Skip to comments.McDonald v. Chicago Instant Analysis
Posted on 03/02/2010 11:31:04 AM PST by freedomwarrior998
The Court was not at all receptive to arguments on Privileges or Immunities but incorporation on Due Process is a slam dunk. More commentary soon.
Suffering through the bitter cold for nearly 14 hours (and being interviewed by Adam Liptak for the New York Times) was well worth the price to pay in order to witness the oral arguments in McDonald v. Chicago. While I think incorporation through the due process clause is a slam-dunk, I find it unlikely that the Court will reach to overturn the Slaughter-House cases and reinvigorate the Privileges or Immunities Clause.
Alan Gura began, noting that the framers of the 14th amendment made a promise to the McDonald family, that no state shall abridge the privileges or immunities of citizenship. Gura noted that the rights protected by the Privileges or Immunities Clause are not trivial, and that contrary to the assertions of Slaughter-House, the war was not fought for protection of rights on the high seas.
Chief Justice Roberts interjected, and noted that Guras interpretation conflicts with Slaughter-House, and asked whether the heavy burden was satisfied in order to overturn that precedent. In many respects, the question of whether Roberts remains more loyal to stare decisis or originalism...
Curiously, Justice Scalia on no less than three occasions noted that the right to concealed carry would not be protected by the Second Amendment. I wonder if he was signaling further limitations to assuage Kennedy.
Scalia seems right to me as a matter of constitutional interpretation. The exercise of rights can be regulated, and just because we have the right to carry weapons, doesn’t mean we have a right to conceal those weapons. Requiring that weapons be carried openly would not rise to a constitutional issue.
or worse than that, a buffet line of national 'common sense' regulations that will be forcefed upon the conservative states...
“bearing arms” as in “the right to keep and bear arms” would seem to suggest that scalia is wrong when he says that the second amendment doesn’t protect one’s right to carry a concealed weapon. Is that not “bearing arms” and is that right not being infringed when a law is passed that states you may not “bear arms” in this manner? keeping arms is only half of the right.
How in the world does anyone square that with the 2nd Amendment? Is concealed carry not bearing arms? Isn't the right not to be "infringed?"
I agree with that. In the real “Old West”, open carry was never restricted (unless there was a range war active, and then they just required that you checked your weapons as you entered town). But concealing a weapon was illegal.
Odd that “open carry” seems so much worse today to the minds of most people.
Mandating concealed/open is an "infringement" either way. Keep and Bear doesn't specify, so the choice should be up to the individual carrying.
CharlesWayneCT is correct in post 2 - a requirement that carrying arms be done openly would perhaps be unwise, but it would not be a violation of the second amendment. The second amendment recognizes a right to bear arms, but not necessarily a right to conceal those arms while bearing them.
Only in so much that exercising those right might or will bring harm to another, e.g. yelling fire in a theater, slander or libel.
The 2nd is the only one that states in part and finally, "shall not be infringed"
Illinois is a no carry state and the ‘right” as stated in the State Consitituion is “subject to” the state police.
“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.”
will the SCOTUS decision render the illinois state consitution “unconsitutionl” RE: Section 22?
LOL. I just woke up. I need to go back to bed now.
Bear: to hold or carry (oneself, one's body, one's head, etc.): to bear oneself erectly.
The wussification of Americans....the ones that believe we live in a civilized society and the police will protect you.
I fear that this will end badly. We get incorporation, but big-fed winds up the winner. This reinforces the fact that the supreme court is not about protecting the constitution.
Reminds me of that commercial from Ally bank.
“Would you like to go for a ride on that bike? Okay!” Kid tries to leave the little enclosing lines drawn on the floor. “Whoa! If you want to take the bike out of this space, I’m gonna have to charge you a penalty.” “You can’t really ride in this little space.” “You can’t ride really FAR, haha.”
“Even kids know an offer shouldn’t come with ridiculous conditions.”
Same with rights.
You want to carry openly in the city where any mugger can see your weapon and grab it? Or just go about unarmed? I don’t. In some places I wouldn’t get much farther than that kid in the commercial, carrying openly.
I want the muggers & thugs GUESSING as to who might be carrying,
and choose a safer profession.
Garde la Foi, mes amis! Nous nous sommes les sauveurs de la République! Maintenant et Toujours!
(Keep the Faith, my friends! We are the saviors of the Republic! Now and Forever!)
LonePalm, le Républicain du verre cassé (The Broken Glass Republican)
Mmmm, I do to, except when it comes to Michell, ma bell.
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