McDonald vs. City of Chicago

[Bill of Rights]

The above case (08-1521) was heard at oral arguments back in March. The SCOTUS ruling is to be announced either tomorrow, 6/21 or next week, 6/28, the last two days for rulings to be announced prior to the Court going on recess for the summer, if the Court follows their own calendar.

It will be interesting to see how the Court rules and their reasoning. They've already ruled in Heller that firearm ownership is an individual right. I cannot imagine that they would say that a right exists only on Federal land and not in the states or cities. This would mean that they would rule either on the basis of Due Process, on the basis of Privileges or Immunities, or on some combination of the two. Based on their questions and on the testimony, I rather expect they will choose to rule on the basis of DP. I think there might be a concurrent opinion also affirming the right, but on the basis of P or I. From what little I've read, some of the libby Left faction of the Court might actually affirm the Right against the States, incorporating it on these grounds because of future gains that they would like to see that could also become a reality under P or I, such as same-sex marriage. I can say I'd very much like to see McDonald decided in favor of the 2A being incorporated by a larger margin than was Heller.

Discuss.

Blessings,
Bill

 

[mrjarrell]

I just hope they do a better job than they did with Heller. Sure they affirmed an individual right, but they made sure that that right could be heavily regulated. If they decide McDonald in the same way, it may be a victory in some arenas, but a loss in others.

 

[Mgderf]

We can but hope and pray.

I agree I like to see a wider margin in their decision, but I'll take a 5-4 victory for McDonald if that's all we can get right now.

Maybe the tides will change more in our favor come November '10

 

[gunowner930]

Well a 5-4 decision on something that seems pretty obvious to anyone with a functioning brain does little to instill confidence in myself. However I am hoping for the best, I'm also hoping Chicago gets smart enough to vote their half man-half rodent mayor out of office but maybe that's asking too much.

 

[JBusch8899]

........I'm also hoping Chicago gets smart enough to vote their half man-half rodent mayor out of office but maybe that's asking too much.

Unfortunately, you are only half-right.

Daley is entirely a rat.

 

[tuoder]

My guess is that they will incorporate the second amendment, and then Daley will legislate that you may only have revolvers with a special permit after qualifying by being able to hit a dime at 250 yards, or something along those lines.

 

[lashicoN]

My guess is that they will incorporate the second amendment, and then Daley will legislate that you may only have revolvers with a special permit after qualifying by being able to hit a dime at 250 yards, or something along those lines.

I think Daley's body guards should be the first to try out. If they fail, too bad, can't carry anymore.

 

[MTC]

We won't know for sure 'til they come to a decision, but I share your assessments so far.

The whole idea of "incorporation" always struck me as a deliberately contrived doctrine allowing those with power to pick and choose which parts of the Constitution of The United States (especially the Bill of Rights) apply to who, and where.

That aside, even if the SCOTUS ruled 9-0 in favor of incorporation, the people of Illinois seeking a right to bear arms have a major problem:

Illinois Constitution
Article I
SECTION 22. RIGHT TO ARMS
Subject only to the police power, the right of the
individual citizen to keep and bear arms shall not be infringed.

Considering all they've been through and the present state of affairs, they would likely be glad to have any sort of licensing or permitting scheme. Yet, once a "subject to" clause is inserted into any contract, let alone a constitution, it opens the door to all manner of statutory conditions, restrictions, bureaucratic hurdles, and infringements that can effectively negate the main clause.

Even if that clause were removed through amendment to look like this...

The right of the individual citizen to keep and bear arms shall not be infringed.

...it would not make much, if any difference if the legislature inserted statutes into the state code as if that clause were still there - just as they have done in varying degrees in 46 other states.

 

[tuoder]

We won't know for sure 'til they come to a decision, but I share your assessments so far.

The whole idea of "incorporation" always struck me as a deliberately contrived doctrine allowing those with power to pick and choose which parts of the Constitution of The United States (especially the Bill of Rights) apply to who, and where.

That aside, even if the SCOTUS ruled 9-0 in favor of incorporation, the people of Illinois seeking a right to bear arms have a major problem:

The only reason they haven't yet incorporated the second amendment is that a case on incorporation of the the second amendment hasn't come before the court.

 

[Bill of Rights]

The McDonald decision was not issued today. I also note that I erred as far as dates of issue: It could have been today, or it could also be the Thursday, 6/24 or next Monday, 6/28.

I misread their calendar.

Blessings,
Bill

 

[Kirk Freeman]

The only reason they haven't yet incorporated the second amendment is that a case on incorporation of the the second amendment hasn't come before the court.

I am afraid that is incorrect. Do not forget that there have been several cases where incorporation and the Second Amendment have been at issue including the noted ones that you will read about in McDonald, Cruishank and Presser v. Illinois.

That aside, even if the SCOTUS ruled 9-0 in favor of incorporation, the people of Illinois seeking a right to bear arms have a major problem:

No, the federal BoR provides a floor not a ceiling. The federal right trumps the state right pursuant to the Constitution in cases of less protection.

The whole idea of "incorporation" always struck me as a deliberately contrived doctrine allowing those with power to pick and choose which parts of the Constitution of The United States (especially the Bill of Rights) apply to who, and where.

No, (wholesale) incorporation is what the Framers intended. The Supreme Court frustrated the Framers of the Fourteenth by creating "selective incorporation" to ensure that all provisions of the Bill of Rights were not immediately available to African-Americans.

For further study on total incorporation I recommend Michael Kent Curtis's NO STATE SHALL ABRIDGE: THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS (1986) (a through study of the Framers and their desire for total incorporation).

 

[MTC]

No, the federal BoR provides a floor not a ceiling. The federal right trumps the state right pursuant to the Constitution in cases of less protection.

That is the way I had originally understood it. The post was not only a personal view, but based on past tactics of gun control proponents and those who seek to impose any and all infringements they can on the right to keep and bear arms.

No, (wholesale) incorporation is what the Framers intended. The Supreme Court frustrated the Framers of the Fourteenth by creating "selective incorporation" to ensure that all provisions of the Bill of Rights were not immediately available to African-Americans.

That is the way I had originally understood it without needing to use the word. That's why I put it in quotes for that context.

For further study on total incorporation I recommend Michael Kent Curtis's NO STATE SHALL ABRIDGE: THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS (1986) (a through study of the Framers and their desire for total incorporation).

Thanks for the recommendation. I appreciate your patience with and indulgence of my views and beliefs. Your opinions and clarifications are valuable to me.

 

[Kirk Freeman]

The post was not only a personal view, but based on past tactics of gun control proponents and those who seek to impose any and all infringements they can on the right to keep and bear arms.

Dead on there. Chicago will continue to be a battlefront for many years to come.

 

[PatriotPride]

Bill of Rights, thanks for keeping us updated!

Kirk Freeman, thanks for the valuable clarification!

 

[Prometheus]

No, (wholesale) incorporation is what the Framers intended. The Supreme Court frustrated the Framers of the Fourteenth by creating "selective incorporation" to ensure that all provisions of the Bill of Rights were not immediately available to African-Americans.

For further study on total incorporation I recommend Michael Kent Curtis's NO STATE SHALL ABRIDGE: THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS (1986) (a through study of the Framers and their desire for total incorporation).

Exactly. I posted a article about it months ago:
https://www.indianagunowners.com/forums/910907-post1.html

 

[Kirk Freeman]

What is most odd, or perhaps striking, about incorporation is that state supreme courts were incorporating the Second Amendment to the states long before a Fourteenth Amendment! What's more the state supreme courts in the South were doing so after the United States Supreme Court held that the BoR only applied to the federal government in Barron v. Mayor of Baltimore (1833).

Legal scholars at the time of the BoR and shortly after wrote that only the Second Amendment applied against the federal and state governments.

 

[Leadeye]

Chicago really is not a good test case because even if the SC voted 9-0 to uphold individual rights to firearms the machine will simply deny them if it wants to everywhere it has influence.

People forget that the machine willfully destroyed federal property, the Meigs field airport, in the middle of the night and nothing was done.

For all his bluster on television Daley understands this, and remember that he is just part of the machine that controls Chicago. Mayors come and go, but the machine is always there enriching it's members at everyone's expense as it has for a long time.

 

[Kirk Freeman]

Lead, it's not like Gura will not be back for Round 2.

 

[spartan933]

Damn it! I am tired of waiting! I really want Daley to get lampooned!

 

[Leadeye]

Lead, it's not like Gura will not be back for Round 2.

Hope he is in for the long haul. Can't do much to hurt the machine but it always feels good to see it get spanked every now and then.