McDonald vs Chicago (2nd Amendment)
Mar. 7th, 2010 01:10 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
zorkian posting in ![[community profile]](https://www.dreamwidth.org/img/silk/identity/community.png){kind=small}
the_2ndThe 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?)
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?)
no subject
Date: 2010-03-10 12:58 pm (UTC)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.