Why I should love Heller-McDonald!

First off, I want to repeat something I mentioned in the Wisconsin AFL-CIO  post on Gun Control from yesterday

Corporate America could care less about gun control, traditional family values or abortion (or the latest useful single issue-of-the-day), nor does it feel totally comfortable with the extremism of the religious front for the Right, but the overall movement serves corporate economic interests perfectly.

 If you missed the fact that Dick Heller and Otis McDonald didn't foot the bill for their cases going to the Supreme Court, or that the outcomes would most likely be different had they been footing the bill--these cases were funded by the Cato Institute.

I have to admit that I am not sure of why Cato would have funded these cases other than as an experiment to see how much they could use the judicial system to thwart the democratic process.  It's more of a cynical ploy to use the type of thing the right calls "Judicial Activism" to the right's advantage.  Although, if the intent was "gun rights", these cases fail miserably!

Not to mention, gunloons can chant their meaningless mantra of "individual right", but these decisions re pretty much useless if your goal is some sort of significant form of "gun right".

Once again here is the Heller-McDonald language:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Heller at 54-5

Which has as a footnote (26):

We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.

Better yet:

But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Heller at 64

From McDonald:

It is important to keep in mind that Heller, while striking down a law that prohibited the possession of handguns in the home, recognized that the right to keep and bear arms is not “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” 554 U. S., at ___ (slip op., at 54). We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as “prohibitions on the possession of firearms by felons and the mentally ill,” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Id., at ___–___ (slip op., at 54–55). We repeat those assurances here. Despite municipal respondents’ doomsday proclamations, incorporation does not imperil every law regulating firearms. McDonald at 39-40

The only thing off the table is anything that purports to be a ban. Which leads to my question: had Chicago theoretically allowed for registrations (as does New York City) since that is not an “absolute prohibition”– would the law have passed constitutional muster? After all, NYC’s law has been around for 99 years: doesn’t that count as a longstanding regulatory measure?

Likewise, Candidates cannot say that gun laws violate the Second Amendment if they do not infringe upon the rights to truly “law abiding citizens” to own firearms. As the Court said (twice) “the right to keep and bear arms is ‘not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.’”  Neither of these decisions got rid of registration or background checks and the most amusing aspect was that Dick Heller was refused a gun permit after all this was over!  Not only that, Heller's appeal of that decision upheld DC's Firearms restrictions!

Challenges to firearms laws post-Heller-McDonald have pretty much fallen on their faces with the Brady Campaign issuing a report calling them  a "Hollow Victory".  According to that report: "Since the Heller ruling, criminals and the gun lobby have brought more than 400 challenges to gun laws, an average of more than two legal challenges every week over the last three years. Yet, the courts have overwhelmingly rejected those cases."

And why not?  It seems that pretty much the only thing which is off the table is a firearms ban.  Othwerwise, "longstanding regulatory measures" are pretty much OK according to the new interpretation of the Second Amendment.

There is now no reason why a politician cannot support stricter regulation of firearms using these shoddy decisions and remain "faithful to the Second Amendment"--Well, other than the NRA will do everything to crucify them.  But, the question also remains how relevant is the NRA to the political process?

Paul Waldman, of the American Prospect, has recently argued that the NRA's dominance is a myth. He has looked closely at the figures and writes, “Despite what the NRA has long claimed, it neither delivered Congress to the Republican party in 1994 nor delivered the White House to George W. Bush in 2000.” He also argues that NRA money has no impact on congressional elections, as it spreads its money over so many races, and that NRA endorsements are “almost meaningless” as most go to incumbent Republicans with little chance of losing.

More cause for concern came on April 17th, when the American Legislative Exchange Council ended its task force responsible for promoting pro-gun legislation. This followed the controversy over ALEC’s ties to "stand your ground" laws around the country. ALEC will now focus its efforts on jobs, free markets and growth, but not firearms.  Just remember that ALEC, Cato, and the Koch Brothers are pretty much the same thing.

Developments are beginning to suggest an attenuated NRA. The organisation has had its political power called into question, lost an ally in promoting gun laws, and caters to an ageing demographic, on top of pushing a potentially dangerous product that is of less interest to American households. Time will tell, but it seems reasonable to wonder whether the NRA has as much firepower as it claims.

 In fact, While support for “gun control” in the abstract has declined in recent years as the issue has been out of the spotlight, widespread support for specific measures to restrict gun sales remains as high as ever.  If anything, the Heller-McDonald decisions make it easier for a politician to say he is "pro-Second Amendment" yet pro-gun control.  The real question is how long can guns remain a wedge issue?

People may have begun to wake up on this one, or will just see the handwriting is on the wall for the concept of "gun rights".

See also:

• The Myth Of NRA Dominance Part I: The NRA’s Ineffective Spending
• The Myth Of NRA Dominance Part II: Overrated Endorsements
• The Myth Of NRA Dominance Part III: Two Elections The NRA Did Not Win
• The Myth Of NRA Dominance Part IV: The Declining Role Of Guns In American Society
• the Economist, Guns in America: The NRA’s star may be on the wane, Apr 19th 2012 
• Brady Campaign, Hollow Victory

McDonald vs. Chicago

The Huffington Post published a wonderful article by Lonnie Saunders about McDonald vs. Chicago.

I had a front row seat, next to the attorneys for Petitioner Otis McDonald, the 76-year-old South Side African-American grandfather, who brought this action. From the justices' questions, it sure didn't seem like a slam dunk for the gun lobby.

Now, that's a refreshing and hopeful change from what I've been hearing from the pro-gun side. Ms. Saunders goes on to explain in very simple terms the difference between the District of Columbia and Chicago, pointing out the fact that even the conservative Justices favor States Rights in many cases.

Attorney Benna Ruth Solomon, who represents the city of Chicago, explained it this way: "We are defending the right of choice for state and local governments. We are not the party seeking to change the law that has existed for the past 200 years. We are not seeking to impose Chicago's handgun ban on other jurisdictions. Gun regulation decisions should be made based on local conditions."

Justices Antonin Scalia and Clarence Thomas, in particular, have traditionally paid careful heed to states' rights. As Justice Antonin Scalia put it during oral arguments in McDonald, "If there is a constitutional right, we find what the minimum constitutional right is, and everything above that is up to the states. In Heller, we did not decide the concealed carry law. You may have a great deal of divergence from state to state, and on that I suppose the legislature would do statistics. Statistics are not important for judges but they would be for the legislatures."

What's your opinion? Is this decision a slam dunk for the gun rights side? Are the gun control folks just whistling in the dark here?

Please leave a comment.

Dennis Henigan's Take on McDonald

The Jurist published a report by Dennis Henigan of the proceedings in the Supreme Court hearing last week.

"I was in the courtroom on Tuesday for the Supreme Court argument [PDF file] in McDonald v. City of Chicago, in which the Court is considering whether the new Second Amendment right, created two years ago in District of Columbia v. Heller, is incorporated under the Fourteenth Amendment as a constraint on state and local gun control laws. Unsurprisingly, the same five justices who formed the Heller majority and voted to strike down the District of Columbia's handgun ban, now seem poised to vote for incorporation and strike down Chicago's handgun ban. Although this will be hailed by the gun lobby as a victory, there was much about Tuesday's argument suggesting it could eventually prove to be a hollow victory indeed.

The argument in McDonald gives hope that the McDonald majority, even if it strikes down Chicago's handgun ban, will amplify the Heller message that the Second Amendment erects no constitutional barrier to reasonable laws – at any level of government - to make it harder for dangerous people to obtain dangerous weapons. The gun lobby will be displeased, but the American people will have dodged a constitutional bullet."

What's your opinion? Does it make sense what he says?

Please leave a comment.

Who is this McDonald Guy?

The Chicago Tribune published a wonderful article about the McDonald of McDonald vs. Chicago fame.

From behind the wheel of his hulking GMC Suburban, 76-year-old Otis McDonald leads a crime-themed tour of his Morgan Park neighborhood. He points to the yellow brick bungalow he says is a haven for drug dealers. Down the street is the alley where five years ago he saw a teenager pull out a gun and take aim at a passing car. Around the corner, he gestures to the weed-bitten roadside where three thugs once threatened his life.

"I know every day that I come out in the streets, the youngsters will shoot me as quick as they will a policeman," says McDonald, a trim man with a neat mustache and closely cropped gray hair. "They'll shoot a policeman as quick as they will any of their young gangbangers.

"To defend himself, McDonald says, he needs a handgun. So, in April of 2008, the retired maintenance engineer agreed to serve as the lead plaintiff in a lawsuit challenging Chicago's 28-year-old handgun ban. Soon after, he walked into the Chicago Police Department and, as his attorneys had directed, applied for a .22-caliber Beretta pistol, setting the lawsuit into motion.

When that case is argued before the U.S. Supreme Court on March 2, McDonald will become the public face of one of the most important Second Amendment cases in the nation's history.

The article describes at length the process whereby McDonald was selected to be the "poster boy" of the NRA-funded lawsuit. He is sympathetic. And I find no fault in lawyers trying to make their case as attractive as possible. But what I question is the concept itself.

Does anyone believe that Mr. McDonald will be able to defend himself against cold-blooded teenage killers if only he'd be permitted to carry a gun? I don't. He's an older man, with an older man's reflexes, who presumably is not a cold-blooded killer, who will be outnumbered every time he steps out of the house. Is a gun going to help?

Wouldn't having a gun in the situations he described actually have been a liability? Instead of having experienced a number of threats and incidents of intimidation, if he'd shown a gun, he'd most likely have been killed.

So, my conclusion is that although Mr. McDonald is a sympathetic figure-head for the Chicago gun movement, he's a poor example of the need for gun rights. A gun will not help his chances of survival, it will hurt them. Meanwhile, next time his house is burgled, the thieves may very well steal handguns as well as shotguns.

What's needed in Chicago and many places is fewer guns not more. Only by diminishing the total number of guns in America, as well as tightening up the gun control laws, do we stand a chance of diminishing gun crime.

What's your opinion? Please leave a comment.