Thursday, July 01, 2010

McDonald v. Chicago

Postscript: Are we really pro-gun, or do we just like adding gun nut pics in our posts??

Monday's decision was welcome, but the 5-4 vote in favor of gun rights for Chicago and Oak Park residents is 4 votes short of where it ought to be, and a signal to all freedom-loving people of how close we are to being slaves. We pick our words carefully - it is THAT important.

WSJ Jess Bravin, Justices Expand Gun Rights:

WASHINGTON—The Supreme Court Monday extended nationwide the right to armed self-defense, a historic conclusion to an age-old battle over the meaning of the Second Amendment.

The decision gives federal judges the power to strike down state and local weapons laws for violating the Constitution. But the court said that the right isn't unfettered, and the decision is likely to lead to years of litigation as lower courts try to determine what restrictions are reasonable. Assault-weapons bans, licensing rules and other curbs will all be subject to challenge.

While the Gun Control aspect of the ruling has received the most press, the 14th Amendment's Privileges and Immunities Clause gained some needed attention too. We're not a lawyer, so bear with us here...

The 14th Amendment has two applicable clauses: the Due Process Clause and the Privileges or Immunities Clause. For this, we'll turn to Ashby Jones at the WSJ Law Blog on Monday, Is His Gun-Control Concurrence Justice Thomas’s Finest Hour?

In order to extend the Second Amendment to laws passed by states or cities, the court was faced with a choice of two clauses embedded in the 14th Amendment. It could “incorporate” the Second Amendment to the states through the 14th Amendment’s Due Process Clause. Or, pursuant to the 14th Amendment’s Privileges or Immunities Clause, it could deem “the right to bear arms” one of the “Privileges” or “Immunities” that the states are forbidden from taking away.

So you’ve never heard of the Privileges or Immunities Clause? We’re not surprised. The clause was largely neutered in a set of cases decided in 1873.

So in order to extend the Second Amendment to the states, the court seemed to be left with the Due Process Clause. That is, the court would have to rule that the right to bear arms was a right so fundamental that there could be no lawful way to abridge it without violating due process of law.
Commentators on the right and left urged the Supreme Court to reverse the 1873 cases and safeguard the right to bear arms through the Privileges or Immunities Clause. Such a move could have opened an avenue for individuals to claim new rights, some which might have pleased liberals, others which might have pleased conservatives.

Those arguing for resuscitation of the Privilege or Immunities Clause pinned their hopes on Justice Antonin Scalia and Justice Clarence Thomas, both known for their “originalist” approach to constitutional interpretation.

But Justice Scalia on Monday opted, along with Justices Alito and Kennedy and Chief Justice Roberts, to use the Due Process Clause. As Liptak noted, Justice Scalia, in a concurrence, “acknowledged misgivings about using the due process clause to apply Bill of Rights protections to the states” but went along with it “’since straightforward application of settled doctrine suffices to decide it.’”

But in a separate concurrence, Justice Thomas boldly went where no justice has gone before: to the arms of the Privileges or Immunities Clause.

So, for those of us trying to keep up, the Privileges or Immunities Clause seems to be the correct application of the law in this case, but previous flawed decisions have painted SCOTUS into a corner where the Due Process Clause is their only tool. Yet, one justice chose to base his concurrence on the Privileges or Immunities Clause, and none of the dissenters argued against his use of it. In other words, one more takeaway from this ruling is that all justices are in agreement that the 1873 rulings are flawed in some manner. This suggests there is "hope that Thomas’s lone dissent has planted the seeds for a constitutional reawakening rooted in the Privileges and Immunities Clause."

Randy Barnett, Prof. of Law at Georgetown University adds in his WSJ article, The Supreme Court's Gun Showdown:

By declining to take issue with Justice Thomas's impressive 56-page originalist analysis, the other justices in effect conceded what legal scholars have for some time maintained—that the court's cramped reading of the clause in 1873 was inconsistent with its original meaning. Yesterday the lost Privileges or Immunities Clause was suddenly found. And some day it may be fully restored to its proper place as the means by which fundamental individual rights are protected under the Constitution against abuses by states.

Read these articles further to see that this is a double-edged sword. Specifically, the use of the newly found Privileges or Immunities Clause may lead to rulings that liberals progressives communists may like. Fair is fair we suppose, so long as all of our fellow Americans are allowed to cling to their guns.

Robert Cottrol writes at the SCOTUS Blog about the history of racism in gun control cases in the late 1800's. He concludes:

The opinions in McDonald are rich in ironies. We have conservative justices authoring opinions which squarely confront the tragic legacy of race and its impact on American Constitutional history, while we have liberal justices wanting to largely skip over that history. We have on the other hand liberal justices pleading for states’ rights and federalism while conservative justices make the case for the soundness of incorporating the Bill of Rights as a matter of original intent. The Court got it right in McDonald but how it came to do so will fascinate students and commentators for some time to come.

Gun Blog, The Breda Fallacy, directs us to the Second Amendment Foundation and specifically to Alan Gura who argued both the Heller case and this case on our behalf. We join her in encouraging donations to the foundation.

On a lighter note, gun blog Sharper Than A Marble asks what kind of statements we'd hear from Chicago and Mayor Daley if they attacked the 1st Amendment in the same way they fought this case. Here are some of our favorites:

Under Daley's ordinances, one would need to register all their word processors with the city so police know how many word processors are in each home, and would also be required to have a valid Word Processor Owner's ID card.

It requires journalism training, both in a classroom and a city newspaper.

Chicago residents would be able to register no more than one word processor per month for each adult in a home. The ordinance "generally prohibits the possession of a word processor by any person except in the person's home," according to a city news release.

To register word processors, a resident must first get a “Chicago Word Processor Permit” from the police department. A permit would cost $100 every three years.

People who have been convicted of a dangling participle, two or more run on sentences charges or unlawful use of an apostrophe could not get a permit.

We can laugh at this - now that our gun rights have been temporarily retained...

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