Thundar
Regular Member
imported post
Excerpts from MacDonald vs. Chicago
JUSTICE STEVENS: I'm assuming we don't have a Second Amendment for purposes of the substantive due process analysis. I'm asking you what is the scope of the right to own a gun that is protected by the Liberty Clause of the Fourteenth Amendment? Is it just the right to have it at -- at home, or is the right to parade around the streets with guns?
MR. GURA: An unenumerated right to arms in the absence of the Second Amendment would be, perhaps -probably identical to that secured by the Second Amendment, because the Second Amendment codified the understanding of that right that people have historically had in the country. So there would not be a difference between the right to arms if it were a part of the Second Amendment or –
JUSTICE BREYER: To be specific, suppose Chicago says, look, by banning handguns not in the hills, not hunting, nothing like that, nothing outside the city, in the city, we save several hundred human lives every year. And the other side says, we don't think it is several hundred and, moreover, that doesn't matter. How do you decide the case?
MR. GURA: We decide that by looking, not to which side has the better statistics, but rather to whatthe framers said in the Constitution, because that policy choice was made for us in the Constitution.
JUSTICE BREYER: You are saying they can have -- no matter what, that the city just can't have guns even if they are saving hundreds of lives, they cannot ban them?
MR. GURA: The city cannot ban guns that are within the common use as protected by the right to arms.
JUSTICE BREYER: But there is a difference. There is a difference -- with other amendments. There is a difference in the other amendments. You have the First Amendment, the First Amendment expression.
Here we have right in the amendment written a militia-related clause. And the way that – the way -- the way that the right might be incorporated in respect to that is light years different. From the way it might be interpreted if you think what it is, is the right to have a gun to shoot a burglar. They are just two separate things.
And as to the first, it's pretty hard for me to see why you would incorporate it, for reasons I won't go into. As to the second, I understand it. So we are starting with a difference in purposes at the least. And shouldn't that make a difference in how you incorporate?
MR. CLEMENT: Well, I mean, I guess what I -- what I don't understand is why, given the way that this Court wrestled in the Heller decision with how to basically apply the operative clause in light of the prefatory clause, why one would want to come to a different conclusion that -
JUSTICE BREYER: Because the -- one of the reasons -
MR. CLEMENT: -- affected the case.
JUSTICE BREYER: -- at least, is that -- you have read, I'm sure, that all the law -- the professors at Harvard, Yale, Princeton, London, et cetera, that say even Blackstone in the 17th century thought that this is primarily a right to raise an army through parliament to -- I can't go on here. I'm just saying think of that brief, and you will see the differences even accepting Heller.
MR. CLEMENT: Thank you, Mr. Chief Justice.
I mean, obviously this Court was focused very much on Blackstone's writings in the Heller decision, and I think the majority read Blackstone actually as being primarily concerned with the self-defense right, which goes a long way to understand why the Heller decision came out the way that it came out.
And I would simply finish by noting that the one thing that I think we can come to a conclusion about Blackstone is the very fact that Blackstone dwelled on the right is good evidence that it's a fundamental right that should apply to the States.
Excerpts from MacDonald vs. Chicago
JUSTICE STEVENS: I'm assuming we don't have a Second Amendment for purposes of the substantive due process analysis. I'm asking you what is the scope of the right to own a gun that is protected by the Liberty Clause of the Fourteenth Amendment? Is it just the right to have it at -- at home, or is the right to parade around the streets with guns?
MR. GURA: An unenumerated right to arms in the absence of the Second Amendment would be, perhaps -probably identical to that secured by the Second Amendment, because the Second Amendment codified the understanding of that right that people have historically had in the country. So there would not be a difference between the right to arms if it were a part of the Second Amendment or –
JUSTICE BREYER: To be specific, suppose Chicago says, look, by banning handguns not in the hills, not hunting, nothing like that, nothing outside the city, in the city, we save several hundred human lives every year. And the other side says, we don't think it is several hundred and, moreover, that doesn't matter. How do you decide the case?
MR. GURA: We decide that by looking, not to which side has the better statistics, but rather to whatthe framers said in the Constitution, because that policy choice was made for us in the Constitution.
JUSTICE BREYER: You are saying they can have -- no matter what, that the city just can't have guns even if they are saving hundreds of lives, they cannot ban them?
MR. GURA: The city cannot ban guns that are within the common use as protected by the right to arms.
JUSTICE BREYER: But there is a difference. There is a difference -- with other amendments. There is a difference in the other amendments. You have the First Amendment, the First Amendment expression.
Here we have right in the amendment written a militia-related clause. And the way that – the way -- the way that the right might be incorporated in respect to that is light years different. From the way it might be interpreted if you think what it is, is the right to have a gun to shoot a burglar. They are just two separate things.
And as to the first, it's pretty hard for me to see why you would incorporate it, for reasons I won't go into. As to the second, I understand it. So we are starting with a difference in purposes at the least. And shouldn't that make a difference in how you incorporate?
MR. CLEMENT: Well, I mean, I guess what I -- what I don't understand is why, given the way that this Court wrestled in the Heller decision with how to basically apply the operative clause in light of the prefatory clause, why one would want to come to a different conclusion that -
JUSTICE BREYER: Because the -- one of the reasons -
MR. CLEMENT: -- affected the case.
JUSTICE BREYER: -- at least, is that -- you have read, I'm sure, that all the law -- the professors at Harvard, Yale, Princeton, London, et cetera, that say even Blackstone in the 17th century thought that this is primarily a right to raise an army through parliament to -- I can't go on here. I'm just saying think of that brief, and you will see the differences even accepting Heller.
MR. CLEMENT: Thank you, Mr. Chief Justice.
I mean, obviously this Court was focused very much on Blackstone's writings in the Heller decision, and I think the majority read Blackstone actually as being primarily concerned with the self-defense right, which goes a long way to understand why the Heller decision came out the way that it came out.
And I would simply finish by noting that the one thing that I think we can come to a conclusion about Blackstone is the very fact that Blackstone dwelled on the right is good evidence that it's a fundamental right that should apply to the States.