Supreme Court to Hear Monumental 2nd Amendment Case
By National Rifle Association
, Everything Firearm Related
-
September 30, 2009
Fairfax, VA -- The National Rifle Association applauds the Supreme Court's decision, announced today, to hear the landmark Second Amendment case of McDonald v. Chicago. The case will address the application of the Second Amendment to the states through either the Due Process clause or the Privileges or Immunities clause of the Fourteenth Amendment. The case has major implications for the legality of restrictive gun laws not only in Chicago, but also in other cities across the United States. The decision to hear the case, which will be argued later this year or early next year, gives Second Amendment advocates across America hope that this fundamental freedom will not be infringed by unreasonable state and local laws.
"The Second Amendment applies to every citizen, not just to those living in federal enclaves like Washington D.C. In the historic Heller decision, the Supreme Court reaffirmed what most Americans have known all along -- that the Second Amendment protects an individual right and that it applies to all Americans. The government should respect the Second Amendment rights of law-abiding citizens throughout our country, regardless of where they live, and NRA is determined to make sure that happens," said Wayne LaPierre, NRA executive vice president.
In the June ruling that the Supreme Court will now review, the U.S. Court of Appeals for the Seventh Circuit held that the Second Amendment does not apply to state and local governments. That opinion left in place the current ban on the possession of handguns in Chicago.
However, the Seventh Circuit incorrectly claimed it was bound by precedent from 19th century Supreme Court decisions in failing to incorporate the Second Amendment. Many legal scholars believe that the Seventh Circuit should have followed the lead of the earlier Ninth Circuit panel decision in Nordyke v. Alameda County, which found that those cases don't prevent the Second Amendment from applying to the states through the Due Process clause of the Fourteenth Amendment. To the contrary, a proper incorporation analysis supports application of the Second Amendment to the States.
"It is an injustice that the residents of Chicago continue to have their Second Amendment rights denied," said Chris W. Cox, NRA’s chief lobbyist. "It’s time that the fundamental right of self-defense is respected by every jurisdiction throughout the country. It is our hope that the Supreme Court will find, once and for all, that all law-abiding Americans have the God-given, constitutionally-protected right of self-defense, no matter what city, county or state they call home."
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OPINION:Supreme Court to Hear Monumental 2nd Amendment Case
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This is great news.
Even gun-control advocates are already accepting the reality that the SCOTUS will incorporate the 2nd Amendment as it has most other Amendments. Commonsense gun laws , like preventing felons and the insane from buying firearms are safe. This was affirmed in D.C v Heller last year by Justice Scalia, who wrote for the majority:
"...nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill."
These turns of events are walking back decades of unconstitutional prohibition on our basic rights and should be celebrated by one and all.
- SolarSanitizer
October 1, 2009 5:18AM
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Too bad.
It's too bad this won't be heard earlier. I am going to Chicago in November, likely before this case will be decided. As a result, I will be in a huge city, one with which I am not familiar, and will not be allowed to protect myself or my family.
I have a question though. Why is this case being argued under the "due process" clause or the "privileges and immunities" clause? Why can't it be argued under the 2nd Amendment clause? It clearly states that the right of the PEOPLE to keep and bear arms shall not be infringed. Are those living in Chicago not part of the people? I consider them to be, but apparently their own leaders don't. Chicago, why do you keep electing these fools?
- LagerHead
October 1, 2009 8:59AM
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I was a little confused at first also.
If you read the cert. you will understand better, though.
http://www.chicagoguncase.com/wp-content/uploads/2009/06/mcdonald_cert_petition1.pdf
Basically, before the 14th Amendment, the bill of rights enumerated rights and protections from the federal government. The 14th Amendment was argued and passed in congress , in efforts to protect freed slaves' rights. Then when some states were not honoring the blacks' right as described by the bill of rights, some of the amendments were 'Incorporated' into the 14th amendment and applied to the states under the Due Process Clause.
In this case, the plaintiff seeks the second amendment to also be Incorporated under either Due Process or privileges or immunities clauses, or both.
They are actually hoping for the latter, but will clearly settle for the former.
"Chicago, why do you keep electing these fools?"
Because they funnel money into ACORN in exchange.
- SolarSanitizer
October 1, 2009 10:33AM
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From Wikipedia, for your reading pleasure:
"All of the post-Heller cases, including McDonald, NRA v. Chicago, Nordyke and Maloney, have argued that the 2nd Amendment should be incorporated against state and local governments using a judicial process called Selective Incorporation. Selective Incorporation involves convincing the court that a right is "fundamental" by being “implicit in the concept of ordered liberty” or “deeply rooted in our nation’s history and traditions” as defined most recently in the 1968 Supreme Court case Duncan v. Louisiana.
In addition to claiming the 2nd amendment should be incorporated through the selective incorporation process, McDonald is unique among post-Heller gun cases in that it is asking the court to overturn the 1873 Slaughter-House Cases. Slaughterhouse determined that the 14th Amendment's Privileges or Immunities Clause did not apply the Bill of Rights to the actions of states (and by extension, local governments). If overturned, the Selective Incorporation process would be moot and unnecessary, as the entire Bill of Rights, including the 2nd Amendment, would be applied against the states.
In attempting to overturn Slaughterhouse, this case has garnered the attention and support of liberal legal scholars interested in its potential application in areas outside of firearms law .[9] [10] If Slaughterhouse is overturned, it is likely that constitutional guarantees such as the right to a jury in civil cases, right to a grand jury in felony cases, and other parts of the Bill of Rights, as well as future court rulings, not universally guaranteed in actions by the states would be applied against the states automatically."
- SolarSanitizer
October 1, 2009 10:39AM
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Awesome.
I can't see any reason not to apply the entire Bill Of Rights to the states. Of course, I'm not a lawyer and certainly not a Supreme Court justice. I pray they come to the right decision.
- LagerHead
October 1, 2009 10:44AM
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Me too.
They did last time, and SCOTUS has not ideologically changed a bit since then. It is still 5-4 on issues such as these. I have read scattered reports that Sotomayor might have a reason ro recuse herself from this as I believe she was in one of the lower courts on this case's way to SCOTUS.
She has been credited with saying something similar to: It is not up to this court to overturn precedent established by the Supreme Court. Even if she stays on, it looks very promising for liberty.
We live in interesting times.
- SolarSanitizer
October 1, 2009 10:53AM
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History
I'm going to rant since there is a lot of historical misunderstanding about this!
Well, it's actually an act of judicial restraint. In Barron v. Baltimore (1833) it was ruled that the Bill of Rights, as the founder originally intended them, were only applicable to the federal government. The case was specifically about the 5th Amendment right about just compensation and SCOTUS ruled that the BOR. This is actually inline with the historical intent of the founders who believed the BOR only barred the federal government. For example, states could regulate press and violate the 1st amendment - but the federal government could not. Seems a historical blunder, but that is the case and all evidence suggest it was the intent of the founding fathers.
Really, the only funding father concerned about this was Madison who tried to put a clause in Article 10 prohibiting states violating the right to "equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases" This was rejected by the Constitutional Convention. States rights were huge back then, because they feared the tyranny of a centralized government - which is why they wanted local control on a whole host of issues. In hindsight, Madison was clearly way ahead of his time (100+ years) and most now would agree the insertion of that clause would have been wise - but historical hindsight is always perfect, and Madison was a political and philosophical genius.
This was originalist judicial restraint at it's peak. Historically speaking, the court made the correct ruling if we were trying to respect the intent of the Founding Fathers.
Then the 14th Amendment came along and changed all of this We have phrases like "nor shall any State deprive any person of life, liberty, or property, without due process of law ; nor deny to any person within its jurisdiction the equal protection of the laws" (Due Process Clause). This allowed the doctrine of Incorporation, or extending the BOR to the states. Because of the ambiguity of the language on which amendments applied (the original author of the amendment intended the first 8) in Twining v. NJ (1925) the court begun with "Selective Incorporation", such that only certain provision might apply. Thus, unless SCOTUS specifically says that those clauses of the 14th Amendment allow the incorporation of those rights to the states - they don't. Such is the case of the 2nd Amendment, which has never been heard (at least not in the SCOTUS, the Ninth Circuit incorporated it against the states in that district). And in cases like the 7th Amendment to the right to trial by jury in civil cases, SCOTUS has held it does not apply to the states.
I believe this probably will be incorporated against the states due to the ruling of Duncan v. Louisana (1968), which holds that selective incorporation is also done by presenting a fundamental right such as being implicit in the concept or liberty or the nation's history. I'd say the 2nd Amendment likely fits the bill. It's mostly derived from the founding fathers respect for the existence of Just Laws inherent and not created by the BOR. Some interesting questions though regarding if it's a Just Law, one not created by the BOR. We will see and my historical knowledge regarding the origins of the 2nd Amendment in regard to their beliefs in fundamental rights is too insufficient to comment.
What's more interesting is they are asking for certiorari on the position that and the Privileges and Immunities clause does not apply the BOR to the States: "No State shall make or enforce and law which shall abridge the privileges or immunities of the citizens of the United States", as was ruled in the Slaughterhouse cases. That would have huge ramifications on state legislatures and rules if that were held to be true.
I honestly won't be surprised if this goes either way since this is actually a very difficult case once you get below the surface (if you want to respect the constitution anyway.
- caelum
October 1, 2009 10:45AM
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The 9th circuit panel vacated
To reexamine the case en banc, btw. They should wait to hear SCOTUS issue its opinion.
As for which Way it goes, I think it will be incorporated under the due process clause. There is no precedent for the privileges or immunities clause. This assuming they do not kick it back down, as unlikely as that me be.
- SolarSanitizer
October 1, 2009 11:15AM
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