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Message: <blockquote data-quote="vvvvvvv" data-source="post: 1465635" data-attributes="member: 5151">I encourage you to re-read the opinions, particularly McDonald. (My emphasis appears in bold.From pp 39-40 of McDonald:  It is important to keep in mind that Heller, while striking down a law that prohibited the possession of handguns in the home, recognized that the right to keep and bear arms is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.   554 U. S., at ___ (slip op., at 54).  We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as prohibitions on the possession of firearms by felons and the mentally ill, laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.  Id., at ______ (slip op., at 5455).   We repeat those assurances here. Despite municipal respondents doomsday proclamations, incorporation does not imperil every law regulating firearms.Footnote 26 of Heller, explaining the Court's meaning of "presumptively lawful regulations" on pp 54-55: We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.Remember to also consider the dissent. While relatively rare, the dissent of some cases is referenced as precedent to clarify certain positions, especially when that dissent is from a 4-1-4 decision such as McDonald. From pp 14-15 of Justice Breyer's dissent:Rather, the Court has haphazardly created a few simple rules, such as that it will not touch prohibitions on the possession of firearms by felons and the mentally ill, laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Heller, 544 U. S., at ___ (slip op., at 5455); Ante, at 39 (plurality opinion). But why these rules and not others? Does the Court know that these regulations are justified by some special gun-related risk of death? In fact, the Court does not know. It has simply invented rules that sound sensible without being able to explain why or how Chicagos handgun ban is different.And pp 12-13 of Breyer's dissent, which outlines the questions that will hypothetically need to be answered in further cases:Given the competing interests, courts will have to try toanswer empirical questions of a particularly difficult kind.Suppose, for example, that after a gun regulations adoption the murder rate went up. Without the gun regulationwould the murder rate have risen even faster? How is this conclusion affected by the local recession which has left numerous people unemployed? What about budget cutsthat led to a downsizing of the police force? How effective was that police force to begin with? And did the regulation simply take guns from those who use them for lawfulpurposes without affecting their possession by criminals? Consider too that countless gun regulations of manyshapes and sizes are in place in every State and in manylocal communities. Does the right to possess weapons forself-defense extend outside the home? To the car? To work? What sort of guns are necessary for self-defense?Handguns? Rifles? Semiautomatic weapons? When is a gun semi-automatic? Where are different kinds of weapons likely needed? Does time-of-day matter? Does the presence of a child in the house matter? Does the presence of a convicted felon in the house matter? Do police need special rules permitting patdowns designed to findguns? When do registration requirements become severe to the point that they amount to an unconstitutional ban?Who can possess guns and of what kind? Aliens? Prior drug offenders? Prior alcohol abusers? How would the right interact with a state or local governments ability totake special measures during, say, national security emergencies? As the questions suggest, state and local gunregulation can become highly complex, and these are only a few uncertainties that quickly come to mind. Caperton v. A. T. Massey Coal Co., 556 U. S. ___, ___ (2009) (ROB-ERTS, C. J., dissenting) (slip op., at 10).In McDonald, the Court affirmed that presumptively constitutional prohibitions are presumptively constitutional until proven otherwise in the Supreme Court. In other words, if any prohibition or regulation was in place at the time of the ruling, sans a prohibition on the possession of a handgun for purposes of self defense within the home per Heller, it is to be presumed constitutional.Remember, McDonald was a 4-1-4 decision, with 4 Justices ruling against incorporation via the Privileges or Immunities Clause (after admitting that the Slaughter-House precedent is flawed and should be revisited; see next quote) and 5 ruling against incorporation via Due Process. In a 4-1-4 plurality decision, the swing vote generally becomes the controlling interpretation unless a strong argument is made in a generally immediately following decision that the plurality is the way to go. But that rule generally applies because the swing vote is the narrower opinion. In McDonald, the plurality is the narrower opinion because it subjects the Second Amendment to Due Process (read: each and every scenario is subject to litigation, a great new industry if you know someone going into law), while Justice Thomas' concurrence is specifically against Due Process and calls for the Second Amendment to be considered an Immunity of a United States citizen. Since an Immunity would not be subject to litigation, it is a broader interpretation than Due Process. In other words, McDonald does not settle the deal. We need another decision to determine which method of incorporation is controlling. However, considering the fact that the Court recognized that the precedent that effectively neutered the Privileges or Immunities Clause is flawed and should be revisited, but openly refused to do so."Virtually no serious modern scholarleft, right, and center thinks that this [interpretation] is a plausible reading of the Amendment" (Amar, Substance and Method in the Year 2000, 28 Pepperdine L. Rev. 601, 631, n. 178 (2001), p. 8 of plurality opinion).But even with multiple citations such as the one in the previous sentence, Justice Alito went on to say "We see no need to reconsider that interpretation here. For many decades, the question of the rights protected by the Fourteenth Amendment against state infringement has been analyzed under the Due Process Clause of that Amendment and not under the Privileges or Immunities Clause. We therefore decline to disturb the Slaughter-House holding."In other words, while scholars have a consensus that Slaughter-House is extremely flawed and should be revisited, we don't want to touch it. My thinking is that this may have been a compromise to get Justice Kennedy to vote in favor of incorporation. At least Justice Thomas had some balls.To not revisit Slaughter-House is kind of disturbing because Slaughter-House arguably did not directly involve any Right enumerated in the Constitution.I find it odd that four of the Justices who claim to subscribe to Constitutional Originalism could offer no compelling reason for using the Due Process Clause.  Their "justification" came from the lack of the petitioners' ability to explain the scope of the Privileges or Immunities Clause and the lack of precedent.This leaves Second Amendment incorporation at the mercy of "substantive due process" the exact thing that those four Justices complain about the most for vagueness.  Using the Due Process Clause requires the Court to determine if a right is "fundamental" to "our scheme of ordered liberty."  This leaves incorporated rights open to attack from Justices who inject their political views into their opinions (and all of them do).In over a century of rulings using the Due Process Clause, no consensus has emerged on the correctness and meaning of precedent cases such as Roe v. Wade.  This further proves that Second Amendment incorporation will be left open to manipulation going forward, all because the Court "decline[d] to disturb the Slaughter-House holding."The 7th Circuit ruling in United States v. Skoien cited both Heller and McDonald's stance on "longstanding prohibitions" in their majority opinion affirming the Constitutionality of a prohibition on possession of firearms by those convicted of a misdemeanor of domestic violence based on the idea that domestic violence is a misdemeanor because victims are reluctant to attach the stigma of a felony to those who they think they love.The 3rd Circuit ruling in United States v. Marzzarella cited the Court's idea in Heller that longstanding prohibitions are presumably constitutional with respect to federal law prohibiting the sale or transfer of unmarked firearms.The 8th Circuit ruling in United States v. Jardee cited Heller in determining that a lifetime prohibition against firearm possession "...is not of the same order of magnitude as the severe deprivation of liberty that results from six months incarceration..." However, a 15 year suspension of driving privileges apparently is.By the way, Wikipedia is not an acceptable source.</blockquote>

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