Justices Will Weigh Challenges to Gun Laws

NY Times ^ | September 30, 2009 | ADAM LIPTAK

[neverdem]

WASHINGTON — The Supreme Court announced on Wednesday that it would decide whether state and local gun control laws may be challenged under the Second Amendment.

The court also agreed to hear nine other cases from among those that had piled up over its summer break, including one concerning the constitutionality of an antiterrorism law that is a favorite tool of federal prosecutors.

The Second Amendment case, McDonald v. Chicago, No. 08-1521, addresses a question that was left open last year when the court decided that the Second Amendment protects an individual right to own firearms rather than a collective right tied to state militias.

Last year’s decision, District of Columbia v. Heller, concerned only federal laws and struck down parts of the gun control law in the District of Columbia, a federal enclave. The court ruled that the law violated the Second Amendment by barring law-abiding people from keeping guns in their homes for self-defense.

The new case was brought by residents of Chicago who say their city’s handgun...

--snip--

Most legal scholars expect the court to apply the Second Amendment to the states. But many of them are urging the court to take an unusual route to that result. Rather than continuing to rely on the 14th Amendment’s due process clause, the court should, these scholars say, look to the amendment’s “privileges or immunities” clause, which says that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

There is some evidence that the amendment’s writers specifically wanted the clause to apply to allow freed slaves to have guns to defend themselves. Scholars on the right and left believe, moreover, that the clause could play a role in protecting rights not specifically mentioned in the Constitution...

[neverdem]

A successful privileges or immunities clause argument could revive the Ninth Amendment!

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

[neverdem]

Hat tip to firebrand!

[Joe Brower]

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[TEXOKIE]

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[supercat]

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Liberals have any amazing ability to argue that the Ninth Amendment protect "rights" which have never been acknowledged by anyone but liberals (e.g. the "right" of gay people to force others to acknowledge their unions), while at the same time arguing that other parts of the Bill of Rights should be construed very narrowly.

[William Tell]

supercat said: "Liberals have any amazing ability to argue ..."

Not to mention the "right to a job", the "right to a living wage", the "right to government supplied healthcare", or the "right not to be fearful of other people's guns".

[dcwusmc]

Bump and ping

[Joe Brower]

Better check that worn sear, my good man. $:-)

[NoObamaFightForConservatives]

Sotomayor argggggggggggh

[WOBBLY BOB]

bttt

[bamahead]

Libertarian ping! Click here to get added or here to be removed or post a message here!
(View past Libertarian pings here)

[Mr. Blonde]

Rejecting that the Privileges and Immunities clause incorporates all of the Bill of Rights against the states was a stupid move on the SC’s part. Hopefully they will correct it now. Of course they have piecemeal incorporated almost all of them.

I’m sure some on here would not be a fan of the revival of the privileges and immunities clause and the 9th amendment as it would give the SC much more leeway in granting rights.

[Old Teufel Hunden]

I'm impressed. A very fair New York times article except for this one point.

"Several Supreme Court decisions, all more than a century old, have said that the Second Amendment does not apply to the states."

I assume that they are talking about Presser. I find it interesting that the person in question (Herman Presser) was an avowed socialist leading a group of socialists parading with rifles and swords. The court did say that the second amendment does not constrain the state from making gun laws, however it also said this:

"It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the States, and in view of this prerogative of the general government, as well as of its general powers, the States cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government."

In essense, it said that the second is a constraint on the federal government, but that the states cannot deprive people of the rights that are stated within the second amendment.