Armed Polite Society
Main Forums => Politics => Topic started by: Scout26 on June 03, 2010, 02:43:41 PM
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IIRC correctly from Heller, Scalia was, at about this point in the wait for a decision to be published, the only Justice not have "turned in his homework", as you put it.
So my question is: Is there any Justice who has "not turned in their homework" yet the session ?? And if so, which one, as this may give us a "read" on the decision......
Thanks !!
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This might help (http://armsandthelaw.com/archives/2010/06/correction_of_o.php).
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Double checking my count, I found I missed one that was written by Justice Breyer. That makes the count 7 decided out of 13.
Writing two opinion apiece from that sitting: Kennedy, Sotomayer.
Writing one each: Stevens, Scalia, Breyer.
Not having released one yet: Thomas, Ginsburg, Alito, Roberts
That's 3 out of 4 potentially for our side that haven't "Turned in their homework".
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From the above site.
More reading of tea leaves
Posted by David Hardy · 14 June 2010 03:34 PM
As I noted during the last such exercise, the Supreme Court considers each two-week session of oral arguments a “sitting,” and the custom is that each Justice (if at all possible) gets to write at least one opinion from each sitting.
McDonald was heard during the sitting of February 22. That sitting had 13 cases, one of which was dismissed after it settled. As of today, from that sitting, Sotomayor, Kennedy and Breyer have written two opinions apiece, and Stevens, Scalia, and Thomas have written one.
That leaves three opinions to be written, and three Justices to write them: CJ Roberts, Ginsberg, and Alito. Hmm... first incorporation case in thirty years or so, perhaps most interesting case of the Term, likely to wind up in all the Con Law casebooks ... I suspect CJ Roberts may keep this one for himself.
Other than McDonald, the two remaining cases from that sitting are Skilling v. US, (prosecution for “theft of honest services” – interpretation, void for vagueness, and prejudicial publicity issues) and Holder v. Humanitarian Law Project (1st Amendment challenge to statute forbidding providing service, training or assistance to organizations listed as foreign terrorist groups).
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The decisions for today are out. No McDonald, and it looks like Scalia is writing it, according to SCOTUSBlog.
Anybody want to guess how far it will go beyond what they did to D.C, in Heller?
Anybody got some spare valium?
stay safe.
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Machine Gun Sammy Alito is on the only justice that hasn't written in that sitting.... =D =D =D
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SCOTUSBlog says "Monday will be guns and Bilski."
Gah! Now I have to wait an entire weekend!
Edit: It is expected to be issued Monday at 10:00, written by Alito or Roberts. Mind, "expected", not "is"
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My guess: the Chief Justice is on this. He wants to box everyone else out and ensure that due process is the only avenue and privileges and immunities is banished forever.
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I'll be over here trying not to hyperventilate
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My guess: the Chief Justice is on this. He wants to box everyone else out and ensure that due process is the only avenue and privileges and immunities is banished forever.
It's what I'm wondering.
I've been trying to figure out if P&I is the Libertarian wet dream Gura seems to think it is, or if it's opening the door to the entire Left of the political spectrum to invent every "right" they want. From some, that don't bother me at all, like "Gay Marriage", to others, like the "right of a street sweeper's family to have as much income as a brain surgeon's" etc. etc. etc. that will slowly make "Harrison Bergeron" a reality. =|
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What AJ said. I'm so nervous...
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What AJ said. I'm so nervous...
Well, with the 2A rolled into all of that, worse comes to worse, we can "get all shooty" on them as a last resort. =D
Politely of course.
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Well, with the 2A rolled into all of that, worse comes to worse, we can "get all shooty" on them as a last resort. =D
Politely of course.
You'd think we'd get credit for, you know, having a couple hundred million firearms, billions of rounds, etc and not generally using them in anger.
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You'd think we'd get credit for, you know, having a couple hundred million firearms, billions of rounds, etc and not generally using them in anger.
(https://armedpolitesociety.com/proxy.php?request=http%3A%2F%2Fi156.photobucket.com%2Falbums%2Ft33%2FAJ_Dual%2Facteur_bill-bixby_1199598785_31.jpg&hash=f9dcebccd7db8a3e5f5ac63d011471516f22c1fc)
We'll just have to be careful to use them with a sense of wistful resignation then. Lest things get out of hand.
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^^^^^^^^^^^^^
=D :angel: :lol: [popcorn] [popcorn] [popcorn]
IDK if I'm on tenter hooks ( IDK what they even are) or if I have baited breath
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tenterhooks - keeps you from shrinking as you dry, if you are wool being processed into felt. http://en.wikipedia.org/wiki/Tenterhook
bated (not baited) breath - http://en.wiktionary.org/wiki/with_bated_breath . (unless of course you are trying to catch something with your garlic breath)
And what's this chatter about Alito or Roberts? Don't you trust SCOTUSBlog?
The discussions are getting to be all over the place. Best I've heard is the opinion will read something along the lines of: "see Heller - what it says. But with strict scrutiny, all deliberate speed, and yes it's a privilege as well as a right." What a dreamer!
[popcorn]
stay safe.
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SCOTUSBlog says "Monday will be guns and Bilski."
Gah! Now I have to wait an entire weekend!
Yeah. However, I expect them to get the guns decision right and the Bilski decision wrong.
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McDonald is out. Five Justices are for incorporation, 4 on the basic of DP (eww), and one (Clarence Thomas) based on P&I.
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http://www.supremecourt.gov/opinions/09pdf/08-1521.pdf
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What is the immediate practical effect in Chicago/Cook County?
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What is the immediate practical effect in Chicago/Cook County?
Remanded to 7th circuit for final adjudication, under incorporation of the Second Amendment against the states.
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What is the immediate practical effect in Chicago/Cook County?
Hopefully, depression severe enough to cause a plethora of resignations.
Realistically, probably sufficient hubris to try and flout the ruling.
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http://www.supremecourt.gov/opinions/09pdf/08-1521.pdf
"The Fourteenth Amendment makes the Second Amendment right to keep and bear arms fully applicable to the States."
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What is the immediate practical effect in Chicago/Cook County?
Even more contortions to try to get around it than what we saw and continue to see in DC.
And, years of court battles to refine the level of infringement allowed.
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I am getting hammered!
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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.
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No time to read it at work, but did they rule for strict scrutiny? Also, =D =D =D
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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.
=D =D =D
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
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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
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Can someone break this down for dummies on how it affects the 2A?
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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?
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5-4?
If the Second Amendment is, indeed, the palladium of the other Rights in the BOR, what were those four thinking?
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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 *
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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.
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Teehee. Is it bad that I can't quit giggling and grinning at the angst this is gonna cause the Brady bunch?
=) =D :cool: :lol: :angel: :laugh: [popcorn] that's terrible what about the children !! :cool: :cool: :cool:
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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?
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=) =D :cool: :lol: :angel: :laugh: [popcorn] that's terrible what about the children !! :cool: :cool: :cool:
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.
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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.
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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.
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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?
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People will die because of this decision.
Yeah. Criminals will die. Got a problem with that? Oh, sorry, forgot, they are your voters...
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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?
???
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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.
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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.
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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.
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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?
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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.
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No time to read it at work, but did they rule for strict scrutiny? Also, =D =D =D
No. But yes. =D
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.
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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
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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?
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No. But yes. =D
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.
Go read Alito's words again. Self defense in the home is but one of the exercises of the right. Depending on who you argue it to, Alito has expanded and opened Heller to the point that carry in DC is going to be permitted.
His opinion is rife with these little nuggets. I'm listing them as I re-read and have over a dozen so far and I'm still not finished with the main opinion, let alone the concurrences.
So just how do plurality opinions operate - are all the different points of view operational? If not, which ones are?
stay safe.
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So just how do plurality opinions operate - are all the different points of view operational? If not, which ones are?
stay safe.
I saw that they break it down as to who concurs on what parts of the main opinion. But just because Thomas said "I think it's incorporated under P&I" does not make it so. Lawyers can use his concurrence for their future briefs, but Roberts slammed the door pretty hard on P&I, as in "It's dead, and it's gonna be dead as long as I'm CJ, if not longer".
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I am not aware of any legal opinions of the founders indicating concealed carry is a right. Open carry, yes, concealed carry, no. If you know of such, please enlighten me.
As such, I don't consider concealed carry as part of the 2nd. Rather, it is an expansion of civil liberties.
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I am not aware of any legal opinions of the founders indicating concealed carry is a right. Open carry, yes, concealed carry, no. If you know of such, please enlighten me.
As such, I don't consider concealed carry as part of the 2nd. Rather, it is an expansion of civil liberties.
:facepalm:
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I don't consider left-handed carry part of the 2nd Amendment.
Also, I don't think the Founding Fathers would want anyone carrying a plastic gun. No way is that part of the 2nd Amendment. Get yourself a gun made of steel if you want to exercise your rights.
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I am not aware of any legal opinions of the founders indicating concealed carry is a right. Open carry, yes, concealed carry, no. If you know of such, please enlighten me.
As such, I don't consider concealed carry as part of the 2nd. Rather, it is an expansion of civil liberties.
Actually, Jefferson argued for concealed carry to be part of the 2nd, but only if the gun was in the left pocket.
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The point being that "bear" doesn't necessarily mean "in the way we'd like right away", it means some form of legal bearing.
As long as we have "bear" as fundamental to the right we will eventually get reasonable (not hyper expensive or "may issue") concealed carry in places that don't have it. What's the alternative for some of the anti-type states and towns? Open carry in Times Square? On the main drag of Waikiki?
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^^^ I called up my NYPD brother to brag that I'll be carrying in NYC in 5 years or less. God willing of course.
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Anything from the Second Amendment Foundation and Gura yet?.....I'm interested in their take on the ruling, and Michael Bane's website hasn't posted anything from them yet.....
Can't wait until SAF takes on NYC's Sullivan Law.....or even Texas's $140 CHL fee....may end up redefining CCW law nationwide....
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I am not aware of any legal opinions of the founders indicating concealed carry is a right. Open carry, yes, concealed carry, no. If you know of such, please enlighten me.
As such, I don't consider concealed carry as part of the 2nd. Rather, it is an expansion of civil liberties.
I don't see how the manner one bears arms in any way alters the Right or creates a new and separate Right/privilege to be regulated differently.
Bear arms means any way you choose. Open, concealed, on your back, in your backpack, tucked in a boot, shoved down your pants, etc. The manner if bearing arms is totally irrelevant.
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Crack jokes all you want, but I recall some of the constitutional commentators at the time specifically mentioning that laws forbidding concealed carry were reasonable. Give me a couple days to try and dig up where it was at.
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Crack jokes all you want, but I recall some of the constitutional commentators at the time specifically mentioning that laws forbidding concealed carry were reasonable. Give me a couple days to try and dig up where it was at.
I've heard constitutional law professors say the 2nd Amendment applies solely to the National Guard.
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The Second Amendment is not about technicalities, it is about an inherent right of free men and responsible citizens. The underlying problem is the lack of freedom in general and the concomitant lack of responsibility.
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The constitution says nothing about "responsble citizens". It is a right based on our humanity. A civil right to ensure the citizens have the tools (arms) to fight an oppressive government (ala George III). CCW and Self Defense are products of the founders intent as well.
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I'm talking about the 2A in light of social realities. What I'm saying is that the debates going on would not be going on if we had free men/women and responsible citizens. I take your point; I'm making a different one. The Founders' view of humanity is humanity enlightened. Unenlightened humanity has no interest in freedom, for themselves or others, and no sense of the boundaries of human conduct.
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People seem to forget the Declaration of Independence;
First sentence;
When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
Second sentence;
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights,[71] that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.
Declaration of Independence text continues at;
http://en.wikipedia.org/wiki/United_States_Declaration_of_Independence#Text
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I am not aware of any legal opinions of the founders indicating concealed carry is a right. Open carry, yes, concealed carry, no. If you know of such, please enlighten me.
As such, I don't consider concealed carry as part of the 2nd. Rather, it is an expansion of civil liberties.
Just because carrying a firearm openly was commonplace in those days, tell me how the 2A differentiates between open carry and concealed carry, car carry, castle doctrine, or anything else.
Either it says that you have the right to keep and bear arms, or it doesn't.
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I am not aware of any legal opinions of the founders indicating concealed carry is a right. Open carry, yes, concealed carry, no. If you know of such, please enlighten me.
As such, I don't consider concealed carry as part of the 2nd. Rather, it is an expansion of civil liberties.
Actually, the 2A does not specify any mode of carry. All it says is that we have a right to carry ("bear").
Ohio may be a good example of how that works. Ohio did not, until a very few years ago, allow for concealed carry. And their police didn't much like open carry, so they would arrest open carriers under the guise of "disturbing the peace."
But the Ohio state constitution said that the citizens have a right to bear arms. So a case went to the Ohio Supreme Court, which correctly ruled that it was unconstitutional to totally prohibit carry. Since there were laws prohibiting concealed carry, that meant that open carry MUST be legal under the (state) constitution.
With that having been established, Ohioans began holding "carry-ins," rallies at which large numbers of people would show up ... all openly wearing sidearms. The legislature caved, and enacted provisions for lawful concealed carry.
In short: If the Constitution says that bearing arms is a right, then one way or another they HAVE to allow you to bear arms. The "only" point at issue now is how much can they restrict carry before the restrictions become unreasonable. Ohio could have gone exactly the opposite direction, in total conformity with the opinion of their Supreme Court. They could have just said, 'Okay, concealed carry is fine but no more open carry."
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Lest we get too euphoric too soon...
from the Wall St. Journal, today:
JUNE 29, 2010
Five Gun Salute
The High Court's four liberals are holding out to overturn Heller.
Judicial liberals have been discovering the virtues of legal precedent now that conservatives are finally winning a few cases at the Supreme Court, but in yesterday's major gun rights case that all went out the window. The four liberal Justices rejected a 2008 landmark precedent as well as one of their own bedrock Constitutional principles.
That's the most surprising news in yesterday's 5-4 decision in McDonald v. Chicago, which ruled that the Second Amendment protects the same Constitutional right in the states as it does in Washington, D.C. The decision is the logical extension of 2008's District of Columbia v. Heller, which ruled for the first time that the Second Amendment was an individual right like the rest of the Bill of Rights. In McDonald, the Justices established that this right also applies to the states via the Fourteenth Amendment and cast doubt on a Chicago ordinance banning handguns.
Most Court followers had expected the decision to "incorporate" the Second Amendment to the states to be relatively easy and perhaps draw a large majority. Over nearly a century of cases, the High Court has extended to the states most of the rest of the Bill of Rights including part or all of the First, Fourth, Fifth, Sixth and Eighth Amendments. It would be passing strange for the Second Amendment to be the lone outlier.
All the more so given that Justice Samuel Alito's plurality opinion used "substantive due process" under the Fourteenth Amendment to justify the decision. This is the logic that liberals have long used to apply the other Bill of Rights to the states, and objections to it have most often come from conservatives. Justice Antonin Scalia mentioned his own "misgivings about Substantive Due Process" as a matter of original Constitutional interpretation in his concurring opinion yesterday. But he said he "acquiesced" in this decision "'because it is both long established and narrowly limited.'"
Justice Alito's majority opinion was indeed careful to define the reach of substantive due process, saying that it should apply only to those rights that are "fundamental to our scheme of ordered liberty." Heller had decided that basic question, the Justice wrote, and thus to decide not to apply it to the states would "treat the right recognized in Heller as a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees that we have held to be incorporated into the Due Process Clause." This reasoning was endorsed by Justices Scalia, Anthony Kennedy and Chief Justice John Roberts.
Justice Clarence Thomas joined the majority ruling but did so using what he called a "more straightforward path" to incorporation, using a long-dormant part of the Fourteenth Amendment known as the Privileges or Immunities Clause. The Supreme Court had made that clause all but a dead letter with The Slaughter-House cases of 1873, though Justice Alito acknowledged that "many legal scholars dispute the correctness" of that decision. He's referring in particular to libertarians who want to revive the Privileges or Immunities Clause to enforce property rights and other protections against state regulation.
The majority opinion does leave room for some state and local gun regulation. And the liberals could have joined the majority to help shape the opinion and allow for even more state and local latitude. So it's striking that they instead came out in full-throated dissent and refused to accept even the basic finding in Heller.
Justice Stephen Breyer, joined by Sonia Sotomayor and Ruth Bader Ginsburg, even did a rare turn as a states' rights advocate, noting that incorporation will curtail the ability of states to craft their own gun laws. This problem doesn't seem to bother Justice Breyer or the other liberals when they overturn state laws based on a "right to privacy" that, unlike the Second Amendment, is mentioned nowhere in the text of the Constitution.
All of this suggests that the liberals have decided to bide their time and wait for a fifth vote so they can overturn both Heller and McDonald. This means that the matter of Second Amendment rights is far from settled, and the National Rifle Association and other advocates had better keep their legal guard up.
Elena Kagan may soon replace John Paul Stevens on the Court, and it's notable that Justice Stevens used his final opinion to issue a blistering attack on the Constitutional "orginalism" that informs some of today's conservative Justices. Mr. Scalia fired back in delightfully brutal fashion, and if you want to understand the Court's current philosophical divide, you could do worse than to read all of the opinions in McDonald.
As for Ms. Kagan and gun rights, as a clerk to former Justice Thurgood Marshall, she declared herself "not sympathetic" to a Second Amendment case similar to the issue in Heller. As an aide in the Clinton White House, she advocated aggressive gun control regulations. Despite yesterday's welcome extension of gun rights to the states, the liberal effort to make the Second Amendment a second-rate right is a long way from over.
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All of this suggests that the liberals have decided to bide their time and wait for a fifth vote so they can overturn both Heller and McDonald. This means that the matter of Second Amendment rights is far from settled, and the National Rifle Association and other advocates had better keep their legal guard up.
Heh. Accept by the time that happens... A lot more folks will be owning firearms.
What the hell do the Four think? That magically they can wave a magic opinion and make all of the guns instantly disappear?
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Heh. Accept by the time that happens... A lot more folks will be owning firearms.
What the hell do the Four think? That magically they can wave a magic opinion and make all of the guns instantly disappear?
2A = Army and NG.
Turn in your guns now, please.
Kthxbai.
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2A = Army and NG.
Turn in your guns now, please.
Kthxbai.
Yea, except what happens when the gun owners are the overwhelming majority of the population? Can't exactly throw us all in jail for saying "Uhm, no."
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I don't always think that much of the services, but even I doubt the majority of grunts would take orders to go in and confiscate all guns.
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Yea, except what happens when the gun owners are the overwhelming majority of the population? Can't exactly throw us all in jail for saying "Uhm, no."
Not the case now.
There's 4 million NRA members.
There's ~100 million guns in the US, last I heard. Considering many gun owning households have multiple guns in them, I'd say that probably there are a mere 20 million gun owners in the US. Less than 10% of the population.
Fewer gun owners than there are illegal aliens, probably. "They" say there are between 12 and 20 million illegals in the US, but I think it peaked around 25 million a few years ago.
We say "deport the illegals" every chance we can. They say it's impossible.
Why shouldn't they think they can get 20 million (or fewer) gun owners?
I'm still fairly convinced that most gun owners (99.97%, or about 19,994,000 gun owners of that 20 million) would roll over and turn in their guns, or just hide them "for when they need 'em." The remaining 6000 would be quickly demonized and criminalized, either burnt dead in standoffs with flashbangs and tear gas, or shot dead, or captured.
If they can score the legal win, they will be able to implement because police will carry it out.
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Last estimates I saw were 80 million gun owners.
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OK, just did some google-search.
About 40-50 million HOUSEHOLDS own guns, and there are about 250 million guns.
HOUSEHOLD <> each person in household is gun owner, ready to water that tree of liberty, though. Usually dad owns a gun/guns, wife and kids not involved. So, call it 20-30 million gun owners.
Interesting that each gun owner essentially owns 10 guns, according to the numbers I'm finding.
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OK, just did some google-search.
About 40-50 million HOUSEHOLDS own guns, and there are about 250 million guns.
HOUSEHOLD <> each person in household is gun owner, ready to water that tree of liberty, though. Usually dad owns a gun/guns, wife and kids not involved. So, call it 20-30 million gun owners.
Interesting that each gun owner essentially owns 10 guns, according to the numbers I'm finding.
Logic fail. If only one person in a household is the actual gun owner there are only 20-30 million gun owners, and 50 million households have guns, then exactly who in those other 20-30 million households is the person specifically keeping those guns?
Anyways, those are off a bit, pre-2007 it was on the order of 80M homes and 270M guns. That number has been significantly growing over the past few years, for instance if you look at the number of NICS checks (by the by a single check can cover the purchase of multiple firearms) it has been averaging around a million a month, or more, since August 2007.
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There's ~100 million guns in the US, last I heard. Considering many gun owning households have multiple guns in them, I'd say that probably there are a mere 20 million gun owners in the US. Less than 10% of the population.
Ah... I've heard there's more than three times your estimate. No one knows, and I pray to the Gods, no one ever will have an overly accurate assessment of firearms or their number of owners.
It doesn't matter specifically how many millions of gun owners there are. It's at least double digits of millions. I have few doubts that LE organizations would enthusiastically participate in arresting, detaining or if necessary executing firearm owners in violation of the law, regardless of whether the law is obviously unconstitutional or not. The military would do its best to stay out of the matter, moreso on historical grounds than "liberty" related ones. The military is correctly adverse to handling routine law enforcement tasks, and very well should be.
Despite that, I think the most important aspect would be sheer numbers and not "from my cold dead hands variety". You'd be talking some percentage of tens of millions of US citizens being deprived of existing civil liberties and property. That'd not go over that well. The number of lawsuits alone would be impressive.
I really don't think they'd ever go for mass confiscation. Again, just due to the numbers. Their best bet would be to strangle off the numbers. Most likely through taxation or insane numbers of laws. Basically, what they have been doing up until now. If they go too fast, they get backlash. Their goal would be to kill off the culture first, then move onto the guns when the number of owners is too small to make a dent in any voting patterns.
That's what I'm most pleased of with incorporation. You'll have large numbers of potential new firearm owners. A percentage of them, maybe a low percentage or maybe not, will start to really like them and begin to care about their civil rights. If we establish enough of a gun culture in historically hostile areas, they'd act as a buffer. Even if Heller and McDonald were over turned, the legislatures would need to pass new laws infringing on civil liberties. If a significant gun culture grew up before the overturning, that'd be difficult.
You have no idea how many contacts I have "over the wall" in very anti-2A states/cities that honestly would like to protect themselves. New potential recruits, who will hopefully draw in even more folks. We might have a chance to add another 20 million or more US voters into our ranks. Better yet, from nontraditional sources.
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It doesn't matter specifically how many millions of gun owners there are. It's at least double digits of millions. I have few doubts that LE organizations would enthusiastically participate in arresting, detaining or if necessary executing firearm owners in violation of the law, regardless of whether the law is obviously unconstitutional or not.
Depends largely on the LE agency in question. I've had local police and county deputies state flatly that when they ask if there is a gun in the house, it's a yes or no question; they don't want to know anything beyond whether they should ask you to talk outside in case a general confiscation ever comes up. Of course, the outgoing police chief put in a lot of work to get CHL restrictions repealed in the city, and the sheriff is a long-time RKBA supporter, so I'd expect less trouble here than in some other places.