Posted on 03/04/2010 12:50:14 PM PST by neverdem
Justice Antonin Scalia delivered the big laugh line of the hour at Tuesday’s Supreme Court hearings in McDonald v. Chicago. That case’s outcome will decide whether the Second Amendment rights vindicated in 2008’s D.C. v. Heller apply to states and localities. Scalia amused the crowd by asking a question that has perplexed some legal scholars and gun activists both for and against McDonald lawyer Alan Gura’s general goal of applying Second Amendment protections to all levels of American government.
To get the joke, such as it was, you first need the background about what was at stake. The Bill of Rights was originally interpreted to bind only the federal government. The framers of the 14th Amendment intended to change that, and bind the states as well in respecting Americans’ rights. This was in 1868, when recently freed slaves had their rights to work, own property, and bear arms widely abused and unprotected by state and local governments.
The history of the 14th Amendment's passage indicates that a certain part of the amendment was meant to bear the interpretive burden of applying—“incorporating” in the legal lingo—the Bill of Rights (and other restrictions on government power) to the states. That was the Privileges or Immunities Clause: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”
Since a controversial 1873 Supreme Court decision in a set of cases regarding a slaughterhouse monopoly in Louisiana, known as the Slaughterhouse Cases, the Privileges or Immunities Clause has been pretty much interpreted out of existence. The Supreme Court has instead used the vaguer and less textually sensible “due process of law" provision of the same amendment to incorporate certain rights against the states. Using that tool, the Court over the past century has already...
(Excerpt) Read more at reason.com ...
Machine guns are a hot-button issue. We stand at the edge of a precipice with a narrow five-justice majority on the court, and going fundamentalist on gun rights in public with M-16s and hand grenades would probably be enough to send us flying off the cliff and losing everything that had been so carefully won over the past decades.
Bullshit. Art 6 para 2.
Who are these "Federal" citizens, who are not citizens of a State, who have this protected Right? I want to move wherever they live.
The idiocy of that one statement alone should be enough to have laughed any gun control case out of any sane court.
I'm no lawyer, but I read a lot of stuff since I came to this forum.
When you read the history of the “privileges or immunities clause” of the 14th Amendment, you'll find the right to keep and bear arms specifically spelled out as one of the reasons the 14th Amendment was needed. SCOTUS effectively neutered the “privileges or immunities clause” of the 14th Amendment in the Slaughterhouse case, and its progeny, Presser, Cruikshank and Miller(not the Miller case about sawed off shotgeuns in the 1930s - the other Miller case from the 1890s).
By nuetering the “privileges or immunities clause” of the 14th Amendment in the Slaughterhouse case, the SCOTUS basically hamstrung any more 9th and 10th Amendment jurisprudence and leaves the feds and states bound only by the "due process" clause.
The "due process" clause has since been qualified by SCOTUS into standards of review that black robes use as they see fit.
Substantive due process protects all rights from deprivation without rational basis - that is to say, the Government may not burden exercise of a right without having a reason for doing so. However, this reason may be pretextual or barely sufficient under rational basis review, and thus the protections of substantive due process for blanket rights are very weak indeed.[2]Rights that are deemed "fundamental," though, may only be abridged if a compelling state interest exists, and the abridgment is narrowly tailored to suit that interest. In other words, to abridge a fundamental right, the state must pass "strict scrutiny."
Thanks for the ping!
Are you just naturally adverse to the truth?
I agree fully. Evil and stupid are not mutually exclusive and Sortero seems to be both. It just grates on me when the koolade drinkers talk about how he is so intelligent that us common folks just do not get it.
Thanks, you seem to have a better grasp on this than I do.
Was Gura arguing for the whole loaf
while the NRA was willing to settle for half a loaf?
Read the goa’s legal brief and then reply back.
Since you didn’t get back to me, I would have to assume you read the goa’s brief and found out I told you the truth.
The goa is the only gun group that asked for a “Narrow” view of Heller. Thanks for nothing, goa especially since it’s the SAF and the NRA that are involved with McDonald.
Get back to who?
I read the briefs back when the case was active, and found that only GOA’s was in any way hard hitting. The NRA position to this day remains that unconstitutional federal gun laws should be fully enforced, and that position was the reason that I resigned from the NRA.
Will it ever get corrected?
Then you missed it by a mile. The goa was the only group that asked for the narrow view and that’s what the NRA and the SAF have to deal with.
The goa is nothing but cheap talk. They haven’t done a single thing by themselves with the childish excuse they aren’t big enough. So why can the SAF have a half dozen lawsuits like the NRA?
The goa supports unconstitutional laws by doing nothing about them. The NRA and the SAF sue against unconstitutional laws.
“Gun Owners of America submitted an amicus brief in the Heller case and, among other things, urged the Court not to use the Heller case as a springboard to resolve the constitutionality of all of the nation’s firearms laws.
The GOA brief was the only one making the request not to rule on these other gun issues, thus upholding judicial restraint. We were most pleased to see that the judges heeded our admonition to limit the Court’s holding to the case before it.”
Source. The goa’s website.
Thanks for nothing you sons of bitches.
I heard its not true. Just made up BS.
I can see your problem now. You simply do not understand the issues of these cases. The outcome of Heller was the very best that could reasonably have been expected, else it likely would have been 5/4 the other way around.
The issue is the goa asked for the narrow view and then sits on their lazy ass after Heller and doesn’t do a thing about it. It’s the SAF and the NRA that has to pick up the pieces with McDonald.
The SAF and the NRA has had half a dozen lawsuits because of Heller. There no longer a gun ban in Morton Grove, Illinois. Thank you NRA and SAF.
Go to hell, goa.
I have to repeat, you do not understand the issues.
You love guns (so do I), you’ve been brainwashed by the elitists at the NRA into believing that they do good regardless of the damage that they do by promoting elitist laws at the federal level; I can’t buy that any more, since they’re still lobbying to keep on enforcing unconstitutional federal laws.
I think if it was P&I, it would be harder or impossible for the states to eliminate the right. If it was due process, its easier. Imagine 50 different Lautenberg amendments where your right to a firearm were stripped if you are subject to a domestic restraining order. That would be acceptable under due process.
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