Richard Sanders, Washington State Supreme Court
Washington gun owners can also ask Liberal Democrat Sen. Patty Murray how she will vote on the Kagan nomination (as if there is really any question!). Murray is up for re-election this fall to a fourth term, and her gun prohibitionist record is clearly established. She is facing a challenge from former Republican State Sen. Dino Rossi (he delivered a balanced budget when Democrats couldn’t, a fact that even the Seattle Times editorial board recognized last month, perhaps begrudgingly).
Whatever else gun owners are, they are taxpayers. Murray’s people evidently are so fearful of the Rossi challenge that they began smearing the man long before he was even a candidate. (One wonders if it ever occurred to the Murray camp that if they hadn’t maligned him so much, he may have opted to stay out of the race.)
With his record in the state Senate, Rossi offers more believability on this score than any Republican in the race. In 2003, working with Democratic Gov. Gary Locke, Rossi was responsible for the most fiscally responsible state budget in the last decade.-Seattle Times
An affirmative ruling by the Supreme Court in the McDonald case will weaken a state or city’s ability to pass or continue to enforce egregiously complicated and restrictive gun laws. It may even strengthen this state’s model preemption statute. That will prevent the City of Seattle and other local governments from adopting or enforcing already-existing laws like a parks gun ban.
The next few weeks could be very interesting for Supreme Court watchers, and for gun rights advocates like Alan Gottlieb, founder of the Bellevue-based Second Amendment Foundation, which filed the McDonald case along with the Illinois State Rifle Association and four Chicago residents. His organization’s new motto seems appropriate: “Winning Firearms Freedom One Lawsuit at a Time.”
There is no question, after Heller, that the Second Amendment guarantees individuals the right to keep and bear arms and that this right, like others in the Constitution, provides strong although not unlimited protection against governmental regulation.” – Elena Kagan
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Comments
It is my sincere opinion that the Chicago gun Ban is against the Constitutional provisions that were added to the Bill of Rights which were not granted by any Government, and states very clearly that the Right to Keep and Bear Arms shall not be infringed, so to deny a citizen of the United States their right to bear arms is in fact an infringement upon the 2nd Amendment Rights.
As to the Kagan Nomination to the Supreme Court is a very simple attempt by the Obama Administration to try to copy the Move of Franklin Roosevelt when he also tried to stack the Court in His Favor. It is my honest opinion that any Judge offered a position to the High Court should first and foremost be of the mind set that all law is based upon the Declaration of Independence which the Constitution simply defines the details, and the Constitution is written in stone, it is not a living Document, and the only way it can be modified or altered is through the proper Guidelines it sets forth to do so, not by any
Judge or President. The Nomination of Kagan is at best a bad Idea, and if confirmad the Country will suffer from her Ignorance, and lack of Experiance, I honestly do not want a Supreme Court Judge running around asking other perple if the Proposed litigation before them is good or bad. Before making a decision!
Sorry, but Kagan is late to the party, way too late. She should have had no question about the guarantee in the Second Amendment after reading the Constitution. That she needed Heller to tell her is a sign of her intellectual and moral insufficiency.
Nominating an OPENLY SOCIALIST (not that the media will tell you) person for for SCOTUS....
Bad, idea?
Naaaaa! They're just the people who caused all of this to happen, and call themselves cuddly words like, "progressive" and "liberal" but not the Jeffersonian type. Another hijack of the language and principles.
Then there's the question, what's wrong with socialism, right? Well its no wonder because you won't be getting any investigative news presentations on that one either.
Wonder why that is......?
Dave, I'll reiterate: I think SCOTUS will hand down its ruling on McDonald v. Chicago on June 24. I don't think the Court's term ends on July 2, but if it did, and SCOTUS rules on it then, I'd consider it a heckuva present to the American people to celebrate July 4th.
I also think the vote will be 6-3 to strike down the ban. Somehow, I think Ginsberg with vote to strike the ban, with Stevens, Sotomayor and Breyer dissenting. I think Ginsberg will be open to incorporation of the Second Amendment.
Kelly Jarboe, with all due respect, the Declaration of Independence is NOT law upon which the U.S. Constitution is based. It is a document penned by Thomas Jefferson, that spells out the reasons and justifications of the colonists to throw off the yoke of King George's tyranny.
The Constitution does not define the details of the Declaration of Independence; rather, it sets forth the ways and means of governance of the new nation. Nobody debated Jefferson's Declaration; by contrast, a Constitutional Convention was convened in Philadelphia, where the Constitution was debated, discussed, wrangled over and finally drafted, for presentation to the states.
The ruling by SCOTUS in the Heller case did little more than sanction every existing infringement, every rights-violating law already enacted by the local District of Criminals council with but two exceptions.
Bear in mind that the Federal Congress holds jurisdiction over the District of Columbia, and could have stricken any or every law written, or for that matter written whatever laws they chose and instructed the Council to put them into effect.
While many may view a decision in favor of McDonald to be a victory for the RKBA, mark my words on this one…
Precedents are being established and a foundation is being laid which gov’t will eventually attempt to use as a basis for Federal requirements for the ‘legal’ ownership of all firearms by every U.S. Citizen.
(Exception given to what might occur otherwise, such as agreeing to an International Arms Treaty in which those in gov’t will try and convince the Citizens the decision was ’out of their control’.)
The First 10 Amendments to the Constitution as Ratified by the States December 15, 1791 contains the following PREAMBLE:
"THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution.."
Amendment II. "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."
Note the words ‘in order to prevent misconstruction or abuse of its powers’ and ‘that further declaratory and restrictive clauses should be added’.
( seems a pity those who wrote and ratified the document troubled themselves to state their purpose and intent, and so few are aware of it and fewer still even bother to mention it.)
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