So holds the Court in McDonald v. City of Chicago, by a 5-4 vote. The syllabus suggests that there were four votes (the five conservatives minus Justice Thomas) for the proposition that the Due Process Clause applies the Second Amendment to the states and their subdivisions; Justice Thomas concluded that it is the Privileges or Immunities Clause that does so.
ArchitectJS says:
how can four justices find that it doesnt bind?
June 28, 2010, 10:19 amgeorge weiss says:
also i dont see anything indicating less than full tit for tat incorporation (which probably means nothing less than that) b/c only the criminal jury trial is only partially incorporated. i would bet this calls that into question as well.
June 28, 2010, 10:20 amRodger Lodger says:
Justice Breyer’s dissenting opinion (joined by two others) keeps referring to the “Court’s” opinion re incorporation — but a quick read indicates it was only a plurality. Is Breyer incorrect?
June 28, 2010, 10:21 amORID says:
Drudge took down SCOTUSBlog?
June 28, 2010, 10:21 amBrad says:
I think the 5-4 split is very disappointing.
That demonstrates the persistence of a hard core anti-gun minority on the court, including stealth justice Sotomayor. And provides new ammunition to Republicans challenging Kagan.
Will the Republicans allow Obama to pack the court with anti-gun justices?
June 28, 2010, 10:21 amJon Rowe says:
Can’t wait to read Justice Thomas’ opinion. Too bad the Court didn’t do what it should have an made the P or I Clause the vessel for incorporation. That just gives Scalia et al. more fodder to trash fundamental rights/substantive due process doctrine while continuing to uphold such via stare decisis.
June 28, 2010, 10:22 amruuffles says:
Are you referring to unanimous jury verdicts?
June 28, 2010, 10:24 amORID says:
Stare decisis for the win!
I don’t remember Heller of the top of my head; did Heller include the whole historical reference like the opinion here?
Given stare decisis is there another case or controversy that could reach the Supreme Court regarding gun rights?
June 28, 2010, 10:28 amluagha says:
I’m getting the idea that again, no firm decision on scrutiny was made.
June 28, 2010, 10:29 amI haven’t read the thing yet, so hopefully we’ll be informed.
george weiss says:
ruufles-yes.
June 28, 2010, 10:29 amFormer Army MP says:
The majority uses “fundamental” a bunch, but never strict.
Enemy of freedom Stevens claims no set level of scrutiny.
June 28, 2010, 10:31 amgeorge weiss says:
ORID-
yes lots
what is the standard of review for when the right is violated? who has the right? does it apply to carrying as well as keeping? what restrictions are allowed?
June 28, 2010, 10:33 amruuffles says:
I think they denied cert on exactly this kind of case a year or two ago. You think they will take it up now?
June 28, 2010, 10:39 amORID says:
Ouch, here’s the Alito smackdown to the dissent:
Ouch, Scalia burns Stevens as well.
Have fun with the outcry if Heller and McDonald would ever get overturned in the future. Does one believe that a future Supreme Court would overturn them?
*Note: Block quotes are different excerpts.
June 28, 2010, 10:40 amAntonK says:
Supreme Court Sides with the Constitution!
June 28, 2010, 10:41 amChris says:
McDonald and Heller have been so close that I pray SCOTUS *doesn’t* touch another gun case for at least a decade. Given the court’s make-up, I can only see further decisions which would *limit* the right.
June 28, 2010, 10:44 amJon Rowe says:
From Scalia:
Just as I predicted. What a sophistic weasel.
June 28, 2010, 10:48 amAllan says:
Hell, if incorporation applies to some, why not to all of the amendments?
Please let me know when I can carry my revolver on an airplane…
What I could not find in the opinion was the standard of review. I think we are in for about 2 or 3 decades of litigation to determine the scope of this ruling.
A true “full employment for 2nd amendment litigators” decision.
On a side note, I wonder if 1L Con Law professors are frustrated. I am sure those who write the books are not, as the current textbooks will be out of date for the incoming class of attorneys…
June 28, 2010, 11:05 amTim says:
Plurality with respect to how it is incorporated, 5-4 for incorporation.
So there is an Opinion for the Court.
June 28, 2010, 11:18 amJeff R. says:
Does there remain any principled constitutional case against the incorporation of the right to civil juries at this point? (Notwithstanding the huge practical case…)
June 28, 2010, 11:29 amAllan says:
The way it is incorporated seems to be a problem, again for the standard of review.
This is a failure for Chief Justice Roberts. This is a very important issue. Regardless of the way it came down, there should have been clarity. But with 4 for due process, 1 for P&I, and 4 for no incorporation, there is little to go on.
Normally, with a 4-1-4 opinion, we can look at the 1 for the narrowest interpretation of the opinion. Here, it is impossible. It is a quagmire. And the line-up lends itself to being overturned.
My prediction is that McDonald will be back to the Supreme Court in 5 years.
June 28, 2010, 11:31 amJimmy says:
@Allan
Frustrated?! Surely you realize this is the perfect excuse for every law prof in the country to force his/her students to buy an updated edition of the prof’s textbook: a dream come true.
June 28, 2010, 11:36 amInstapundit » Blog Archive » CHICAGO GUN CASE RULING: Second Amendment Binds State and Local Governments, via the Fourteenth Ame… says:
[...] GUN CASE RULING: Second Amendment Binds State and Local Governments, via the Fourteenth Amendment. Still trying to download the opinion; will have thoughts [...]
June 28, 2010, 11:51 amBob says:
I admit I sound like one of my students now. I haven’t read the decision yet,. . . but doesn’t the theory of incorporation matter if the person asserting second amendment rights against a state or local law is not a citizen? A lawful alien generally may assert Bill of Rights provisions that have been incorporated. I don’t see how an alien can rely on the P and I clause.
June 28, 2010, 11:59 amSagar says:
Allan,
you can carry your revolver on an airplane when the owner of the airplane allows you to do so.
June 28, 2010, 12:00 pmPeteP says:
The left wanted to re-visit and invalidate Heller. Epic fail. They actually proposed in the dissent that ‘international norms’ should apply and be ‘the standard’ ( ‘…if any civilised country can be found that bans guns, then we should ban guns’ )
Where was the NRA in all this ? Busy trying to gut the 1st Amendment in favor of their own continued existence ????
SCOTUS actually got a two-fer today ! McDonald and Bilsky !
Yae !!
June 28, 2010, 12:07 pmAllan says:
Sagar,
That is just not true. If United and American allowed passengers to carry handguns, they would not be allowed, as federal law prevents it.
There are all sorts of places I might want to carry a handgun. Among them: courthouses, government office buildings, police stations, FBI headquarters, airplanes, bars. There is no telling who might come after me. I need to be able to protect myself.
June 28, 2010, 12:08 pmJay says:
My initial impression is that this is actually about the most favorable treatment Privileges or Immunities could have gotten without the case actually being decided upon those grounds.
First, we have a beautiful Thomas concurrence, which clearly and persuasively explains why P or I is the right clause, textually and historically, for deciding this case. And despite the fact that no one else joined his opinion, no other Justice criticized it (I haven’t read the dissents yet, but based on the plurality opinion, they do not appear to address Thomas). This is actually somewhat unusual – it is not at all rare for some of the “less extreme” Justice to write separately to emphasize that they would not go as far as Thomas would. Indeed, Alito’s opinion actually cites Thomas’ opinion in Saenz v. Roe as part of the evidence of the “many legal scholars” who “dispute the correctness of the narrow Slaughter-House interpretation.”
Second, and perhaps more importantly, the plurality itself actually seemed highly critical of Slaughter-House. Alito described in detail the reasoning of the four-Justice dissent in Slaughter-House, even quoting from them four times on important points. And Alito described the near-uniform consensus amongst serious scholars who agree that Slaughter-House was wrongly decided. As for the bad things the Court said about P or I, it basically amounted to “well, no one really agrees as to exactly what it includes, and we can decide this case on other grounds, so we won’t disturb Slaughter-House here.” Not so bad, really.
This is hardly an affirmation of Slaughter-House – indeed, if anything, it seems like a weakening. The Court is basically saying “yeah, we know it’s wrong, but we don’t need to overturn it here.” So basically, I don’t think anything here precludes future P or I litigation – of course, such litigation will remain a long shot, just like any landmark decision giving new life to a previously ignored constitutional provision (see Brown v. Board). But all things considered, I’m not too depressed.
June 28, 2010, 12:09 pmMichael Ejercito says:
We have not seen the full scope of the Second Amendment.
I am fairly certain that possession of firearms by people convicted of crimes falls outside the scope (just like prison inmates have stricter limitations on their right to peaceably assemble).
Would the possession of a firearm not used by the armed forces fall outside the scope?
Popular consensus has never been relevant for determining the scope of a constitutional protection.
June 28, 2010, 12:11 pmNorris Hall says:
This is a BIG A victory for home grown terrorists all over the nation.
June 28, 2010, 12:21 pmThe supreme court has made it even easier to home grown terrorists.
Now they can walk into a local gun shop in any city in the nation, purchase all the guns and ammunition they want, practice to their hearts content and be ready for the big day.
The last two bombing attempts , one aboard an airliner and one in Times Square has taught them a lesson. Bombs are unpredictable. They can often fail.
Automatic weapons, on the other hand, are designed to work every time…even for someone with very little training in their use.
And with the NRA protecting the rights of “suspected terrorists” to buy and use automatic weapons, their job is being made all the more easier.
Mike says:
You are however allowed to carry on a private plane, interestingly enough. So start working on that pilot’s license.
June 28, 2010, 12:21 pmht4 says:
Why is it that when the Supreme Court faithfully applies the Constitution (even through the convoluted SDP route), it is “man bites dog” news?
June 28, 2010, 12:23 pmgeorge weiss says:
micheal-
you misunderstand me
the question of the scope of the amendment and whether the scope is the same for states and the federal government are different questions.
i agree the scope is undecided-in fact-its hardly even looked at.
but the opinion seems to make clear the scope is the same for states and the federal government
June 28, 2010, 12:24 pmTim says:
Volokh’s article is quoted in Justice Breyer’s dissent. Congratulations, Professor Volokh.
June 28, 2010, 12:26 pmyankee says:
@ORID: I’ve never been able to understand the court’s use of legislators as a standard for determining whether or not there’s a “consensus” about something. Do they really think legislators’ views track those of their constituents?
In this case the congresscritters’ views probably do track Americans’ views in general, but it still seems like a bizarre metric.
June 28, 2010, 12:26 pmBski says:
Does anyone have any thoughts on how this will apply to local concealed weapon permits if it does at all. In Los Angeles County, it’s nearly impossible to get one.
June 28, 2010, 12:26 pmjuandos says:
Probably using the same sort of logic that found that there was protected infanticide hidden somewhere in the Constitution…
June 28, 2010, 12:27 pmTom Cram says:
In reading the .pdf of the decision I’m struck by the cherry-picking. It seems to me (a layman) that Alito hand-waves Cruikshank and Miller etc. as inapplicable due to being decided before selective application was the norm, but then cites other documents and decisions from the same period(s) in support of incorporation.
As a firearms enthusiast and defender of the individual-right reading of the 2A, I’d prefer a stronger foundation for this decision.
I’m hoping my fleeting understanding of law-speak is to blame for my concern.
June 28, 2010, 12:27 pmht4 says:
I highly doubt it. Not sure it is even appropriate.
June 28, 2010, 12:30 pmDan Parker says:
I must say that this is the most ill-informed, trollish post I’ve ever read here.
June 28, 2010, 12:38 pmMW says:
I have the same question, and am hoping that a “me-too” post might pique an expert’s interest enough that she replies. Anyone?
June 28, 2010, 12:40 pmBrett Bellmore says:
The significant thing about this ruling is that not one member of the Heller minority said, “I opposed Heller, but if it’s a right, it’s incorporated.” Their hostility to this right is unremitting, and I expect that, given the chance, they’d overturn Heller in a heart beat, stare decisis be damned.
Heller only stands until one member of the majority leaves the Court while a President hostile to the 2nd amendment holds office. Let’s nail down so much before that happens that they don’t have the guts to reverse it all.
June 28, 2010, 12:41 pmBill says:
Bski: Does anyone have any thoughts on how this will apply to local concealed weapon permits if it does at all. In Los Angeles County, it’s nearly impossible to get one.
My understanding is that Dick Heller, from the original Heller case applied for a concealed carry permit in DC after the Heller decision and was denied. He sued and I think that case is working its way through the courts. If so, the Supreme Court may soon rule on whether the Second Amendment protects a right to actually carry a gun concealed or open in most public places.
June 28, 2010, 12:41 pmRodger Lodger says:
Tim, thanks for this: Plurality with respect to how it is incorporated, 5–4 for incorporation.
So there is an Opinion for the Court.
I’m gonna have trouble using “incorporation” this way; so used to it meaning something like “found inside the term ‘due process’”. Of course you are correct the 14 consists of more than the D.P. clause, but this will take some getting used to after teaching an incorporation chapter that has only cases involving the D.P. clause.
June 28, 2010, 12:50 pmKharn says:
There are two cases, Heller II (large magazines, evil-looking rifles, etc) and Palmer (concealed carry) currently active against DC.
June 28, 2010, 12:52 pmjstar says:
Norris –
June 28, 2010, 12:52 pmYeah, there are a lot of terrorist groups that really really wanted to go on murderous rampages but were scared to break local handgun restrictions.
DonP. says:
Is that you Hennigan and Helmke? Come on, we can all take a joke.
Just in case it’s not, I’d be happy to meet you at Chuck’s Gun Store and buy you as many full auto weapons as they have in stock. That way you can protect yourself against all those well armed terrorists. I’ll even pay for your first Stinger missile from their stock on hand too.
June 28, 2010, 12:53 pmmack says:
Re: California – there are currently two cases on hold – awaiting this decision regarding California firearms law – one deals with concealed carry and essentially it is a suit against the may issue law arguing that it must be shall issue – and the second is a suit against California’s approved weapons list that prohibits ownership of many types of commonly available firearms.
June 28, 2010, 12:55 pmguy says:
alan-
a) con law textbooks come with “supplements” for the very reason that they don’t like making a new edition every year. this problem is not new.
b) the text relied upon for incorporation (due process vs P&I) may have been important if you are interested in trying to incorporate things the court has either declined to rule or or has previously ruled not incorporated (e.g criminal jury unanimity or right to bail respectively) but as for gun incorporation itself it makes no difference. This is because the Court had 5 votes that the amendment applies equally regardless of how it applies (eg no matter the limits on the right-which are as yet undetermined-the right applies equally to states and the federal government). (Thomas’s concurrence promoting P&I does not change that b/c the text used to incorporate does not effect the incorporation vis a vis the 2nd amendment-only other rights).
you are right about one thing-decade of 2nd amendment litigation on the application and scope of the 2nd amendment.
but the holding of McDonald is equal incorporation-and it will not be re-litigated.
June 28, 2010, 12:56 pmMike in MN says:
I am not a lawyer, but in reading the text of the opinion, the emphasis on the fundamental nature of The Second Amendment makes a lot of laws short of an outright ban suspect. I wonder how long it will be, before the discriminatory taxes and fees instituted in New York, DC, and Massachusetts are challenged on Equal Protection grounds?
June 28, 2010, 12:59 pmA.W. says:
Norris
> This is a BIG A victory for home grown terrorists all over the nation.
Yeah, I am sure the bad guys were thinking, “gee, I would love to buy a gun, but the law won’t let me.” Here’s a hint. If you are planning on violating the law against murder, the law against keeping and owning a gun ain’t likely to stop you.
But at least if they start shooting, us law-abiding people will have the means to fight back.
June 28, 2010, 1:01 pmmack says:
In regards to level of scrutiny – once again it is not specifically addressed here – however given the majorities rejection of any balancing test (Breyer) and statements that the effect of the right (good or bad) on society is not enough to deny the right – it pretty well precludes the rational basis test and therefore leaves either intermediate scrutiny or scrict scrutiny. My guess is it will ultimately be identified as strict scrutiny in word but will be intermediate scrutiny in practice.
June 28, 2010, 1:02 pmArthur Kirkland says:
It resembles the abortion fight in this respect. Think Roe’s detractors would stand down in exchange for a reasonable truce concerning the Second Amendment, or Heller’s detractors would stand down in exchange for a reasonable truce concerning abortion?
June 28, 2010, 1:03 pmBill Cyrus says:
Because they don’t want to, simple as that. They’d rather stick a fork in their eye than uphold 2nd Amendment rights, for whatever reason. It’s almost a religious faith to them to be anti-gun.
June 28, 2010, 1:03 pmDon Meaker says:
Keep in mind that Sgt. York in the First World War gained fame by potting machine gun crews with a bolt action rifle.
Even if terrorists had automatic weapons, honest citizens armed with self loaders would be able to stop them quickly. By contrast, terrorists with box cutters among unarmed people have demonstrated ability to control their immediate environment for significant time periods.
June 28, 2010, 1:08 pmporterhouse says:
Alito is out of control and should be impeached…his opinion distorts history and is intellectually dishonest. Alito mention Kansas in the opinion but fails to point out that Kansas was NOT a state at the time of the events he mentions…this opinion concerns STATES, not Federal territories. Alito then seemingly endorses segregation and “separate but equal” in his discussion about the roving white militias disarming freed slaves. Integration, allowing African-Americans to vote, and including African-Americans in the militias was the solution to that problem…not arming everybody and allowing anarchy to reign supreme.
I am one of the foremost 2nd Amendment scholars and I will be posting comments as I read more of the opinion.
June 28, 2010, 1:08 pmKharn says:
Porterhouse:
June 28, 2010, 1:18 pmIf you’re “one of the foremost 2nd Amendment scholars”, would you mind giving your real name so we can check your CV?
Bill Twist says:
The outcry, were either to actually be overturned in the future, would quite likely be muzzle blasts.
June 28, 2010, 1:23 pmWPZ says:
From Justice Alito’s opinion:
“…the Second Amendment right protects the rights of minorities and other residents of high-crime areas whose needs are not being met by elected public officials.”
That, as an evisceration of a public official, will likely never be exceeded.
June 28, 2010, 1:23 pmporterhouse says:
My scholarship speaks for itself (which consists of comments made on this site under the username “porterhouse”)…would you have demanded the real names of the authors of the Federalist Papers in the late 18th century? Facts are facts–Kansas was not a state during “Bleeding Kansas”, and this opinion concerns the relationship of the 2nd Amendment to the states.
June 28, 2010, 1:25 pmArchitectJS says:
its also a good idea to leave it up to others to call you a “foremost scholar”
June 28, 2010, 1:26 pmThumbcruncher says:
He certainly isn’t Eugene Volokh, who atleast was noted in the Breyer Dissent. Or Clayton Cramer, Or Kopel. He could be Michael Dorf, but then again he gives his full name. Perhaps he’s Sauel Cornell, late of Ohio State University; that is until is think tank on the second amaendment was zero funded by the Joyce Foundation.
June 28, 2010, 1:30 pmJohn says:
Porterhouse,
I am impressed; most scholars’ writing is boring to a layman. All of the citations and analysis gets confusing quickly. Yet, it obvious that you are one of the foremost scholars in that you explain in such a readable, exciting manner and omit citations and logicial analysis for the sake of clarity. Excellent work.
June 28, 2010, 1:30 pmporterhouse says:
My scholarship consists of comments made on this site under the username “porterhouse”. I have stated multiple times that I have published the same amount of legal scholarship as the Constitutional Scholar in Chief Obama…which is nothing.
June 28, 2010, 1:33 pmBrandon Combs says:
See: http://www.calguns.net/calgunforum/showthread.php?t=219489
June 28, 2010, 1:36 pmzippypinhead says:
Justices Thomas and Stevens were both writing for posterity – in the hope that 50 or 100 years from now their views might get a bit more respect than Rodney Dangerfield.
Breyer’s dissent has a more immediate purpose – he attempts to lay the groundwork for upholding virtually every local- or state-imposed firearms restriction out there, in essence limiting Heller to its specific facts. It’s pretty clear that he’s laying out a path for the lower courts on remand to uphold literally all of Chicago’s challenged gun control regulations with the exception of the outright handgun ban. And his construct can be used to defend gun control rules in virtually all of the more expansive pending challenges to gun control regulations, including the D.C. ordinance challenged in Heller II. Of course, Breyer also lays down a marker for someday overruling even Heller’s specific holding outright, but as anyone who’s studied Constitutional law knows, it’s a lot more common for subsequent opinions to “limit” and “clarify” prior holdings of the Court than to overrule them outright a’ la Plessy/Brown.
This one is far from finished. Over the next decade (and probably longer) SCOTUS will be dealing with Second Amendment issues again. And again. And again. And Professor Volokh won’t be hurting for law review article topics, either…
June 28, 2010, 1:37 pmJdog says:
I’m not a lawyer, but I’m told I know a fair amount about this stuff.
In the short run: not at all. The opinion of the court went out of its way not to give even a broad hint as to the level of scrutiny that will be applied, other than by omitting any reference to strict scrutiny (basically: “show all your work. And we’ll double check it”) and rational basis (“don’t say that the unicorns told you to, and you’re pretty much okay”). Which means that we’re about, in terms of restoring the RKBA, where we were in ending state-enforced segregation shortly after Brown.
Compared to how things would likely have gone in previous courts, that’s a great place to be. It’s a huge step forward, but the path ahead is still very, very long.
June 28, 2010, 1:38 pmA.W. says:
First, this is Scalia giving Stevens a good hard kick in a– as he leaves:
> [Stevens] describes as “an important tool for guiding judicial discretion” “sensitivity to the interaction between the intrinsic aspects of liberty and the practical realities of contemporary society.” Post, at 24. I cannot say whether that sensitivity will really guide judges because I have no idea what it is.
Hahahahaha.
Porter
> Alito mention Kansas in the opinion but fails to point out that Kansas was NOT a state at the time of the events he mentions…
Do your theory is that if Alito doesn’t point out well known facts, he is distorting history. Mmm, kay…
His point is to talk about how the framers of the 14th A felt about the right to bear arms, and Sumner, a key founder, considered it very important.
> Alito then seemingly endorses segregation and “separate but equal” in his discussion about the roving white militias disarming freed slaves.
What the hell are you talking about? He says that this was a bad thing, disarming the former slaves. How is that an endorsement?
> Integration, allowing African-Americans to vote, and including African-Americans in the militias was the solution to that problem…not arming everybody and allowing anarchy to reign supreme.
So you are going to force the KKK to integrate? In 1868? Well, good luck with that.
> I am one of the foremost 2nd Amendment scholars
Sorry never heard of you, and your comments are less than authoritative.
June 28, 2010, 1:41 pmLibertarian1 says:
Please forgive this question. It is not a troll. IANAL. I thought there was a difference between the P&I clause and the PorI clause in the 14th. Didn’t Thomas rely on the PorI clause rather than the P&I clause?
June 28, 2010, 1:54 pmOrenWithAnE says:
I wonder if AMK wouldn’t let the majority articulate a standard or if Alito just didn’t want to. As it stands, they sent it back to the 7CA to be decided in some ad-hoc fashion.
June 28, 2010, 1:55 pmporterhouse says:
Right now I am reading Stevens’ dissent and it reminds me of the rambling monologue the title character (played by the incomparable Adam Sandler) gave in the classic film Billy Madison, the principal responds to Billy with this quote,
June 28, 2010, 2:07 pmblcjr says:
“porterhouse” has made this claim on The Conspiracy before, obviously with a bit of sarcasm intended. S/he has compared his/her 2nd Amendment scholarship to Obama’s qualifications as a “constitutional scholar.” I’m underwhelmed.
June 28, 2010, 2:09 pmAffe says:
Porterhouse… bloody Kansas… Kansas style BBQ… mmmmmmcorporation…
I give you the Stevens dissent.
June 28, 2010, 2:10 pmKevin P. says:
It is disappointing to see the continued hostility of the liberal bench of the Court, newly joined by Sonia Sotamayor. The four liberal justices seem to be more concerned with protecting the rights of criminals and foreign terrorists than with protecting the rights and liberties of ordinary law abiding Americans.
In this opinion, as others have pointed out, the four liberals have gone beyond mere opposition and have actively laid out a strategy for how their fellow travelers in the lower courts can continue to deny, obstruct and frustrate the Second Amendment.
Screw ‘em. I have no respect left for them any more. If they can’t be bothered to respect the Constitution and the laws, I have no reason to respect or obey any laws that they pass.
June 28, 2010, 2:10 pmA.W. says:
I think the interesting thing with Alito’s opinion is that while he gives an almost textbook description of the subtantive due process selective incorporation doctrine, he then pretty much ignores it and gives us a straight up original intent analysis. Then he takes alot of time smacking the dissents, particularlly breyer’s, but usually on the argument of “this is not relevant, but you are wrong on this point anyway.” which begs the question why is he talking beyond the words “this is not relevant” but oh well.
the point is that it ends up coming off as a pure original intent decision in disguise.
Which is interesting. I have long said that i think Brown was potentially a secret original intent decision–but the SC couldn’t say that, because, well, imagine it. imagine the SC not only desegregated the schools, but said, “and we are doing so based on the intent of people like Thaddeus Stevens and Charles Sumner, and other radical republicans.” You might have had a second civil war, right there and then.
June 28, 2010, 2:14 pmA.W. says:
Porter
By the way, claiming authority as a second amendment scholar is only slightly more relevant than claiming to be an authority because you are a rodeo clown. The second amendment wasn’t on the docket today. The 14th A was. So being a second amendment scholar would seem to have little to no relevance on the subject.
June 28, 2010, 2:22 pmzippypinhead says:
McDonald may provide fun for academics and litigants in a few areas well beyond the specific Second/Fourteenth Amendment question presented. For example, from the Court’s opinion at note 12:
“Our governing decisions regarding the Grand Jury Clause of the Fifth Amendment and the Seventh Amendment’s civil jury requirement long predate the era of selective incorporation.”
Well, hey… unless I’m missing something, in justifying selective DP incorporation of the Second Amendment, doesn’t Justice Alito also lay down a pretty good foundation for the argument why it’s time to revisit those other unincorporated parts of the Bill of Rights?
June 28, 2010, 2:25 pmguy says:
libertarian-
no-he meant the P&I clause
June 28, 2010, 2:25 pmporterhouse says:
I disagree, the court is clearly involved in a political fight with regard to guns…I wish this was about the 14th Amendment and I wish Heller was about the 2nd Amendment, but all of the justices in both decisions are clearly motivated by the politics of the political party they identify with, and the special interests that contribute to and support those parties.
Once again, I agree with the outcomes of both McDonald and Heller, and the conservatives are on side of the “little guy” who wants to defend his “castle”. I disagree with the underlying reasoning of Alito’s opinion, and I am currently attempting to slog my way through Stevens’ dissent…wish me luck.
June 28, 2010, 2:38 pmBrett Bellmore says:
On the contrary: The Second amendment was exactly what was on the docket today. The only reason there was any question at all about incorporation is that this was the Second amendment, an amendment loathed by a large part of the legal community.
Today’s decision was just Heller by proxy, as every decision asking whether or not Heller will actually be enforced will be. If they can’t dispense with the right, they’ll try on every possible occasion to make sure it does nobody any good.
June 28, 2010, 2:53 pmDavid M. Nieporent says:
That’s nothing; Justice Thomas was playing the Bingham drinking game. Congrats, Professor Kerr.
June 28, 2010, 2:54 pmFiftycal says:
Now that the Supreme Court has ruled that gun ownership is a FUNDAMENTAL RIGHT, like voting, the next suit needs to be against all forms of TAXATION (poll tax) that hinder gun ownership. No registration fees, no ownership fees, no permit fees, no background check fees and no TAX on gun sales, like the 18% hidden tax put in every new retail gun sale.
June 28, 2010, 3:02 pmme says:
Well this is a giant set back for the new world. How can the U.S. citizens be s subjegated now? By the way, does this mean that people in the Gulf Coast can undertake clean-up activites while being armed? This would not bode well for agents of BP, in the area.
June 28, 2010, 3:09 pmA.W. says:
Porter
> I wish this was about the 14th Amendment and I wish Heller was about the 2nd Amendment,
Well, you are claiming that your second amendment scholarship bears on the subject of MacDonald. Even if MacDonald was really about politics, rather than the original intent, that still wouldn’t make your 2nd amendment knowledge relevant. You are making an appeal to authority based on an area of scholarship that is irrelevant to this discussion.
> all of the justices in both decisions are clearly motivated by the politics of the political party they identify with, and the special interests that contribute to and support those parties.
Sorry, I disagree entirely, even in regard to Stevens and the other dissenters. These judges have lifetime tenure, they could give a rat’s behind which constituencies support which position. Seriously, what would congress do to them if they didn’t vote the way they wanted? There is nothing Congress can, practically, do. While I deeply disagree with the dissent on this decision, I won’t question their integrity. If there is corruption, it is in the sense that power corrupts, not petty bribery as you imply.
A good example of this was the Solomon Amendment case a few years ago. The politically liberal position was that schools should be able to take Department of Defense money and still exclude military recruiters. But the principled liberal position would be to recognize that a ruling allowing schools to exclude recruiters today, while still receiving federal money, could next be applied to exclude minorities tomorrow. That is why the politically liberal position (championed, by the way, by Kagan), lost unanimously. I think it was 8-0 because Alito hadn’t been seated yet.
> I agree with the outcomes of both McDonald and Heller
Then on what logic can you argue that the majority is definitely not concerned with finding the correct outcome. Of course it is possible to be corruptly right, but occam’s razor doesn’t point in that direction, typically.
At most, I will happily concede that Kennedy is a complete activist. His decision in Lawrence and Kennedy v. Louisiana prove that to my satisfaction. But I see no cause to condemn the other four in the majority.
Brett
> The Second amendment was exactly what was on the docket today.
The right to bear arms, was, but not literally the second amendment. For instance, I have long said that even if Heller did not come out in favor of the right to bear arms against the federal government, or not in favor of an individual right, it was clear that the founders of the 14th A thought of it that way, so that the right to bear arms incorporated against the states could rightfully be considered an individual right even if the right to bear arms against the Feds was not.
June 28, 2010, 3:16 pmSeaDrive says:
Not clear to me.
It’s clear that, by in large, the justices share the viewpoints of the political parties they identify with. The leap from there to the suggestion that Scalia wrote Heller to promote a Republicans majority is a bit too long for me.
June 28, 2010, 3:20 pmA.W. says:
Sea
Well, indeed if the goal of the respective justices would be to help their party stay in power, then decisions would come out differently.
For instance, if the liberals really wanted a leg up in elections, they should get Roe overturned. then every state and federal election can be directly about abortion rights, a debate they usually win.
Likewise, if the conservatives wanted to help republicans win, they should have upheld those restrictions on gun ownership. Now if the NRA says a given politician is bad on the right to bear arms, some constitutents says, “who cares? if he goes to far, the SC will correct them.”
June 28, 2010, 3:23 pmPersonFromPorlock says:
Well, Heller discovered somewhere in the Constitution a right to keep a handgun in the house after receiving state permission to do so. The question now is whether this ruling does anything besides generalize Heller gun rights.
June 28, 2010, 3:29 pmohwilleke says:
The Heller right does appear to be symbolically formidable but weak on substance. Almost all efforts to expand it beyond handgun possession in the home for self-defense have failed in the federal courts.
There is a much greater variety of limitations under state and local laws, however, so I have to assume that SCOTUS will be handling a lot more gun cases in the years to come
June 28, 2010, 3:32 pmDan M. says:
It’s interesting that Scalia’s concurrence embraces a consequentialist justification for the “historical” approach to interpretation. This contrasts with his old arguments for originalism, which paint originalism as mandated by considerations of democratic legitimacy. Perhaps Vermeule’s work on “second-best” interpretive approaches is starting to seep into Scalia’s thinking.
Also, Justice Scalia’s prose here seems subpar (for him). Is it possible he let a clerk draft his concurrence?
June 28, 2010, 3:33 pmohwilleke says:
It could cause a couple more Bill of Rights rights to be recognized. I doubt that the right to a civil jury trial or grand jury indictment will be applied to the states, but I could see the unanimous criminal jury requirement that applies at the federal level being applied to the states again.
June 28, 2010, 3:34 pmohwilleke says:
Dream on. A poll tax is a tax that must be paid to vote on a per capita basis. There is no realistic chance that any current tax on gun ownership or use will be changed.
June 28, 2010, 3:37 pmRoger the Shrubber says:
You nailed it. That’s actually why they get up and go to work each day: so that they can protect the rights of criminals and foreign terrorists. They secretly crossed their fingers while taking the oath of ofice, and subsequently swore alleigance to OBL.
They’ll likely wear suicide bomber vests to the next State of the Union.
Look, I’m a strong supporter of the RKBA, but commentary like yours is just silly.
June 28, 2010, 3:39 pmKenneth C. Brooks says:
Dear Colleagues:
June 28, 2010, 3:39 pmI believe that many, if not most, have missed the essential part of the analysis underpinning the court’s holding. This case is about more than the Fourteenth Amendment or the Second Amendment or firearms for that matter. What the Court has done was identified a basic right that transcends our laws and exists in our culture. It is a right that has been undermined by Cowards and Fascists alike, the former not wanting to allow the use of firearms under the guise that someone might get hurt, and the latter under the guise of needing to respect political control. Justice Alito makes clear the right that is at issue here is one of self-defense. As stated on page 40 of his opinion: “[W]e rejected the suggestion that the right was valued only as a means of preserving the militias (citations omitted). On the contrary, we stressed that . . . self-defense was”the central component of the right itself.”. Thus, I would argue that this case would render unconsitutional Massachusette’s requirement that one must retreat before exerting self-defense. In addition, it would also support clothing designed to undermine the effect of tasers. Now for that law here in California that bans felons from owning or possessing body armor . . . that law is certainly going to fall. I would also point out that the military could never order a soldier on a suicide mission or that the military could order people into combat without adequate training. It is sad to think that this basic tenant of civility, once understood without question or thought is now the subject of debate as to whether one’s right to self-defense could be taken away. Self-defense is part of the traits of a sentient being. To take that trait away from a person draws into question as to whether they continue to be a sentient being. This begs the question, What would motive an individual to remove the sentience of another individual?
Bob from Ohio says:
I think another article was cited in the CLS/Hastings case as well.
June 28, 2010, 3:40 pmMike in MN says:
State poll taxes were overturned on equal protection grounds. I don’t think that all taxes and fees on guns will be overturned but a lot of them are suspect.
June 28, 2010, 3:44 pmgullyborg says:
I, too, am one of the foremost Second Amendment scholars. And I will refrain from making any proclamations about this decision until I have read it thoroughly, repeatedly, and absorbed the expert analyses to come from the likes of Volokh, Kopel, etc.
June 28, 2010, 3:54 pmBruce Hayden says:
I am not sure what firearms would fall outside this, but would suggest that a lot of people would be a lot happier if we could actually own all of the various types of guns used by the military.
June 28, 2010, 3:55 pmA.W. says:
um guys, there is something specifically in the constitution on poll taxes. the 24th Amendment.
June 28, 2010, 3:55 pmMark Field says:
Jack Balkin certainly thinks he does.
June 28, 2010, 3:56 pmJRL says:
What a strange comment. I officially have no dog in the abortion fight. I think Roe v. Wade was wrongly decided, but would vote to allow abortions whenever and whereever. But had the liberals won the abortion debate, would there have been a Roe v. Wade to begin with? And with its decision in Roe v. Wade, the court effectively ended debate on the matter.
June 28, 2010, 3:58 pmzippypinhead says:
Doubtful – no law clerk would have the stones to bash a retiring Justice so hard over his farewell weltanschauung exposition (no matter how silly renaming the due process clause the “liberty clause” really is). Especially since Justice Alito’s opinion already did what was minimally necessary to address the merits of Stevens’ points, albeit a lot more deferentially.
As usual, Scalia’s personality comes through loud and clear in his footnoted shots at his dissenting colleague. For example:
June 28, 2010, 4:01 pmMr. B. says:
Reading Justice Stevens’ dissent was like watching the movie Memento.
June 28, 2010, 4:04 pmA.W. says:
JRL
Well of course if Roe never happened, the abortion question wouldn’t be such an issue. But after it has been the law of the land around 40 years, its a burning issue, and if they overturned Roe, i don’t think it would stop being a burning issue. but that’s admittedly just my opinion.
June 28, 2010, 4:04 pmMike in MN says:
The 24th amendment relates to Federal poll taxes. State poll taxes were overturned on equal protection grounds
June 28, 2010, 4:04 pmLarryA says:
Depends on the importance of the issue. Gun control is highly controversial, and has been for more than forty years. If a large majority of the states have elected representatives on one side of such an issue, I think it’s a good indicator.
In this case, of course, they could also have looked at the laws passed by state legislatures. Over the same forty years, despite unremitting effort by gun-control groups abetted by national media, strict gun control laws remain the aberration, not the norm. Over the past twenty five years shall-issue concealed carry has spread to 80% of the states. Castle doctrine laws, laws against gun manufacturer lawsuits, laws prohibiting gun confiscation in disaster areas, and other such legislation are passing right and left as well.
Uh. Members of the militias, when called out, are expected to appear armed with their own individual weapons. Of course, we can postulate that the state will own the rifles, secured in an armory somewhere, and issue them for musters.
The equivalent actually happened in the North, during the Civil War. A regiment, recruited from a city, would be issued rifles, taught the drill-field steps to load and fire, and sent into combat. There, if all went well, they would actually be issued live ammunition and fire their rifles.
The main reason the National Rifle Association was founded, in 1871, was that the above plan failed miserably. It turns out an effective militia needs more than a basic familiarization with small arms. The NRA helped solve that problem by initiating military and civilian rifle training programs, so that by WWI and WWII a fair percentage of recruits showed up at basic training with the necessary firearms experience that allowed quick training in how to effectively engage enemy soldiers on the battlefield.
Unfortunately a lot of people have forgotten that lesson.
The laws most vulnerable on equal protection grounds are the “discretionary” gun permit schemes. I had a couple once who had both applied for such a permit in their former state of residence. He was given a CHL, she was denied on the grounds that he had a permit and could protect her. There’s a case pending now where a sheriff allegedly denied a permit to someone who belonged to a political group he disagreed with. The NYC list of permit holders shows blatant discrimination on multiple issues. That fruit’s hanging so low you can step on it.
June 28, 2010, 4:06 pmKharn says:
Every firearm sold (except those few covered by the National Firearms Act) are taxed at a rate of 11% as part of the Pittman Robinson Act, it goes to fund conservation-related activities such as wildlife management areas and gun ranges.
June 28, 2010, 4:09 pmSeaDrive says:
As to possible changes, does anyone have an opinion about the one quoted below (borrowed from the Northeast Shooters Forum):
June 28, 2010, 4:09 pmKman says:
So whatever was left of the Militia Clause after Heller, that’s completely gone now.
Which begs the question — why was it there at all? If the Second Amendment was meant to embody the right to self-defense against even muggers, then why was the Militia Clause written at all?
It’s very disconcerting/humorous to see the strict constructionists virtually read out specific language in the Constitution as being entirely superfluous and without ANY meaning whatsoever.
June 28, 2010, 4:10 pmBostonShepherd says:
I think we should be cautiously pleased with McDonald in its SDP garb. Press the case, legally and politically and build upon it. The best defense is a strong offense.
Gratifying as McDonald is, I am not satisfied. Five-four is too close, and being in Boston, the progressive Hub of the Universe, I can attest to the indefatigable and Borg-like pursuit of all things progressive by progressives. They will not stop until they achieve their goals, law of the land not withstanding. At least that’s what they tell me in unguarded moments.
This includes the roadmapping Breyer’s dissent might provide for a lower court muddling of McDonald and Heller. One only has to read Scalia’s demolition of Steven’s dissent to realize if judicial caprice occurs on the SCOTUS, it certainly must occur in the lower courts, too.
So, where is the proposed US constitutional amendment clarifying and ratifying, once and for all, the natural right to self-defense and the means to do so, at home, at work, everywhere one chooses to go?
June 28, 2010, 4:21 pmKman says:
….with hand-held surface-to-air missiles?
Or don’t I have a right to defend myself against terrorist planes crashing into where I work?
[Semi-serious question enveloped in snark]
June 28, 2010, 4:24 pmA.W. says:
btw, i like this article on MacDonald himself.
http://www.chicagobreakingnews.com/2010/06/man-who-challenged-gun-ban-i-am-so-happy-i-am-so-happy.html
rock on!
June 28, 2010, 4:26 pmJD says:
I am one of the foremost 2nd Amendment scholars and I will be posting comments as I read more of the opinion.
Somehow I doubt this.
June 28, 2010, 4:32 pmDan Parker says:
I don’t think I’ve ever heard a strict constructionist (nor anyone else on this side of the issue) claim that the Militia Clause had no meaning, nor read it out completely. What I have read/heard is recognition that the clause was included as a statement of the new government’s interest in enumerating and protecting the RKBA.
Anyone who would ask “why was it there at all” in the first place is either being disingenuous, or completely lacks sufficient knowledge of the issue to be making snarky comments about it.
June 28, 2010, 4:34 pmLarryA says:
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.
1) In order to protect a free state you need a well regulated (well-trained) militia.
June 28, 2010, 4:34 pm2) A militia consists of citizens trained to, in time of need, assemble into military units and provide for the common defense.
3) In order to be well-trained and equipped for militia duty the people must have their own firearms and be proficient in their use.
4) Therefore the right of the people to keep and bear arms shall not be infringed.
5) Since the people have the right to keep and bear arms they cannot be limited in how they use those arms other than for exceptional circumstances, and in as limited a way possible.
6) Self-defense is one of the legitimate reasons to have a firearm.
7) Therefore a law prohibiting possession of a self-defense firearm is unconstitutional.
Henry Bowman says:
That would create an interesting “wedge issue” battle between those who see their guns primarily as a means of putting holes in threats and those who see their guns primarily as a means of putting holes in tasty animals.
Many hunting organizations point to this tax as a source of pride—a “user fee” that funds wildlife conservation projects without burdening the public coffers.
June 28, 2010, 4:43 pmBostonShepherd says:
An FIM-92A (Stinger) is too hard to conceal in short pants.
Seriously, if Heller establishes a right to self-defense, how cannot that right be 24/7, wherever, whenever (with some exceptions like protected locations such as the courthouse?) How can I enjoy a self-defense right, established by Heller, without the right to carry?
June 28, 2010, 4:48 pmA.W. says:
Kman
> It’s very disconcerting/humorous to see the strict constructionists virtually read out specific language in the Constitution as being entirely superfluous and without ANY meaning whatsoever.
Its been done before. The preamble to the constitution actually has no legal effect. Why should it shock us that the perambulatory clause of the 2nd amendment is absolutely meaningless, too. Yes, we have that all language from John Marshall, but to paraphrase hugo black, the ultimate touchstone of constitutionality is the constitution itself, not what the supreme court has said about it.
I would add that if the right was only in connection to militia service, why didn’t they say that instead? Why didn’t they just say, “the right to keep and bear arms AS A MEMBER OF A MILITIA shall not be infringed”? Why not have it be an explicit part of it, instead of just implied by those who want to make sure black people don’t get guns.
Besides, why are you complaining? You have told me over and over that the constitution is what the supreme court says it is. So by your lights they are infalliable and always right, right?
I would add that even if the 2nd amendment was only about protecting militias, the question is how the framers of the 14th A understood it, and they clearly didn’t understand it to be just about militias.
> If the Second Amendment was meant to embody the right to self-defense against even muggers, then why was the Militia Clause written at all?
Because they are designed to be pretty words to sell the concept to the people. In fact if you ready Thomas Davies classic article on the original meaning of the 4th amendment, you will discover they actually did the same thing there, too.
But do explain to me how this works. So I can keep a gun in my house but only if I plan to use this to repel foreign enemies? So suppose a bunch of bad guys in military fatigues are breaking into my house, I can shoot because they are presumably military, right? So if they then shout “we are not military, we are just ordinary criminals” I have to, what? Throw down my gun? How exactly does the right to bear arms “in connection to a militia” only really work in your mind?
The left always claims that the right to own a gun in connection with a militia implies somehow its not an individual right. I see nothing in the language implying that much. Militias, especially in the founding era, were rarely that well organized.
The fact is that in most of the constitution when we talk about a right “of the people” we mean them as individuals. So even if it is just a right to keep and bear arms as part of the militia; its still an individual right. And it seems like if you are going to give the operative clause any force, then it would be the easiest thing in the world to get guns for personal defense against common criminals—just claim you are getting it for militia purposes.
June 28, 2010, 4:49 pmBruce says:
NYC Mayor Bloomberg – perhaps best known for his groups penchant for violating federal “strawman purchase” rules (and someone please tell me why he hasn’t been indicted for this?) has already announced that “in his opinion” it will have NO effect on NYC gun laws. If you consider the fact that even retiring NYC police officers, like me, are not automatically entitled to a concealed carry permit … what does anyone think the average citizens chances are?
June 28, 2010, 4:51 pmmack says:
As Larry A – pointed out essentially the milita is composed of all the citizens, not in the military or not many government officials, of an age to be physically able to participate to come together with their arms for defense of their community, nation, and freedom – the individuals right to keep and bear arms ensures that that is possible – therefore it does not ignore or make meaningless the well regulated militia – indeed it makes it possible. As Scalia noted in Heller – there is no conflict.
June 28, 2010, 4:58 pmA.W. says:
Btw, as for the lame claims that this automatically implies a right to carry a nuke, i would direct you to this language in Dartmouth College v. Woodward.
“It is not enough to say that this particular case was not in the mind of the convention when the article was framed, nor of the American people when it was adopted. It is necessary to go further and to say that, had this particular case been suggested, the language would have been so varied as to exclude it, or it would have been made a special exception. The case, being within the words of the rule, must be within its operation likewise, unless there be something in the literal construction so obviously absurd or mischievous or repugnant to the general spirit of the instrument as to justify those who expound the Constitution in making it an exception.” Its that last part that saves us from declaring a right to bear nukes.
June 28, 2010, 5:01 pmporterhouse says:
The Bluebook is for suckers. I provide analysis based on facts…I don’t need to cite any law review articles about an amendment that is so clearly written. Also, everybody here is very knowledgeable and bright and we all have a high level of interest and sophistication with regard to the 2nd Amendment that is absent from other forums, so there is no need to cite other work when the other posters are familiar with it.
June 28, 2010, 5:06 pmA.W. says:
Shorter porterhouse: i am so awesome you should just believe me because i am awesome!
June 28, 2010, 5:10 pmporterhouse says:
This is why I believe the right to self-defense arises from the right to privacy. We have different levels of privacy depending on our location and surroundings. Our right to privacy in our home is at a very high level, our right to privacy in an airport is at a very low level. Two amendments mention the importance of the home, we have the right to a gun for self-defense in our home…this right does not come from the 2nd Amendment and this right should be incorporated against the states.
June 28, 2010, 5:14 pmA.W. says:
Porter
Jesus H. Christ. the right to self defense has nothing to do with the right of privacy. it is simply a right to life, liberty, property, and the right to defend those things inherent in a state of nature. when you enter into civil society, you still can’t 100% depend on the state to protect you. so in that time between when the danger arises and the police arive, or God help you, if the police are the enemy, too, you have the right to take matters into your own hands to defend those core rights.
Privacy has as much to do with that subject as rodeo clowning.
June 28, 2010, 5:22 pmjrptoo says:
In regards to level of scrutiny ….
Am I incorrect to assume that them declaring this as a “fundamental” right essentially implies strict scrutiny?
I have been under the impression (perhaps incorrectly) that fundamental rights demand strict scrutiny, and basic rights call for rational basis.
The term fundamental was used many times in the opinion.
June 28, 2010, 5:25 pmzippypinhead says:
Porterhouse, the reincarnated Sarcastro?
June 28, 2010, 5:26 pmporterhouse says:
Kagan and 7 of the justices are clearly activists for their political parties and they were selected to be justices because they had a record (either as a judge, in a White House administration, or working for a prominent organization with partisan leanings) that indicated they would be sympathetic to the platform of the party of the president that appointed them. Kennedy is a pragmatist and I believe he is not a partisan hack.
Stevens was appointed in the 1970s by a president that was essentially appointed by the Senate, so he does not really fit neatly into a category.
Btw, I am finding lately that I agree with the conservative justices more than the liberal justices…but that still does not excuse distorting the meaning of the 2nd Amendment the way Scalia did in Heller.
June 28, 2010, 5:34 pmporterhouse says:
I just read the 2nd Amendment again…the amendment does not mention the phrase “right to self-defense”.
Stevens little discussion about “liberty” in his dissent is the height of intellectually dishonesty. The liberals always want to expand liberties…except this one time when the party they support is against the expansion of this particular liberty. How convenient. The worst part of all of this is that Obama might as well appoint a robot named roboDem 2000 to be a Supreme Court justice, because Kagan is going to toe the Democratic party line just like the other partisan hacks on this court.
June 28, 2010, 5:44 pmporterhouse says:
I have always been porterhouse, and I call it like I see it.
June 28, 2010, 5:47 pmKenneth C. Brooks says:
You ain’t gonna like this response, but it is the most logical: > If the Second Amendment was meant to embody the right to self-defense against even muggers, then why was the Militia Clause written at all?
The Militia clause was written to make clear that the arms that individual were allowed to possess were military style arms so that, if need be, a militia would have a fightin chance against a standing army organized by the Federal Government. Justice Alito makes this clear. What one must recognize is that it was never conceived by the framers of the constitution that arms used for self-defense or hunting would be taken by any government that was not run by insane fanatics. Our forefathers faced dangerous indigenous personse who more often than not sided with foreign military powers to destroy the United States. Secondly, there were no Safeways, or A&P markets and the like to acquire food for most of the country. Therefore, the firearm was also assumed to be in the possession of all individuals free to roam about the country, becuase one needed to eat. So this begs the question, why was the Second Amendment required at all. Quite simply answered, as Justic Alito set forth, because the States wanted to have a back up plan to thwart any military moves by the Federal Government with respect to usurping the rights of the citizens of the states. The arms contemplated to be in the possession of the people were arms sufficient to that end: military style weapons. In this manner, were the Federal Government to show up and try to usurpo citizens lives appropriate action could be taken, such as in the Lincoln County wars and the Columbine and other mine strikes of the early 20th Century. We all know that would never happen, however, just ask the people down in Lousiana in the Katrina aftermath or the people roaming around in the sludge produced by BP. Clearly there is not threat presented by the Federal Government now. So we don’t get military style weapons. However, we still get the weapons that were always presumed to be in the possession of our citizens.
June 28, 2010, 5:52 pmepluribus says:
porterhouse says:
Reminds me of Professor Erwin Corey, who made a night-club career some years back as “The World’s Foresmost Authority.” Corey never specified what field he was the “foremost authority” in, just that he was the “foremost.” I thought the Professor had gone to his reward, but Wikipedia suggests he may still be with us–although well into his nineties.
http://en.wikipedia.org/wiki/Irwin_Corey
June 28, 2010, 5:58 pmporterhouse says:
Correct me if I’m wrong, but I thought that in Dodge City the sheriff required men to relinquish their gun upon entering the city limits. Once again, I disagree with Scalia’s Heller opinion, but I am against most gun control laws as a public policy matter.
June 28, 2010, 6:26 pmBrett Bellmore says:
Of course, if the federal government DOES become a threat, it won’t permit us to obtain those military style weapons we didn’t already have. So this defense of banning military style weapons in spite of the 2nd amendment is equivalent of saying, ‘The government can ban owning a fire extinguisher when your house isn’t on fire, because you only need one when it’s in flames.’
June 28, 2010, 6:29 pmHercules says:
Has J. Aldridge chimed in yet?
June 28, 2010, 6:35 pmleo marvin says:
Hate to say it, but A.W.’s right. Liberals hadn’t won the debate in 1973, but the tide had turned and was heading that way. IMO Roe reaches a just result, but it’s constitutionally suspect, and for 40 years it’s been the most potent organizing issue against liberals. Without Roe a lot of that wind goes out of the right wing sails, and if even one state outlaws abortion it moves to the pro-choice side.
June 28, 2010, 6:42 pmporterhouse says:
I am also the nation’s preeminent 3rd Amendment scholar, a very mysterious and vague amendment that has largely been ignored by our judicial branch much like the 2nd Amendment.
June 28, 2010, 7:03 pmDoc Merlin says:
Again, at the time, the constitution didn’t apply to state or local behavior.
June 28, 2010, 7:36 pmscc says:
Wouldn’t Thomas’s decision on P/I grounds be narrower than the plurality’s Due Process grounds, because P/I is limited to citizens, not persons? If so, would Thomas’s opinion be the holding? After all, there aren’t (now) 5 votes preventing states from limiting the gun rights of non-citizens, are there?
June 28, 2010, 8:51 pmPersonFromPorlock says:
Mr. Bloomberg is protected by the Constitution’s secret ‘Important People Clause’.
June 28, 2010, 9:10 pmSuperSkeptic says:
Is that “begs the question” or “raises the question”? I can’t remember…
June 28, 2010, 11:19 pmMichael Ejercito says:
Why would they spend over a hundred dollars for an AR-15, having to fill out all the paperwork, while they can get an AK-47 in Somalia for twelve dollars and no questions asked?
Furthermore, if consensus were relevant, that means legislators can effectively determine the scope of a constitutional protection merely by passing legislation (instead of participating in the Article V process.)
The only acceptable method of expanding or reducing the scope of a constitutional protection is the Article V process.
Who is the militia?
Why?
Has the Supreme Court ever ruled that sales taxes on laser printers violate the First Amendment?
June 29, 2010, 12:44 amporterhouse says:
I realize that the BoR was originally intended to not apply to the states, I was just responding to the quote. I mixed up Tombstone AZ Territory and Dodge City, KS. Tombstone was in a federal territory, not a state, and I believe it had strict gun control measures…and I believe Wyatt Earp endorsed the measures, but correct me if I’m wrong.
June 29, 2010, 1:54 amyankee says:
Has the Supreme Court ever considered a special tax on speech? Could a state tax books and periodicals at a higher rate than all other retail goods? Even if such a tax is permissible, which I doubt, it would surely violate the First Amendment if it were high enough.
Fees associated with gun licensing and registration aren’t going away, though, any more than SCOTUS is striking down court filing fees as a violation of the Petition Clause. But a special sales tax on legal gun purchases would be harder to defend (unless it took the place of licensing and registration fees).
June 29, 2010, 2:43 amDamage says:
I can’t speak to the issue of scrutiny, but neither Heller vs DC nor McDonald vs City of Chicago addresses anything beyond possessing in the home a handgun.
June 29, 2010, 6:47 amDamage says:
Neither Heller nor McDonald will affect carry concealed legislation, both apply only to possession in the home. However, in Heller, the court held that the 2nd protects an “individual right unconnected with service in a militia”. This is fertile ground for a followup suit seeking to establish protection of the right to bear arms in addition to the right to keep arms.
June 29, 2010, 6:57 amKharn says:
There was a case regarding taxes on a type of ink only used to print newspapers, I think it was from Missouri.
Alito makes it very clear protection of one’s self and family are a fundamental right (to paraphrase he states “most notably within the home” in the McDonald majority, not “exclusively in the home”), compare that with Maryland or some counties in CA where self defense is not an acceptable reason to be issued a permit but carrying jewels or cash are. I think interesting times are ahead in that arena.
June 29, 2010, 8:27 amA.W. says:
Porter
> Kagan and 7 of the justices are clearly activists for their political parties and they were selected to be justices because they had a record (either as a judge, in a White House administration, or working for a prominent organization with partisan leanings) that indicated they would be sympathetic to the platform of the party of the president that appointed them.
Leaving aside Kagan, what are you basing this on?
> Kennedy is a pragmatist and I believe he is not a partisan hack.
Kennedy is the worst. Have you read his opinion in Kennedy v. LA? Have you watched Alito rip it to pieces in the dissent?
> but that still does not excuse distorting the meaning of the 2nd Amendment the way Scalia did in Heller.
Another conclusory allegation, and thus useless to the discussion. But do explain to me why it is activism to say a provision of the constitution that says a right shall not be abridged means that the right shall not be abridged is CLEARLY activism and gives rise to no other reasonable interpretation. I mean that is the logic, right? Scalia et al are not just wrong, but it is supposedly so clear that they are wrong that they can’t just be wrong, but must also be corrupt, too. What a bunch of hogwash.
> I just read the 2nd Amendment again…the amendment does not mention the phrase “right to self-defense”.
Yes, but the comment you made that I was responding to did. As in: “This is why I believe the right to self-defense arises from the right to privacy.”
> Correct me if I’m wrong, but I thought that in Dodge City the sheriff required men to relinquish their gun upon entering the city limits.
Um, given that you think the focus of the issue is the SECOND AMENDMENT (ridiculous as that point was), what does an old West city have to do with it? Or are you ready to concede that what you said was bullshit?
And yes, there were violations of the right to bear arms in Kansas. And they were denounced by men like Charles Sumner. WHICH WAS NOTED IN THE OPINION. Don’t tell me you are criticizing the opinion without having read it. Are you actually Eric Holder?
> I mixed up Tombstone AZ Territory and Dodge City, KS…but correct me if I’m wrong.
Um, given that you are proving to be less than competent, the burden is on you. Especially given that you are relying to significant extent on the tales of the fabulist Wyatt Earp. Seriously, you come off as the kind of tool who thinks people were constantly being murdered in Western towns. Of course 50 years of Westerns would give you that false impression, but a minimally skeptical supposed historian would have seen through all that hokum years ago. I love Westerns, but they have about as much to do with history as The Lord of the Rings.
June 29, 2010, 9:09 amMichael Ejercito says:
One of the unique properties of gun bans is that they are enforced by people who are not bound by them.
Bigamy bans are not enforced by bigamists.
Prohibition was not enforced by drunks.
Heroin bans are not enforced by heroin users.
Same-sex “marriage” bans are not enforced by same-sex “married” people.
June 29, 2010, 10:47 amA.W. says:
michael
Now, i think i would pay to watch a bunch of drunks try to ban alcohol. I would pull up a chair, pop some popcorn. good stuff.
June 29, 2010, 10:57 amA.W. says:
Btw, that is not entirely true. There are at least hypocritical bans on campaign contributions that are not very evenly applied.
June 29, 2010, 12:16 pmporterhouse says:
I am responding to multiple posters about different topics and Kansas for some reason came up twice. The Wyatt Earp reference and “Bleeding Kansas” are two different issues. I mentioned Wyatt Earp in response to this quote,
Earp was a sheriff not even 100 years after the Constitution was written, so I was informing this poster about Wyatt Earp and his gun control measures.
By the time Earp became a sheriff in Dodge City Kansas was a state. McDonald deals with incorporation and Heller deals with a federal territory, so this distinction is actually important. I can see why you are confused because I mentioned Kansas two different times dealing with two separate issues…which was just a coincidence. Alito mentions “Bleeding Kansas” in his opinion, during this period Kansas was a territory, not a state. When Earp went to Tombstone it was part of a territory, not a state. Illinois is currently a state, not a territory. DC is a federal district and not a state. Heller and McDonald together inform us that Earp’s actions in both Dodge City and Tombstone would most likely have been unconstitutional…I hope that clears things up.
As far as the 2nd Amendment emanating from the right to privacy, I have written about that extensively on this blog.
June 29, 2010, 1:45 pmA.W. says:
Porter
> The Wyatt Earp reference and “Bleeding Kansas” are two different issues.
Two issues that you bled together with your lack of specificity.
> Earp was a sheriff not even 100 years after the Constitution was written
Yeah, except the constitution is constantly being written. Indeed, once again, we are not talking about the 2nd amendment, but the 14th.
Or perhaps you just mean the original constitution? Except that didn’t include the 2nd amendment. So I guess you mean the original constitution and the bill of rights, which isn’t remotely what you said even correcting yourself.
> McDonald deals with incorporation and Heller deals with a federal territory, so this distinction is actually important.
Good, because so far you haven’t even attempted to address or even acknowledge it, nor has your analysis made any sense in regard to that distinction.
> Alito mentions “Bleeding Kansas” in his opinion, during this period Kansas was a territory, not a state.
In order to make the point that the founders of the 14th A cared about the right to bear arms. You keep missing that.
> Earp’s actions
I wouldn’t base anything on “Earp’s actions” given that the man was a clear liar. I would sooner credit Bill Clinton’s claim to fidelity.
> As far as the 2nd Amendment emanating from the right to privacy, I have written about that extensively on this blog.
It doesn’t matter. Its still crap. Indeed, the right to privacy in its ancient form often directly contradicted the right to self-defense. For instance, the right to privacy included, circa 1840, the right to beat your slaves. But on the Amistad, the right privacy was overruled by the right to self-defense.
The truth is the modern conception of privacy is just that: a modern conception, a modern creation. Privacy in earlier times mainly meant the right to beat your chattels—be them your slaves or your wife. Rule of thumb and all that loveliness. The right to enforce the marital relation, as they put it. The claim that self-defense arises out of that is frankly lunacy.
June 29, 2010, 3:57 pmMark Horning says:
I’ve said for years that I could make a good argument that Minneapolis Star Tribune Company v. Commissioner gives ample precident that any tax on the tools or equipment used in excercising a fundimental right (ammo tax, firearms tax) are unconstitutional just as Minnesota’s tax on newspaper ink was found unconstitutional.
June 29, 2010, 5:04 pmA.W. says:
Mark
well, on one hand you have McCullough v. MD, which suggested that the federal government couldn’t be taxed at all. later they widdled it back to “the FG has to be taxed on principles that are neutral.”
I suspect that might be the best rule for firearms, or the implements of the press. Nothing wrong with a general sales tax applied to everything, including guns, but on the other hand, if its specific to guns, that is more problematic.
I mean the right to free speech doesn’t mean the right to go on TV for free…
June 29, 2010, 5:26 pmCareer soldier says:
And if you don’t understand that this is EXACTLY what the Founding Fathers wanted — TO PRESERVE THE PEOPLE’S FREEDOM from encroachment by ANY oppressive government (either domestic, or foreign invader), then you don’t understand history, and you don’t understand the fundamental premises of the Constitution.
There are only 3 entities who can seriously inhibit your freedoms:
June 29, 2010, 6:04 pm1. Murderers. (not all that common)
2. Kidnappers. (even rarer)
3. Government, using the methods of #1 and #2 above (quite common).
porterhouse says:
I think you are misunderstanding my position because I do not know if we have previously discussed this topic. Alito was correct to incorporate the 2nd Amendment against the states in light of Heller, and I have always maintained on this blog that after Heller the 2nd would be incorporated, so I really don’t have a problem with McDonald.
My problem is with both the majority and dissent of Heller…and Alito clearly uses McDonald to strengthen Heller. I have stated numerous times that Stevens’ Heller dissent is the perfect “strict constructionist” interpretation of the 2nd Amendment. I happen to disagree with Stevens’ dissent (I am not a “strict constructionist”) and I believe we have a fundamental right to self-defense with a gun in our homes, and this right should be incorporated against the states. I have stated numerous times on this blog that I believe the 2nd Amendment is a “federalism provision” and Stevens even asserted this claim in his McDonald dissent.
The “Bleeding Kansas” episode appears to indicate that in 1856 there was disagreement about the RKBA in federal territories…this would appear to contradict Alito’s position that the vast majority of Americans have always held the RKBA was “highly valued” for self-defense. Btw, Alito’s opinion clearly mentions the RKBA even though you continue to assert that McDonald is only concerned with the 14th Amendment and incorporation.
The BoR and Constitution were ratified within 3 years of each other…so not even 100 years after the ratification of the BoR, what difference does it make?
Earp’s actions are a fact, he passed gun control measures in both states and federal territories. Heller is relevant to Earp’s actions in Tombstone–which were apparently unconstitutional. Obviously “incorporation” is a concept that came around after Earp’s time as a sheriff in the state of Kansas.
June 29, 2010, 6:19 pmMichael Ejercito says:
If the right to privacy is a modern invention, how can it be a fundamental right, since it is not deeply rooted in our nation’s history and tradition (Washington v. Glucksberg)
June 29, 2010, 9:02 pmA.W. says:
Porter
> I have stated numerous times that Stevens’ Heller dissent is the perfect “strict constructionist” interpretation of the 2nd Amendment.
Oh, bullsh–. What part of “shall not be infringed” are you having trouble with?
> The “Bleeding Kansas” episode appears to indicate that in 1856 there was disagreement about the RKBA in federal territories…
Yes, and the people on the right-to-bear-arms side were the ones who wrote the Fourteenth Amendment. They won whatever debate there was.
> this would appear to contradict Alito’s position that the vast majority of Americans have always held the RKBA was “highly valued” for self-defense.
Again, not at all. Because the people who took those arms away were the losers by 1868.
> Btw, Alito’s opinion clearly mentions the RKBA even though you continue to assert that McDonald is only concerned with the 14th Amendment and incorporation.
Yes, whether or not the right to bear arms is INCORPORATED through the fourteenth amendment.
> what difference does it make?
That you don’t know how to state your argument clearly? A lot.
> Earp’s actions are a fact
Wow, and you call yourself some kind of historian. No, he was a fabulist. I mean its a fun story, but complete crap.
> he passed gun control measures in both states and federal territories.
No, he practiced, allegedly, gun control. He wasn’t a state legislator. He was a law man.
> Obviously “incorporation” is a concept that came around after Earp’s time as a sheriff in the state of Kansas.
You do know that Earp wasn’t in Dodge city until 1875—a full 7 years after the ratification of the Fourteenth Amendment, right?
But if one man’s behavior proves the meaning of the constitution, then I guess Plessy was rightly decided, right?
Nah, don’t answer that.
Michael
> If the right to privacy is a modern invention, how can it be a fundamental right, since it is not deeply rooted in our nation’s history and tradition
Because it isn’t.
June 29, 2010, 11:56 pmMichael Ejercito says:
Was Plessy actually overturned?
I know that Brown v. Board of Education overturned segregation in public schools because the segregated schoopls were not equal, but did they rule that Plessy was wrongly decided?
June 30, 2010, 10:14 amA.W. says:
Michael
Well, its a little complicated there and I will give a semi-simple answer.
The SC didn’t say Plessy was overturned in Brown itself. They just never followed Plessy again. And i think i remember at some point they looked back at brown in another decision and said it pretty much overturned Plessy. But there was no moment where the SC said, “in this decision we hereby overturn Plessy.” But they did in fact treat it as a dead letter, and if memory serves they acknowledge that it was actually overturned.
June 30, 2010, 12:41 pmporterhouse says:
I already stated that Earp’s gun control measures in both Kansas and federal territory were most likely unconstitutional in light of Heller and McDonald. That said, the concept of “incorporation” was still several decades away in 1875.
Breyer mentions Dodge City in his dissent. Here is the relevant Tombstone gun ordinance,
http://www.law.umkc.edu/faculty/projects/ftrials/earp/ordinances.html
Maybe what really happened at the OK Corral was a heated, albeit scholarly, discussion about the 2nd Amendment, with the Earps expressing ideas that Stevens’ expressed in Heller and the “Cowboys” expressing ideas Volokh expressed. Maybe members of the Volokh Conspiracy can write a screenplay and Hollywood can make another movie about the event.
According to Alito, the Federal government did not need the 14th Amendment to deal with the violation of the RKBA in a federal territory which is what was going on in “Bleeding Kansas”. Senator Sumner was most likely referring to the concept of equal protection with regard to guns, and the Equal Protection Clause is part of the 14th Amendment. In McDonald, I think Alito states examples of very clear violations of what would become the Equal Protection Clause and conflates them with the secondary violations of gun ownership (I wrote this before I read Breyer’s dissent but he makes this point…it is pretty obvious).
Some final thoughts,
Breyer does an outstanding job with the “strict constructionist” interpretation in his McDonald dissent…too bad he is not a “strict constructionist”! (I would suggest budding conservative legal thinkers read Stevens’ Heller dissent and Breyer’s McDonald dissent if they want to see how a “strict constructionist” opinion is written.) Breyer cites a whole bunch of liberal law professor law review articles that are correct but a day late and a dollar short.
Face it, Volokh won, the liberals lost. Volokh won because he is a brilliant “strict constructionist” thinker and he figured out a how to get around all the road blocks of the 2nd Amendment. Liberal legal thinkers are lazy and shortsighted, conservatives are creative and hardworking–that is how we ended up with Heller. Obama, who obviously agrees with the liberals in Heller, threw them under the bus and pretended to agree with Scalia because their position is so politically unpopular. Stevens’ McDonald dissent is a little creative but falls short. Politics do matter in SCOTUS decisions, so Scalia borders on the absurd in Heller and Americans applaud the decision…because we value the right to self-defense and the right to own guns.
June 30, 2010, 1:13 pmA.W. says:
Porter
> That said, the concept of “incorporation” was still several decades away in 1875.
Then once again, you are speaking inexactly. Incorporation was actually there before it was even ratified, although obviously it was not operative until ratification was complete. They were abundantly clear that the 14th A would incorporate the bill of rights to the states. What you mean to say, I assume, then is that the supreme court wouldn’t recognize it for decades. Which is correct but I don’t see how it relates to your claim that the authors of the 2nd amendment couldn’t imagine anyone taking away guns for self defense circa 1789. Perhaps you are just speaking inexactly there, too.
> Senator Sumner was most likely referring to the concept of equal protection with regard to guns, and the Equal Protection Clause is part of the 14th Amendment.
Well, here are the words: “[n]ever was [the rifle] more needed in just self-defense than now in Kansas.” That doesn’t sound like an equal protection concern to me.
Again, have you even read the opinions you are criticizing?
> I think Alito states examples of very clear violations of what would become the Equal Protection Clause and conflates them with the secondary violations of gun ownership
You think? You mean you don’t know? And I would add that Alito addresses Breyer’s critique on this point quite handily. Did you even bother to read what that response was?
> Breyer does an outstanding job with the “strict constructionist” interpretation in his McDonald dissent
Bull hockey. The founders of the 14th Amendment were abundantly clear that they thought right to bear arms was fundamental and was being incorporated against the states.
> Volokh won because
Not to take away from Volokh, but I don’t think he was the sole or even primary proponent of this view. In fact, as best as I can tell he was only cited by the dissent.
> Scalia borders on the absurd in Heller and Americans applaud the decision…because we value the right to self-defense and the right to own guns.
Right and the fact the constitution says that the right to bear arms shall not be infringed has nothing at all to do with it. Because according to you somehow “shall not be infringed” means “go ahead, infringe it as much as you like.” And scalia is so clearly wrong he is an activist to say otherwise, and not merely someone who disagrees.
Tell me, are you actually from Bizarro world? Or maybe an alternate universe where there is a duplicate of every person, but they are evil and have a goatee (with the exception of the women on the goatee part, I hope)?
June 30, 2010, 3:03 pmporterhouse says:
5 justices agree with you, and 4 justices agree with me with regard to the 2nd Amendment. How is that grounds for living in a “bizarro world”? Do people that side with the dissent in a SCOTUS case live in a “bizarro world”? What about Kelo?
I just happen disagree with those 4 justices in the dissent (now 3 after Stevens’ dissent in McDonald which is a move in the right direction) about the right to self-defense with a gun.
Volokh was cited by Scalia in Heller several times, and I believe the most important part of Scalia’s opinion was explaining the word “state” in the 2nd Amendment. If “state” means one of the several states, then the 2nd Amendment reads very differently. Volokh is cited by Scalia on this issue…Volokh is brilliant, and really helped out the citizens of the US by increasing our liberty. Incorporating the 2nd Amendment against the states was inevitable after Heller.
The liberal justices were on the wrong side of this issue and Obama threw them under the bus…even though Kagan and Sotomayor agree with Stevens’ in Heller. I agree with the outcome of Heller and McDonald. I celebrate the right of law abiding, responsible citizens to own guns for self-defense, I just disagree with the reasoning in Heller.
June 30, 2010, 4:31 pmA.W. says:
Porter
> 5 justices agree with you, and 4 justices agree with me with regard to the 2nd Amendment. How is that grounds for living in a “bizarro world”?
Because you said those five justices were not only wrong, but so clearly wrong they had to be basing it on their policy preferences instead of a fair reading of the constitution. That is the bizarre world part of your analysis. They gave the amendment the most natural reading possible, with a statement about how nice militias are, and operative language guaranteeing a broad right. It is your side that engages in verbal gymnastics to try to pretend that “shall not be infringed” means “shall be constantly infringed for lame reasons.”
> Volokh was cited by Scalia in Heller several times
Do you think you can ever change the subject to MacDonald? Or have you not bothered to read the thing?
> If “state” means one of the several states, then the 2nd Amendment reads very differently.
Not by much, actually.
> Incorporating the 2nd Amendment against the states was inevitable after Heller.
Not true either. Although I consider MacDonald to be correctly decided, it was nearly as clear as it was in Heller.
June 30, 2010, 4:51 pmKman says:
AW:
Who were the “founders” of the 14th in your view, and when/where did they make Second Amendment incorporation “abundantly clear”? Was it even discussed?
June 30, 2010, 4:51 pmA.W. says:
Kman
> Was it even discussed?
why don’t you read the opinion and find out?
June 30, 2010, 5:20 pmporterhouse says:
The only parts of Alito’s McDonald opinion in which I really disagree with you concern the 2nd Amendment and Heller…I don’t really disagree with the rest of Alito’s opinion, so we are probably more in agreement than disagreement. My issue is with part III of his opinion.
Btw, I just read Stevens’ dissent again…I believe it will be regarded as one of the great opinions of the SCOTUS. The first part of the opinion is a little rambling (this is where I made my previous remark when I thought he was going to regurgitate his dissent in Heller), but he then manages to hit it out of the ballpark and onto Waveland Ave. (I hope he spends many a happy summer day on Waveland Ave. in his retirement.) I would highly suggest to budding liberal legal thinkers to read this opinion to see how it is done.
June 30, 2010, 8:25 pmMichael Ejercito says:
There are one question I have.
Open containers of acid have been used as weapons . Would they qualify as protected arms under the 2nd Amendment?
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