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*** UPDATED x2 *** This just in… SCOTUS rules against Chicago gun ban

Monday, Jun 28, 2010

* 9:43 am - The divided US Supreme Court ruled against Chicago’s gun laws today. An excellent source of information is the SCOTUS Blog. The full opinion can be read by clicking here.

Here are a few stories, but we’ll be updating as the day goes along. The Hill

The Supreme Court struck down a Chicago ban on handguns, ruling that the Second Amendment applies to states.

A 5-4 decision by Justice Samuel Alito ruled that the Constitution’s guarantee on the right to “keep and bear arms” prohibited Chicago from banning the possession of handguns.

“We have previously held that most of the provisions of the Bill of Rights apply with full force to both the Federal Government and the States,” Alito wrote. “Applying the standard that is well established in our case law, we hold that the Second Amendment right is fully applicable to the States.”

The high court two years ago struck down Washington, D.C.’s handgun ban in District of Columbia v. Heller. But the city of Chicago contended its ban was still legal because the Second Amendment, which addresses gun rights, applied only to the federal government.

* Bloomberg

The ruling broadens the sweep of the court’s 2008 ruling interpreting the Constitution’s Second Amendment as protecting the rights of individuals, rather than just those of state-run militias. It’s a victory for the National Rifle Association, which joined a group of Chicago residents in challenging the city’s laws.

It will open a new front in the fight over gun rights, setting the stage for courtroom battles over the constitutionality of weapons restrictions around the country.

The high court’s 2008 decision said the right to bear arms “is not unlimited.” The majority said the ruling didn’t cast doubt on laws barring handgun possession by convicted felons and the mentally ill or restrictions on bringing guns into schools or government buildings.

* Time Magazine

The court was split along familiar ideological lines, with five conservative-moderate justices in favor of gun rights and the four liberals, opposed.

Two years ago, the court declared that the Second Amendment protects an individual’s right to possess guns, at least for purposes of self-defense in the home.

That ruling applied only to federal laws. It struck down a ban on handguns and a trigger lock requirement for other guns in the District of Columbia, a federal city with a unique legal standing. At the same time, the court was careful not to cast doubt on other regulations of firearms here.

Gun rights proponents almost immediately filed a federal lawsuit challenging gun control laws in Chicago and its suburb of Oak Park, Ill, where handguns have been banned for nearly 30 years. The Brady Center to Prevent Gun Violence says those laws appear to be the last two remaining outright bans.

* Tribune

The City Council could consider new gun-control measures as soon as Wednesday, Mayor Richard Daley said last week.

City Hall has been drawing up plans after the justices heard arguments in McDonald v. Chicago in early March and appeared to indicate they would rule against the city.

In an interview with the Tribune, the mayor said his primary goal would be to protect police officers, paramedics and emergency workers from being shot when responding to an incident at a home. He said he also wants to save taxpayers from the financial cost of lawsuits if police shoot someone in the house because the officer felt threatened.

“If the ban is overturned, we will see a lot of common-sense approaches in the city aimed at protecting first responders,” Daley said. “We have to have some type of registry. If a first responder goes to an apartment, they need to know if that individual has a gun.”

* Sun-Times

Washington requires gun owners to get five hours of safety training, register their firearms every three years and face criminal background checks every six years.

Gun owners there are further required to submit fingerprints and allow police to perform ballistic tests. They must keep revolvers unloaded and either disassembled or secured with trigger locks unless they have reason to fear a home intruder.

As sweeping as those provisions are, they apparently don’t go far enough for Daley, who hinted strongly at an insurance component to protect police officers and paramedics.

“You have to think about the first-responders. You’re putting them in a difficult position to make decisions. What happens if they don’t make the right decision? A person has a gun, but is [it] the person in the house? Does he have a right to carry a gun or is he the person [who] broke in?” the mayor told reporters last month.

“I’m not laying it out, but there are gonna be many topics we’re gonna talk about and who pays for it. And [the city may require] authorized people like the Chicago Police Department to train you.”

*** UPDATE 1 - 10:35 am *** From the Illinois State Rifle Association…

The following is a statement by Richard A. Pearson, Executive Director, Illinois State Rifle Association (ISRA), regarding the U.S. Supreme Court’s decision in the McDonald v. Chicago case:

“On behalf of the officers, directors, and members of the Illinois State Rifle Association, and law-abiding citizens across Illinois, I would like to express my utter delight over the Supreme Court’s decision in the McDonald case. Today is certainly a great day for anyone who believes in the timeless wisdom the founding fathers set as the foundation of our Bill of Rights. As happy as we are with the Court’s decision in McDonald v. Chicago, we must all keep in mind that our work is not finished. The McDonald decision, along with the Court’s 2008 decision in the D.C. v. Heller case, serve merely as cornerstones to a much larger effort to fully restore the law-abiding citizen’s rights guaranteed by the 2nd Amendment to our Constitution.”

“In the weeks and months ahead, our legal staff will be thoroughly analyzing Illinois gun control statutes along with the myriad of local firearm restrictions to assess their compliance with the McDonald and Heller decisions. Law-abiding Illinois citizens may rest assured that the ISRA will employ whatever political or legal means are necessary to ensure that no element of government persists in infringing upon their constitutionally-protected right to keep and bear arms.”

“In closing, I would like to recognize the tireless efforts of all of those who helped make this day possible. Among those are the named plaintiffs, the Second Amendment Foundation, the National Rifle Association of America, and the many dozens of support elements who contributed greatly to the success of this challenge to the egregious infringement on individual rights. But, most of all, I would like to recognize the 80 million or so law-abiding American firearm owners whose patience and determination have served as such great inspiration during this 40-year fight to restore honor to, and recognition of, the Second Amendment.”

*** UPDATE 2 - 11:23 am *** From the Brady Campaign to Prevent Gun Violence

Paul Helmke, President of the Brady Center and Brady Campaign to Prevent Gun Violence, issued the following statement:

“We can expect two things as a result of today’s decision by the U.S. Supreme Court in McDonald v. Chicago: the gun lobby and gun criminals will use it to try to strike down gun laws, and those legal challenges will continue to fail.

“We are pleased that the Court reaffirmed its language in District of Columbia v. Heller that the Second Amendment individual right to possess guns in the home for self-defense does not prevent our elected representatives from enacting common-sense gun laws to protect our communities from gun violence. We are reassured that the Court has rejected, once again, the gun lobby argument that its ‘any gun, for anybody, anywhere’ agenda is protected by the Constitution. The Court again recognized that the Second Amendment allows for reasonable restrictions on firearms, including who can have them and under what conditions, where they can be taken, and what types of firearms are available.

“Chicago can amend its gun laws to comply with this ruling while continuing to have strong, comprehensive and Constitutional gun laws, just as Washington D.C. has done. After the Heller decision, at least 240 legal challenges have been brought to existing gun laws, nearly all of which have been summarily dismissed. There is nothing in today’s decision that should prevent any state or local government from successfully defending, maintaining, or passing, sensible, strong gun laws.”

- Posted by Rich Miller        


60 Comments
  1. - Septic - Monday, Jun 28, 10 @ 9:57 am:

    It is amazing that Daley continues to waste taxpayer funds trying to restrict people’s rights rather than acknowledge his failed policies and try to address the root causes of the violence.


  2. - Leroy - Monday, Jun 28, 10 @ 9:58 am:

    I’d be more concerned about this, but..well…ban-era Chicago is coming off a 52 shot, 10 dead weekend.


  3. - bored now - Monday, Jun 28, 10 @ 10:02 am:

    the roots causes? you mean poverty?

    so are you advocating a complete equalization of income or just a significant increase of your taxes???


  4. - Cincinnatus - Monday, Jun 28, 10 @ 10:02 am:

    I wholeheartedly agree with Septic. Here goes more millions of Chicago taxpayers dollars into the pockets of lawyers, and more millions of individual’s dollars defending the rights defined by the Constitution.

    We have another classic case that needs to be discussed. The proper role of government is at the root of many of the problem we see on a daily basis on Rich’s blog. Is the government redistributive? What is the balance between individual rights and the government’s attempt to provide equal outcomes for all?

    These are the core issues that I would love to see our candidates address as part of their campaign messages which tend to get swallowed up in the minutia of inconsequential items.


  5. - Fan of the Game - Monday, Jun 28, 10 @ 10:12 am:

    A victory for 2nd Amendment proponents on a 5-4 vote. Chicago has become increasingly violent, despite the city’s ban on handguns. Mayor Daley’s solution was to try to strengthen the ban and make it statewide since the ban worked so well for Chicago.


  6. - Septic - Monday, Jun 28, 10 @ 10:12 am:

    I would edit my previous comment if possible; but… Anyway, the best analogy I can think of to the Chicago violence issue is of a firefighter spraying all his water on the smoke while ignoring or even feeding the flames. It seems to be a total and counter productive use of resources. He needs to be addressing the core issues instead and he would have more resources to do that with if he stopped wasting it trying to circumvent the constitution. A further analogy is that he also tries to make every other firefighter in the state spray their water on smoke instead of flames by lobbying legislators for statewide legislation.


  7. - Heartless Libertarian - Monday, Jun 28, 10 @ 10:13 am:

    ==A person has a gun, but is [it] the person in the house? Does he have a right to carry a gun or is he the person [who] broke in?==

    Don’t the police and first responders already have to deal with that question no matter what? That is a stupid argument, because a lot of people in high crime areas, who are generally law abiding, keep guns for protection already.


  8. - grand old partisan - Monday, Jun 28, 10 @ 10:13 am:

    Bored now – some of the poorest people in the country live in rural states where access to firearms is far less restricted. But we never hear about 52 people being shot in one weekend in Appalachia, do we?


  9. - Quinn T. Sential - Monday, Jun 28, 10 @ 10:15 am:

    So what does this do to all of the arrests and convictions of those charged with illegal possession of a handgun over the last 30 years?

    Upon motion; are those vacated, and their records expunged based on an infringement of their constitutional rights?

    What about damages for those who’s employment opportunities were restricted or minimized due to their criminal record?

    I am envisioning a new cottage industry here for ambulance chasers run amok!


  10. - Jim - Monday, Jun 28, 10 @ 10:21 am:

    I think the ban was totally ineffectual, no matter what Daley and Weis say. Coming off back-to-back weekends of an inordinate number of shootings, they still say that we need this law. The criminals will/can always get guns.


  11. - Skeeter - Monday, Jun 28, 10 @ 10:24 am:

    No, GOP, but that’s because 1 shooting there is the same as 50 here (when populuation numbers are compared).

    Also, it seems that every mass school shooting occurs in a rural area where guns are cheap and unregulated.


  12. - Septic - Monday, Jun 28, 10 @ 10:25 am:

    bored now: Not a redistribution of assets or income. I think government’s role is more towards maintaining a fair and level playing field so that those who strive to succeed can. By that, I mean doing what can towards providing a relatively safe environment, access to a quality education, etc. I think that can be done better with existing funds via elimination of corruption, wasteful & counterproductive expenditures against private ownership of firearms, and etc. It is complicated and I can’t say the total answer; but I’m sure major resources are being wasted. I don’t think you can ever totally eliminate the poverty; but you can attempt to provide the tools / education to enable people to climb out of it. My wife is from an incredibly poor country; but every parent there will do whatever they can to ensure their children get a good education as the means towards a better life.


  13. - Siyotanka - Monday, Jun 28, 10 @ 10:29 am:

    Peoria is now using police officals to train members of the public for concealed carry privilidges. Federal background checks are done and the training is 8 hours. The CC permit is issued by the State of Utah and has reciprocity in 33 other states. Just a matter of time until IL wakes up and realizes that guns do save lives when used properly.


  14. - Heartless Libertarian - Monday, Jun 28, 10 @ 10:30 am:

    ==Also, it seems that every mass school shooting occurs in a rural area where guns are cheap and unregulated.==

    Columbine was a suburb of Denver. Not exactly a place where the hicks have a gun rack.


  15. - Amalia - Monday, Jun 28, 10 @ 10:32 am:

    do the police assume there is no gun in the house unless
    they are told otherwise? police are smarter than that.
    that said, the new rules should just add handguns
    to the current registration of guns in the city. contrary
    to most headlines, there never was a ban on all guns in the
    city, just handguns and assault weapons.

    the mayor would be wise not to add more requirements
    to the already lengthy process of pictures, forms, etc.
    for each weapon registered.


  16. - Brennan - Monday, Jun 28, 10 @ 10:39 am:

    =the mayor would be wise not to add more requirements
    to the already lengthy process of pictures, forms, etc.
    for each weapon registered.=

    Why?


  17. - wordslinger - Monday, Jun 28, 10 @ 10:42 am:

    The court’s ruling aside, gun control laws have always been a liberal fig leaf for Daley, and political cover for gun violence.

    In reality, Chicago’s gun control laws have had virtually no impact on the gang violence that scares everyone.


  18. - grand old partisan - Monday, Jun 28, 10 @ 10:47 am:

    Skeeter – the state of Mississippi is the poorest in the union, and has a population slightly larger than the city of Chicago. One shooting there is equal to one shooting here. When was the last time they had 52 in a weekend??


  19. - How Ironic - Monday, Jun 28, 10 @ 10:50 am:

    I am glad that it was overturned. It’s a failed policy that’s contrary to the 2nd Amendment.

    Glad it went.


  20. - SouthernIL - Monday, Jun 28, 10 @ 10:56 am:

    To Grand Old Partisan. Yep…you’re right. In Appalachia….they just take care of their own! Never heard of the Hatfield’s and McCoy’s??!


  21. - shore - Monday, Jun 28, 10 @ 10:57 am:

    If the economy didn’t stink so badly and the state didn’t have so many issues this would be the perfect issue to take over the debate of the statewide campaigns and really screw mark kirk and potentially bill brady.

    It would hurt kirk because he’s got an f- rating from the nra and the last thing he wants is having to choouse between his party base and the position of most people here and then brady to remind suburban voters that he’s mr ak-47.


  22. - Anonymous - Monday, Jun 28, 10 @ 10:59 am:

    This is just another Daley misdirection. Everyone talks about this while daleys nephew is given city of Chicago pension workers money and blows it. That story gets buried while gun control is front page news. Corruption is still king in Chicago.


  23. - Rich Miller - Monday, Jun 28, 10 @ 11:03 am:

    ===This is just another Daley misdirection. ===

    So, Daley controls the SCOTUS calendar, even when they rule against him? I’m not following.


  24. - grand old partisan - Monday, Jun 28, 10 @ 11:04 am:

    “Never heard of the Hatfield’s and McCoy’s”

    Actually, I have. My understanding is that the feud caused the deaths of 12 people over the course of about 12 years. Mayor Daley could only dream of such a murder rate for Chicago!


  25. - Amalia - Monday, Jun 28, 10 @ 11:24 am:

    Brennan, I’m of the opinion that regulation should be there
    but not be overly burdensome. the current rules require
    a fair amount and just adding handguns could be seen
    as fair enough to all.

    but this issue is much greater than just Chicago. The ISRA
    may well question other laws and regulations. It’s a decision
    that applies to all states and municipalities.


  26. - VanillaMan - Monday, Jun 28, 10 @ 11:25 am:

    I wish the handgun ban was a real solution to this horrible problem. But it wasn’t. I wish giving aid to the poor was a real solution to this horrible problem. But is isn’t.

    We can’t blame biology. We can’t blame gender. We’ve always had young men, guns, motives and stupidity.

    What we used to have was manual labor and entry level jobs that harnessed young male biology towards a productive goal. You can’t hang around with your jackass buddies if you have to work. When you work, you learn how to fit into a structure you didn’t create, how to be punctual, and how good it feels to get a paycheck you earned. You learn how to control your destiny within the existing culture and how to receive awards in doing so.

    Whether we’re talking about young men in the suburbs living off their parental handouts without responsibilities, or if we’re talking about young men in the City living off government handouts without responsibilities, we see young men who are not learning, fitting in, or importantly, mastering their destinies. When guys are passive in steering their fiscal destiny, they become aggressive in other dealings, because guys have to have an outlet.

    Giving guys more money isn’t going to help. Giving guys a future they control will.


  27. - Amalia - Monday, Jun 28, 10 @ 11:31 am:

    crimes by women and girls are on the rise, and dramatically.
    this is not just a function of a numbers game, low numbers
    to start increase equals huge percentage increase, but an
    actual increase of violence.

    it’s not just about men and boys.

    but it is about crime and where reported crimes occur. an
    opinion piece in the NYTimes a few days ago by Heather
    MacDonald is of interest in this regard. neighborhoods
    where the largest number of crimes are reported need to be the target of massive efforts for change of all sorts.


  28. - bored now - Monday, Jun 28, 10 @ 11:35 am:

    grand old partisan: did you really just say that??? it appears that you’ve never been anywhere near that appalachians, but i’d challenge you to find 52 people living in the same square mile there, let alone be close enough to kill each other…


  29. - grand old partisan - Monday, Jun 28, 10 @ 12:01 pm:

    bored now: I have been to Appalachia, and I happen to know that while the homes there are spread further apart than city lots, they aren’t all a bunch of anti-social hermits who have no contact with, and thus no opportunity to murder, their neighbors. But I’ll stipulate that the comparison is problematic. So let’s just talk about Chicago.

    For decades, liberal and progressive politicians in major cities have argued that the problem of urban violence is all about economic status, population density and access to weapons. So we just need more welfare, section 8 housing in mixed income neighborhoods, and gun control. And for decades the problem has persisted, even after the projects were torn down and the gun ban went into place. When all of your best solutions have clearly failed, isn’t it time to start considering the possibility that you are trying to address the wrong problems?

    Take a few minutes and read this article from City Journal. I admit it’s very heavy handed on unnecessary Obama bashing, but it contains a number of brutal truths about the issue that Daley and his ilk just don’t want to face. I’m not saying that this commentary contains all the answers. But it definitely brings up some questions that need an honest and thorough debate on LaSalle street:

    http://www.city-journal.org/2010/20_1_chicago-crime.html


  30. - Skeeter - Monday, Jun 28, 10 @ 12:18 pm:

    Although people here are doing a fine job in re-hashing 20 year old arguments on this issue, there was actually some interesting news in the opinion.

    In the opinion, allegedly conservative Alito wrote, in deciding whether a part of the Bill of Rights should apply to the states: “In answering that question, as just explained, we must decide whether the right to keep and bear arms is fundamental to our scheme of ordered liberty.”

    Let me get this right: Does this conservative e looks to the text of the Constitution? No, instead h to some idea of whether something is “fundamental.”

    If Sotomayor had written that line, the conservative media would be trying to schedule an impeachment.


  31. - VanillaMan - Monday, Jun 28, 10 @ 12:19 pm:

    bored now - when you make a simple-minded broad statement like the one you coughed up this morning, you are going to spend the rest of the day forced to defend the undefendable.

    Just give up. Take it from a guy with experience in these things. Just hang it up. Maybe you could have gotten a passing grade from that crackpot professor with that poverty line of yours, but the rest of us live in reality.

    Never believe what academics tell you when their statements don’t pass your gut test.


  32. - Loop Lady - Monday, Jun 28, 10 @ 12:21 pm:

    the root causes of violence in Chicago are poverty and lack of investment in the hoods…as long as gangs are a major employers in these disenfranchized communities, gangs and guns will rule…where is the outrage? Is it not unusua/is it acceptable for 52 people to be shot in the city of Chicago in a 48 hour period resulting in 8 deaths?

    Terrorism indeed…home grown…


  33. - Loop Lady - Monday, Jun 28, 10 @ 12:23 pm:

    typo, I meant unusual…


  34. - Montrose - Monday, Jun 28, 10 @ 12:34 pm:

    *Maybe you could have gotten a passing grade from that crackpot professor with that poverty line of yours, but the rest of us live in reality.*

    VM - Are you saying that poverty is not a root cause of the violence? There are a lot of factors involved when it comes to violence in Chicago, but poverty and race are at the core. How does “reality” throw that to the side?


  35. - grand old partisan - Monday, Jun 28, 10 @ 12:40 pm:

    Skeeter – no, they wouldn’t be. And let me explain why. It is important to remember that strict constructionism is not the same as strict textualism. Conservatives are practical enough to recognize that not every situation or question is going to be directly addressed in the text of the Constitution. In other cases, the text may be ambiguous or unclear. The question then becomes: what did the framers intend?

    Alito’s exploration of what is “fundamental to our scheme of liberty” (ie, Constitutional Federalism) explicitly follows this philospohy when he says:

    “A survey of the contemporaneous history also demonstrates clearly that the Fourteenth Amendment’s Framers and ratifiers counted the right to keep and bear arms among those fundamental rights necessary to the Nation’s system of ordered liberty.”

    If Sotomayor ever started to articulate such a philosophy, the Conservative media would be jumping for joy, not looking to remove her.


  36. - Skeeter - Monday, Jun 28, 10 @ 12:42 pm:

    Let me get this right, GOP.

    According to you, it is very conservative to ignore the written word and instead consider subjective standards for how the document should read?

    Maybe I’m just not getting what conservatives stand for.


  37. - the Patriot - Monday, Jun 28, 10 @ 1:01 pm:

    ==No, GOP, but that’s because 1 shooting there is the same as 50 here (when populuation numbers are compared)==

    You are incorrect. Compare Chicago Gun deaths to even those of higher poplulations like NY and LA and we still take the prize. Per Capita, Chicago has the worst Gun death rate in the country. You can’t avoid it.

    The more I look at the stats I don’t even know those of us who advocate for the 2nd Amendment can even use Chicago because gun related incidents are so high. I think you have to face the possibilty that pro-gun advocates may have to toss Chicago out because the City is so mismanaged it may not provide usable analytical data.

    Daley’s complete failure may be more of the problem then properly enforced gun laws would otherwise be.


  38. - grand old partisan - Monday, Jun 28, 10 @ 1:21 pm:

    Skeeter. You don’t have it right, and I suggested no such idea. I said that in cases where either (a) the text doesn’t address the question at hand; or (b) the text is unclear, it is permissible (and preferable to the liberal philosophy’s alternative) to try and determine the original intent of the framers for direction. How you got “ignore the text” from that is beyond me.


  39. - D.P. Gumby - Monday, Jun 28, 10 @ 1:34 pm:

    How amazing it is to listing to the Rep. Senators damning “activist judges” at the same time the USSC hands down the McDonald case which follows the right wing activist opinion in Heller…not to mention, as Sen. Durbin did the most activist opinion (perhaps ever) Citizens United which reversed 100 years of precedent giving corporations the 1st amend rights of humans (something I don’t recall the founders discussing).


  40. - todd - Monday, Jun 28, 10 @ 1:35 pm:

    skeeter –

    the “fundamental” word is important for geting a standard of review. Finding it “fundamental” means we are headed for strict scrutiny and a lot of gun laws will get struck down as well and tying the hands of what the mayor and general assembly can do.

    it is a necessary review to apply the courts analisys in Duncan for the doctrine of orndered liberty for incorporation.

    The just of it is the right to own a gun is as fundamental as the right to a jury trial in Duncan and on equal footing with the first and fourth amendments.

    time for a beer


  41. - grand old partisan - Monday, Jun 28, 10 @ 1:47 pm:

    Gumby – the founders did discuss it. They said that the government could not claim authority not expressly granted to it by the Constitution. So where in the Constitution is the government granted authority to regulate the speech of corporations (or unions, which were also covered by Citizens United, although I never hear liberals complaining that they shouldn’t be given those rights either)?


  42. - Rich Miller - Monday, Jun 28, 10 @ 1:50 pm:

    ===They said that the government could not claim authority not expressly granted to it by the Constitution. ===

    Federal, not state.


  43. - grand old partisan - Monday, Jun 28, 10 @ 1:57 pm:

    Rich,

    You are correct, but the Court has long held that portions of the Bill of Rights do apply to state law, per the 14th Amendment. In McDonald, the Court has ruled that the 2nd Amendment is one of the fundamental rights that the framers of the 14th intended to extend to the states. I’d also note that Heller and Citizens United, which Gumby is explicitly upset about, are federal cases.


  44. - Angry Republican - Monday, Jun 28, 10 @ 1:57 pm:

    Hey Skeeter do you feel the same way about the first amendment as you do about the second? What about the fourth? I get it that there are a lot of people the don’t like firearms, but the second amendment guarantees citizens the right to bear arms. For people that are opposed to individuals having the right to own firearms, the solution is simple: amend the constitution. Good luck with that.


  45. - Skeeter - Monday, Jun 28, 10 @ 2:04 pm:

    Hey Angry Republican,
    You don’t have a clue what I feel about the 2nd Amendment, I’ve made a point of not writing about my views of the amendment.
    Maybe if you would pay attention to what people WRITE and not what YOU THINK THEY WILL WRITE you wouldn’t be so angry.


  46. - Skeeter - Monday, Jun 28, 10 @ 2:13 pm:

    Todd/NRA:
    Actually, that was not the context.
    Under your reasoning, anything from the bill of rights that has been incorporated would get strict scrutiny, and that’s just not the case.

    GOP –
    Like “Angry Republican” you need to read what is written. And the court was clear in what it wrote. Alito’s concept of fundamental came without any discussion of the words being ambiguous. He didn’t ask if it was fundamental to clear up any confusion. He first askedabout “fundamental” so that he could decide about incorporation.

    Seriously guys, read the opinion.


  47. - grand old partisan - Monday, Jun 28, 10 @ 2:52 pm:

    Skeeter,

    Please point out where I am wrong here:

    The case before the Court explicitly sought an answer about incorporation because the text of the 14th Amendment’s does not explicitly detail which “privileges or immunities” the states are barred from abridging. Alito concludes that the right to arm oneself was understood by the 14th’s authors as a “fundamental” right, worthy of protection against state and local government infringement.

    What did I miss in my misreading of the opinion?

    Alito’s reasoning is a perfect example of the conservative judicial philosophy of originalism –not the hypocritical deviation from it that you bafflingly think it is (actually, it seems that you may not actually understand the concept of originalism, or accept the fact that it is a conservative philosophy). And it has nothing to do with “ignoring the text” of the Constitution – it’s a reasonable and legitimate attend to determine the extent of a vague and unspecified restriction of State power.


  48. - Skeeter - Monday, Jun 28, 10 @ 3:01 pm:

    GOP,

    According to your reasoning then, there may be some “fundamental rights” not listed in the Bill of Rights, but some of those listed in the Bill of Rights may not be fundamental?

    Again, you consider that a conservative position?

    Maybe, if by conservative you mean some form of activist conservatism where certain rights are found floating in the air, while others written in the Bill of Rights are not found.

    That’s an interesting view on “conservative.”


  49. - grand old partisan - Monday, Jun 28, 10 @ 3:14 pm:

    Skeeter,

    I understand your confusion. It’s the same frustration that 2nd Amendment advocates have voiced for years: why had this right not been incorporated like almost all of the others. So, why did Alito not push for a final, blanket incorporation of the entire Bill of Rights? I don’t know for sure. Perhaps it was a respect for the concept of judicial restraint. After all, the case which the court was deciding did not ask about the entire Bill of Rights, only the 2nd Amendment. Traditionally, the court does not seek to answer questions it has not been explicitly asked.

    I am confused, however, by your anger over certain rights being “found floating in the air.” What are you talking about?? I agree that would be a profounding un-conservative thing for the court to do. But I don’t see where it has done that in this case. Can you clarify?


  50. - Skeeter - Monday, Jun 28, 10 @ 3:26 pm:

    GOP, I’m not angry. I’m amused. You are so intent on defending the result that you don’t seem to care that this was an activist court.

    You wrote:

    “The case before the Court explicitly sought an answer about incorporation because the text of the 14th Amendment’s does not explicitly detail which “privileges or immunities” the states are barred from abridging. Alito concludes that the right to arm oneself was understood by the 14th’s authors as a “fundamental” right, worthy of protection against state and local government infringement.”

    Seems like there are three potential answers to this:

    1. All of those right listed in the Bill of Rights are incorporated;

    2. Some of the rights in the BOR, but no others, are incorporated;

    3. Whatever rights are considered by a court to be fundamental are incorporated.

    Alito clearly did not choose option #1. He chose #2 or #3. That’s activist.

    You say it was not before him. Wrong. If that was the issue, he could simply have written “The 14th Amendment serves to incorporate the 2A.” End of discussion.

    He didn’t. He asked if the right was “fundamental.” That question implies options 2 and 3 above. If all rights in the BOR were incorp, then why ask about “fundamental.”

    I also looked at the 14th A and saw no reference to “fundamental.” That exists only in the very
    active brain of Alito.

    Face it GOP. Even though you may likethe result, this was by no means a “conservative” opinion.


  51. - Anon - Monday, Jun 28, 10 @ 3:46 pm:

    Skeeter, you fail to understand how decisions work. The Court decides issues as they come, not at whatever time they want. There was one issue in this case: incorporation of the 2nd Amendment. That’s all they could decide. They don’t just say “x is true” without giving reasoning. You also fail to understand that when deciding what the original intent was, you almost always have to go outside of the actual text. The difference between a conservative and an activist judge is simple: a conservative justice looks at what the writers of the law intended at the time they made the law. When the text is ambiguous, a conservative justice looks to the writings and intent of those who wrote the law. In no way is looking to outside writing and events inconsistent with being a conservative justice, if what your looking at was relevant to the time in which the law was written. An activist judge concerns himself more with what people think the law should be today, and less with what the original writers intended.


  52. - grand old partisan - Monday, Jun 28, 10 @ 3:52 pm:

    Skeeter,

    Take you own advice and set aside your preconceptions about my hypocrisy and just read what I have to say here with an open mind to the fact that I might actually have a point…..

    Alito is an originalist, meaning that when he reads, interprets and applies the Constitution (which is what Justices do, regardless of the philosophy that colors their work), he tries to do so with the original intent of its authors in mind. It was the authors of the 14th Amendment –not Alito - who neglected to say that entire Bill of Rights if extended to the States. In fact, the 14th does not mention the Bill or the other amendments explicitly. It speaks only of “privileges or immunities” that could not be abridged. Now, in the years since the ratification of the 14th, the court has been presented, at various times, with questions about whether certain portions of the Bill of Rights are also among those privileges and immunities that apply to the states. In this case, it was the right to bear arms. You seem to think that Alito’s willingness to even consider such a question makes him an “activist” and at odds with conservative judicial philosophy – an opinion that I find bizarre, to say the least.

    Now, if Alito had said that this right should be incorporated because either (a) the evolving standards of society necessitate it, or (b) the laws of many other western nations have already done so, or (c) he thinks that’s the right thing to do and the law will just have to “catch up” with his opinion….then, yes, he’d be in grave violation of conservative judicial principals. But that’s not what he did. He said that the right to bear arms was understood by the authors of the 14th amendment to be a fundamental right, and thus it is among those privileges or immunities that they sought to prohibit the States from infringing upon.

    BTW, when I think of “activist” in terms of the court, I think about – as you put it – the discovery of “certain rights found floating in the air.” That is not what happened here, by any stretch of the imagination, despite your unfounded suggestion to the contrary.


  53. - Skeeter - Monday, Jun 28, 10 @ 3:56 pm:

    Anon,

    Actually, I do understand and you don’t. Thanks for the condescending comment though. That sure helped your argument.

    If something is not at issue, there is no need to create a test for it.

    If the Bill of Rights has been incorporated, there is no need to ask about whether an individual right is fundamental.

    The court goes into intent only because the court framed the question as whether or not the right is fundamental.

    Unless the language is ambiguous, there should be no reason to look at original intent. A true conservative would look at the words on paper. If they are clear, no need to look at extrinsic matters.

    They never find it to be ambiguous. They find that the issue of incorporation to be ambig. They do so by adding words to the 14th amendment.

    Point out where in the text of the 14th amendment references “fundamental.” The word is not there. Only an activist court would find it there.


  54. - Skeeter - Monday, Jun 28, 10 @ 4:07 pm:

    GOP,

    You can call Alito an “orginalist.” Frankly, you can call him “The King of Siam.” Labels don’t matter.

    Calling a person a conservative does not make the person one. Calling an approach conservative does not make it conservative.

    Alito felt the need, without finding any ambiguity, to look beyond the text. His approach was exactly what right wing politicans rave out about — looking into the air for interpretation rather than looking at text. He is creating something not apparent on the face of the document.

    Moreover, you talk about the intent at some time. What time? From court decisions at the time, it sure seemed that at at the time, the US Supreme Court did not believe that there was incorporation. But Alito then finds incorporation. How is that “original intent”? We know what the feeling at the time was. The court at that time told us. But Alito did not like that time, so he chose another time (some odd mix of now and 1790) and labled it “orginal intent.”

    That is activist.

    End of story.


  55. - CTdeCity - Monday, Jun 28, 10 @ 4:13 pm:

    No one is mentioning the new approach to civil rights that Daley, Dart, et al are proposing in the wake of this decision: training and testing to determine if you can exercise a civil right!

    I think we should follow their lead and propose IQ testing and test of understanding the Consitittion before allowing persons to exercies their right to vote. This could solve a multitude of problems such as the elections of boobs like Daley and Dart!


  56. - Amalia - Monday, Jun 28, 10 @ 5:26 pm:

    one big thing that the City of Chicago should consider….
    it has been remanded to the 7th Circuit. In other
    words, wait until they say how it is legal. Yes, the Supreme Court has ruled, but they sent it back down
    to the lower court to deal with on the basis of their
    ruling.

    the first lower court ruling is good reading, and good writing,
    whether or not you agree with the opinion. we all await
    their new ruling with interest.


  57. - rick - Monday, Jun 28, 10 @ 5:48 pm:

    Thank God for the Bill of Rights


  58. - Amalia - Monday, Jun 28, 10 @ 5:54 pm:

    do we think the writers of the constitution had as original
    intent that women would be on the Supreme Court? cause
    now an activist judge would concern himself or herself with
    the law.

    re original intent. they created a set of laws and a process by which laws could be amended and interpreted.

    did the founding fathers have original intent about an Uzi?


  59. - bored now - Monday, Jun 28, 10 @ 6:09 pm:

    grand old partisan: i didn’t exactly say that the residents of the appalachians were anti-social hermits. in fact, gun violence does occur in the appalachians, but it is much more likely to be from rifles or shotguns than handguns. outside of law enforcement, you wouldn’t find much use for pistols.

    i can’t speak to your analysis of “liberal and progressive politicians in major cities” as i’d be unfamiliar with them. i’ll pass on being pigeonholed into some ancient battlelines. it is unquestionable that gun violence results from population density and poverty. but no one argued that they were the only factors. in chicago, drugs, gangs and the fact that kids can make more money from illegal activity than an honest job (if they could even find one) are other critical factors. it certainly didn’t help that blagojevich cut the crap out of cease fire.

    i haven’t seen anyone argue that “we just need more welfare, section 8 housing in mixed income neighborhoods, and gun control.” it wouldn’t surprise me if you just made that up (sorry, but mark kirk has made a deep impression). it seems to me that we needs jobs, a radical reform of our economic infrastructure (there won’t be many new industrial jobs) and equal opportunity for employment provided for young black men. i actually thought we stopped the welfare crap back in 1995, but i suppose some people live in the past.

    feel free to let me know when chicago has been flooded with good jobs and young black men don’t face 40% unemployment (remember, that doesn’t include all those who are so discouraged that they aren’t even looking for employment). don’t worry, i won’t hold my breathe. i don’t expect you to join the 21st century anytime soon.


  60. - Melancton Smith - Monday, Jun 28, 10 @ 8:25 pm:

    Amalia, if you want to know what the founders would have felt about an Uzi, read what they wrote. Also, for McDonald, the real ‘founders’ are the drafters of the 14th Amendment…a group of people that just finished the most devastating war that Americans have fought before or after their time.


Sorry, comments for this post are now closed.


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