Supreme Court Leans Pro-Gun Rights in McDonald vs. Chicago

[Frodo]

Court Leans to Pro-Gun-Rights Ruling

MARCH 3, 2010
By JESS BRAVIN

WASHINGTON—The Supreme Court seemed likely to rule for the first time that gun possession is fundamental to American freedom, a move that would give federal judges power to strike down state and local weapons laws for infringing on Second Amendment rights.

A gun-control case before the Supreme Court has created some unlikely alliances between liberals and conservatives, over whether states can limit the second amendment right of individuals to bear arms.

At oral arguments Tuesday, the court considered whether its 2008 decision voiding the District of Columbia handgun ban should be extended to the rest of the country. Because Washington, D.C. is federal territory and not part of a state, the legal basis for imposing federal constitutional limits on gun laws adopted by states had been unclear.

None of the justices from the 2008 majority suggested any reason state handgun bans should be treated any differently. If that's how they rule, legal challenges likely would be mounted against gun regulations across the country.

On its face, the legal question before the court has little relation to policy views regarding gun control and much to do with questions of constitutional history.

The Supreme Court has subsequently held that many constitutional rights considered fundamental to American principles of liberty override state laws. However, more technical provisions—such as the Fifth Amendment requirement that grand juries approve criminal indictments—apply only to the federal government and don't necessarily bind states.

The question is whether the Second Amendment right to bear arms will be elevated to the status of fundamental rights, such as freedom of speech, that states can't abridge.

[Californian Tony]

How surprising since 2/3 of its member are staunch conservatives...

[Electric Feel]

How surprising since 2/3 of its member are staunch conservatives...

So staunch that we overturned Roe V Wade.

[Californian Tony]

How surprising since 2/3 of its member are staunch conservatives...

So staunch that we overturned Roe V Wade.

Staunch =/= crazy

[I left.]

How surprising since 2/3 of its member are staunch conservatives...

Antonio...I'm probably not as anti-gun as you are.....but seriously, do you really think this law is constitutional? Really?

Agreeing with a law doesn't make it alright

[Grumps]

I'll be shocked if the law is not struck down

[Senator Libertas]

How surprising since 2/3 of its member are staunch conservatives...

Antonio...I'm probably not as anti-gun as you are.....but seriously, do you really think this law is constitutional? Really?

Agreeing with a law doesn't make it alright

Um, Antonio has nothing even remotely resembling principles.

[Californian Tony]

How surprising since 2/3 of its member are staunch conservatives...

Antonio...I'm probably not as anti-gun as you are.....but seriously, do you really think this law is constitutional? Really?

Agreeing with a law doesn't make it alright

I have a very poor knowledge of the American Constitution, so I must say I have no idea. Probably you're right...
But still, I tend to think that most Constitution are written is an ambiguous way, which gives interpretation a lot of weigh and thus makes Supreme Court Judges extremely powerful. And you can't deny that most of them are clearly conservatives, just like those of the 70's were liberal. The idea of an a-political Court is and will always be a dream, especially in such circumstances (in the last 30 years, republicans were in power for 20).

[So the Heroes Fall]

2/3 are conservative? 5/9 sure but 2/3?

[Sam Spade]

There's going to be incorporation - the question is to what extent and what restrictions are allowable.

Also - the Chicago law is pretty much dead.

[memphis]

It will be fun to watch all the "local rights" conservatives vote against the city of Chicago

[I left.]

It will be fun to watch all the "local rights" conservatives vote against the city of Chicago

What does that have to do with this case?

[True Federalist]

After DC v. Heller, the result of McDonald v. Chicago was never really in doubt, just whether the court would take the opportunity to overturn the Slaughter-House Cases or just rely on the incorporation doctrine to strike down gun bans.  Based on the oral arguments, it does not look like the court will not be overturning the Slaughter-House Cases.

[Verily]

How surprising since 2/3 of its member are staunch conservatives...

Antonio...I'm probably not as anti-gun as you are.....but seriously, do you really think this law is constitutional? Really?

Agreeing with a law doesn't make it alright

The Second Amendment makes no provision that any type of arms must be available. A law restricting gun possession to only the muskets available in 1789 would be perfectly constitutional under a true strict constructionist reading, for example. Anything else is interpretation, that bane of Scalia's existence.

[Electric Feel]

2/3 are conservative? 5/9 sure but 2/3?

4/9, actually.

[Free Palestine]

YEEEEEEEEEEEEEEEEAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAH

[Frodo]

Does anyone have any idea when the Supreme Court will rule on this case?  I presume it will be this year. 

[Sam Spade]

Does anyone have any idea when the Supreme Court will rule on this case?  I presume it will be this year. 

Probably towards the end of the term - June is a likely timeframe.

[CARLHAYDEN]

Does anyone have any idea when the Supreme Court will rule on this case?  I presume it will be this year. 

Probably towards the end of the term - June is a likely timeframe.

I hear that they will probably issue their ruling in May.

[Sam Spade]

After today's decision in Holder v. Humanitarian Law Project, which I was surprised to see Roberts author, there are only two justices and two cases left from the February setting:

McDonald and the Skilling case; Ginsburg and Alito.

Just FYI.

[Torie]

SCOTUS is going to apply the incorporation concept  to the Second Amendment? By the way, I don't like the incorporation concept, except of course when it obtains to my own favorite little amendment, the First, as to which there is actually a rather compelling case to do it. But then I am a judicial activist when it comes to political process issues. I always have been since my law school days.

[Sam Spade]

Well, I just bring it up because those two are the most likely (in fact extremely likely) to write the last two opinions from the February setting.

FWIW, I suspect an Alito opinion would be pretty expansive, whereas Ginsberg might not find anything at all (though I doubt that even).  It would certainly be pretty narrow, if she does it.

[beneficii]

How surprising since 2/3 of its member are staunch conservatives...

Antonio...I'm probably not as anti-gun as you are.....but seriously, do you really think this law is constitutional? Really?

Agreeing with a law doesn't make it alright

The Second Amendment makes no provision that any type of arms must be available. A law restricting gun possession to only the muskets available in 1789 would be perfectly constitutional under a true strict constructionist reading, for example. Anything else is interpretation, that bane of Scalia's existence.

Just like how the First Amendment only applies to methods of communication that were available in 1789....

[Free Palestine]

How surprising since 2/3 of its member are staunch conservatives...

Antonio...I'm probably not as anti-gun as you are.....but seriously, do you really think this law is constitutional? Really?

Agreeing with a law doesn't make it alright

The Second Amendment makes no provision that any type of arms must be available. A law restricting gun possession to only the muskets available in 1789 would be perfectly constitutional under a true strict constructionist reading, for example. Anything else is interpretation, that bane of Scalia's existence.

Uh...

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Sounds pretty clear to me. 

[muon2]

Well, I just bring it up because those two are the most likely (in fact extremely likely) to write the last two opinions from the February setting.

FWIW, I suspect an Alito opinion would be pretty expansive, whereas Ginsberg might not find anything at all (though I doubt that even).  It would certainly be pretty narrow, if she does it.

Ginsburg wrote Skilling, so perhaps that leaves Alito for McDonald. I presume we'll know the answer on Monday.