McDonald v. Chicago Instant Analysis

JoshBlackman.com ^ | 03-02-2010 | Josh Blackman

[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.

Update:

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 Gura’s 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.

[Dead Corpse]

If the SCOTUS rules as they should, then Illinois State law would be limited via Art 6 para 2 "Laws of any State to the contrary notwithstanding".

As it should be...

[Lazamataz]

I’d hit it (once ObamaCare is dead).

[ArrogantBustard]

I believe that in the "Old West", carrying a concealed weapon was considered dishonourable: the province of cheats, swindlers, and whores. Decent folk carried their weapons openly.

[RobRoy]

I agree. Where it rises to an issue is when they say you can’t carry one, period. And I see a potential catch 22 here.

What if they regulate or abolish concealed carry but, when you carry it openly, it is considered, in some places, to be inflamatory by its mere obvious presence, but if you conceal it, in thoughtfulness to others feelings, you have broken the law.

It is micromanagement, is what it is.

[Filo]

While I am breathing a sigh of relief that the Court doesn't appear to want to open the P&I Pandora's Box

Why? Do you have something against The Constitution and freedom?

I am troubled that the Court looks like it will issue an opinion without many teeth at all. If there is any dicta in the case along the lines of what Justice Scalia said, liberal States will take that as cart blanche to continue to deny any right to concealed carry.

Agreed, but they have to keep it all middle-of-the-road to keep Kennedy on board.

They will almost certainly issue a blanket incorporation with very limited specifics (and, hopefully, very limited limits) and leave the rest to future courts.

It will be up to us to do two things: 1. bring cases on those specifics we care about (such as AWBs and CCWs using things like "arbitrary and capricious" as arguments) and 2. recognize that elections have consequences and Obama making appointments is quite different than even a RINO like McCain doing so.

[Dead Corpse]

I want them to see me carrying. Let them try and sneak up on me. My wife can then get behind them and put a 147gr slug in their ear at 900fps.

[Ancesthntr]

"The exercise of rights can be regulated,"

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.

I would note that even though there are those restrictions on the 1st Amendment (and, btw, the yelling of "fire" in a theater is fine if there actually IS a fire there), that doesn't confer the power to a state or the feds to cut your tongue out or duct tape your mouth shut before entering the theater, just because you might shout "fire" or something else. In other words, "prior restraint" is not allowed...yet, that is EXACTLY what gun control is all about. I wish that Gura had brought this up in the argument.

[LonePalm]

I would support concealed carry for Michelle 0bama.

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)

[freedomwarrior998]

Why? Do you have something against The Constitution and freedom?

The Slaughterhouse cases were rightly decided. The 14th Amendment was never intended to usurp the rights of the people of individual States, nor was it intended to be used as a vehicle to allow radical wacko federal judges to "find" rights to healthcare, abortion and same-sex marriage.

Go over to DU. The libtards were hoping for a P&I interpretation for these very reasons.

[jim_trent]

> “The Court was not at all receptive to arguments on Privileges or Immunities but incorporation on Due Process is a slam dunk.”

For those on this webpage who were blasting the NRA for “horning in” on Gura’s case, P&I was virtually all that Gura was arguing for (there were about 70 pages in his brief on that and 5 pages on Due Process). If it had not been for the NRA “horning in” this could have been a VERY bad day for gunowners.

Those same people should remember that Gura and his paymaster are Libertarians first, foremost, and always. The gun stuff is just a vehicle for them, not their central concern.

[MrB]

Responsible people carrying guns causes no one else any harm, so cannot be regulated like yelling fire, etc.

What the left wants to say is that we can’t let responsible people carry, because then irresponsible people will carry, posing a potential for public harm.

Like you referred to, this is “prior restraint”.

[Las Vegas Ron]

Like you referred to, this is “prior restraint”.

Yep.

[freedomwarrior998]

Those same people should remember that Gura and his paymaster are Libertarians first, foremost, and always. The gun stuff is just a vehicle for them, not their central concern.

BINGO! (Although I would characterize them as liberaltarians.)

[Filo]

The Slaughterhouse cases were rightly decided. The 14th Amendment was never intended to usurp the rights of the people of individual States, nor was it intended to be used as a vehicle to allow radical wacko federal judges to "find" rights to healthcare, abortion and same-sex marriage.

I can't argue with the overall Slaughterhouse decision but I do take issue with the narrowing of the meaning of P&I in the 14th.

The 14th was designed to ensure that freed slaves were guaranteed the individual rights and privileges that free men had prior to the Civil War.

Those rights were embodied in the Bill of Rights including in the 9th Amendment.

The narrowing of those rights to those of the United States (silliness like access to waterways!) from individual rights was a failure of Slaughterhouse.

The original intent and meaning of the 14th is quite clear.

So yes, there is risk of "found" rights as exists now with the 9th Amendment.

Go over to DU. The libtards were hoping for a P&I interpretation for these very reasons.

I can understand that. They are, after all, libtards and while they'd lose the gun control fight they'd be able to start so many more.

Yes a reversal of Slaughterhouse is a Pandora's Box. No it wouldn't be the disaster that most folks seem to think. It would, instead, be a return to the basic freedoms we enjoyed before that horrible ruling.

[Filo]

The Slaughterhouse cases were rightly decided. The 14th Amendment was never intended to usurp the rights of the people of individual States, nor was it intended to be used as a vehicle to allow radical wacko federal judges to "find" rights to healthcare, abortion and same-sex marriage.

I can't argue with the overall Slaughterhouse decision but I do take issue with the narrowing of the meaning of P&I in the 14th.

The 14th was designed to ensure that freed slaves were guaranteed the individual rights and privileges that free men had prior to the Civil War.

Those rights were embodied in the Bill of Rights including in the 9th Amendment.

The narrowing of those rights to those of the United States (silliness like access to waterways!) from individual rights was a failure of Slaughterhouse.

The original intent and meaning of the 14th is quite clear.

So yes, there is risk of "found" rights as exists now with the 9th Amendment.

Go over to DU. The libtards were hoping for a P&I interpretation for these very reasons.

I can understand that. They are, after all, libtards and while they'd lose the gun control fight they'd be able to start so many more.

Yes a reversal of Slaughterhouse is a Pandora's Box. No it wouldn't be the disaster that most folks seem to think. It would, instead, be a return to the basic freedoms we enjoyed before that horrible ruling.

[freedomwarrior998]

The Ninth Amendment doesn’t convey any substantive rights. If it did, we would no longer have a Republic, we’d be living in a judicial oligarchy. All you need to do is to find a sympathetic Federal Judge to decree that a Ninth Amendment right to _________ exists. The Ninth Amendment is a rule of construction, it was merely a codification in the Constitution designed to ensure that the common law principal of “expressio unius est exclusio alterius” would not be used to limit rights. Read Madison on the Ninth Amendment, he never intended it to be a vehicle for a judicial dictatorship, nor did he envision it granting substantive rights.

[lrb111]

i cannot be sure, but the “due process” position might not have been introduced into the proceedings had not the SCOTUS allowed the NRA their few minutes.

[Red in Blue PA]

Justice Scalia on no less than three occasions noted that the right to concealed carry would not be protected by the Second Amendment

Would love to hear what these people think the "right to keep and bear arms" really means?

Keep and bear arms in your safe? WTF?

[Filo]

The Ninth Amendment doesn’t convey any substantive rights.

I agree, but it does leave room for the discovery of substantive rights not included in the BoR, which was the point.

f it did, we would no longer have a Republic, we’d be living in a judicial oligarchy.

I disagree. I agree that it's possible, but I don't think it has, or could, work out that way in practice. The whole checks and balances thing works in our favor here.

All you need to do is to find a sympathetic Federal Judge to decree that a Ninth Amendment right to _________ exists.

And get that played up through the courts. I doubt that a frivolous example would make it very far.

The Ninth Amendment is a rule of construction, it was merely a codification in the Constitution designed to ensure that the common law principal of “expressio unius est exclusio alterius” would not be used to limit rights.

Agreed. That is part of what the 9th means.

Read Madison on the Ninth Amendment, he never intended it to be a vehicle for a judicial dictatorship, nor did he envision it granting substantive rights.

I have and while Madison was certainly influential in this regard he isn't the final word.

The BoR was put in place to placate the anti-federalists and they intended to protect all rights from the Federal government. They were, in fact, loathe to enumerate any because they feared (rightly so) that the list would be considered complete.

[Ancesthntr]

Those same people should remember that Gura and his paymaster are Libertarians first, foremost, and always. The gun stuff is just a vehicle for them, not their central concern.

While I'm not carrying any water for Gura and his associates, I think that it is far more likely that he is a libertarian. Nor am I strictly a libertarian (and definitely not a Libertarian), though I've got libertarian leanings on a lot of issues (mainly because my chief concern is that government leave all of us the phock alone)...but the "gun stuff" is pretty critical to libertarian thought - trying to be free and enjoy liberty is a rather fruitless exercise without the ability to defend your life and rights, or those of your family and community.

Also, before anyone condemns Gura too much, let's try to remember that he got the Supreme Court to do what no other attorney has - to state that the right to keep arms ("bear" wasn't at issue in Heller) is a fundamental right. True enough, Heller was not everything that us pro-gun rights folks would have liked (far from it, in fact), but it drew a line in the sand that can never be crossed again - correction, GURA drew the line in the sand. And it is likely that in a few months time - thanks largely to Gura - the same standard will now apply in gun-rights $hitholes like Chicago, NYC, etc. - ultimately restoring the rights of tens of millions of our fellow citizens. Yes, it will take a few more cases to defeat the very high hoops that these localities will make people jump through to get a gun, but that will happen and we will have a far larger group of fellow gun owners than we presently do (which will necessarily make the goals of the hoplophobic control-freaks that much more difficult). Thanks, largely, to Gura. So cut the guy a bit of a break. Again, I'm not carrying his water - we aren't related, we aren't friends, I'm not employed by him, and I've never even met the guy...but facts are facts.