Many have heard about the historic gun rights case going to the Supreme Court. Fewer have heard that this is also a major case for businesses and family values. It could lead to anything from court-ordered Obamacare to same-sex marriage. This is the biggest case of the year, and everyone has a stake in it.
On March 2, the Supreme Court will hear arguments in McDonald v. City of Chicago. It is a gun rights case, challenging Chicago's categorical ban on handguns. The ban is essentially identical to the D.C. gun ban that was struck down by the Supreme Court in the 2008 case D.C. v. Heller, in which the court held that an absolute ban in the federal city violates the Second Amendment.
The question in this case is whether the Second Amendment applies to cities and states as it does to the federal government. The Bill of Rights applies only against actions of the federal government. Most of the Bill of Rights has since been applied to the states (or "incorporated," to use the legal term) by the Fourteenth Amendment. The question in McDonald is whether the right to keep and bear arms is incorporated against the states.
"Incorporated" is the word used so often by pro-gun folks, I think to give the impression that they're hip to legal terms. Some of them may be, but they always use this word in a way that sounds like it would decrease federal control in favor of the states and cities. They always use it to say that it increases freedom and rights. But does it?
Here's what Laci says.
I have always held that Heller was tyranny in the guise of the Second Amendment since the DC gun law was locally enacted, yet non-DC citizens used the court system to overturn a law they didn't like. This was true even though the DC law was popular amongst DC residents.
I don't think that the people who hope McDonald will find that the right will be incorporated against the States realise the implication. Instead, they prefer to hear something that matches their view of the world: the Second Amendment is incorporated against the States.
Facially, that is a ridiculous proposition since the Second Amendment was designed to protect state sovereignty (that is State's militias) against Federal power (the US Army). The fact that this irony is not perceived only shows how the Second Amendment has been perverted by special interests.
What's your opinion? Isn't this incorporation business a way of increasing federal control over the states? Are the gun control folks so short-sighted they fail to see the problem with this? Doesn't it do just the opposite of what they always claim they want?
What's your opinion? Please leave a comment.
Was the Civil Rights Act a way of increasing federal control over the states?
ReplyDeleteGeorge Wallace thought so.
You guys really need to get over it.
ReplyDeleteCan you imagine what you would be saying about us if we were still complaining 18 months after the decision if it had gone the other way?
I can't wait to hear what you have to say after Chicago loses.
Boy you really have no understanding of Constitutional law do you MikeB?
ReplyDeleteAre the gun control folks so short-sighted they fail to see the problem with this? Doesn't it do just the opposite of what they always claim they want?
ReplyDeleteIf it is the federal government telling the state "No, you can't restrict that freedom" I'm probably in favor. If it is the state telling the town "you can't restrict that" I'm likely in favor. If it is the constitution and Supreme Court telling the rest of the federal government "No, you can't restrict that freedom", I'm probably in favor.
Sevesteen, Does that mean you're opposed to what they do in Montana?
ReplyDeleteCan you be a little more specific about Montana?
ReplyDeleteYes, I think it was Montana that defied the national laws and arranged to make their own rules about the within state manufacture and sale of guns. I may not be saying it exactly right, but that's what I meant.
ReplyDeleteThe Montana challenge of abuse of the interstate commerce act is interesting. I think they are right, but also that they will lose.
ReplyDeleteThe fed is restricting a freedom. Montana is challenging that restriction. You seem to think that is inconsistent with my previous comment, I think it is fully consistent.
I don't understand how we got to the point where the interstate commerce clause gave the federal government so much power over the states. I don't think it was ever intended to allow any federal law so long as there is some tenuous connection to interstate commerce. The effect is to make a mockery of the 9th and 10th amendments. In fact, If I could somehow magically get the founders to edit one part of the constitution so their intent was more clear in modern times it would be interstate commerce rather than the second amendment.
So, when the fed is restricting a freedom, that's bad. But when the fed is allowing a freedom, like in Heller, that's good.
ReplyDeleteSeems like you want it both ways.
So, when the fed is restricting a freedom, that's bad. But when the fed is allowing a freedom, like in Heller, that's good.
ReplyDeleteSeems like you want it both ways.
No, I want the constitution followed. There are powers specifically granted the fed, there are powers that are specifically denied the states. When either group exceeds their authority, they should be slapped down. In the case of the states, it is often up to the fed to do the slapping.
MikeB - The Fed does not "allow" us our freedoms.
ReplyDeleteIt's no wonder you have problems with facts and the Constitution. You don't understand even the most basic Constitutional principles.
Sevesteen, That sounds good and I believe you. In some cases we might want to go one way and in others the other. That's the right way.
ReplyDeleteLaci: "I have always held that Heller was tyranny in the guise of the Second Amendment since the DC gun law was locally enacted, yet non-DC citizens used the court system to overturn a law they didn't like. This was true even though the DC law was popular amongst DC residents."
ReplyDeleteAnother bogus claim.
First, Heller was a DC resident who applied for a gun permit and was denied. Did he get legal help from outside? Of course -- not at all unusual in civil rights cases.
And did the Court overturn a local law popular amongst the majority? Of course -- also not at all unusual in civil rights cases. The majority in a locality wants to prohibit abortion or intergration or gun ownership, and the minority appeals to the Court.
FishyJay, That's a good point about the majority wanting something that is wrong and the minority having to appeal to a higher court. But, isn't it just a possible that a vocal and powerful minority gets its way even if it's wrong. I mean, the popular opinion isn't the final say, right?
ReplyDeleteMikeb: "That's a good point about the majority wanting something that is wrong and the minority having to appeal to a higher court. But, isn't it just a possible that a vocal and powerful minority gets its way even if it's wrong. I mean, the popular opinion isn't the final say, right?"
ReplyDeleteSure -- it all depends on whether one approves of the outcome. The majority in some places disapproved of the Court's rulings on abortion and segregation, and thought that they were victims of "tyranny."
What's bogus is is trying to claim that the Court finding for the rights of a minority against the will of the majority is itself something special and evil -- when in reality it's common in civil rights cases.
I love how Laci tries to justify DC's ban by saying that it the majority of DC residents supported it, as if somehow mob rule negates individual rights.
ReplyDeleteOne could certainly claim that a majority of residents in many southern cities supported segregation & separate but equal even after Brown
Should they have been able to enact and enforce unconstitutional laws against minority blacks just because they were in the majority?