From Adam Liptak's article in The New York Times:Rico says it's the old quote: "What's the definition of The Absolute Truth? A five-to-four decision by the Supreme Court." But "the plain words of the Second Amendment"? What could be fucking plainer: "A well-regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed." So what part of "keep and bear" didn't they understand?
The Second Amendment’s guarantee of an individual right to bear arms applies to state and local gun control laws, the Supreme Court ruled in a 5-to-4 decision. The ruling came almost exactly two years after the court first ruled that the Second Amendment protects an individual right to own guns in District of Columbia v. Heller, another 5-to-4 decision. But the Heller case addressed only federal laws; it left open the question of whether Second Amendment rights protect gun owners from overreaching by state and local governments.From Kasie Hunt's column at Politico.com:
Justice Samuel A. Alito Jr., writing for the majority, said the right to self-defense protected by the Second Amendment was fundamental to the American conception of ordered liberty. Like other provisions of the Bill of Rights setting out such fundamental protections, he said, it must be applied to limit not only federal power but also that of state and local governments.
The ruling is an enormous symbolic victory for supporters of gun rights, but its short-term practical effect is unclear. As in the Heller decision, the justices left for another day just what kinds of gun control laws can be reconciled with Second Amendment protection. The majority said little more than that there is a right to keep handguns in the home for self-defense.
Indeed, over the course of two hundred pages of opinions, the court did not even decide the constitutionality of the two gun control laws at issue in the case, from Chicago and Oak Park, Illinois. The justices returned the case to the lower courts to decide whether those exceptionally strict laws, which effectively banned the possession of handguns, can be reconciled with the Second Amendment.
In Chicago, Mayor Richard M. Daley said he was disappointed by the ruling because it made the city’s handgun ban “unenforceable”. “Across the country, cities are struggling with how to address this issue,” Mr. Daley said. “Common sense tells you we need fewer guns on the street, not more guns.”
Justice Alito, who was joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy and, in large part, Clarence Thomas, acknowledged that the decision might “lead to extensive and costly litigation”, but said that was the price of protecting constitutional freedoms. The majority offered the lower courts little guidance about how much protection the Second Amendment affords. In a part of his opinion that Justice Thomas declined to join, Justice Alito reiterated the caveats in the Heller decision, saying the court did not mean to cast doubt on laws prohibiting possession of guns by felons and people who suffer from mental illness, laws forbidding carrying guns in sensitive places like schools and government buildings, or laws regulating the commercial sale of firearms. The important point was a broad one, Justice Alito wrote: that the Second Amendment, like other provisions of the Bill of Rights, must be applied to the states under the Fourteenth Amendment.
Justices John Paul Stevens, Ruth Bader Ginsburg, Stephen G. Breyer, and Sonia Sotomayor dissented. They said the Heller decision remained incorrect, and added that they would not have extended its protections to state and local laws even had it been correctly decided.
“Although the court’s decision in this case might be seen as a mere adjunct to Heller,” Justice Stevens wrote, “the consequences could prove far more destructive— quite literally— to our nation’s communities and to our constitutional structure.”
Though the majority agreed on the outcome, its members differed about how to get there.
The Second Amendment, like the rest of the Bill of Rights, originally restricted the power of only the federal government. The Supreme Court later ruled that most of the protections of the Bill of Rights applied to the states under the due process clause of the Fourteenth Amendment, one of the post-Civil War amendments.
Many constitutional scholars had hoped that the court would use Monday’s decision, McDonald v. Chicago, No. 08-1521, to revise its approach to how constitutional protections are applied to, or “incorporated against”, the states. They argued that the court should rely not on the due process clause, but on the Fourteenth Amendment’s “privileges or immunities” clause, which says that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”. There is evidence that the authors of the clause specifically wanted it to apply to allow freed slaves to have guns to defend themselves. But only Justice Thomas signed on for that project. Justice Scalia, in a concurrence, acknowledged misgivings about using the due process clause to apply Bill of Rights protections to the states, but said he would go along with the method here “since straightforward application of settled doctrine suffices to decide it”.
Five justices wrote opinions in the case, with many pages examining the history of the Second and Fourteenth Amendments. The justices in the majority said that history supported both finding a fundamental individual right and applying it to state and local laws.
The dissenters drew different conclusions from the historical evidence: “The reasons that motivated the framers to protect the ability of militiamen to keep muskets available for military use when our nation was in its infancy, or that motivated the Reconstruction Congress to extend full citizenship to freedmen in the wake of the Civil War, have only a limited bearing on the question that confronts the homeowner in a crime-infested metropolis today,” Justice Stevens wrote in his final dissent before retiring. He said the court should have proceeded more cautiously in light of “the malleability and elusiveness of history” and because “firearms have a fundamentally ambivalent relationship to liberty.”
In a dissent joined by Justices Ginsburg and Sotomayor, Justice Breyer said that history did not provide clear answers and that the empirical evidence about the consequences of gun control laws are mixed. But there was evidence, he said, that firearms caused 60,000 deaths and injuries in the United States each year, and that Chicago’s handgun ban had saved many hundreds of lives since it was enacted in 1983. All of that, Justice Breyer wrote, counseled in favor of deference to local elected officials in deciding how to regulate guns.
Justice Alito responded that many constitutional rights entail public safety costs, including ones limiting the use of reliable evidence obtained through police misconduct. He also acknowledged that the majority decision limited the ability of states to address local issues with tailored gun regulations. “But this is always true,” he said, “when a Bill of Rights provision is incorporated.”
When the Supreme Court extended the individual right to own a gun Monday, it handed Second Amendment advocates— many of whom are at home in the GOP— one of their most significant legal victories ever. But who won the day in politics? The Democrats. For them, the court’s groundbreaking decision couldn’t have been more beneficial to the cause in November. Democratic candidates across the map can now figure they have one less issue to worry about on the campaign trail, and they won’t have to defend against Republican attacks over gun rights with an angry, energized base of gun owners.From Mark Konkol's article in the Chicago Sun-Times:
“It removes guns as a political issue, because everyone now agrees that the Second Amendment is an individual right, and everybody agrees that it’s subject to regulation,” said Lanae Erickson, deputy director of the culture program at centrist think tank Third Way.
A House Democratic aide agreed that the court’s decision removed a potentially combustible element from the mix: “The Supreme Court ruled here that you have a fundamental right to own and bear arms, and that means at the national level it’s harder— whether it’s Republicans or whether it’s the National Rifle Association— to throw that claim out: If Democrats are in charge. they’re going to come get your guns,” said the aide. “It pretty much took that off the table.”
The likely removal— or at least neutralization— of the gun issue this fall is of no small matter in the battles for the House and Senate. The Democratic majorities in both chambers were built, in part, on victories in pro-gun states and districts that had until recently been difficult terrain for Democratic candidates as a result of the national party’s position on gun control.
The chorus of responses to Monday’s ruling was a group of normally dissonant voices: It proved the rare occasion when both former Alaska Governor Sarah Palin and Senate Majority Leader Harry Reid could find common ground. In a Facebook post titled Another Victory for the Second Amendment, Palin wrote that the case “should leave little doubt that our individual right to keep and bear arms applies everywhere, and is a right for everyone”. Reid essentially agreed, calling the right to bear arms “one of the essential freedoms on which our country was founded. I am pleased that the high court has taken steps in both the Heller and McDonald cases to guarantee this fundamental right,” he said in a prepared statement, referring to both the 2008 Heller decision, which struck down the District of Columbia’s restrictive gun law, and Monday’s McDonald v. Chicago decision against Chicago’s handgun ban.
For congressional Democrats— especially those in seats outside major metropolitan areas where support for gun rights runs high— the ruling offered a chance to assert their pro-gun bona fides. Representative Zack Space (a Democrat from Ohio), a second-term Democrat representing a rural and small-town district in eastern Ohio, quickly sent a blast to his “Constitution-loving” constituents: “Today’s ruling has put the Supreme Court on the side of every Constitution-loving American,” he said in the email. “Our right to keep and bear arms is a cornerstone of our Constitution, given to us by our Founding Fathers, and it can never be taken away.”
Also quick with praise were Democratic Representatives Tom Perriello of Virginia, Ann Kirkpatrick of Arizona, and Travis Childers of Mississippi, all facing tough races in November, and all representing districts with large rural components where gun ownership rights are sacrosanct.
“Of course, we were watching for the decision, but if you work for someone whose response to Heller was ‘it’s about time,’ then you were probably prepared for this decision, whichever way it went,” said John Foster, campaign manager for freshman Representative Walt Minnick (a Democrat from Idaho), who noted that Minnick has made it a point to visit the gun ranges and ammunition and boutique gun manufacturers in his strongly conservative district.
John Anzalone, a prominent Alabama-based pollster with a roster of Southern Democratic clients, called it a “win, win, win, win” situation for everyone and, above all, “for conservative Democrats who will be able to use it as a credential that they’re conservative. This is a tough political environment; you’re going to see Southern and Western Democrats use it and stand up for gun rights.”
And it wasn’t just Southern and Western Democrats who embraced the ruling. “The decision by the United States Supreme Court to uphold the freedoms guaranteed in our Constitution is a major victory for Americans,” said Deborah Halvorson (a Democrat from Illinois), who represents a district that extends well beyond the Chicago metropolitan area, and who is in a competitive race with Republican challenger Adam Kinzinger.
The Democratic sigh of relief after the McDonald decision wasn’t exactly a surprise— 80 House Democrats and 19 Senate Democrats signed onto an amicus brief opposing the Chicago gun ban, a tacit recognition that, for many Democratic legislators, gun control advocacy is akin to political suicide. That “highlights a pretty significant shift that’s gone on in gun politics”, the Democratic aide said. “Last week, just the debate over the campaign finance bill highlighted how deep the NRA’s inroads into the Congress have gone with both parties, but especially with Democrats, over the last four years,” the aide said, referring to a last-minute change that exempts the NRA and other grass-roots groups from major new campaign finance rules. “There aren’t any other organizations out there that have four million dues-paying members, period. That’s why they’re effective, whether you agree or disagree with their agenda.”
The NRA’s top lobbyist, Chris Cox, was careful to call this “the end of the beginning” and promised a slew of lawsuits challenging local laws. But in the end, he said, the law is “a vindication, and it’s really what the American people have always felt and always known, that the Second Amendment protected an individual right to own a gun regardless of where you live.”
Otis McDonald will get his gun. And the Morgan Park grandpa— the face of the Second Amendment lawsuit that led to the U.S. Supreme Court ruling to overturn Chicago's handgun ban— couldn't be giddier. "This is great. I am so happy," McDonald said from Washington, D.C. "It's a milestone." McDonald, the son of Louisiana sharecroppers, said he got emotional as the ruling came down. "I was feeling the poor blacks who years ago had their guns taken away from them and were killed as someone wished. That was a long time ago, but I feel their spirit. That's what I was feeling in the courtroom," he said. The 76-year-old said the Supreme Court ruling will make Chicago blocks like his, that are overrun with thugs, safer places to live. "If you have the right to have a handgun in your house, even if you don't have a gun, that will give criminals a second thought, a third thought, about breaking into your house," McDonald said. McDonald's co-plaintiff in the landmark case, Colleen Lawson, had this message for criminals: "The Chicago crime buffet is over", warning gun-toting thugs that city residents aren't their prey. McDonald says he's not a hero of the pro-gun lobby. "I'm just plain, little Otis. I'm doing the best I can to make right a wrong. And I've done that," he said.From an editorial by The New York Times (and Rico says one guess which side they came down on)
About 10,000 Americans died by handgun violence, according to federal statistics, in the four months that the Supreme Court debated which clause of the Constitution it would use to subvert Chicago’s entirely sensible ban on handgun ownership. The arguments that led to Monday’s decision undermining Chicago’s law were infuriatingly abstract, but the results will be all too real and bloody.
This began two years ago, when the Supreme Court disregarded the plain words of the Second Amendment and overturned the District of Columbia’s handgun ban, deciding that the amendment gave individuals in the district, not just militias, the right to bear arms. Proceeding from that flawed logic, the court has now said the amendment applies to all states and cities, rendering Chicago’s ban on handgun ownership unenforceable.
Once again, the court’s conservative majority imposed its selective reading of American history, citing the country’s violent separation from Britain and the battles over slavery as proof that the authors of the Constitution and its later amendments considered gun ownership a fundamental right. The court’s members ignored the present-day reality of Chicago, where 258 public school students were shot last school year, 32 fatally.
Rather than acknowledging Chicago’s, and the nation’s, need to end an epidemic of gun violence, the justices spent scores of pages in the decision analyzing which legal theory should bind the Second Amendment to the states. Should it be the due process clause of the Fourteenth Amendment, or the amendment’s immunities clause? The argument was not completely settled because there was not a five-vote majority for either path. The issue is not trivial; had the court backed the immunity-clause path championed by Justice Clarence Thomas, it might have had the beneficial effect of applying more aspects of the Bill of Rights to the states. That could make it easier to require that states, like the federal government, have unanimous jury verdicts in criminal trials, for example, or ban excessive fines.
While the court has now twice attacked complete bans on handgun ownership, the decision left plenty of room for restrictions on who can buy and sell arms. The court acknowledged, as it did in the District of Columbia case, that the amendment did not confer “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose”. It cited a few examples of what it considered acceptable: limits on gun ownership by felons or the mentally ill, bans on carrying firearms in sensitive places like schools or government buildings, and conditions on gun sales.
Mayors and state lawmakers will have to use all of that room and keep adopting the most restrictive possible gun laws to protect the lives of Americans and aid the work of law enforcement officials. They should continue to impose background checks, limit bulk gun purchases, regulate dealers, and close gun-show loopholes.
They should not be intimidated by the theoretical debate that has now concluded at the court, or the relentless stream of lawsuits sure to follow from the gun lobby, that will undoubtedly keep pressing to overturn any and all restrictions. Officials will have to press back even harder. Too many lives are at stake.
29 June 2010
That sound is Rico, chortling
Rico says there are many (as in over 2500) items on the internet about it, but he'll just extract a few good ones for your legal delectation:
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