Supreme Court Gun Ban Ruling: Good/Bad? Constitutional or not?

[malkusm]

Pertinent links/quotes:

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

Summary of the decision at Lew Rockwell: http://www.lewrockwell.com/blog/lewrw/archives/60446.html

U.S. Constitution, Article III., Section 2:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;-- between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

U.S. Constitution, Article VI., 2nd & 3rd clause:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution

2nd Amendment:

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.

10th Amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Anti-Federalist #84: http://www.wepin.com/articles/afp/afp84.html

Anti-Federalist #81: http://www.wepin.com/articles/afp/afp81.html

"Is the McDonald Gun Decision Good for Liberty?" at Lew Rockwell: http://www.lewrockwell.com/blog/lewrw/archives/60452.html

"The Second Amendment, the States, and the People" at The New American: http://www.thenewamerican.com/index...he-second-amendment-the-states-and-the-people

"Partial Gun Rights Victory Could Have Other Implications: http://www.thenewamerican.com/index...-rights-victory-could-have-other-implications

SA@TAC - Gunning Down the Constitution YouTube - SA@TAC - Gunning Down the Constitution

(Post other opinions and resources as you feel, I'd like to make this post as objective as possible.)

Choices are above, and feel free to debate the merits and practicalities of your decision.

ETA: Since the forum only allows poll choices to be 100 characters or less, my actual poll choices were going to be as follows:

A. It is a good thing - the rights of the citizens to keep and bear Arms shall not be infringed, by the federal government nor by the States.

B. It is a good thing, although I have reservations about the language used in the decision, as well as the implications for federalism & states' rights.

C. It is a bad thing - the 2nd Amendment restricts the power of the federal government, not the power of the states (even when states make bad decisions).

D. This case should not have come up before the Supreme Court, as it is a state case, not a federal one as listed in Article III, Section 2.

 

[slothman]

Unlike the 1st Amend. the 2nd doesn't say "Congress."
Therefore it applies to states as well.
I don't know if the 14th needs to be used in this case.
I also agree with the result.

 

[FrankRep]

The Supreme Court heard oral arguments Tuesday in the ground-breaking case McDonald v. Chicago and is expected to incorporate Second Amendment rights against the states, though the strategy pursued by McDonald's lead attorney has received some criticism even from gun-rights supporters. by Alex Newman

Partial Gun Rights Victory Could Have Other Implications


Alex Newman | The New American
05 March 2010


Analysts are predicting at least a partial victory for gun rights after the Supreme Court heard oral arguments Tuesday in McDonald v. Chicago, a case about the city’s draconian hand-gun ban that could have major implications for state and local firearm regulations across the nation. But even some supporters of the right to keep and bear arms have been critical of the strategy pursued.

Attorney Alan Gura, who argued against the ban on behalf of Otis McDonald and others, told the Supreme Court that it should strike down the unconstitutional hand-gun restrictions. He said the Court should force state and municipal governments to respect Second Amendment protections by “incorporating” the right to keep and bear arms using the “privileges or immunities” clause of the 14th Amendment. But this strategy differs from past arguments for incorporating the Bill of Rights against the states in an important way.

Using just the due process clause of the 14th Amendment would be enough to overturn Chicago’s anti-gun ordinances, argued Gura. But there are other reasons for it as well, he told the justices.

“In 1868, our nation made a promise to the McDonald family that they and their descendants would henceforth be American citizens, and with American citizenship came the guarantee enshrined in our Constitution that no State could make or enforce any law which shall abridge the privileges or immunities of American citizenship,” Gura explained during his opening argument.

In the past, the Supreme Court has usually relied on the “due process” clause of the 14th Amendment to force states to recognize various rights. But for the Court to go along with Gura’s “privileges and immunities” argument, it could have to overturn the landmark “Slaughterhouse-House” rulings that protected a butchering monopoly created by the state of Louisiana and held that the “privileges or immunities” clause affected only rights pertaining to U.S. citizenship.

"The Privileges or Immunities Clause could be used as a source for judicial activism unlike anything America has ever seen," warned the conservative American Civil Rights Union on its website. The non-profit organization, which filed a brief in support of McDonald, argued that while the Court should incorporate the Second Amendment against the states using the privileges and immunities clause, it should not overturn the Slaughter-House decisions as proposed by Gura.

But while some conservatives oppose the idea of reversing that historic decision, an informative Washington Times article about the debate entitled "Gun rights lawyer gives hope to liberal causes" noted that some “progressive” groups are joining with Gura in calling for the court to strike down the Slaughter-House ruling.

"[Progressives] cannot afford to absent themselves simply because the first beneficiary of the demise of Slaughterhouse may be a conservative cause, Second Amendment rights," explained a report from the Constitutional Accountability Center, a liberal organization which filed a brief in support of Gura’s argument. Critics argue that such a reversal could pave the way for the Court to extend all sorts of “rights” including abortion, healthcare, and gay marriage, and that it would disrupt the proper federal-state relationship.

Other analysts are crying foul on the move to strike down Chicago’s hand-gun ban for different reasons.

“The Bill of Rights was never intended to be a list of individual rights, but a list of things the federal government could not do to the states,” explained Jack Hunter in an article entitled "Gunning Down the Constitution" for The American Conservative. “The 2nd amendment does not apply to the Chicago gun ban because the federal government is not involved — nor should it be.” So while the ban may be “ridiculous,” Hunter claims people should oppose the Court striking it down “because this decision would trample the most important right of all — that of the states to limit the power of the federal government.”

But not so, according to constitutional attorney Edwin Vieira, Jr., who has prevailed in three cases before the U.S. Supreme Court.

“Both the original Constitution and the Second Amendment made abundantly clear that ‘the right of the people to keep and bear Arms’ applies to every level of government, without exception, throughout the United States,” he wrote in an analysis of the case for The New American entitled "The Second Amendment, The States, and the People": “Indeed, the original Constitution actually required both the General Government and the States, not just to protect, but also affirmatively to promote, that exercise. This is because the original Constitution incorporated within its federal structure ‘the Militia of the several States.’”

Vieira argues that the even though a legislative solution would be preferable, “even under the Supreme Court’s misconceptions about the 14th Amendment, ‘the right of the people to keep and bear Arms’ should be held applicable to the States.”

During the hearing, a majority of Justices seemed like they were at least partially swayed by Gura’s arguments. Justice John Paul Stevens, however, was concerned that applying the Second Amendment in full against the states could end up giving people "the right to parade around the streets with guns." Justice Stephen Breyer thought the true issue boiled down to guns versus life. "Here, every case will be on one side guns, on the other side human life," he said.

But regardless of what the public thinks, the Court is widely expected to incorporate the Second Amendment against the states while allowing “reasonable” restrictions to remain intact. What the definition of “reasonable” might be is still not known.

There is good news related to gun rights, too, however. While Chicago continues to defend its infringement upon the unalienable rights of its residents, states across the Union are defying federal government regulations by passing state laws nullifying some of those restrictions. Montana, Utah, and Tennessee have all passed versions of the “firearms freedom act” into law, voiding most federal rules against guns manufactured and kept in their respective states. Many other states are working on it as well. And public opinion is solidly in favor of less gun control, not more.

So while the anticipated Supreme Court decision may represent a partial victory to some, and an unconstitutional infringement on the powers of state governments to others, the future of gun rights in America generally looks brighter than it did just a few years ago. After all, more and more Americans are beginning to appreciate that the right to keep and bear arms is an unalienable gift from their Creator which “shall not be infringed” by government. And that is encouraging news.


SOURCE:
http://www.thenewamerican.com/index...-rights-victory-could-have-other-implications

 

[FrankRep]

SA@TAC - Gunning Down the Constitution

YouTube - SA@TAC - Gunning Down the Constitution

 

[RCA]

Protecting individual rights = good.

 

[FrankRep]

Protecting individual rights = good.

Supreme Court overruling a State / City = Bad

 

[Kylie]

Supreme Court overruling a State / City = Bad

But don't all the judges take an oath to protect the Constitution against all enemies, foreign and domestic?

If so, then they have upheld their end of the oath. It should strike down any unconstitutional law, even if those laws are enacted by states and cities.

 

[FrankRep]

But don't all the judges take an oath to protect the Constitution against all enemies, foreign and domestic?

Here's the Big Question: Does the Constitution protect "individual rights" or does it prevent the Federal Government from making laws that affect "individual rights." Big difference.

“The Bill of Rights was never intended to be a list of individual rights, but a list of things the federal government could not do to the states,” explained Jack Hunter in an article entitled "Gunning Down the Constitution" for The American Conservative. “The 2nd amendment does not apply to the Chicago gun ban because the federal government is not involved — nor should it be.” So while the ban may be “ridiculous,” Hunter claims people should oppose the Court striking it down “because this decision would trample the most important right of all — that of the states to limit the power of the federal government.”

But not so, according to constitutional attorney Edwin Vieira, Jr., who has prevailed in three cases before the U.S. Supreme Court.

“Both the original Constitution and the Second Amendment made abundantly clear that ‘the right of the people to keep and bear Arms’ applies to every level of government, without exception, throughout the United States,” he wrote in an analysis of the case for The New American entitled "The Second Amendment, The States, and the People": “Indeed, the original Constitution actually required both the General Government and the States, not just to protect, but also affirmatively to promote, that exercise. This is because the original Constitution incorporated within its federal structure ‘the Militia of the several States.’”​

Jack Hunter: Gunning Down the Constitution

YouTube - SA@TAC - Gunning Down the Constitution

 

[roho76]

But don't all the judges take an oath to protect the Constitution against all enemies, foreign and domestic?

If so, then they have upheld their end of the oath. It should strike down any unconstitutional law, even if those laws are enacted by states and cities.

Bingo. This is exactly what the Feds should be doing. It is against the Constitution for the City of Chicago to deny it's citizens the right of the 2nd Amendment. I can't believe we're not all in agreement here. Can somebody give me an argument to support the contrary and if so I will definitely look into it but I believe the Feds were in the right here. The states DO NOT have the right to trample on the basic rights of an American citizen. Am I wrong?

Side note: Now I'm sure the Feds had some reason for doing this. They are not going protect the 2nd Amendment like this without getting something. So my question is: What is that something?

 

[Southron]

This should have been handled at the state level.

This is a national solution to a state problem.

In the long run, restrictive places might have more firearms freedom but I bet the more free states will suffer when the Supreme Court is the final word on whether or not a gun law is constitutional.

 

[malkusm]

This should have been handled at the state level.

This is a national solution to a state problem.

In the long run, restrictive places might have more firearms freedom but I bet the more free states will suffer when the Supreme Court is the final word on whether or not a gun law is constitutional.

I put this option in the poll because, as I read the anti-Federalist papers more and more, this was one of their contentions against the Constitution. The Federalists won on this issue, and the Supreme Court kept its appellate jurisdiction over all cases. However, the anti-Federalists made the case that the Supreme Court will always rule on behalf of the party it represents (federal government) and will strike down State laws often, in order to grant the federal government legislative jurisdiction over those areas in the future. (See especially: Anti-Fed #80 and #81.)

Those guys were quite prescient, weren't they?

 

[Koz]

Although I completely agree with states rights, it seems to me that the Bill of Rights pertains to our God given, or natural rights. The way I understand it a right is given to you by your creator and cannot be taken away, period. Jefferson and others specifically wanted a Bill of Rights to spell out those rights that are natural, and these first 10 Amendments were ratified by the states, unanimously if memory serves correct. So, a state can no more take away your right to freedom of speech than they can your right to bear arms.

I fail to see how this is a states rights issue.

 

[Dr.3D]

Although I completely agree with states rights, it seems to me that the Bill of Rights pertains to our God given, or natural rights. The way I understand it a right is given to you by your creator and cannot be taken away, period. Jefferson and others specifically wanted a Bill of Rights to spell out those rights that are natural, and these first 10 Amendments were ratified by the states, unanimously if memory serves correct. So, a state can no more take away your right to freedom of speech than they can your right to bear arms.

I fail to see how this is a states rights issue.

That is exactly how I see it too.

 

[FrankRep]

This should have been handled at the state level

Jack Hunter would agree with you.

Jack Hunter: Gunning Down the Constitution
YouTube - SA@TAC - Gunning Down the Constitution

 

[Matt Collins]

Richard Hamblen wrote on Facebook:

Hardly a victory...McDonald completes the destruction of the Second Amendment (and the Constitution) begun by Heller. Read the opinion, not the PR fluff. Is it a principal of justice to accept unConstitutional law merely because there is precedent for it?

Try to ignore the Militia component of the Second Amendment and you end up with "reasonable restrictions", defined by the personal whim of any federal judge.

Even Presser v. Illinois says "It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the States, and in view of this prerogative of the general government, as well as of its general powers, the States cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government."

The operative phrase is "all citizens capable of bearing arms", the same language used in Miller in 1939. The Second Amendment is not about self defense or duck hunting. It is about the Militia, which is "everyone physically capable of bearing arms".The means to self defense is merely a happy benefit of the well regulated Militia.

How much longer are YOU going to stand by and passively watch the destruction of your God given rights?

For those who do not remember Rich Hamblen is a Ron Paul supporter who spent 13 months in a federal prison camp because as a Battalion Commander of the TN State Guard he built machine guns for his unit and apparently the 2nd Amendment doesn't apply.

He is well qualified to speak on this subject as his case went all the way to the Supreme Court (at the same time as Heller) but was denied a hearing.

You can read about his case here:
[url]http://www.esnips.com/web/HamblenvsUnitedStates/[/URL]


.

 

[malkusm]

Although I completely agree with states rights, it seems to me that the Bill of Rights pertains to our God given, or natural rights. The way I understand it a right is given to you by your creator and cannot be taken away, period. Jefferson and others specifically wanted a Bill of Rights to spell out those rights that are natural, and these first 10 Amendments were ratified by the states, unanimously if memory serves correct. So, a state can no more take away your right to freedom of speech than they can your right to bear arms.

I fail to see how this is a states rights issue.

The Constitution explicitly denotes that certain Amendments are only checks on the federal government, and have no bearing on State governments. For example, Amendment 1 starts with "Congress shall make no law," and Amendments 3 and 5 are also applied to states via Article I, Section 9.

I have come to the conclusion that I agree with you on Amendment 2, however. It seems to apply equally to all citizens, if the Supreme Court is going to have jurisdiction over the case (which the Constitution grants them).

 

[K466]

Only two votes for It is a bad thing - the 2nd Amendment restricts the power of the federal government, not the states?

Jack Hunter's argument makes sense, I'd like to know what Ron Paul, Thomas Woods, and others think.

 

[malkusm]

My conclusion (after a couple hours of reading and debate):

Even though the Constitution grants appellate jurisdiction over the Chicago case to the Supreme Court, the anti-Federalists didn't want the SC to have jurisdiction over state matters, and I agree with them. However, since they did have jurisdiction, I agree with the ruling, since the 2nd Amendment does not explicitly refer to the federal government anywhere in the document, and thus the ruling may not have conferred any new powers to the feds. I have issues with some of the language used in the decision, however (including the invocation of the 14th Amendment)

 

[ChaosControl]

The 2nd amendment specifically mentions the right to bear arms.
Thus it is not reserved for the states per the tenth amendment.
I don't know about the wording of the decision, but the ultimate decision is the right one in terms of constitutionality.

I am a localist though so sometimes the constitutional decision isn't the one I favor simply because it centralizes things. I oppose a gun ban, but I also oppose the federal government deciding pretty much anything other than maybe interstate disputes.

 

[Stop Making Cents]

The result is great, but the method of getting there is very dangerous.

The 14th Amendment is illegal since it was not ratified properly. Look it up. So using the 14th Amendment to justify anything is improper since it is not a legal Amendment.