Originally posted by Hugh Damright
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Basically, all McDonald says is that if the feds can't do it, neither can the states or cities.
I am not aware that McDonald says anything of that nature ... I think the rule remains that federal gun laws are generally unconstitutional because the feds are not delegated gun control powers, while state gun laws are generally constitutional because police powers are reserved to the states ... McDonald means that that the Fourteenth Amendment limits the States' gun control powers, but I am not aware that it reduces them to the same level as federal gun control powers ... and if incorporation were to bind the States the way the federal government is bound, it seems as though the States would be bound to tight to maintain a society and culture.
First, please don't misunderstand.
McDonald does not mean that the states must automatically conform to the exact same gun laws as the feds. What it does say is that any gun law which would be unconstitutional at the federal level is also unconstitutional at the state level. It is not unconcievable that the federal government could pass new gun control laws which would be found constitutional like microstamping, a new AWB, or registration. SCOTUS has never ruled on such measures so we really don't know if they would be found constitutional or not.
Where the federal government's power is most limited over that of the states is that it must draw much larger and diverse support for any measure that it wishes to pass. While very restrictive gun laws may be relatively easy to pass in New York, they are not so easy to pass in Texas. Texas has no say over what laws New York passes, but Texas and all the rest of the states do have a say in what laws the federal government passes.
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the Court decisively held that incorporated Bill of Rights protections “are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.”
I find there are two ways to read this .. in one construction, if the Second Amendment prevents the US from banning handguns in a federal district like DC, then it also prevents a city/state from banning handguns like in Chicago ... this construction makes some sense to me and seems to fit the Heller/McDonald cases ... in the other construction, if the US has no general gun control powers over Virginia, no jurisdiction over CCW for example, then Virginia also has no general gun control powers over Virginia, such as jurisdiction over CCW ... this construction seems nonsensical to me.
The reason that the second construction is nonsensical is because it is inaccurate. The Federal Government
does have some gun control powers over Virginia and the rest of the states. For example, federal laws states that no one, regardless of their state of residence, may own a firearm if they have been convicted of a felony or deemed mentally unstable. SCOTUS pretty explicitly stated in both the
Heller and
McDonald cases that such a restricition is constitutional. The problem with your second construction is that it's an all or nothing proposition: either the gov't has unlimited power to regulate guns or they have no power at all.
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this Court decades ago abandoned “the notion that the Fourteenth Amendment applies to the States only a watered-down, subjective version of the individual guarantees of the Bill of Rights,”
I don't see how that is the issue ... police powers were reserved to the States, and these include gun control powers ... if the federal government is not empowered with jurisdiction over gun laws in Virginia, e.g. they cannot require a CCW permit, and Virginia requires a permit to CCW, that is not a watered-down right ... the US might prohibit CCW in a federal district such as DC, and Virginia might prohibit CCW, but y'all seem to construe it to mean that if the US cannot prohibit CCW in Virginia then Virginia cannot prohibit CCW in Virginia.
Again, you're looking at this in an "all or nothing" sense. The Federal government does indeed have some jurisdiction over the gun laws of the states, just not unlimited jurisdiction. I have yet to see anything that would suggest that nationwide CCW standards would necessarily be unconstitutional.
Originally posted by Some Dude
You said (in post #103) "All that McDonald really says is that state laws regarding 2A are now subject to the same level of constitutional scrutiny that federal laws are under Heller."
You also stated "Basically, all McDonald says is that if the feds can't do it neither can the states or cities."
Allow me to build my case. Read Art. I Sec. 8, then Art.I Sec.9, then the 2nd Amendment, then 9A and 10A, then read the two quotes above.
My assertion is the Chicago gun ban is an issue to be addressed by the citizens of Chicago at the city and/or county level directly, and the citizens of Illinois outside of Chicago at the state level. The people who live there vote for their elected government. If gun grabbers keep getting elected - who's fault is it?!
I think you're missing the point of my post. My point was that the federal government has no more power to enact stricter gun control laws that it did before
McDonald. Any gun control law enacted at the federal level (such as the hypothetical caliber ban you mentioned earlier) would still be subject to 2A scrutiny under
Heller.
Also, I think you may fail to understand the politics of both the city of Chicago and the state of Illinois. Because of its large population, Chicago holds a dispraportionate sway over the politics of the rest of the state of Illinois. People not familiar with the state are often suprised to learn that most of the state is actually quite conservative as opposed to the very liberal city of Chicago (I've seen this firsthand as I grew up in central Illinois and still visit fairly frequently as I still have family there).
Chicago is a notoriously corrupt city and its corruption and failing policies are often spread to the rest of the state due to its political sway. However, because IL politics are so lopsided, non-Chicago IL residents are effected by Chicago's corruption yet are largely powerless to do anything about it.
This type of situation is precisely why the 14th Amendment was ratified. The southern states at the time were violating the rights of blacks in rather flagrant ways. However, because the political power of blacks was unfairly removed through both Jim Crow laws, intimidation, and retribution they were basically powerless to do anything about the violation of their rights. As violations of fundemental civil rights became more and more flagrant, it became apparent that some restriction needed to be placed on the states. Because the federal government did not, at the time, have sufficient power to do so, the power was granted to it through a constitutional amendment.
Now, if you want to debate the merits and drawbacks of the 14th Amendment, you're welcome to do so. However, incorporation through the 14th Amendment is most certainly constitutional as the 14th is just as much a part of the constitution as the 1st, 2nd, 9th, 10th, or any of the other Amendments are. It seems as though you are trying to champion States' Rights over the power of the Federal Government, but the rights of the states has been waning since the Civil War
