Posted on 02/10/2010 5:21:00 AM PST by jim_trent
Today (this was back on November 16, 2009) the Petitioners in McDonald v. City of Chicago, the case on whether the Second Amendment applies to the states, filed their merits brief. You can read it here. It’s a truly remarkable brief. It devotes 55 pages to arguing that the Supreme Court should overturn The Slaughterhouse Cases (1873) and embark on a new era of a newly rejuvenated Privileges or Immunities Clause. It then gives a mere seven pages, at the very end of the brief, to applying existing doctrine and arguing that the Second Amendment is incorporated and applies to the states under the Due Process clause. It’s certainly an attention-getting way to brief the case. It’s not just arguing for a win: It’s arguing for a revolution.
(Excerpt) Read more at volokh.com ...
http://volokh.com/2009/11/17/how-many-votes-to-overrule-the-slaughterhouse-cases/
So which is the better outcome for us?
The Privileges or Immunities Clause?
Or the Due Process clause?
It is almost a given that the Second Amendment will be incorporated.
Hence, the stretch to overturn Slaughterhouse.
I suspect that given the Court’s recent decision to allow the NRA (which argued for incorporation via due process) time at oral argument indicates that the Court is not interested in the P&I argument put forth by Gura and wants some briefing on the real issue at dispute.
Argue them both. Who knows what the Supreme court will do. Cover all bases. That is why I am glad the NRA was given time to argue the other possibility.
I’m still confused as to whether there is a difference to us in outcome or if incorporation is incorporation regardless of the legal route taken.
From what I read, it would have no affect on gunowners regardless of which theory they choose — as long as they incorporate the 2nd Amendment.
Remember that in the Washington DC case, we only won 5 to 4. The 4 wanted to END all of our 2nd Amendment rights. I doubt that the 4 will change their mind on this one. That means that all five remaining must agree on which theory (P&I or Due Process) that they choose to incorporate the 2nd Amendment under. That means that both theories should be argued to cover all our bases.
It appears from their brief, Gura was asking the Supreme Court to dramatically reverse a previous decision (the Slaughterhouse Cases) in order to incorporate the 2nd Amendment. It would be great for the Libertarians (which Gura is — and he doesn’t own a gun) if they do this. They gave short shift to the Due Process argument. However, it is VERY risky. That is why I am glad the NRA is getting time to present the less risky option.
The NRA has taken a lot of heat on this website over “horning in on Gura’s case”, but I think it is best for gunowners that they are doing so.
Article VI, paragraph 2:
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
ping
thanks for the ping
http://www.law.cornell.edu/supct/html/historics/USSC_CR_0526_0489_ZD1.html
You DO NOT want P&I, it will give the Federal courts unprecedented power to interfere with the States.
The lefties are already salivating over the possibility of a “right” to same-sex “marriage” and universal health care all as a result of the P&I clause. This is the garbage that Gura is really after.
Which side are you on anyway?
Bravo sierra.
How would giving the Federal Courts more power over the States change that?
We already established that you support much of the same intervention into the States by the Federal Courts that Gura does.
Not to mention, Roe and Kelo are both one vote from being overturned.
Wrong answer. Other way around.
I support the protections for our Rights as defined in the BoR, all others not so protected are to be protected by the States.
Is there a Right to on demand abortion in the BoR as you claim? No. Is there a Right to same sex marriage as you claim? No.
There is a Right to own a fully auto machine gun without first having to jump through a thousand government loopholes at the State and Federal Level. This is both a Privilege and an Immunity.
Of course, you'd know that if you were a serious poster instead of just a troll.
The P&I clause would permit Courts to read rights into the BORs that are not there, and to remove rights that are their. In essence it would be the end of our Federalist system. If the Court decides that there is a "right" to universal healthcare, guess what, your State has to provide it as well.
I support the protections for our Rights as defined in the BoR, all others not so protected are to be protected by the States.
Sounds good in theory, but we both know that the Courts would not be so restrained.
Is there a Right to on demand abortion in the BoR as you claim? No. Is there a Right to same sex marriage as you claim? No.
I never claimed that there was. Of course we both know that there isn't. (Although you support the court inventing a "right" to same-sex "marriage.") However, the Courts will "find" such a right in the "penumbras and emanations" of the BORs.
There is a Right to own a fully auto machine gun without first having to jump through a thousand government loopholes at the State and Federal Level. This is both a Privilege and an Immunity.
The Second Amendment is clear enough. The Courts still are not going to interpret it in the correct manner, even under the P&I clause. They will continue to read "reasonable restrictions" into the amendment that are not there. So if you believe that re-writing the P&I clause is going to get you a federal right to own a machine gun, you are sadly mistaken.
Of course, you'd know that if you were a serious poster instead of just a troll.
Your pea-sized brain apparently must consistently retreat to this pathetic nonsense.
Only in your mind does it do so. Sorry, but if that is all the better you can do, it isn't enough...
Really now? If the Due Process Clause has resulted in the Courts doing exactly that, how would giving them even more power under the P&I Clause be any different?
Please, explain WHY the P&I Clause will not result in the Courts further usurping State power. If they were able to do so under the far more limited Due Process Clause, WHAT EXACTLY will stop them from going further?
Please cite authority for your position.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.