Posted on 06/09/2009 6:07:37 PM PDT by neverdem
Alan Gura, the Alexandria, Va., attorney who won the historic Supreme Court ruling last year establishing a personal right to have a gun for self-defense at home, started a new challenge in the Supreme Court Tuesday. It seeks to have the Second Amendment right enforced against state, county and city gun control laws. The petition in McDonald, et al., v. City of Chicago, can be downloaded here.(PDF) (A docket number has not yet been assigned.)
Last week, the National Rifle Association filed a separate appeal raising the same issue (NRA, et al., v. City of Chicago, docket 08-1497). It is doubtful that the Court will consider the two new cases before recessing for the summer, probably late this month.
The McDonald petition involves four Chicago residents, the Second Amendment Foundation and the Illinois State Rifle Association, all challenging a handgun ban in Chicago. Their petition said the ban is identical to one struck down by the Supreme Court in its Second Amendment ruling last June in District of Columbia v. Heller (07-290).
The Heller decision, however, applied only to laws enacted by Congress or for the federal capital in Washington. The Court expressly left open the question of whether individuals would have the same right against state and local government gun restrictions.
Arguing that the Second Amendment right is a “fundamental” one, the new petition said that means that the Fourteenth Amendment guarantees that such rights “may not be violated by any form of government throughout the United States. Accordingly, Chicago’s handgun ban must meet the same fate as that which befell the District of Columbia’s former law.”
Part of their argument is that the Justices should step in now to resolve a dispute among federal appeals courts and state supreme courts on whether the Second Amendment is absorbed (technically, “incorporated”) into the Fourteenth Amendment — a part of the Constitution that operates against state and local government.
The question posed to the Court is whether the incorporation is accomplished under either the “privileges or immunities” clause of the Fourteenth Amendment, or under its “due process” clause. The petition urges the Court to use this case as an opportunity to reexamine the meaning of the “privileges and immunities” provision, which it noted was given an “almost meaningless construction” by the Court’s controversial decision in the Slaughter- House Cases in 1873.
The split of authority in lower courts “warrants speedy resolution, as it perpetuates the deprivation of fundamental rights among a large portion of the population,” it said. It would serve no purpose to let this conflict go on, the petition contended.
If the 2nd amendment doesn’t limit state and local governments none of the amendments do. It is ridiculous to think otherwise.
The Civil War Amendments, the 13th, 14th and 15th passed right after the Civil War were designed to ensure all citizens had the same Bill of Rights. If you want a brief history read the link above. It's good if we all get on the same page and support the litigants as best we can.
While I agree with you, the government has been doing a lot of ridiculous things lately.
Lately? Where have you been?
ping!!!
the Constitution is clear that Rights are not privileges/immunities. Rights come from God/natural law and cannot be abridged by government without due process of law ... which means by conviction of a crime.
Privileges/immunities come from government, not God. Government can change them. The 14th only requires that government cannot impose privileges/immunities in a way that discriminates. For example, voting is a privilege, not a right. The 14th requires that the ability to vote cannot be applied in an uneven manner.
The 2d and 10th are the two Bill of Rights that specifically include the capitalized word State. They clearly and explicitly apply to the state.
Only the 1st explicitly does not apply to the states in that it says CONGRESS SHALL MAKE NO LAW. Of course, the reconstruction amendments extended the 1st so that States cannot apply the freedom of speech, press, religion unevenly in a discriminatory manner.
This is the clear meaning of the words, regardless of any penumbra seen by Plessy v Ferguson or the decision that reversed Plessy, both of with are post 14th amendment. It seems the wording is clear to everyone except lawyers.
“The Heller decision, however, applied only to laws enacted by Congress or for the federal capital in Washington. The Court expressly left open the question of whether individuals would have the same right against state and local government gun restrictions.”
I don’t believe that is correctly describing the Heller decision. As I remember, Heller said that the 2nd Ammendment was an individual right (an important point). As far as state and local laws....I believe it vaguely said reasonable restrictions could be applied. However, the clear message was that the 2nd Ammendment was an individual right as is the First Ammendment. Therefore, it set precident that states & local governments must recognize it as they do the First Ammendment.
One of the problems with Obama’s Ms. Latino judge is that she has said the 2nd Ammendment only restricts the Federal Government from restricting firearms. This, of course, is flawed logic. If the First is an individual right not to be abriged by states, so is the 2nd. That is one reason this lady is not suitable for the SCOTUS.
You know, in the last 40-80 years. Lately.
Well, I'll take what I can get. So, I gather she favors repeal of NFA 34, GCA 68, Brady, and the other federal infringements? Because the Second Amendment only applies to the feds?
“The Heller decision, however, applied only to laws enacted by Congress or for the federal capital in Washington. The Court expressly left open the question of whether individuals would have the same right against state and local government gun restrictions.”
Is that quote from the pdf? I can’t my pdf link to advance beyond the first page.
Thanks for the link.
Clarence Thomas's opinion in Saenz v Roe is the clearest explanation of the original understanding of "privileges" and "immunities" that I've read. According to him, they were understood to encompass the fundamental rights belonging to all American citizens.
Justice Bushrod Washington's landmark opinion in Corfield v. Coryell, 6 Fed. Cas. 546 (No. 3, 230) (CCED Pa. 1825), reflects this historical understanding.
-snip-
Instead, he endorsed the colonial-era conception of the terms "privileges" and "immunities", concluding that Article IV encompassed only fundamental rights that belong to all citizens of the United States.
J.Thomas, Saenz v Roe
http://www.law.cornell.edu/supct/html/historics/USSC_CR_0526_0489_ZD1.html
I like the way you think...too bad you aint voting at the confirmation...
Well, I do love an optimist...
I'm guessing she views the Second Amendment like the Heller dissenters do (i.e., a "collective", not an individual, right). Read the dissenting opinion of Justice Stevens in Heller for details.
Disclaimer: I believe Roe vs Wade was a bad decision by the court. I think abortion should be a state issue...and the feds need to stay out of it.
Until the 14th Amendment I think it was clear to everyone that the amendments only applied only to the federal government. Why the Supreme Court embarked on the piecemeal incorporation trail I do not know. It really makes zero sense whatsoever. But that is where we are. I would have to think with the same 5 who handed down the Heller decision the second will be incorporated as well.
Remember, this filing is just to persuade SCOTUS to accept the appeal. While seeming to provide enough material to win the case outright, it is not intended as the actual case argument.
Great job, Gura!
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