Posted on 03/07/2010 1:07:26 PM PST by BuckeyeTexan
The Supremes are considering another 2nd amendment case which might have far reaching consequences (in a good way) on this particular battle front. George Will has a good column this week which takes a look at the history of the fight and what the implications of McDonald v Chicago might be.
It probably will result in a routine ruling that extends a 2008 decision and renders dubious many state and local gun-control laws. What could — but, judging from the justices’ remarks during oral argument, probably will not — make the ruling momentous would be the court deciding that the two ordinances at issue violate the 14th Amendment's "privileges or immunities" clause. Liberals and conservatives submitted briefs arguing, correctly, that this clause was intended to be a scythe for slicing through thickets of state and local laws abridging fundamental liberties.
This isn't a simple issue for those who haven't followed this particular argument closely, but after Heller opened the door for the debate, it does't boil down to a matter of whether or not the 2nd amendment is an individual right (SCOTUS has already determined it is) but rather on which constitutional grounds the finding is based. First they may have to speak to whether or not the 2nd amendment is one of the fundamental rights which are incorporated down to the states, or whether the states still retain the ability to restrain those rights with impunity.
But second, they would have to identify which aspect of the 14th amendment is to be used as the basis for the finding. Will it be the guarantee that no state shall deny liberty "without due process of law" or will they dig up the long abandoned "privileges or immunities" clause?
To the drafters of the 14th Amendment, the phrase "privileges or immunities" was synonymous with "basic civil rights." But in 1873, the court held that only some of the rights enumerated in the Bill of Rights restrict states by being "incorporated" into the 14th Amendment's "due process" clause.
Since 1897, the court has held, with no discernible principle, that some rights enumerated in the Bill of Rights are sufficiently fundamental to be "incorporated" but others are not. This doctrine bears the oxymoronic name "substantive due process." Substance is what process questions are not about.
If the court now "incorporates" the Second Amendment right via the "due process" guarantee, that will be progress because it will enlarge the sphere of protected liberty. And even Justice Antonin Scalia, who recognizes that "substantive due process" is intellectual applesauce, thinks it is too late to repudiate 137 years of the stuff. Still, three points argue for using the "privileges or immunities" scythe against the two gun ordinances.
Early indications from observers seem to indicate that they will back down and go with the due process argument. This is good news to some conservatives, believe it or not, who fear that liberals would take a finding of privileges or immunities and run with it to "discover" all sorts of other imagined rights, covering things like health care, welfare, or the continued, vigorous lifestyle of the salt marsh tit mouse.
Stay tuned to see how good George Will's crystal ball is. We should find out before too long.
Of course this case is a true no brainer for anyone who has read the Constitution, understands the intent of the Founders or has respect for the rights of the American people. Tragically, that EXEMPTS four of the SC justices!!
-—hoping for the best, but realistically remembering the words of Neal Knox about thirty years ago that you don’t tell the SCOTUS what to do and you don’t know what it is going to do-—
I read somewhere that the guys on our side want to keep this in a realm where they can get Kennedy's vote, better something than nothing.
I think we're going to have to be happy taking small steps to reclaim our Country, after all, it was a bunch of small steps that got us here in this mess.
Or we could just have a war {;^)
We will soon find out if in Chicago we can carry in preparation for the McBurglar.
This has got tho be the most ridiculous case I have ever seen, they better come down on our side.
The Kabuki dance has gone on long enough.
LOL, and these guys are supposed to be Constitutional expererts!
Scary stuff my FRiend!
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=32&invol=243
expererts! = experts!
I hope are current SCOTUS is better at the Constitution than I am typing!
So much of case law is “do the thing that looks politically right.”
Indeed, that’s why precident is so important to the libs for judge confimations....would’t want to set them back any in their “progress”, bassturds.
This one is going to be intersting, we’ll see.
What part of “shall not be infringed” don’t the State and Federal Governments understand?
Both, believe it or not. Then again, I don't care.
As you know, the right of self defense is sacrosanct. Government really doesn't have a say. God has already decided.
5.56mm
“End result: pretty words. no change in the status quo. “
Wrong, they will have further reinforced the doctrine of “incorporation” and all of its evil and destructive consequences to our rights. While at the same time they will have further demonstrated the uselessness of the 2nd amendment for serving any practical propose. as it is after all applied to the states then the same exceptions applied by the states would be applied by the Federal government not only upon the people everywhere so that there be freedom no where, but upon our states at well, so there be no way to stand up to them.
They are effectively consolidating power, and the NRA is parshaly responsible for this power grab. Meaning the NRA is either hopelessly stupid, or really not on the side of gun rights and liberty. Either way I feel betrayed.
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