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Thread: McDonald to be heard by SCOUS March 2010

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    November 30, 2009 6:23 PM
    Supreme Court Schedules Major Gun Rights Case

    Posted by Declan McCullagh


    The U.S. Supreme Court has set a date to hear the landmark civil liberties case that will determine whether the Second Amendment prohibits state and local governments from enacting stiff anti-gun laws.

    Oral arguments in the lawsuit, McDonald v. City of Chicago, will be held on the morning of March 2, 2010. A decision is expected by late June or early July.

    It's also worth noting the amicus briefs that have been filed in the last week or so in support of the Second Amendment Foundation and other groups challenging Chicago's handgun restrictions.

    There are at least 30 of them -- ably reposted at ChicagoGunCase.com -- plus two unaffiliated ones filed by the NAACP Legal Defense & Education Fund and the Brady Center To Prevent Gun Violence. (The NAACP wants to ensure that any decision won't jeopardize other civil rights, and the Brady folks argue that even if the Second Amendment applies to state gun laws, the justices should adopt a deferential approach that lets nearly all of those laws survive.)

    This article isn't long enough to summarize all of those briefs. But the highlights include:

    * Thirty-eight state attorneys general believe that the Second Amendment protects an individual right against infringement by state and local governments: "Unless the ruling of the court of appeals below is reversed, millions of Americans will be deprived of their Second Amendment right to keep and bear arms as a result of actions by local governments, such as the ordinances challenged in this case."

    * Law enforcement instructors and trainers, in a brief written by David Kopel, highlight original research including what happened after South Carolina re-legalized handgun sales (crime fell) and Chicago enacted a ban (crime rose). Kopel runs the numbers and concludes: "Chicago after the handgun ban is much more dangerous, relative to other large American cities, than was Chicago before the ban."

    * Philosophy and sociology professors offer a break from a legalistic argument to stress the right of self-defense. An excerpt: "To the Founders, the right to be armed was an integral part of the right to self-defense, as is illustrated in a 1790 lecture by an original member of this Court, Justice James Wilson. Justice Wilson was a law professor, member of the Constitutional Convention, and the primary author of the Pennsylvania Constitution. He explained the right to use deadly force to repel a homicidal attacker as a natural, inalienable right."

    * In what may come as a bit of a surprise, dozens of California and Nevada prosecutors believe the Second Amendment must apply to states, saying "the fundamental rights embodied in the Second Amendment deserve the same protection afforded other fundamental rights." (Note San Francisco, home of the failed-in-court handgun ban, is not one of them.)
    Some background: the Second Amendment, of course, says that Americans' right to "keep and bear arms" shall not be infringed. Last year's decision in D.C. v. Heller applied that prohibition only to the federal government and federal enclaves like Washington, D.C., but left open the question of "incorporation" -- that is, what state laws were permissible or not.

    As a result, in the wake of Heller, anti-gun court decisions have proliferated. There's the Maryland appeals court that concluded residents enjoy no constitutional gun rights, a similar New Jersey ruling, and another one from Illinois.

    If I had to handicap the outcome of this case, there seems to be a reasonable chance that Alan Gura and the McDonald plaintiffs will win. But a technical win may not have much of a practical effect -- as long as lower courts can figure out a way to justify as constitutional local restrictions that differ only slightly from Chicago's. This may not matter in gun-friendly places like Idaho; it certainly matters to citizens of California, Iowa, Maryland, Minnesota, New Jersey and New York, all of whom lack a right to keep and bear arms in their state constitutions.

    It looks like the Brady Center came to the same conclusion; its brief seems to assume that the Second Amendment does apply beyond the federal government, and instead argues that courts should adopt a "deferential" standard when evaluating state and local ordinances. Of course, advocates for what may be about to become the nation's newest civil right might say that's the same as having no standard at all.

    Update 11:03 p.m. ET: Dave Kopel wrote in to tell me that my two-word summary of South Carolina's experience post-handgun legalization was not as accurate as it could be. Crime rose in the state post-legalization, but it rose less than it did elsewhere. So it rose in absolute terms but fell somewhat in relative terms (albeit not statistically significant relative terms). Here's a longer excerpt from his brief: "Crime was soaring nationally in the late 1960s, but it rose somewhat less in South Carolina in the post-ban years. If handgun ownership by law-abiding citizens were criminogenic, then one would have expected just the opposite result: after handgun sales were relegalized, South Carolina violent crime should have risen sharply, relative to the United States as a whole, since South Carolina was the only state in the period that enacted a law to greatly increase handgun availability."

    Update 11:05 p.m. ET: Alert CBSNews.com Reader Matthew C. points out that a New York state law protects the right to keep and bear arms. (Go here and search for "infringed" to find the statute, which basically tracks the text of the Second Amendment.) I replied to Matthew by saying in part: "In the absence of a state constitutional guarantee, any subsequent act of the legislature generally will trump the legislature's earlier enactments (such as the NY statutory text you quoted). If there is a strong state preemption law, NY citizens may be able to be rid of restrictive local ordinances, but that doesn't protect them from what Albany does, and the continued existence of New York City's anti-gun ordinances makes me suspect that no such preemption exists."


    [line]

    Declan McCullagh is a correspondent for CBSNews.com. He can be reached at declan@cbsnews.com

    http://www.cbsnews.com/blogs/2009/11...tml?tag=latest
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    Wow this is suprisingly awesome and so dangerous at the same time for the individuals of those respective states.
    I see a major flaw in all of these proposed cases,it has to do with States localites and not individual protection for all gov. I dont know how you would get something to be enacted to the Fed Level but,there needs to be a end all
    "if your a Citizen/National the 2nd protects you in home,car or at sea in the entire US". Just a couple of sentences with side bars that refer you to the Bill of rights and Constitution,Federalist Papers and some Cesare Baccaria .

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    The other rights in the Bill of Rightsare mostly incorporated to the states, I cant get my head around how SCOTUS could rule otherwise.

    My worry is we have freedom of speech yet we can not yell fire in a movie theater. I am afraid SCOTUSwillrule we can have arms but the states can regulate where and how we can use or bear them. After all we do not allow felons, minorsor the mentaly incompetent to have guns and in my mind that is reasonable. I think we are about to find out where the line is and I am afraid wemay notlike where it is drawn.



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    Regular Member Dreamer's Avatar
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    But you CAN yell "fire" in a crowded theater, if there is, in fact, a fire. The First Amendment doesn't prohibit you from using extreme, frightening, or alarming language if it is in fact warranted or appropriate.

    You don't have to be a fireman to save yourself (or other people) from a fire. You don't have to have a special permit, license, or background check to yell "fire" or use a firehose or fire extinguisher, or to point people towrard the emergency exits. There is no "waiting period" where the State gets to enforce some sort of "cooling-off period" after I first see the fire, before I may yell "fire". I shouldn't have to run home, open my safe, retrieve my own fire extinguisher, and then return to save my family. All these hypothetical restrictions on yelling "fire" in a true emergency would be patently absurd with regards to the 1A, and similar restrictions placed on the 2A should be seen as equally absurd.

    When and where we may need arms for our defense is something we can never know with certainty. Criminals, tyrants, and attackers do not publish their social calenders in advance. Because of this uncertainty, our founding fathers wrote that "the people's right to KEEP and BEAR arms SHALL NOT be infringed"--so that we could be ever-vigilant and ever-prepared.

    If I'm in a situation where someone is threatening my life or the lives of my loved ones--NO MATTER WHERE we are--I feel the 2A gives me the same power to save myself and others as the 1A does in the above scenarios.
    It is our cause to dispel the foggy thinking which avoids hard decisions in the delusion that a world of conflict will somehow mysteriously resolve itself into a world of harmony, if we just don't rock the boat or irritate the forces of aggression—and this is hogwash."
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    Dreamer

    I absolutly agree with everything you posted, I hope SCOTUS agrees as well. In the Heller decisionSCOTUS stated thatreasonable regulation would beallowed. What is rerasonable to them may be very restrictive to people like you and I.

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    The Supreme Court is likely to rule on incorporation only.

    As to what regulations are reasonable, that is likely to bounce around in the Courts of Appeals for a few years.

    My sense is that the Courts of Appeals are likely to allow too much state regulation in this area, and that the Supremes will have to step in yet again. But I doubt it will be on this iteration of this case.

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    Donkey

    There you went and did it, I had to look up iteration, good word, I just hope we dont have too many iterations to go to get the correct result.

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    Dreamer wrote:
    But you CAN yell "fire" in a crowded theater, if there is, in fact, a fire. The First Amendment doesn't prohibit you from using extreme, frightening, or alarming language if it is in fact warranted or appropriate.

    You don't have to be a fireman to save yourself (or other people) from a fire. You don't have to have a special permit, license, or background check to yell "fire" or use a firehose or fire extinguisher, or to point people towrard the emergency exits. There is no "waiting period" where the State gets to enforce some sort of "cooling-off period" after I first see the fire, before I may yell "fire". I shouldn't have to run home, open my safe, retrieve my own fire extinguisher, and then return to save my family. All these hypothetical restrictions on yelling "fire" in a true emergency would be patently absurd with regards to the 1A, and similar restrictions placed on the 2A should be seen as equally absurd.

    When and where we may need arms for our defense is something we can never know with certainty. Criminals, tyrants, and attackers do not publish their social calenders in advance. Because of this uncertainty, our founding fathers wrote that "the people's right to KEEP and BEAR arms SHALL NOT be infringed"--so that we could be ever-vigilant and ever-prepared.

    If I'm in a situation where someone is threatening my life or the lives of my loved ones--NO MATTER WHERE we are--I feel the 2A gives me the same power to save myself and others as the 1A does in the above scenarios.
    BOOYAH:celebrate:celebrate:celebrate:celebrate:cel ebrate
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    Regular Member Superlite27's Avatar
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    Dreamer wrote:
    You don't have to be a fireman to save yourself (or other people) from a fire. You don't have to have a special permit, license, or background check to yell "fire" or use a firehose or fire extinguisher, or to point people towrard the emergency exits. There is no "waiting period" where the State gets to enforce some sort of "cooling-off period" after I first see the fire, before I may yell "fire". I shouldn't have to run home, open my safe, retrieve my own fire extinguisher, and then return to save my family. All these hypothetical restrictions on yelling "fire" in a true emergency would be patently absurd with regards to the 1A, and similar restrictions placed on the 2A should be seen as equally absurd.
    This is one of the best retorts to people using the "you can't yell fire in a movie theatre" to explain "reasonable" regulation of the Second Amendment as compared to "reasonable" regulation of the First.

    I'm going to use this the next time I hear the "can't yell fire in a movie theatre" line. Hope Dreamer doesn't mind if I plagiarize it. It is very well thought out.

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    http://www.nraila.org/media/PDFs/lit..._congress..pdf

    :celebrate:celebrate:celebrate:celebrate

    Many Senators and Congresscritters signed onto an amicus brief of MacDonald.

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    lower your voice
    illegal ≠ immoral legal ≠ moral
    [SIZE=1]"I never submitted the whole system of my opinions to the creed of any party of men whatever in religion, in philosophy, in politics, or in anything else where I was capable of thinking for myself. "Such an addiction is the last degradation of a free and moral agent." - Thomas Jefferson
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    While this may well be an act that produces no results whatsoever, I think it would be most interesting to develop a letter campaign and send each Justice of the Supreme Court a letter.

    Not trying to use legalese with them nor sway them with constitutional arguments, but rather to let them know that WE, THE PEOPLE, feel this is a landmark decision for the court and would like them to not only incorporate the 2nd against the states, but to provide direction to the States that the right to bear arms IS an individual right of every citizen.

    In doing so, also ask the court to provide direction to the states that while many states have instituted a privilege based system, they must also provide every citizen with a non fee based method of self protection as they move about their daily lives in society, and not just at home.

    Address letters to the Honorable xxx
    John G. Roberts, Jr.,
    John Paul Stevens
    Antonin Scalia,
    Anthony M. Kennedy
    Clarence Thomas,
    Ruth Bader Ginsburg
    Stephen G. Breyer,
    Samuel A. Alito, Jr.,
    Sonia Sotomayor
    Supreme Court of the United States,
    Washington, DC 20543.

    It will take me a few days of free time to craft a good letter to them but I am doing it. Going to send one individually to each Justice. I hope you do too.

    If you like this idea, then run with it. Post it on every message board and blog across the Internet.

    At least if the court knows how the people feel, it may help them in their decision making at some point. Maybe not. But it would be great if SCOTUS mailbox runneth over on this issue.

    All the best
    Gulf Coast Gunman

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    Superlite27 wrote:
    Dreamer wrote:
    You don't have to be a fireman to save yourself (or other people) from a fire. You don't have to have a special permit, license, or background check to yell "fire" or use a firehose or fire extinguisher, or to point people towrard the emergency exits. There is no "waiting period" where the State gets to enforce some sort of "cooling-off period" after I first see the fire, before I may yell "fire". I shouldn't have to run home, open my safe, retrieve my own fire extinguisher, and then return to save my family. All these hypothetical restrictions on yelling "fire" in a true emergency would be patently absurd with regards to the 1A, and similar restrictions placed on the 2A should be seen as equally absurd.
    This is one of the best retorts to people using the "you can't yell fire in a movie theatre" to explain "reasonable" regulation of the Second Amendment as compared to "reasonable" regulation of the First.

    I'm going to use this the next time I hear the "can't yell fire in a movie theatre" line. Hope Dreamer doesn't mind if I plagiarize it. It is very well thought out.
    If the 1A stipulation of "You can't yell fire in a crowded movie theater" were to be correctly applied to the 2A, it would be something like "You can't fire a gun into a crowd of innocent people".

    There is nothing unconstitutional about laws that restrict the discharge of firearms in an unsafe and inappropriate manner. There is nothing unconstitutional about adding timeto a sentence because you used a gun to commit the crime.

    The problems arise when they try to restrict the law abiding person who carries for self defense. The problem is when they infringe upon the right to "keep and bear" arms.

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    Not to get off the subject, but most don't understand the root and circumstance of the "Yelling 'Fire' in a crowded theater" quote.

    Of course we all have a right(duty) to yell 'Fire!' when we see a fire.
    Oliver Wendell Holmes made this famous comment in his opinion on the Schenck v. US case during WWI that supported the Espionage Act of 1917, which bans Sedition against the War effort.
    Schenck encouraged people to oppose the draft, by "Asserting your Rights!" This landed him in jail for 6 months as a result of this case and ruling by the SCOTUS.

    Just consider for a moment what differences there are between a bloody and near-pointless war abroad and a fire in a theater of patrons.

    Be careful with history...
    http://en.wikipedia.org/wiki/Shoutin...rowded_theater
    http://en.wikipedia.org/wiki/Schenck_v._United_States

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    Regular Member simmonsjoe's Avatar
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    ufcfanvt wrote:
    Not to get off the subject, but most don't understand the root and circumstance of the "Yelling 'Fire' in a crowded theater" quote.

    Of course we all have a right(duty) to yell 'Fire!' when we see a fire.
    Oliver Wendell Holmes made this famous comment in his opinion on the Schenck v. US case during WWI that supported the Espionage Act of 1917, which bans Sedition against the War effort.
    Schenck encouraged people to oppose the draft, by "Asserting your Rights!" This landed him in jail for 6 months as a result of this case and ruling by the SCOTUS.

    Just consider for a moment what differences there are between a bloody and near-pointless war abroad and a fire in a theater of patrons.

    Be careful with history...
    http://en.wikipedia.org/wiki/Shoutin...rowded_theater
    http://en.wikipedia.org/wiki/Schenck_v._United_States
    Great links thank you.
    illegal ≠ immoral legal ≠ moral
    [SIZE=1]"I never submitted the whole system of my opinions to the creed of any party of men whatever in religion, in philosophy, in politics, or in anything else where I was capable of thinking for myself. "Such an addiction is the last degradation of a free and moral agent." - Thomas Jefferson
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