SCOTUS - Chicago

[eapking]

Technology shouldn't have anything to do with the 2nd amendment. QUOTE]

+1.

Magazine size (re: technology), is irrelevant to the 2A. Where does it say "...the right to keep and bear arms shall not be infringed, as long as it's a black powder musket?"

[Guest Jamie]

I just finished reading the transcript of the arguments again, and I swear, it almost seems like Chief Justice Roberts was just looking for an excuse to incorporate the 2nd under the Privileges and Immunities clause... Sort of like he was playing Devil's Advocate, with all the "We can do it, but it'll give judges more latitude to decide what is or isn't a right" stuff.

I would certainly have liked to have seen and heard this in person, because I definitely get the impression that more was going on there than the written words really convey... And those conveyed PLENTY.

I won't be surprised if the 2nd is incorporated by a margin greater than 5 to 4, and I won't even be too terribly shocked if it'd through P & I rather than Due Process.

Maybe I'm crazy, or it's just wishful thinking, but there's just something about that last exchange between Alan Gura and Chief Justice Roberts that made me grin... I really can't quite put my finger on what.

It's certainly gonna be tough to wait 'til the end of June now though.

J.

[JayC]

Jamie I agree completely... I can't wait to read the ruling, I suspect it's going to be a shocker.

[G27]

I just finished reading the transcript of the arguments again, and I swear, it almost seems like Chief Justice Roberts was just looking for an excuse to incorporate the 2nd under the Privileges and Immunities clause... Sort of like he was playing Devil's Advocate, with all the "We can do it, but it'll give judges more latitude to decide what is or isn't a right" stuff.

Yah, if they can incorporate under PorI, that would be a massive victory, but I don't see it happening. I mean, the court doesn't like to reverse itself, especially 140 year old opinions that were made by justices who may well have actually spoken with the founding fathers at some point in their lives!

The Slaughter House rulings are widely considered to be a bad opinion, but after this much time, it will be tough. That being said, this court has a few justices who are constitutional originalists, so we'll have to wait and see.

Regardless of how incorporation happens, it will be A Good Thing, but PorI would be a massive victory that, I believe, would set the stage for striking down TONS of anti-gun laws on the books.

I would certainly have liked to have seen and heard this in person, because I definitely get the impression that more was going on there than the written words really convey... And those conveyed PLENTY.

Yah, totally agree.

After Heller, I'm confident they'll do the right thing here, just curious as to what angle they take and therefore what ramifications trickle down...

[DaveTN]

If the 2nd amendment is incorporated by SCOTUS, it will have far reaching impacts...

Most likely it means that various states assault weapon bans will be ruled unconstitutional, as well as possibly the 1986 machine gun ban.

Incorporation of the 2A is a big deal.

Possibly, but not likely. The court is being very clear that they will be ruling on an outright ban on handgun ownership. They will not be getting in the way of state control of carry or other bans.

The discussion of necessary limits on the right to be armed began with a trenchant observation by Justice Breyer. He asked Attorney Gura this question: "Is this right different from others?" Justice Breyer then answered his own question by making two points.

First, he noted that empirical issues involving guns are hotly contested ("You know, one side says a million people killed by guns. Chicago says that their – their gun law has saved hundreds, including...lots of women in domestic cases. And the other side disputes it.") and that "[w]ithout incorporation, it's decided by State legislatures; with, it's decided by Federal judges."

Second, Justice Breyer pointed out that in First Amendment cases, the courts often have to balance free speech interests against other societal interests, but that this balancing does not often involve "free speech versus life." Indeed, "[w]hen it's free speech versus life, we very often decide in favor of life." What makes the Second Amendment different, Justice Breyer continued, is that "[h]ere every case will be on one side guns, on the other side human life." In other words, Second Amendment cases are inherently life and death matters. He then questioned whether Federal judges are better suited to make such difficult decisions than state legislatures.

These observations by Justice Breyer led to a series of statements by various Justices offering assurances that, despite Heller, legislative bodies at every level of government should retain broad authority to enact gun restrictions without judicial interference. Of greatest significance were the comments of three of the five justices who made up the Heller majority. Justice Roberts recognized that the right to keep and bear arms is "still going to be subject to the political process if the Court determines that it is incorporated in the Due Process Clause." Justice Kennedy, thought to be the swing vote in Heller, put it this way: "...there are provisions of...the Bill of Rights, that have been incorporated against the States, where the States have substantial latitude and ample authority to impose reasonable regulations....We look to see what the political process does...[W]hy can’t we do the same thing with firearms?" And, perhaps of greatest significance, Justice Scalia commented that his opinion in Heller "was very careful not to impose a broader definition" of the Second Amendment right to apply to federal law because the Court "realized that this is a national problem." That's right, Justice Scalia, the Court's great gun enthusiast, recognizing the need for strong federal gun laws because gun violence is a national problem. For gun control advocates, it doesn't get much better than that.

[DaveTN]

I predict they will strike down Chicago's handgun ban, but Chicago will ignore it.

The ban will continue on.

Best case scenario for those in Chicago is that there will only be a handful of hoops to jump through to legally possess that handgun. Of course with those hoops will come lots of expense and headache. Which will stop most people from legally possessing that handgun.

The man always wants to keep his foot on our neck.

I’m really curious to see what Daley does. I don’t think the state would back him in an outright refusal to remove the gun ban, but if they did there isn’t much that could be done.

But it’s going to be a great side show.

[Guest Jamie]

Yah, if they can incorporate under PorI, that would be a massive victory, but I don't see it happening. I mean, the court doesn't like to reverse itself, especially 140 year old opinions that were made by justices who may well have actually spoken with the founding fathers at some point in their lives!

Ordinarily I would agree, but something has changed, these past 10 - 15 years. I think Heller proved that.

And I just find it odd that Justice Roberts would go back to something at the very end of the arguments that he seemingly dismissed at the beginning. ( Why bother, if it wasn't being seriously considered? )

To me, it all adds up to something going on that just never has happened before... almost like these folks have figured out that the way things have gone is not the way they need to be, or that maybe it's time to try something different.

As I said, I can't quite put my finger on it, and it may just be wishful thinking on my part. But no matter what, I'd never have guessed that I'd live long enough to see what I have from SCOTUS these past few years, concerning the 2nd.

J.

[G27]

Ordinarily I would agree, but something has changed, these past 10 - 15 years. I think Heller proved that.

And I just find it odd that Justice Roberts would go back to something at the very end of the arguments that he seemingly dismissed at the beginning. ( Why bother, if it wasn't being seriously considered? )

Indeed, I agree - I think the chances of incorporation under PorI is less than you, but it exists.

To me, it all adds up to something going on that just never has happened before... almost like these folks have figured out that the way things have gone is not the way they need to be, or that maybe it's time to try something different.

As I said, I can't quite put my finger on it, and it may just be wishful thinking on my part. But no matter what, I'd never have guessed that I'd live long enough to see what I have from SCOTUS these past few years, concerning the 2nd.

This is the part that has me truly on the fence - they chose to hear this for a reason. Is it simply to incorporate the 2nd or is it because doing so under PorI would essentially become a vehicle to overturn the previous Slaughter House ruling (something which, in my simple mind, needs to be done)?

We have a few constitutional originialist justices on SCOTUS right now, so maybe, just maybe...

I'll be happy either way, and while I suspect the line of questioning was more 'thinking aloud at the possibilities' than a signal that incorporation was happening under PorI, that would indeed be a massive victory in the fight for our God-given rights.

[Guest Jamie]

... I suspect the line of questioning was more 'thinking aloud at the possibilities' than a signal that incorporation was happening under PorI...

Ah, but why bother with that for something that's basically little more than window dressing? ( Oral Arguments )

Especially going back to it in the last 3 minutes?

From what I've seen, OA is generally used to give the rest of the world a glimpse of what the decision is likely to be, since the Justices have already been over the written briefs, and likely have already come to their respective decisions.

I guess I'll have to look up the transcripts for Heller, and see how they compare to the actual ruling. That should be a good guideline for what we're likely to see here in June.

J.

Edited March 6, 2010 by Jamie

[Guest Jamie]

A question for those of you better versed in this stuff than I am:

What are the chances of incorporating the 2nd under P & I without necessarily overturning Slaughterhouse?

Is it possible to do it in such a way as to simply alter, edit, add to, or... correct? that ruling?

I think there are some things SCOTUS would like to gain from such a ruling, and that if they could get 'em without overturning themselves completely, they would/will.

J.

[Guest lci419]

Is it simply to incorporate the 2nd or is it because doing so under PorI would essentially become a vehicle to overturn the previous Slaughter House ruling (something which, in my simple mind, needs to be done)?

We have a few constitutional originialist justices on SCOTUS right now, so maybe, just maybe...

I'll be happy either way, and while I suspect the line of questioning was more 'thinking aloud at the possibilities' than a signal that incorporation was happening under PorI, that would indeed be a massive victory in the fight for our God-given rights.

Or could it be a feint? On the surface, it APPEARS to be merely a reaffirmation of Heller and the 2nd Amendment on a state level. I haven't really seen any of the media report it as anything but. Quite frankly, the less the media gets involved with this, the happier I am about it. Consensus seems to be that McDonald will go our way, but no one on the left that I have seen, has given thought to the other ramifications of this decision.

Could it be that the more conservative judges have thought ahead quite a few moves in this chess game and realized that this could be the "golden opportunity" to overturn the Slaughterhouse Case without any fanfare until it is too late? Sure, the conservative justices want to incorporate the 2nd, but confident that this would happen regardless; could their eyes be on the bigger prize of overturning Slaughterhouse? Just random thoughts from the sideline...

[Guest Jamie]

lci419, thanks for doing a better job of articulating what I've been trying to say... That's exactly what's been going through my mind.

J.

[G27]

Could it be that the more conservative judges have thought ahead quite a few moves in this chess game and realized that this could be the "golden opportunity" to overturn the Slaughterhouse Case without any fanfare until it is too late? Sure, the conservative justices want to incorporate the 2nd, but confident that this would happen regardless; could their eyes be on the bigger prize of overturning Slaughterhouse? Just random thoughts from the sideline...

I sure hope this is it...