Justices signal they're ready to make gun ownership a national right

[Blue Baby]

http://www.latimes.com/news/nation-and-world/la-na-court-guns3-2010mar03,0,3193015.story

Reporting from Washington - Most of the Supreme Court justices who two years ago said the 2nd Amendment protects individual gun rights signaled during arguments Tuesday that they are ready to extend this right nationwide and to use it to strike down some state and local gun regulations.

Since 1982, Chicago has outlawed handguns in the city, even for law-abiding residents who sought to keep one at home. That ordinance was challenged by several city residents who said it violated their right "to keep and bear arms" under the 2nd Amendment.

The case forced the high court to confront a simple question it had never answered: Did the 2nd Amendment limit only the federal government's ability to regulate guns and state militias, or did it also give citizens a right to challenge state and local restrictions on guns?

All signs Tuesday were that five justices saw the right to "bear arms" as national in scope and not limited to laws passed in Washington.

Justice Anthony M. Kennedy described the individual right to possess a gun as being of "fundamental character," like the right to freedom of speech. "If it is not fundamental, then Heller is wrong," Kennedy said, referring to the decision two years ago that struck down the handgun ban in the District of Columbia. Kennedy was part of the 5-4 majority in that case.

Chief Justice John G. Roberts Jr. called it an "extremely important" right in the Constitution. Justices Antonin Scalia and Samuel A. Alito Jr. echoed the theme that the court had endorsed an individual, nationwide right in their decision two years ago. The fifth member of the majority, Justice Clarence Thomas, did not comment during the argument, but he had been a steady advocate of the 2nd Amendment.

A ruling striking down the Chicago handgun ban would reverberate nationwide because it would open the courthouse door to constitutional challenges to all manner of local or state gun regulations. However, the justices may not give much guidance on how far this right extends.

Roberts all but forecast the court would issue an opinion that avoids deciding the harder questions about whether guns can be carried in public as well as kept at home. "We haven't said anything about the content of the 2nd Amendment," Roberts said at one point. He added that the justices need not rule on whether there is a right to carry a "concealed" weapon.

A lawyer for Chicago argued that there is a long American tradition of permitting states and cities to set gun regulations. For 220 years, gun restrictions "have been a state and local decision," said attorney James A. Feldman. Cities should be permitted to set "reasonable regulations of firearms," he added, noting that Chicagoans are allowed to have rifles and shotguns in their homes.

But he ran into stiff questioning from Scalia and his colleagues.

At one during the argument, Justice John Paul Stevens suggested the right to bear arms could be limited to homes. A liberal who dissented in the earlier gun-rights case two years ago, Stevens said the court could rule for the Chicago home owners and say they had a right to a gun at home. At the same time, the court could say it is not "a right to parade around the street with a gun," Stevens said.

But that idea got no traction with the other justices, and a lawyer representing the National Rifle Assn. said the court should not adopt a "watered-down version" of the 2nd Amendment.

It will be several months before the court hands down a decision in the case of McDonald vs. Chicago

 

[Bullbuster]

The results should be very interesting to say the least. It could open a bunch of doors or lock'm um tighter than a frogs azz. Guess we will have to wait and see.

 

[ConstitutionCowboy]

Gura opened the door wide with his answer to Sotomayor's question:

"What is it that has -has been caused by it that we have to remedy, meaning States have relied on having no grand juries, States have relied on not having civil trials in certain money cases, they have relied on regulating the use of firearms based on us, the Court, not incorporating the Privileges and Immunities Clause in the way that you identify it. What -- in which ways has ordered liberty been badly affected?"

"Justice Sotomayor, States may have grown accustomed to violating the rights of American citizens, but that does not bootstrap those violations into something that is constitutional."

I'd like to point out that Sotomayor talked of laws regulating the use of arms based on the Court not incorporating the Second Amendment. It wouldn't matter! Either she is ignorant or tried to make a point disingenuously. The Second Amendment doesn't cover the use of arms at all. That's why you'll probably never see a challenge to laws that say you can't shoot your guns in the middle of town except in self defense.​

I found this exchange encouraging.

No, no. I'm not talking about whether -- whether the Slaughter-House Cases were right or wrong. I'm saying, assuming we give, you know, the Privileges and Immunities Clause your definition, does that make it any easier to get the Second Amendment adopted with respect to the States?

Justice Scalia, I suppose the answer to that would be no, because -

~
~

What you argue is the darling of the professoriate, for sure, but it's also contrary to 140 years of our jurisprudence. Why do you want to undertake that burden instead of just arguing substantive due process, which as much as I think it's wrong, I have -- even I have acquiesced in it?

Gura didn't get a chance to answer directly, but I think Scalia hinted he's ready to incorporate under the P&I clause. Gura certainly did get in that Slaughter-House needs to go, though, and the only hurdle mentioned was the 140 years S-H has been around. Being wrong for 140 years is a rather feeble excuse to continue to be wrong.[/indent]


The following backs up what I've been saying about Heller - that those "presumptive reasonable restrictions" were just that: Presumptive. Refer to what I highlighted in bold:

Well, why would this one be resolved on the basis of statistics? If there is a constitutional right, we find what the minimum constitutional right is and everything above that is up to the States. If you want to have, you know -- I think we mentioned in Heller concealed carry laws. I mean, those are -- those are matter that we didn't decide in Heller. And you may have a great deal of divergence from State to State, and on that I suppose you would do statistics, wouldn't you? Or the legislature would.

Scalia went out of his way to point out that those things like concealed carry mentioned in Heller as long standing laws, that "those are matter that we didn't decide in Heller."​

"That still allows scope, once you determine that the right is incorporated, for recognizing that the States might have broader interests that the Federal Government doesn't have. But I would suppose that would come up in the application of the right, rather than in an effort to determine whether parts of it are incorporated or not."

This statement by Roberts really exposes the mind-set we too often see at all levels of government. I'd like to inform all in government that it isn't about the interests of the different levels of government. It's about the interests of We the People! That's the way ALL levels of government should be looking at this! What good is the protection of a right at one level of government if a different level can infringe upon the right? Infringed is infringed. Does it matter to your face if a federal agent slaps it or if your local sheriff slaps it?

Gura got the last word and it went unchallenged:

We believe that it's more limited because that -- that text had a specific understanding and that there are guideposts left behind in texts and history that tell us how to apply it, unlike the due process. But at least we know one thing, which is that in 1868 the right to keep and bear arms was understood to be a privilege or immunity of citizenship, and if the Court is considering watering down the Second Amendment perhaps it should look to text and history.

My prediction: We'll get a not less than 5-4 and possibly as much as an 8-1 win, with a better than 50/50 chance of incorporation under the P & I clause coupled with a sure Due Process win as well. The RKBA being a definitive privilege and with the Second Amendment making it immune to government infringement, how can we lose?

My biggest disappointment in this whole process has been the disregard for Madison's reasoning why we need a bill of rights to begin with:

An Excerpt: Mr. Madison from the Congressional Record of 8 June, 1789, debating the proposal of a Bill of Rights:

I admit the force of this observation, but I do not look upon it to be conclusive. In the first place, it is too uncertain ground to leave this provision upon, if a provision is at all necessary to secure rights so important as many of those I have mentioned are conceived to be, by the public in general, as well as those in particular who opposed the adoption of this Constitution. Besides, some States have no bills of rights, there are others provided with very defective ones, and there are others whose bills of rights are not only defective, but absolutely improper; instead of securing some in the full extent which republican principles would require, they limit them too much to agree with the common ideas of liberty.

When you have such clarity from a Founding Father, how can there be any doubt? Maybe whomever rights the majority opinion will include it.

Woody

 

[RETOKSQUID]

How is it some cities and states think that the 1st 5th, 14th, and other amendments apply to the states, but the 2nd doesn't? Makes no sense, it is an all or nothing thing IMO.

 

[ch1966]

Full transcript of oral arguments here: http://www.supremecourtus.gov/oral_arguments/argument_transcripts/08-1521.pdf

 

[338Shooter]

It doesn't take that long to read. How about you all spend a few minutes away from the GD section and read the transcript. You all owe it to yourselves to read it.

http://www.supremecourtus.gov/oral_arguments/argument_transcripts/08-1521.pdf
http://www.supremecourtus.gov/oral_arguments/argument_transcripts/08-1521.pdf
http://www.supremecourtus.gov/oral_arguments/argument_transcripts/08-1521.pdf
http://www.supremecourtus.gov/oral_arguments/argument_transcripts/08-1521.pdf
http://www.supremecourtus.gov/oral_arguments/argument_transcripts/08-1521.pdf

 

[Savage250]

Mr. Gura needs to retract and modify his statement. The Second Amendment is NOT a privilege, it's a RIGHT!! Privilege needs to be gone from their vocabulary. I have a hard time with that and it really makes me angry. There is a difference between those two words.

The Second Amendment is right there in Black and White. There shouldn't be any interpretation as to what it says. It can't get anymore clear than what it already is.

 

[ConstitutionCowboy]

Mr. Gura needs to retract and modify his statement. The Second Amendment is NOT a privilege, it's a RIGHT!! Privilege needs to be gone from their vocabulary. I have a hard time with that and it really makes me angry. There is a difference between those two words.

The Second Amendment is right there in Black and White. There shouldn't be any interpretation as to what it says. It can't get anymore clear than what it already is.

As far as the word "privilege" goes, it's the word used in the Fourteenth. My dictionary says they can be synonymous, though I believe a right carries much more weight - a right being endowed upon us by our creator, or if you prefer, a natural trait of being a human being. A privilege can be something bestowed upon you by another person, government, or association, etc.

Woody

 

[WhiteyMacD]

Its great they want to enforce it as a right to all. However, need to be careful about precedence. If we enable the Gov't to push something on the states, remember that it is subject to their interpretation.

This is a Hot/Cold issue. Yay, gun rights. Boo, loss of state's rights.

 

[reddog1]

Its great they want to enforce it as a right to all. However, need to be careful about precedence. If we enable the Gov't to push something on the states, remember that it is subject to their interpretation.

This is a Hot/Cold issue. Yay, gun rights. Boo, loss of state's rights.

YES!, This could bite us in the butt... hmmm