I Can Has Incorporation

[vaskidmark]

http://www.supremecourt.gov/opinions/09pdf/08-1521.pdf

I'm only up to page 21, but Alito has ripped Chicago & Oak Park a new butthole that begins at the heels and goes to the crown of the head.

Applies the 1866 Freedmans Act and as I see it creates a "protected class" of gun owners.  Maybe not as protected as race, sex, etc. but certainly more protected than automobile owners.

Alito notes several times that self defense "in the home" was NOT the limit of Heller - merely the paramount place of exercise of the right.  I'm thinking this is in fact clarification of Heller - in which case DC will be collectively shitting its pants as they tear out their hair.

I've got to read it over again with a note pad at hand, and then do some cross-checking, but my impression is that McDonald is a bigger win than we had any right to expect.  With the majority split between due process and privileges it could mean that eventually both will come into play.  I'm happy with due process but would really have liked to see privileges prevail.

Best of all - actually 2 bests of all 1) Slaughterhouse does not apply, and 2) Cruickshank and Miller are essentially removed from stare decis.  Hooray!

stay safe.

[Balog]

No time to read it at work, but did they rule for strict scrutiny? Also, 

[Scout26]

From the live feed off SCOTUSBLOG at 9:35

Tom: When Heller was decided, we had our biggest day ever, by far -- 300,000 hits. Americans care about gun rights. 

 

9:44  Tom: The link should work -- it's just that our traffic is so high that it may have trouble loading. 

9:50 Tom: Right now there are 3500 people watching the live blog, but that will be going up 

[Brad Johnson]

Just skimmed through it.  Holy crap!  I'm with vaskidmark - this thing is going to resonate through the legal community like a kid's stereo through a quiet Sunday morning.  Decision, hell. That's (almost) the least of it.  When reviewed it's going to be subtle items embedded in the the opinion that will cause the collective bedwetting among antis and gov officials.

Brad

[Jamisjockey]

Can someone break this down for dummies on how it affects the 2A?

[AmbulanceDriver]

Just skimmed through it.  Holy crap!  I'm with vaskidmark - this thing is going to resonate through the legal community like a kid's stereo through a quiet Sunday morning.  Decision, hell. That's (almost) the least of it.  When reviewed it's going to be subtle items embedded in the the opinion that will cause the collective bedwetting among antis and gov officials.

Brad

Teehee.  Is it bad that I can't quit giggling and grinning at the angst this is gonna cause the Brady bunch?

[longeyes]

5-4? 

If the Second Amendment is, indeed, the palladium of the other Rights in the BOR, what were those four thinking?

[AmbulanceDriver]

5-4? 

If the Second Amendment is, indeed, the palladium of the other Rights in the BOR, what were those four thinking?

That guns are *evil* and *scary *

[makattak]

Can someone break this down for dummies on how it affects the 2A?

Second Amendment applies to the states.

Thus, complete gun bans like DC or Chicago are unconstitutional. (Per Heller).

In my brief skimming, I did not see a scrutiny level applied. Case was remanded to the Seventh Circuit.

So, second amendment applies to states, no specific limitation on gun control laws beyond "You can't completely ban them (or even a specific type, such as handguns)."

I'm hoping that also means "assault rifles" cannot be banned. (Given that one argument preventing the banning of handguns was how common they are and the massive increase in Evil black rifle ownership.)

What it means is there are still a lot of cases to be tried to work out exactly how far gun banners can go.

Which also means, keep working in your state. That's the best way to fight for gun rights.

[gunsmith]

Teehee.  Is it bad that I can't quit giggling and grinning at the angst this is gonna cause the Brady bunch?

that's terrible what about the children !!

[Desertdog]

I keephearing "guns are not banned in your home."  What about in your motor vehicles, banned unless your state permits it?

What about in your RV, which is your home away from home?  Banned
Lots of questions to be answered.  Probably another 50 years of court cases to get it settled.

They ruled on the 'Keep'; but what happened to 'And Bear' arms?

[vaskidmark]

that's terrible what about the children !!

They are the children - or at least behave like children.

Just finished reading Stephens' dissent, and then going back to re-read Scalia's "discussion" of said dissent.  Talk about a maroon in the first case ("it's the militia!") and a wonderful exemplar of how to rip someone apart while remaining socially appropriate in the second case.

stay safe.

[longeyes]

Where I live--Los Angeles--the issue is concealed carry.  Ditto my State.  How does this affect CCW here, if at all?  Self-defense should not be separated from mobility.

[Desertdog]

Where I live--Los Angeles--the issue is concealed carry.  Ditto my State.  How does this affect CCW here, if at all?  Self-defense should not be separated from mobility.

To me, it should include the right to carry, no matter where you are.

[RevDisk]

I know it's bad and wrong to gloat...

Following today's U.S. Supreme Court decision in McDonald v. Chicago that the City of Chicago's handgun ban is unconstitutional under the Second Amendment, thus applying the Court's 2008 decision in District of Columbia  v. Heller beyond Washington, D.C., Violence Policy Center Legislative Director Kristen Rand issued the following statement:

"People will die because of this decision.  It is a victory only for the gun lobby and America's fading firearms industry.  The inevitable tide of frivolous pro-gun litigation destined to follow will force cities, counties, and states to expend scarce resources to defend longstanding, effective public safety laws. The gun lobby and gunmakers are seeking nothing less than the complete dismantling of our nation's gun laws in a cynical effort to try and stem the long-term drop in gun ownership and save the dwindling gun industry.  The 30,000 lives claimed annually by gun violence and the families destroyed in the wake of mass shootings and murder-suicides mean little to the gun lobby and the firearm manufacturers it protects.   

"It is our hope that Chicago's citizens will follow the lead of the residents of the District of Columbia--who were stripped of their handgun ban in the wake of the Supreme Court's June 2008 decision in District of Columbia v. Heller.  In the two years since that decision, only 900 firearms have been registered in the District that otherwise could not have been registered before the Heller ruling.  The citizens of D.C. reject the wrong-headed notion that more guns make us safer.  We know the facts prove the opposite and that areas of the country with the highest concentration of gun ownership also have the highest rates of gun death.  We urge Chicago residents to consider these indisputable facts before considering bringing a handgun into their homes--an act that could well prove fatal to themselves or a loved one."     

So instead I am giggling mercilessly.  Why, yes, we ARE seeking nothing less than complete dismantling of our nation's gun laws.  Nearly all of them in fact.  And we will.  Notice that they sound very angry that the citizens of DC are ignoring "common sense" and seeking to defend themselves?

[Viking]

People will die because of this decision.

Yeah. Criminals will die. Got a problem with that? Oh, sorry, forgot, they are your voters...

[HankB]

IANAL, so someone help me out . . . since over the past several decades many people have been prosecuted and convicted for violating Chicago's gun ban which has now been ruled unconstitutional, are their convictions under this unconstitutional law now also voided?

And if so, are subsequent dependent convictions (for example, federal "possesson of a gun by a convicted felon" charges) also voided?

 

[vaskidmark]

IANAL, so someone help me out . . . since over the past several decades many people have been prosecuted and convicted for violating Chicago's gun ban which has now been ruled unconstitutional, are their convictions under this unconstitutional law now also voided?  Maybe - hard to tell as the decision did not address the issue directly.  My gut answer is that we need to wait and see who files to ask for a conviction to be overturned.  And it will not matter anyhow, as the feds cannot spend $$ to "correct" the database by expunging names.

And if so, are subsequent dependent convictions (for example, federal "possesson of a gun by a convicted felon" charges) also voided?  No.

 

There are several lines in "the decision" (as written by Alito) that need to be studied carefully.  First glance says he has clarified some things in Heller about being only "in the home" but there needs to be more research.  Due process pretty much gets us strict scrutiny, but there may be a point I missed allowing some lesser level.  A plurality on due process vs. privilege can confuse the issue further.

Cruicshank & Miller may no longer be stare decisis - but apparently they are going to let Slaughterhouse remain untouched so the Commerce Clause crap will continue.

The bottom line is that absolute bans are out, and the next several rounds of court cases will address just how "reasonable" each and every restriction is.  In that regard "public safety" is no longer going to be the safe haven it once was for enacting restrictions - the issue was well torn apart in the opinion.

Other good news is that Stephens' dissent was pretty much written off as not even related to the issue/case at hand, as it well should have been.  He clearly said they should, even after deciding on what the question was to be, address another question altogether.  And he then proceeded to do just that.  And expose just what a liberal and bigot he is.

Side note - Ginsburg's presence at Court this morning has lots of implications for any future decisions.  How she handles the other aspects of the death of her husband will tell more.  Suffice it to say I see a change in her that could bode well for the country - in spite of her joining Bryers dissent.

stay safe.

[KD5NRH]

I'm only up to page 21, but Alito has ripped Chicago & Oak Park a new butthole that begins at the heels and goes to the crown of the head.

Keep going; Scalia concurs and does the same to Stevens, just for giggles.

[tyme]

I don't picture Scalia giggling during the drafting of that concurring opinion, so much as mumbling under his breath about the 'tards on the bench that he knows perfectly well won't "get it" even after reading his opinion.

Welp, as I expected McDonald is a pretty good decision, and Bilski was a horrible decision that eroded some of the progress the lower court had made in attempting to reduce the scope of patents (even though they did not go far enough -- I'm firmly in the "kill all business method and software patents" camp).  The SCOTUS simply doesn't comprehend information theory, but worse (since judges can't possibly be knowledgeable in all areas they are required to adjudicate), they don't recognize mathematically and technically competent amici briefs when they see them.

However, what worries me in Scalia's approach toward the end of his opinion in McDonald (and conservative criticism of "liberal" opinions in general) is that he is blind to some deep and long-standing ethical and sociological principles on which some of the more liberal decisions he cites are based.  He's lumping in a lot of stuff under the heading of "liberal BS reasons for deciding cases," some of which doesn't belong.  Regardless, Scalia's concurrence is ripe with comparisons between liberal and conservative judicial approaches that I think everyone should ponder extensively.

[Balog]

However, what worries me in Scalia's approach toward the end of his opinion in McDonald (and conservative criticism of "liberal" opinions in general) is that he is blind to some deep and long-standing ethical and sociological principles on which some of the more liberal decisions he cites are based. 

I'm not familiar with the "deep and long-standing ethical and sociological principles" you're referring to here. Could you please expound on that a bit?

[lee n. field]

I know it's bad and wrong to gloat...

So instead I am giggling mercilessly.  Why, yes, we ARE seeking nothing less than complete dismantling of our nation's gun laws.  Nearly all of them in fact.  And we will. 

GCA '68 falls, eventually, I hope.  The whole "can't buy outside your home state" thing is loathsome.

[RevDisk]

No time to read it at work, but did they rule for strict scrutiny? Also, 

No.  But yes.   

Technically, they didn't even decide the constitutionality of the Chicago ban (AFAIK, not done yet).  So no, they did not officially proclaim strict scrutiny.

BUT!

The opinion of the Court is the right to have a gun for self-defense in the home is a fundamental constitutional right.  In legal speak, that's all but code for strict scrutiny.  They want a third case to officially proclaim it, but if your lawyer was good, he'd be arguing the Court heavily implied that strict scrutiny should be applied.

[Leatherneck]

I keephearing "guns are not banned in your home."  What about in your motor vehicles, banned unless your state permits it?

You keep hearing it because the only person the "fair and balanced" media can find to voice concern today is Paul Helmke. He said that.

You lawyers correct me if I'm wrong, but I don't see any logical way to separate out the "keep" from the "bear" in the second Amendment.

TC

[Perd Hapley]

You lawyers correct me if I'm wrong, but I don't see any logical way to separate out the "keep" from the "bear" in the second Amendment.

Oh ye of little faith.  Know ye not that a Philadelphia lawyer can say to that bear, "Go, bear, and cast yourself away from the keep, as far as the east is from the west," and that bear will be cast into outer darkness, where there will be weeping and gnashing of teeth by the unarmed?