Does the 2nd Amendment apply to the States?
 

An obscure piece of Supreme Court law, known as the "incorporation doctrine" is about to be revisited in this case, vis-a-vis gun control.

Supreme Court scrutinizes state, local gun control

Feb 28, 12:00 AM (ET)

By MARK SHERMAN
WASHINGTON (AP) - Gun control advocates think, if not pray, they can win by losing when the Supreme Court decides whether the constitutional right to possess guns serves as a check on state and local regulation of firearms.

The justices will be deciding whether the Second Amendment - like much of the rest of the Bill of Rights - applies to states as well as the federal government. It's widely believed they will say it does.

But even if the court strikes down handgun bans in Chicago and its suburb of Oak Park, Ill., that are at issue in the argument to be heard Tuesday, it could signal that less severe rules or limits on guns are permissible.

The Brady Center to Prevent Gun Violence is urging the court not to do anything that would prevent state and local governments "from enacting the reasonable laws they desire and need to protect their families and communities from gun violence."

By some estimates, about 90 million people in the U.S. own a total of some 200million guns.

Roughly 30,000 people in the United States died each year from guns; more than half of them are suicides. An additional 70,000 are wounded.

The new lawsuits were begun almost immediately after the court's blockbuster ruling in 2008 that struck down the District of Columbia's handgun ban. In that case, the court ruled for the first time that individuals have a right keep guns for self-defense and other purposes. Because the nation's capital is a federal enclave, that ruling applied only to federal laws.

The challenges to the Chicago area laws, which are strikingly similar to the Washington law, are part of an aggressive push by gun rights proponents in the courts and state legislatures.

Courts are considering many gun laws following the justice's 2008 decision. Massachusetts' highest state court is examining the validity of a state law requiring gun owners to lock weapons in their homes.

Two federal appeals courts have raised questions about gun possession convictions of people who previously had been convicted of domestic violence misdemeanors. A suit in Washington challenges the capital's ban on carrying loaded guns on public streets.

Lawmakers in several states are pushing for proposals favored by the National Rifle Association and other gun rights groups. The Virginia Legislature is considering repealing a law that limits handgun purchases to one a month. That law was enacted in 1993 because Virginia was the No. 1 supplier of guns used in crimes in other states. A separate proposal in Virginia would allow people with a concealed-weapon permit to take hidden guns into restaurants that sell alcohol, as long as those patrons don't drink.

Chicago is defending its gun laws at the high court. Mayor Richard Daley said a ruling against his city would spawn even more suits nationwide and lead to more gun violence.

"How many more of our citizens must needlessly die because guns are too easily available in our society?" Daley said at a Washington news conference last week that also included the parents of a Chicago teenager who was shot on a bus as he headed home from school.

Annette Nance-Holt said her only child, 16-year-old Blair Holt, shielded his friend when a gang member boarded a bus and began shooting at rival gang members.

"You might ask, 'What good is Chicago's handgun law if so many of our young people are still being shot?'" Nance-Holt said. "All I can say is, imagine how many more would be if the law were not there."

Gun rights advocates say such killings should serve as reminders that handgun bans and other gun laws do nothing to protect people who obey the law.

Indeed, 76-year-old Otis McDonald said he joined the suit in Chicago because he wants a handgun at home to protect himself from gangs.

The thrust of the legal arguments in the case is over how the Supreme Court might apply the Second Amendment to states and cities.

In earlier cases applying parts of the Bill of Rights to the states, the court has done so by using the due process clause of the 14th Amendment, passed in the wake of the Civil War to ensure the rights of newly freed slaves.

The court also has relied on that same clause - "no state shall deprive any person of life, liberty or property without due process of law" - in cases that established a woman's right to an abortion and knocked down state laws against interracial marriage and gay sex.

This is the approach the NRA favors.

But many conservative and legal scholars - as well as the Chicago challengers - want the court to employ another part of the 14th amendment, forbidding a state to make or enforce any law "which shall abridge the privileges or immunities of citizens of the United States."

They argue this clause was intended as a broad guarantee of the civil rights of the former slaves, but that a Supreme Court decision in 1873 effectively blocked its use.

Breathing new life into the "privileges or immunities" clause might allow for new arguments to shore up other rights, including abortion and property rights, these scholars say.

This approach might enable challenges to arcane state laws that limit economic competition, said Clark M. Neily III of the public interest law firm Institute for Justice. He pointed to a Louisiana law that protects existing florists by requiring a license before someone can arrange or sell flowers. The licensing exam is graded by florists, he noted.

"No reasonable person thinks that law has a legitimate purpose," Neily said. But he said, "Right now, once you get a law like this on the books, it's almost impossible to get rid of."

The case is McDonald v. Chicago, 08-1521.

http://apnews.myway.com/article/20100228/D9E4VH083.html

YOUR opinion your honor?
AM

Here is a link to the friend-of-the-court brief filed by 33 states, in support of the NRA-esque position. You can check to see how your attorney general is representing you in the supreme court.

http://alicemariebeard.com/law/Amicus_for_Cert_AGs.pdf

First link in the SCOTUSBlog (Post # 3):

http://www.scotuswiki.com/index.php?...ity_of_Chicago

All the reading one can want - guess nobody reads anymore.

Richard

Sir you forgot to hand out the syllabus....:D

It's a long syllabus - OBTW - Sa in ch'ool. :p

Richard

One would think some of these 7th groupers around this joint would have figured out my sig line before now.. :munchin

Interesting take on US vs Miller
 

Interesting take on US vs Miller

http://volokh.com/2010/02/27/united-states-v-miller/

"..............So imagine you’re Chief Justice Hughes. Given that you have to assign McReynolds a majority opinion from time to time, Miller is the perfect case. The Court is unanimous, meaning that McReynolds will not be burdened with responding to dissenting arguments. Indeed, since the case is uncontested, writing the majority opinion would be especially easy. McReynold’s product in Miller was consistent with his lazy and slapdash approach. Perhaps the other Justices, while recognizing that there was room for improvement in the opinion, decided not to press McReynolds for changes, lest McReynolds fail to get around to making any revisions, and thereby further delay the progress of the Court’s business.

All of the opinion-writing Justices in District of Columbia v. Heller took their work much more seriously than McReynolds apparently took his work in Miller, and so both the majority opinion and the two dissents directly and carefully addressed many of the important Second Amendment questions which McReynolds had conspicuously ignored......................"

The State of Washington isn't bothering to wait for Washington D.C.:
http://www.saf.org/viewpr-new.asp?id=313

Now that is just pure awesome... hope that some one in Montgomery is looking at this one also

Always found the 61st clause of the Magna Carta interesting when considering the Founders' intent for the 2nd amendment.

The Founders were probably aware of their own history.

Wow, the NY Times even!
 

The Second Amendment’s Reach
March 1, 2010
Two years ago, the Supreme Court struck down parts of the District of Columbia’s gun-control law. On Tuesday, the court will consider whether that decision should apply everywhere in the country, not just in the federal territory of the nation’s capital.

We disagreed strongly with the 2008 decision, which took an expansive and aggressive view of the right to bear arms. But there is an even broader issue at stake in the new case: The Supreme Court’s muddled history in applying the Constitution to states and cities. It should make clear that all of the protections of the Bill of Rights apply everywhere.

McDonald v. Chicago is a challenge to a law that makes it extremely difficult to own a handgun within Chicago’s city limits. The challengers rely on the court’s 5-to-4 ruling in 2008, which recognized an individual right under the Second Amendment to carry guns for self-defense. But that decision left open an important question. The Bill of Rights once was largely thought to be a set of limitations on the federal government. Does the right to bear arms apply against city and state governments as well?

Since states and localities do far more gun regulation than the federal government, the court’s answer will have a powerful impact. The United States Court of Appeals for the Seventh Circuit, in Chicago, relying on 19th-century precedents, ruled that the Second Amendment does not apply to states and cities.

Under the doctrine of “selective incorporation,” the Supreme Court has ruled on a case-by-case basis that most, but so far not quite all, of the Bill of Rights applies to states and cities. The court should dispense with the selectivity and make clear that states and cities must respect the Bill of Rights.

To justify incorporation, the court has relied on the 14th Amendment, which was enacted after the Civil War to ensure equality for newly freed slaves. The amendment has two relevant clauses: the due process clause that requires government to act with proper respect for the law, and the privileges or immunities clause, which is more focused on protecting substantive individual rights.

The logical part of the amendment to base incorporation on is the privileges or immunities clause, but a terrible 1873 Supreme Court ruling blocked that path and the court has relied since then on the due process clause.

A group of respected constitutional scholars and advocates is asking the court to switch to the privileges or immunities clause as the basis for applying the Bill of Rights to states and cities. That would be truer to the intent of the founders, and it could open the door to a more robust constitutional jurisprudence that would be more protective of individual rights.

It is unlikely that the court will delve directly into the gun issues. If it decides to apply the Second Amendment to cities, it would probably send the case back to a lower court to evaluate the Chicago law. If that happens, the justices should guide the court in a way that makes clear that reasonable gun restrictions will still be upheld.

The Supreme Court’s conservative majority has made clear that it is very concerned about the right to bear arms. There is another right, however, that should not get lost: the right of people, through their elected representatives, to adopt carefully drawn laws that protect them against other people’s guns.

http://www.nytimes.com/2010/03/02/op...html?th&emc=th

I just wonder what other Amendments could be limited or banned by states and local governments.

I seriously doubt that the ACLU or the lower courts would buy into, say Chicago deciding that your 1st (or 4th, 5th, etc.) Amendment rights could be limited there, much less completely banned.

Our Bill of Rights apply to every citizen of this country equally, do they not?

TR