? on McDonald v. City of Chicago

? on McDonald v. City of Chicago

This is a discussion on ? on McDonald v. City of Chicago within the The Second Amendment & Gun Legislation Discussion forums, part of the Related Topics category; Reading comments re this case on this forum and other sites which are pro RKBA I get the impression that most feel the case is ...

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Thread: ? on McDonald v. City of Chicago

  1. #1
    Member Array ming's Avatar
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    ? on McDonald v. City of Chicago

    Reading comments re this case on this forum and other sites which are pro RKBA I get the impression that most feel the case is a slam dunk for supporters of 2A rights. However, I don't doubt that these sites have a certain bias. My question is, are we counting our chickens before they are hatched? Are there anti sites that are posting the complete opposite opinion, i.e., that SCOTUS will surely side with City of Chicago? I'd like to read their spin on the issue. Anyone know where I'd be able to find out more about the opposite side? Can't hurt to know one's opponent.


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    VIP Member Array MitchellCT's Avatar
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    I'll email my professors from lawschool and see how they feel.

    They will have their finger on the liberal beat...considering they ARE the liberal beat...

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    Member Array ming's Avatar
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    Quote Originally Posted by MitchellCT View Post
    I'll email my professors from lawschool and see how they feel.

    They will have their finger on the liberal beat...considering they ARE the liberal beat...
    It would be an interesting read I'm sure.

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    Senior Member Array Rob P.'s Avatar
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    For the most part, everyone who is making a statement about the outcome is "hoping and wishing and dreaming and praying." NO ONE knows which way the SCOTUS will jump.

    You can form your own opinion based on the briefs by reading them and posting questions on the parts you aren't sure about. For myself, I've read the briefs and so far there isn't anything that hasn't already been said in DC v. Heller in detail as to the RTKBA.

    The real issue (as I've said before) IS NOT about 'guns.' It's about whether States have the power to make laws which abrogate the Privileges or Immunities of US citizens. If the SCOTUS rules in favor of incorporation they will have to overrule a lot of precedent that was created to keep the freedmen "socially enslaved" after emancipation. The SCOTUS doesn't like to overrule itself. Plus we have gone beyond those days for so long and so far that today we have no real concept on what REAL discrimination is about. That means that any discussion on the ills of discrimination is merely an exercise which includes political favortism and viewpoint.

    The SCOTUS is not above politics although they style themselves to be such. Any decision will incorporate their various socio-political bent. It remains to be seen which viewpoint will prevail and no one can say which one will win.

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    Senior Member Array press1280's Avatar
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    Quote Originally Posted by ming View Post
    Reading comments re this case on this forum and other sites which are pro RKBA I get the impression that most feel the case is a slam dunk for supporters of 2A rights. However, I don't doubt that these sites have a certain bias. My question is, are we counting our chickens before they are hatched? Are there anti sites that are posting the complete opposite opinion, i.e., that SCOTUS will surely side with City of Chicago? I'd like to read their spin on the issue. Anyone know where I'd be able to find out more about the opposite side? Can't hurt to know one's opponent.
    Even the Brady Campaign expects Chicago to lose. That ought to tell you something. I haven't heard or read anyone(that's pro-gun, anti-gun,objective on the issue) say that they think Chicago will win.
    "The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree..."
    Nunn v. State GA 1848

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    VIP Member Array SIGguy229's Avatar
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    I think since the arguments being used in McDonald v Chicago were used in Heller...and those arguments were basically shot down by the SCOTUS, we have a pretty good feeling on this one.
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    Senior Member Array dldeuce's Avatar
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    I don't see this case as being a repeat of Heller at a state level. Heller established that the 2nd amendment is a fundamental individual right to self defense and that a total ban on handguns is not compatible with the free exercise of that right. This case is about whether or not this fundamental right is protected under the 14th amendment's due process or privileges and immunities clause.

    I think they'll have a hard time ruling it's not protected under the 14th at all, in that firearms were one of the principal issues behind the passing of the fourteenth amendment. The real issue is how they will try to twist and contort it to fit it in.

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    Senior Member Array Tom357's Avatar
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    Quote Originally Posted by ming View Post
    Reading comments re this case on this forum and other sites which are pro RKBA I get the impression that most feel the case is a slam dunk for supporters of 2A rights. However, I don't doubt that these sites have a certain bias. My question is, are we counting our chickens before they are hatched? Are there anti sites that are posting the complete opposite opinion, i.e., that SCOTUS will surely side with City of Chicago? I'd like to read their spin on the issue. Anyone know where I'd be able to find out more about the opposite side? Can't hurt to know one's opponent.
    Anyone outside the Supreme Court who thinks they know how the Supreme Court is going to come down on this issue is guessing. I'm not sure how beneficial it would be to know what guessers on the other side think. If you want to know what the other side thinks, you should read the Respondents' Brief arguing that the Appeals Court decision should be affirmed.
    Quote Originally Posted by SIGguy229 View Post
    I think since the arguments being used in McDonald v Chicago were used in Heller...and those arguments were basically shot down by the SCOTUS, we have a pretty good feeling on this one.
    The arguments are not the same. The questions are different. The question in Heller was very specific about whether three provisions of the DC Code violated the 2A RKBA of individuals not involved in a state-regulated militia, but who want to keep handguns and other firearms for private use in their homes. The question in McDonald is whether the 2A RKBA is incorporated against the states by the 14A Due Process or Privileges or Immunities Clause. The arguments address the question. They may call on some of the same court cases, but the arguments are different.
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    New Member Array Tom Servo's Avatar
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    Quote Originally Posted by Tom357 View Post
    Anyone outside the Supreme Court who thinks they know how the Supreme Court is going to come down on this issue is guessing.
    Agreed. Of course, that hasn't stopped a few betting pools from forming!

    I'm not sure how beneficial it would be to know what guessers on the other side think. If you want to know what the other side thinks, you should read the Respondents' Brief arguing that the Appeals Court decision should be affirmed.
    If anyone's interested, the case filings are all hosted on Gura's site.

    I think since the arguments being used in McDonald v Chicago were used in Heller...and those arguments were basically shot down by the SCOTUS, we have a pretty good feeling on this one.
    If you're referring to DC's arguments, you're correct. The respondent (Chicago) brief does in fact argue that the 2nd Amendment protects the "rights" of states to form militias and does not protect an individual right.

    Yep. The same interpretation that the Court threw out in Heller. I am crossing my fingers that they use that one in oral arguments.

    Back to the OP, last year's Heller case ruled that the 2A protected an individual right, but only in Washington DC, which is a federal enclave. The question of whether or not it enjoined the states from violating the 2nd Amendment was left open. This case seeks to address that.

    The process of making the right binding upon state governments is known as incorporation. Basically, the Court looks at a given law (in this case, Chicago's handgun registry system) and if that law is found to deprive someone of life, liberty or property without Due Process, then it is declared unconstitutional.

    For many reasons, that system bites. In fact, it's not even supposed to exist, since the preceding clause (Privileges or Immunities) was written to incorporate the entirety of the first 8 Amendments automatically.

    In two cases (Slaughterhouse and Cruikshank), the Reconstruction-era Supreme Court whittled the Privileges or Immunities clause down to nothing, and later Courts would have to rely on selective incorporation through Due Process.

    McDonald v. Chicago seeks to resurrect the Privileges or Immunities clause. Due Process incorporation is pretty much a given. Even the opposition notes that in their briefs. However, rather than perpetuating a deficient system of incorporation, we can use this as a chance to fix a very broken part of constitutional doctrine.

    It should be noted that the NRA had a parallel case that argued only for Due Process incorporation. If that was all the Court was interested in, they could have heard that one. Instead, they chose to hear McDonald, which suggests they're interested in overturning Slaughterhouse and Cruikshank.

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    I don't think this case is similar to Heller, and I think it will turn on whether or not the so called conservatives on the court can swallow incorporation of yet another BOR provision. There may even be some liberals on the court that would not want to swallow incorporation.

    There's the supreme irony here. The pro-gun conservatives may be constrained by their reluctance to incorporate, and the anti-gun liberals might be constrained against incorporation by their distaste for what would happen if this one part of the BOR were incorporated as all the rest.

    This is a totally unpredictable case. Also, regardless of the decision, don't expect rapid change. There will be great resistance in certain states (as there is in DC) to compliance with any ruling that goes against them.

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    Slaughterhouse cases

    Quote Originally Posted by Tom Servo View Post
    It should be noted that the NRA had a parallel case that argued only for Due Process incorporation. If that was all the Court was interested in, they could have heard that one. Instead, they chose to hear McDonald, which suggests they're interested in overturning Slaughterhouse and Cruikshank.
    While I think both the Slaughterhouse and Cruishank cases were abominations, I find it hard to believe that the conservative members of the court would be interested in overturning these two. And, I'm not so sure that it would make good sense to overturn Slaughterhouse because doing so might sanction private militias.

    Let's just hope the 9 supremes apply a great deal of wisdom to their decision. It is without a doubt one of the more complex cases (given the 19th century rulings and our country's history) the court will deal with this year.

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    New Member Array Tom Servo's Avatar
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    Quote Originally Posted by Hopyard View Post
    While I think both the Slaughterhouse and Cruishank cases were abominations, I find it hard to believe that the conservative members of the court would be interested in overturning these two.
    Actually, Thomas did express significant interest in his dissent in Saenz v. Roe. As for the others, it's hard to call.

    However, they had the easy way out with the NRA case, and at least four of them chose instead to hear this one.

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    Senior Member Array Tom357's Avatar
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    Quote Originally Posted by Hopyard View Post
    ...It is without a doubt one of the more complex cases (given the 19th century rulings and our country's history) the court will deal with this year.
    I agree. If the court overturns McDonald v Chicago, the consequences will be far-reaching at the local and state levels. That alone is a daunting consideration. The brief by members of Congress in support of the Petitioners raises a potential constraint of freedom concern.
    As elected federal officials, amici have an interest in protecting the constitutional rights of their constituents and the American people in general. Moreover, Congress has a particular responsibility to enact legislation to protect and enforce constitutional rights guaranteed by the Fourteenth Amendment. Congress also has a more general responsibility to interpret the Constitution in deciding what laws to pass, and amici take that responsibility seriously. “In the performance of assigned constitutional duties each branch of the Government must initially interpret the Constitution, and the interpretation of its powers by any branch is due great respect from the others.”...Congress has a unique interest in upholding the right to keep and bear arms. Congress, after all, proposed both the Second and Fourteenth Amendments. Moreover, Congress recognizes—and has stated explicitly in legislation—the importance of this right. Incorporation would also make clear that Congress has the authority to enforce Second Amendment rights pursuant to Section 5 of the Fourteenth Amendment and would help preserve Congress’ war powers...
    Congress' interpretation of the Constitution in deciding which laws to pass does not exactly inspire confidence. Their eagerness to have a clearly-defined Federal responsibility to pass legislation to protect the American people in general, enforcing 2A rights, cuts both ways. Just how far might "reasonable constraints" on 2A rights go, post-incorporation? How would this affect current efforts by some States to establish some measure of independence from Federal gun control measures? We are certainly living in interesting times.
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