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Gun Rights Case Could Turn On Civil War-Era Laws(CBS !)
cbsnews.com ^ | 1 October, 2009 | Declan McCullagh

Posted on 10/02/2009 4:48:53 AM PDT by marktwain

The U.S. Supreme Court announced on Wednesday that it plans to hear the next major gun rights case, a move that will decide whether the Second Amendment can invalidate state laws and municipal ordinances.

A 5-4 Supreme Court decision last year did say that the U.S. Constitution protects an individual right to own a handgun. But the majority opinion never concluded that the Second Amendment applied to states; it didn't say what kind of laws beyond a flat ban are acceptable or unacceptable; it didn't even say what kind of standards lower courts should apply when evaluating anti-gun laws.

One result was to leave lower court judges scratching their heads about which laws were permissible. Another was to create what one pro-gun attorney last week dubbed an "apartheid of civil rights," where gun rights vary by state.

The current case before the justices arose out of Chicago's restrictive gun laws, which prohibit anyone from possessing firearms -- even in their homes -- "unless such person is the holder of a valid registration certificate for such firearm." That's virtually identical to the Washington, D.C. law that the court said was unconstitutional last year, and violations in both cities include criminal penalties.

Deciding whether or not the Second Amendment restricts state and local governments might sound straightforward enough. After all, the First Amendment starts out by saying "Congress shall make no law," but the Supreme Court has interpreted that language to prevent states (and even state universities) from engaging in censorship.

So if much of the rest of the Bill of Rights applies to state governments -- a concept called "incorporation" -- why not the Second Amendment as well?

This topic sounds like one that only a law professor would love, but in the last half-century or so, the Supreme Court has ruled that only "fundamental" rights crucial to "ordered liberty" are incorporated. (A wag might say that the justices were simply picking and choosing portions of the Bill of Rights that they find attractive while ignoring others. Call it the à la carte school of constitutional law.)

The city of Chicago, in a 43-page brief submitted to the Supreme Court, has argued that the right to own a firearm is not fundamental: "In urban environments, where handgun abuse is so rampant, the protection of a right to handguns simply because they are in common use undermines, rather than guarantees, ordered liberty. It is, instead, the very governmental power to protect residents that is critical to the concept of ordered liberty, since enforcing handgun control laws can make an enormous difference in curbing firearms violence."

In last year's Heller decision, both the majority and the dissenters reviewed the history of ratification of the Second Amendment. This time, when reviewing Chicago's ordinance, they'll likely look to the debate over the 1868 adoption of the Fourteenth Amendment (which is what provides an avenue for the federal Bill of Rights to apply to the states).

Sen. Jacob Howard's speech to the U.S. Senate in 1866 provides a glimpse into what was going through the minds of the people who actually drafted the Fourteenth Amendment. Howard said:

To these privileges and immunities, whatever they may be – for they are not and cannot be fully defined in their entire extent and precise nature – to these should be added the personal rights guaranteed by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right pertaining to each and all of the people; the right to keep and bear arms; the right to be exempt from unreasonable searches and seizures, and from any search or seizure except by virtue of a warrant issued upon a formal oath or affidavit; the right of an accused person to be informed of the nature of the accusation against him, and his right to be tried by an impartial jury of the vicinage; and also the right to be secure against excessive bail and against cruel and unusual punishments. (Emphasis added.)

Stephen Halbrook, a lawyer and historian who has written a book titled Freedmen, the Fourteenth Amendment, and the Right to Bear Arms, has extensively reviewed the debate in the U.S. Congress over extending the right to bear arms to the newly-freed slaves after the Civil War. He concludes: "The framers of that amendment understood from hard experience that the rights to personal security and personal liberty are inseparable from the rights to self defense and to keep and bear arms."

The Fourteenth Amendment was enacted largely to overrule the Supreme Court's infamous Dred Scott v. Sandford (1856) case, which said that if the "large slaveholding states regarded (blacks) as included in the word citizens," then they would be granted rights including the ability to travel freely, the right to speak freely, and "to keep and carry arms wherever they went."

It also was intended to eliminate the notorious black codes, which in some states provided harsher criminal punishments for blacks than whites, regulated domestic relations of blacks, and, in the words of the Supreme Court in a 1964 decision, meant blacks "were not allowed to bear arms." (Justice Antonin Scalia's opinion in the Heller case echoes this, saying: "Blacks were routinely disarmed by Southern States after the Civil War. Those who opposed these injustices frequently stated that they infringed blacks' constitutional right to keep and bear arms.")

There's no guarantee, of course, that the Supreme Court's eventual decision in the current case, called McDonald v. Chicago, will focus on the congressional debates of some 120 years ago. But if you're the betting type, I'd give you good odds that it will.

And here's another bet: If the Supreme Court justices can define a fundamental right to privacy that "is broad enough to cover the abortion decision" and render certain state laws invalid -- even though the words "privacy" and "abortion" appear nowhere in the text of the U.S. Constitution -- would they really want to risk a public outcry by ruling a well-documented right to self-defense is somehow less fundamental?

I'm betting the answer is no. Not even the Supreme Court likes to deviate too much from public opinion and academic consensus, and when you have two-thirds of the states and three-quarters of Americans holding broadly pro-gun views, this would be one grassroots revolt that the justices have no interest in creating.

PS: The next brief from Alan Gura, who is representing the Chicago residents with the help of the Second Amendment Foundation, is due November 16. Chicago's brief is due December 16; the plaintiffs' reply brief is due January 15. Gura said that he expects oral arguments to take place in February 2010. Declan McCullagh is a correspondent for CBSNews.com. He can be reached at declan@cbsnews.com. You can bookmark the Taking Liberties site here, or subscribe to the RSS feed.


TOPICS: Constitution/Conservatism; Culture/Society; News/Current Events
KEYWORDS: banglist; chicago; constitution; heller; scotus
Hard to believe that CBSnews allows these facts on their blog site!
1 posted on 10/02/2009 4:48:54 AM PDT by marktwain
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To: marktwain; Joe Brower
BANG!


2 posted on 10/02/2009 4:55:02 AM PDT by Travis McGee (---www.EnemiesForeignAndDomestic.com---)
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To: marktwain

“...would they really want to risk a public outcry by ruling a well-documented right to self-defense is somehow less fundamental? “

It didn’t stop them from overriding private property rights, public opinion be d@mned!


3 posted on 10/02/2009 4:56:21 AM PDT by GWMcClintock ("When the foundations are being destroyed, what can the righteous do?" Ps.11:3)
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To: marktwain

This is being brought, as was the DC gun case, by Libertarians. Not the NRA. Not the REpublicans.

What’s that tell you about your decades of support for the NRA and the GOP?


4 posted on 10/02/2009 5:11:53 AM PDT by Leisler (It's going to be a hard, long winter)
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To: marktwain
It is, instead, the very governmental power to protect residents that is critical to the concept of ordered liberty, since enforcing handgun control laws can make an enormous difference in curbing firearms violence."

Shouldn't they be required to provide evidence of this?

5 posted on 10/02/2009 5:17:53 AM PDT by umgud (Look to gov't to solve your everday problems and they'll control your everday life.)
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To: Leisler
The NRA v Chicago addresses the hand gun ban only.

McDonald v Chicago is much broader in scope. Not only in overturning the handgun ban, but also relief from selective incorporation.

This case has a better chance for 2nd Amendment Incorporation by the Supremes than the NRA v Chicago case.

6 posted on 10/02/2009 5:21:14 AM PDT by Pistolshot (Brevity: Saying a lot, while saying very little.)
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To: marktwain

I’m not a lawyer, but after reading some of the Congressional debates when the 14th Amendment was being considered I am fully convinced that Congress intended it to limit the powers of the states and protect the people against infringement of those rights by state or local government. Some of the most flagrant infringements of the rights of former slaves in the southern states were state and local laws prohibiting blacks owning or possessing firearms, so it is unimaginable and incredible that Congress would not have intended the 14th to guarantee ALL of the constitutionally protected rights of the people against state and local infringement EXCEPT the right to keep and bear arms.


7 posted on 10/02/2009 5:31:57 AM PDT by epow (Luke 11:21 "When a strong man armed keepeth his palace, his goods are in peace:")
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To: marktwain
......Marxists trying to reshape American into their liking...
8 posted on 10/02/2009 5:32:24 AM PDT by Doogle (USAF.68-73..8th TFW Ubon Thailand..never store a threat you should have eliminated))
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To: epow

Just a mild rebuke to your post. You assume that the left will have the same respect for the consistency of the rule of law that we do.

They do not. The end goal is all that matters, the rules and laws be damned.

Further, most on the left consider your respect for the rules and laws to be some alien concept, and you might as well be speaking Martian to them.


9 posted on 10/02/2009 5:36:13 AM PDT by MrB (Go Galt now, save Bowman for later)
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To: marktwain
"In urban environments, where handgun abuse is so rampant, the protection of a right to handguns simply because they are in common use undermines, rather than guarantees, ordered liberty. It is, instead, the very governmental power to protect residents that is critical to the concept of ordered liberty, since enforcing handgun control laws can make an enormous difference in curbing firearms violence."

Someone needs to inform the ignorant schmucks in Chicago of a very simple fact;

ANY government that cannot be held legally liable for failing to protect someone CANNOT have a legitimate authority to prevent someone from protecting themselves.

It's really not rocket science.

10 posted on 10/02/2009 5:44:42 AM PDT by MamaTexan (Sooner or later, the federal government will realize that the Laws of Nature can be a real b$tch!)
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To: marktwain
But the majority opinion never concluded that the Second Amendment applied to states; it didn't say what kind of laws beyond a flat ban are acceptable or unacceptable; it didn't even say what kind of standards lower courts should apply when evaluating anti-gun laws.

"Shall not be infringed."

There... Cleared that up quickly didn't we?

11 posted on 10/02/2009 5:50:28 AM PDT by Dead Corpse (III)
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To: marktwain
From the quoted article:
A 5-4 Supreme Court decision last year did say that the U.S. Constitution protects an individual right to own a handgun.
What a curiously misleading statement this is! Every word of it is true, yet it misleads.

Deception: Statement implies that there is a decision on "individual right" which was "5-4".

Truth: There was a 5-4 Supreme Court decision last year. Part of that overall decision was that the Second Amendment protects an individual right. That part of the decision was unanimous. Part of that overall decision was that D.C. law violated the Second Amendment. That part of the decision was was a 5-4 split.

This has been a lesson in how to deceive while telling the absolute truth...

Peet
12 posted on 10/02/2009 5:50:47 AM PDT by Peet (<- A.K.A. the Foundling)
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To: MrB

Well said.


13 posted on 10/02/2009 5:51:46 AM PDT by Dead Corpse (III)
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To: MrB

The ‘living’ Constitution.

I.E. what it said and meant today, will be different tomorrow.


14 posted on 10/02/2009 6:08:58 AM PDT by Leisler (It's going to be a hard, long winter)
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To: Leisler
"What’s that tell you about your decades of support for the NRA and the GOP?"

I let my membership in the NRA lapse because of their continued support for John Murtha over equally pro-gun Republican candidates. My switch from Republican to independent will come next year when I renew my driver's license because there are so many RINO's in the party.

15 posted on 10/02/2009 6:33:48 AM PDT by Jaxter (Si Vis Pacem Para Bellum.)
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To: MamaTexan

Have you ever tried to argue logically with a lib?

They don’t/can’t see the contradiction that you clearly stated, because “the rules” don’t matter. The end goals are all that matters.


16 posted on 10/02/2009 6:35:56 AM PDT by MrB (Go Galt now, save Bowman for later)
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To: MrB; harpseal; TexasCowboy; nunya bidness; AAABEST; Travis McGee; Squantos; Shooter 2.5; wku man; ..
MrB wrote:
"You assume that the left will have the same respect for the consistency of the rule of law that we do.

They do not. The end goal is all that matters, the rules and laws be damned."

That's a Rog. And that is the greatest risk taken in approaching these issues through the judiciary. Remember: It's not tyranny when they do it.

Click the Gadsden flag for pro-gun resources!

17 posted on 10/02/2009 7:07:24 AM PDT by Joe Brower (Sheep have three speeds: "graze", "stampede" and "cower".)
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To: marktwain
"It is, instead, the very governmental power to protect residents that is critical to the concept of ordered liberty, since enforcing handgun control laws can make an enormous difference in curbing firearms violence."

True. In numerous documented cases, handgun control laws have had a negative effect on the curbing of firearms violence.

IOW, Gun control laws increase the incidence of firearms violence. And Chicago and DC are poster cases...

18 posted on 10/02/2009 7:23:13 AM PDT by TXnMA ("Allah": Satan's current alias...)
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To: marktwain
But the majority opinion never concluded that the Second Amendment applied to states

Gimme a break!

So, does that mean that the First Amendment means that the state can freely "talk" about itself?

Ridiculous

19 posted on 10/02/2009 7:26:20 AM PDT by Puppage (You may disagree with what I have to say, but I shall defend to your death my right to say it)
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To: marktwain
"In urban environments, where handgun abuse is so rampant, the protection of a right to handguns simply because they are in common use undermines, rather than guarantees, ordered liberty. It is, instead, the very governmental power to protect residents that is critical to the concept of ordered liberty, since enforcing handgun control laws can make an enormous difference in curbing firearms violence."

Notice how they conveniently omit the fact that urban setting are where you are far more likely to need a gun and that the police are under absolutely no obligation to protect anyone.

20 posted on 10/02/2009 7:33:59 AM PDT by Blood of Tyrants (The Second Amendment. Don't MAKE me use it.)
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To: marktwain

Great article from the only conservative at the Chicago Tribune. Should forward to Banglist.

Of sons, dogs and hunting

John Kass

October 2, 2009

The question of boys and hunting keeps coming up at our house, and again the other day when the boys walked off the soccer field after a game.

“Can we have a dog?” asked one of my eighth-graders.

The other twin loves to play with dogs, too. He’s kind with them and calm, and dogs and little kids like him. For now, though, he refuses to do what is necessary.

“I’m not going out with a bag and pick up the you-know-what. It’s not happening. Not gonna do it,” he declares, and in this, we believe him...

excerpt

http://www.chicagotribune.com/news/columnists/chi-kass-02-oct02,0,6490448.column?page=2


21 posted on 10/02/2009 7:55:11 AM PDT by KeyLargo
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To: MrB
Have you ever tried to argue logically with a lib?

No. I realized a looong time ago you can't have a rational discussion with an irrational person, but the discussion concerned the written Constitution, not some lack-wit's opinion.

22 posted on 10/02/2009 8:02:21 AM PDT by MamaTexan (Sooner or later, the federal government will realize that the Laws of Nature can be a real b$tch!)
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To: marktwain

If you carefully deconstruct the headline, they use civil war era to demonize the story


23 posted on 10/02/2009 8:20:38 AM PDT by MD_Willington_1976
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To: umgud

Evidence? In the mainstream media? You’re joking


24 posted on 10/02/2009 12:32:33 PM PDT by wastedyears (The best aid we could ever give Africa would be thousands of rifles to throw out their own dictators)
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To: Joe Brower
It is, instead, the very governmental power to protect residents that is critical to the concept of ordered liberty...
I wasn't aware that there was any "governmental power" of this nature. Am I wrong?
That was presented by "city of Chicago" so...
25 posted on 10/02/2009 1:16:22 PM PDT by philman_36 (Pride breakfasted with plenty, dined with poverty, and supped with infamy. Benjamin Franklin)
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To: marktwain
To put it in perspective:

The U.S. Supreme Court announced on Wednesday that it plans to hear the next major free speech case, a move that will decide whether the first amendment can invalidate state laws and municipal ordinances.

A 5-4 Supreme Court decision last year did say that the U.S. Constitution protects an individual right to free speech. But the majority opinion never concluded that the first Amendment applied to states; it didn't say what kind of laws beyond a flat ban are acceptable or unacceptable; it didn't even say what kind of standards lower courts should apply when evaluating anti-feee speechlaws.

One result was to leave lower court judges scratching their heads about which laws were permissible. Another was to create what one pro-free speech attorney last week dubbed an "apartheid of civil rights," where free speech varies by state.

The current case before the justices arose out of Chicago's restrictive free speech restrictions, which prohibit anyone from speaking their mind-- even in their homes -- "unless such person is the holder of a valid registration certificate for such free speech." That's virtually identical to the Washington, D.C. law that the court said was unconstitutional last year, and violations in both cities include criminal penalties.

Deciding whether or not the first Amendment restricts state and local governments might sound straightforward enough. After all, the First Amendment starts out by saying "Congress shall make no law," but the Supreme Court has interpreted that language to prevent states (and even state universities) from engaging in censorship.

So if much of the rest of the Bill of Rights applies to state governments -- a concept called "incorporation" -- why not the first Amendment as well?

This topic sounds like one that only a law professor would love, but in the last half-century or so, the Supreme Court has ruled that only "fundamental" rights crucial to "ordered liberty" are incorporated. (A wag might say that the justices were simply picking and choosing portions of the Bill of Rights that they find attractive while ignoring others. Call it the à la carte school of constitutional law.)

The city of Chicago, in a 43-page brief submitted to the Supreme Court, has argued that the right to feee speech is not fundamental: "In urban environments, where free speech abuse is so rampant, the protection of a right to free speech simply because they are in common use undermines, rather than guarantees, ordered liberty. It is, instead, the very governmental power to protect residents that is critical to the concept of ordered liberty, since enforcing handgun control laws can make an enormous difference in curbing the result of free speech violence."

In last year's Heller decision, both the majority and the dissenters reviewed the history of ratification of the first Amendment. This time, when reviewing Chicago's ordinance, they'll likely look to the debate over the 1868 adoption of the Fourteenth Amendment (which is what provides an avenue for the federal Bill of Rights to apply to the states).

Sen. Jacob Howard's speech to the U.S. Senate in 1866 provides a glimpse into what was going through the minds of the people who actually drafted the Fourteenth Amendment. Howard said: To these privileges and immunities, whatever they may be – for they are not and cannot be fully defined in their entire extent and precise nature – to these should be added the personal rights guaranteed by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right pertaining to each and all of the people; the right to keep and bear arms; the right to be exempt from unreasonable searches and seizures, and from any search or seizure except by virtue of a warrant issued upon a formal oath or affidavit; the right of an accused person to be informed of the nature of the accusation against him, and his right to be tried by an impartial jury of the vicinage; and also the right to be secure against excessive bail and against cruel and unusual punishments. (Emphasis added.)

Stephen Halbrook, a lawyer and historian who has written a book titled Freedmen, the Fourteenth Amendment, and the Right to free speech, has extensively reviewed the debate in the U.S. Congress over extending the right to free speech to the newly-freed slaves after the Civil War. He concludes: "The framers of that amendment understood from hard experience that the rights to personal security and personal liberty are inseparable from the rights to self defense and to express one's self." The Fourteenth Amendment was enacted largely to overrule the Supreme Court's infamous Dred Scott v. Sandford (1856) case, which said that if the "large slaveholding states regarded (blacks) as included in the word citizens," then they would be granted rights including the ability to travel freely, the right to speak freely, and "to practice free speech wherever they go.

It also was intended to eliminate the notorious black codes, which in some states provided harsher criminal punishments for blacks than whites, regulated domestic relations of blacks, and, in the words of the Supreme Court in a 1964 decision, meant blacks "were not allowed to speak out." (Justice Antonin Scalia's opinion in the Heller case echoes this, saying: "Blacks were routinely not allowed to express their thoughts by Southern States after the Civil War. Those who opposed these injustices frequently stated that they infringed blacks' constitutional right to speak out.")

There's no guarantee, of course, that the Supreme Court's eventual decision in the current case, called McDonald v. Chicago, will focus on the congressional debates of some 120 years ago. But if you're the betting type, I'd give you good odds that it will. And here's another bet: If the Supreme Court justices can define a fundamental right to privacy that "is broad enough to cover the abortion decision" and render certain state laws invalid -- even though the words "privacy" and "abortion" appear nowhere in the text of the U.S. Constitution -- would they really want to risk a public outcry by ruling a well-documented right to self-defense is somehow less fundamental?

I'm betting the answer is no. Not even the Supreme Court likes to deviate too much from public opinion and academic consensus, and when you have two-thirds of the states and three-quarters of Americans holding broadly pro-free speech views, this would be one grassroots revolt that the justices have no interest in creating.

PS: The next brief from Alan Gura, who is representing the Chicago residents with the help of the first Amendment Foundation, is due November 16. Chicago's brief is due December 16; the plaintiffs' reply brief is due January 15. Gura said that he expects oral arguments to take place in February 2010. Declan McCullagh is a correspondent for CBSNews.com. He can be reached at declan@cbsnews.com. You can bookmark the Taking Liberties site here, or subscribe to the RSS feed.

26 posted on 10/04/2009 6:16:27 PM PDT by going hot (Happiness is a Momma Deuce)
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To: marktwain

Eventually, when necessary, the media will start to refer to the Bill of Rights as a “Revolutionary War-era document.”


27 posted on 10/04/2009 6:19:25 PM PDT by denydenydeny ("I'm sure this goes against everything you've been taught, but right and wrong do exist"-Dr House)
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