McDonald v. Chicago Discussion Thread

Great Debates
1

On Monday the Supreme Court is expected to deliver the opinion in McDonald v. Chicago. The case is about the handgun ban currently in place in Chicago.

The expectation is that the ban will be overturned. Alan Gura, the attorney that took DC v. Heller to the Supreme Court and won, is arguing this case as well. His argument, leapfrogging off of the Heller decision, is a 14th Amendment argument. As a result, it is expected that this case will Incorporate the 2nd Amendment. If you’ve read the briefs and the transcripts of the oral arguments, there is little doubt that Gura will win. For it to be otherwise the Supreme Court will have to reverse their stance established only two years ago in Heller.

This case has other ramifications as well, ones that are much larger than just guns. Gura, in his briefs and oral arguments, sought to reinstate the Privileges or Immunities Clause of the 14th Amendment, something that was essentially killed back in 1873 with the Slaughter-House Cases. Justice Scalia, during the oral arguments, displayed considerable hostility to the idea that the Court should overturn Slaughter-House, and it was thought that the idea died right then and there. However, there are others that disagree and think that it might actually happen. Alito is expected to write the opinion, and he appeared to support the idea of reinstating the PorI clause.

If it does happen, this has a few interesting effects. The Privileges or Immunities Clause reads as follows:

If the Court reinstates the clause, it is believed that the entire Bill of Rights will be Incorporated. It is also believed that this will be the legal precept that will make same-sex marriage universal. Not that that won’t eventually happen via due process, but this will hasten the matter considerably. Some have suggested that reinstatement of the PorI clause will immediately invalidate any prohibition on same-sex marriage. That seems a bit of a stretch, but you can see how the possibility of this decision is a big deal.

Putting that aside, whether or not the Court reinstates PorI or affirms it using due process, the 2nd Amendment will be Incorporated on Monday. I’m as certain of that as I am that the sun will rise. One question will still remain which the Court may or may not address: in Heller, Scalia left the door open for “reasonable restriction” but did not detail what those would be, nor what level of scrutiny 2nd Amendment cases should get. I wonder if they’ll duck that and defer it for later or if they’ll elaborate with this decision.

This could be a BIG decision for a lot of people depending upon how it turns out. I can’t wait to read the opinions on Monday. I’m particularly interested in Breyer’s dissent, what with his weird diversions over “ordered liberty” during the oral arguments, riffing off of Chicago’s doomed argument.

If you’re like me and you’ve been awaiting this decision, you can follow Monday’s festivities on SCOTUSblog as they happen. I’m excited. Who would have ever thought that this day would come after everything that has happened in the last 40 years? For gun owners these last 6 years have been nothing short of magical, and completely unexpected.

2

One notes that Mayor Daley will promptly put through harsher gun laws that are probably also illegal. If he is unable to pull that off, expect him to use the police, zoning, and any other method possible, to harass any gun owners or stores.

Remember Meigs Field. Daley doesn’t give a crap about the law. He just does what he wants.

3

I am not a huge gun buff, but it does hack me off that criminals in Chicago have handguns and I as a law abiding citizen cannot have a handgun.

4

Do you get pissed that they can rob banks but you can’t, as well?

5

I really wish people would stop making snarky comments about contentious topics (like gun control) when you know very well that it will hijack the thread if anyone responds.

6

He has implied that he is going to implement policies in line with DC’s policies, which are incredibly onerous and restrictive.

That said, Heller II is challenging those laws and may make it to the Supreme Court. Even if it doesn’t, in the long term it’s unlikely that a scheme that de facto bans guns for an average citizen will stand up to scrutiny.

7

Eh, its a substantiative response to Markxxx’s statement, albeit a bit snarky.

8

My opinion: this new case will be decided 5-4, with the “wise Latina” who wouldn’t answer a straight question on the right to keep and bear arms during her confirmation voting to oppose it, of course.

The decision will be a “simple” incorporation, and will avoid overturning the Slaughter-House Case any way possible.

Chicago and Daley, who has all the taxpayer money he needs to waste on this effort, will throw up innumerable legal challenges and pass a bizarre and possibly insane slew of laws which will almost all be found un-Constitutional at some point later on, and this will carry on for at least a decade or more until a new Administration seizes power in Chicago and decides to focus on some other way to screw people (tobacco and alcohol bans come up every now and then).

BTW, California’s impending “all gun” registration scheme is seen as a “pre-emptive McDonald tactic”, and I’ll wager that under Heller and McDonald gun registration (provided there is no or a “token” fee and no limit on the number of guns registered) will be seen as Constitutional at some point, which will lead to this creeping across the nation.

In fact, assuming that no major modifications to Heller or McDonald are made over the next 20 years, I would lump the following as being allowed restrictions:

  • Gun registration.

  • Restrictions on ammunition sales quantities.

  • “One gun a month” restrictions.

  • Microstamping and biometric weapons.

  • Additional interstate and inter-country transfers, even for simple hunting trips.

  • Laser bans.

  • All current NFA and GCA of 1968 restrictions.

  • The 1986 restrictions on new fully-automatic weapons.

  • Age limits on purchasing/owning guns and ammunition, up to age 21.

  • Hunting bans. (the 2nd Amendment is not about duck hunting)

  • Use of noise/other ordinances to close shooting ranges.
    And the following as being disallowed:

  • Zoning ordinances prohibiting gun dealers.

  • “Sniper rifle” bans.

  • Handgun bans in general.

  • Mandatory trigger locks.

  • Gun-free School zones.

  • HOAs and public housing banning guns.
    And the following as being up in the air:

  • “Assault weapon” bans.

  • Semi-automatic handgun bans.

  • Magazine capacity bans.

  • Bans on self-loading equipment and powder (except for black powder weapons, where a ban on the powder and shot is a de facto gun ban).

  • Serious restrictions or bans on lead ammunition and mercury-containing primers.

9

Holy crap, Heller was two years ago? Time flies.

Sure, very substantiative, until you put a match to that sucker, and then that strawman burns.

Things I’ve seen suggest that Kagan is a more “true” unknown in this area; her history has been mixed but more pro-2A than Sotomayor. I do wonder how her appointment would change things, probably can’t get any more pro-gun control.

Do you mean new laws, or just that current the state ability to regulate will be maintained.

I predict that it will pass, and then Daley will become more insane and threaten to put guns up more butts.

10

I believe there will be a steady tightening of laws and restrictions on hunting as well as target ranges, as anti-gunners look for any way humanly possible to make shooting sports less and less attractive.

11

I think the only possible safe prediction here is that, either way, Daley will go more insane. Do you think his next presser will have him goose-stepping with a finger under his nose to do the hitler mustache thing?

Interestingly, I still consider this the second most important case involving the Supremes this session. In Re Bilski is more critical.

12

What about bans on carrying arms in public? States like California & Maryland make it extremely difficult for “civilians” to protect themselves in public, and Illinois makes it impossible with no legal form of concealed or open carry. SCOTUS has ruled in the past that law enforcement has no duty to protect, how could it not rule that the people have the right to carry in public?

13

I hope I live to see the day when the left finally realizes gun control is a losing argument and moves on to something else, like they did with the stupid national speed limit.

14

I don’t think so. I don’t think many gun control people have a serious problem with hunting or target shooting. The main concerns are reducing gun violence, keeping guns out of the hands of criminals, and stopping people from carrying around pistols for “protection”. Shooting sports are really low on the radar.

15

I considered that, and given the momentum in CCW recently I’m uncertain what would be the anti-gunners approach, and I’m uncertain how Heller or McDonald would impact the future.

I think they have to a small extent, probably just a momentary thing to avoid a repeat of the 1994 elections this year. And there are a growing number of pro-gun Democrats, although they seem to be 1) well in the minority, and 2) the sort of folks who are happy to vote Party-line when the whip is cracked.

The NRA (who never lie…) claim that HCI has been strongly working towards a multitude of hunting restrictions in order to end the “deadly American fascination with guns” ever since its first year of formation. Among the average gun control-oriented folks there’s obviously a continuum of beliefs.

16

Could you please explain what you mean by “protection”?

17

The main concerns are exercising power over other people and accusing others of having small penises on the Internet. Pretending to care about the fluffy bunnies is as good as pretending to care about crime as far as wallpaper for their authoritarian agenda goes, and I’m sure it will become part of the argument whenever the anti-rights crowd decides it is effective.

18

I agree. When a concealed carry bill was being debated in Wisconsin several large police groups, including the Milwaukee Police Association and the Troopers Association, came out in favor of it. The antis ignored them and kept ranting how the bill would put police officers lives in jeopardy. Proving they don’t give a rats ass about anything except control.

19

The “anti-rights” crowd here are the gun lovers. They are the ones who demonstrate a complete willingness to sacrifice every other right as long as they can sit around clutching their guns. They are the ones who try to get their way politically by threatening murder. They are the real supporters of authoritarianism. As for comments about small penises, well frankly that’s exactly how gun lovers act, as caricatures of Guys Compensating For Something.

That’ll happen when the bodies stop piling up. Never, in other words.

Or just proving that they disagree.

20

It’s possible, I suppose, that the Brady Campaign is trying to stop hunting and target shooting and just not talking about it because they know it’s not popular, but other than a lawsuit they filed to ban guns in National Parks (and hunting and shooting is already banned in National Parks), I can’t find any big cases they’ve taken on or any information on their website regarding hunting or target shooting.

They’ve also supported the American Hunters and Shooters Association, which is an organization set up in 2005 by Ray Schoenke, which takes the position, “We support hunting and target shooting, but think the NRA is crazy, and we support more gun control and stricter regulations of handguns.”. The NRA has, of course, accused the AHSA of being a Brady Campaign “Trojan horse” organization, and “nothing more than the enemy in camouflage”.