McDonald vs Chicago (2nd Amendment)

[zorkian]

The transcript of the oral arguments from the first submission of McDonald vs Chicago before the Supreme Court is available:

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

I read through this last night and have some thoughts on the process. First up, to summarize, the issue at hand seems to be whether or not the Second Amendment should be incorporated, which is the process whereby one of the amendments can get applied to State governments. (The Bill of Rights is only applicable to the Federal Government, it seems, to apply it at lower levels of government you need to incorporate it.)

The oral arguments say a lot about what's going on. Some things that stuck out to me...

This was the first time I've ever read a transcript of Supreme Court proceedings. It seems either very hostile or very no-nonsense -- and I'm surprised at how often the justices interrupted and stomped over the counsel. This could be really entertaining to listen to live!

Maybe it's bias, but it feels like Mr. Gura (pro-incorporation) has a stronger case, although I'm worried about the "privileges or immunities" approach he seems to be taking. That part of the 14th has been basically ignored for 100+ years, and to open it up and give it some force seems dangerously unpredictable (a Pandora's box type thing).

Does anybody know or understand why he approached it that way? The justices (Scalia in particular) seemed quite surprised and against it, and tried to get him to drop it later and approach the issue from a position of substantive due process. Which, if I understand it correctly, would be a saner approach for things in the long-term. (Of course, I admit that this isn't an area I'm particularly strong with, and would appreciate any clarifications or corrections.)

The response by Mr. Feldman didn't strike me as anything particularly noteworthy. "The laws as they exist are good enough. Really, nobody is going to ban all guns, you have nothing to worry about." That particular argument "nobody is ever going to go too far" just seems laughable as the basis of a position to begin with, but it's also not true -- I think Chicago has gone too far. (But how far is 'too far' is something that will be very individual...)

Anyway. Anybody been following this issue? I'm curious what your thoughts are on the issue, whether it be on the particular case here, or the greater issue of the 2nd Amendment. (And if you come across any really interesting articles, or write anything, feel free to post it top level to the community. Would love to get more discussion going.)

Personally, I would be for incorporation of the 2nd with the interpretation of it as an individual right to bear arms. I think that it is a right of citizens in this country (and I'd argue that it is one of those rights that's inherent to being human, not just American) to defend themselves from aggression in ways they see fit. If they wish to own and carry a firearm, go for it.

I haven't yet delved into issues of gun registration, excessive force laws, requirements for gun safes, open carry, concealed carry, etc etc... I want to see how this plays out, first.

(And I'm playing with tags. I've tagged this post with a location/relevancy tag so you can find things relevant to your country, a topic tag, and a city tag. Note that the topic and non-country location tags include the country [domain code] in them so that it's easy to disambiguate. Thoughts?)

Comments

[cheyinka]

For consistency, if nothing else, it doesn't make sense for the 2nd not to be an individual right and the others to be individual rights. The 2nd is in an interesting place, though, because of the restrictions on NFA items - the Supreme Court really really really doesn't want to invalidate any of those restrictions.

(For non-US readers, NFA items are things like suppressors, short-barreled rifles and shotguns, and any firearm that fires more than one round for each time the trigger is activated. They're not illegal, but one can't own them without a $200 tax stamp, and anything that counts as "a machine gun" has to be registered, and the registry cannot have anything new added to it.)

[pauamma]

Didn't the SCOTUS rule in Heller vs. DC that it was an individual right?

[cheyinka]

Yes. I was mostly stating my agreement with zorkian where he says, Personally, I would be for incorporation of the 2nd with the interpretation of it as an individual right to bear arms.

That interpretation clearly (at least, clearly to me, the non-lawyer) invalidates laws saying that, e.g. "Okay, fine, you can own a gun but it has to be kept disassembled and locked up and you can't have it in your car unless you're on the way to or from the range or a hunting trip." But then there's the question of which restrictions are okay and which aren't, which is why I brought up NFA stuff.

about the law details

[majoline]

The reason that "privileges or immunities" has been ignored is a really long ramble about women's rights in America, but that's not a smart way to go as that clause is pretty much dead in the water.

Not that it's not a good clause or a smart clause or anything else that can go [here], but the Justices are right in saying that if you want to be taken seriously and not appear to have slept through law school, you shouldn't really go that route.

Unless you really wanted your brief to be brilliant piece of constitutional editorial that won't accomplish anything for 50 years or to make a point, it is best to use what is considered standard(?)

And in any case, due process would work better in the long run, but I'm not him.

**** For my actual thoughts on the case, I will have to go read the brief as I hadn't been paying attention.

For a longer clarification of Constitutional Law practices, I can go search my notes for a annotated bibliography, but the neutering of that clause has been so pervasive in American history, you'd probably be better off taking a Constitutional Law class. Which I admit is not what the layperson really wants to hear, but oi, that could be a class all on it's own.

BLAH LAW PRACTICES

Re: about the law details

[zorkian]

I would totally take a class on constitutional law. I'll look it up for next semester and see if I can fill any electives with one if they offer it.

So, if a layperson like myself and someone with more knowledge like you is wondering why he took this approach, then I really wonder what he's thinking... I'd like to have some hope that we have a strongly competent person up there on something that is going to affect the way I live my life so thoroughly as this (yay California).

Do you feel that the P&I approach he's taken is bad enough to damage the case? Or is it just going to be a little harder? Or is that not really how this sort of thing works?

Re: about the law details

[majoline]

Do you feel that the P&I approach he's taken is bad enough to damage the case? Or is it just going to be a little harder? Or is that not really how this sort of thing works?

Honestly, usually the SC takes each argument separately. But obviously that depends on the strength of the rest of his arguments and if he himself can juggle all of them. So... is he a good lawyer? I haven't any clue.

Re: about the law details

[pauamma]

Funniest thing is Justice Scalia accused him of "bucking for a -- a place on some law school faculty".

Re: about the law details

[majoline]

See this is indeed what I would think - I don't know if he's taking this seriously! Because this feels more political in the sense that maybe he wants to write a book or be a professor or anything else but representing the case.

OMGS people just write papers or something, not mess with our already crazy legal system!

Re: about the law details

[pauamma]

Hmm. One thing I'm curious about is, if the SC is asked to (essentially) revive that part of the 14th, could it at the same time consider reviving (or applying, depending on whether you consider it's still alive) the 10th? Esp. the part of it about states' powers? (Or did that part play out in state courts already?)

(Also, why is the NRA a respondent, when its counsel appears to argue in support off petitioner?I'm confused.)

Re: about the law details

[majoline]

The NRA are probably considered a respondent because they aren't bringing the case themselves - they aren't party to the case itself.

And the tenth totally is still alive! It's part of the reason we have states doing anything for themselves. :)

[majoline]

And after reading the case: boy, am I confused. 0_O?

I haven't the foggiest (and it doesn't appear the court does either) of what the counsel's getting at. I haven't even figured out what is going on. I am going to through the PDF with highlighter and pen and try to figure out initial arguments.

Something I think the court is going to have to do too. Cause, wow.

Does anyone think they have a handle on this?

[zorkian]

No, I sure don't. I believe (through reading other sources) that Gura/NRA/etc are trying to get the 2nd incorporated against the states so that we can, basically, have the individual right to bear arms be something guaranteed at the local level instead of having it only a federal right.

I think.

[princessofgeeks]

i think this is the line the 2nd A supporters are taking.

the case that applied the Bill of Rights to the states and not just the federal government is long established; it goes back to 1804 and has been the basis of a bunch of other cases. as you know, precedents are hugely important in law.

there has not been much of an attempt to SPECIFICALLY get the 2nd A spelled out as applying to municipalities; the fact that it WOULD apply, as far as I know, would be reasoning by analogy, which is all well and good and things can fly along like that for years until someone specifically wants confirmation of that at the federal court level. Which is what's been happening now, I think.

There's a bunch of case law IRT to the 2nd A that focuses on federally guaranteed rights already; that's what all the lawyers will be looking at.

As another commenter said -- going back and referring to the "privileges and immunities" clause is opening a differnent line of argument and would be a different approach than is typical. When you have a Bill of Rights argument, you generally go with that, LOL. It's your strongest line of defense, legally! Right there in black and white in the Constitution.

I am not a lawyer but I had to get very interested in Bill of Rights Issues through studying the 1st Amendment, so I'm following these cases with interest too.

The 2nd A is so fascinating, because like the Religious Freedom clause in the 1st A, it has that balance between organized institutions that are typically governmental (mentioning "militia") and individual rights ("the people").

Thanks for the comm. I will probably lurk a lot and try to educate myself.