The McDonald Decision

[Mike Irwin]

"I don't believe that all consentual behaviour between consenting adults is a matter enjoying categorical constitutional protection, but that is beside the point."

Actually, you're missing the point. The early Supreme Court ruling held that it was legal to criminalize private activity between one group of people while maintaining as legal the exact same activity between another group of people.

The court 17 years later found that to be an incorrect determination as on its very face it violated the equal protection clause of the Fourth Amendment in much the same manner that Plessy vs. Ferguson "separate but (inherently un)equal" ruling was later found to be in part a violation of the Fourth Amendment in Brown vs Board of Education -- yes, that's another case of the court overturning itself (more than 50 years later).

But, as I have repeatedly said, none of those cases are analogous to MacDonald in that none attempted to fall back to and verify ORIGINAL FRAMER INTENT as the basis for the ruling.

Please read that again -- ORIGINAL FRAMER INTENT.

I've been looking all morning, and I have yet to find a case in which a later court overturned a previous court's ruling when that earlier ruling was an attempt to fall back to and verify ORIGINAL FRAMER INTENT.

ORIGINAL FRAMER INTENT.

Just so we don't lose the salient point of my argument, again, ORIGNAL FRAMER INTENT.

 

[Mike Irwin]

"That said, I could well see a liberal court that would verbally acknowledge Heller and McDonald while essentially making decisions that make the individual RKBA an empty suit. In other words that court would verbally acknowledge the RKBA as an individual right - but allow so many infringements on that right that it would become toothless and meaningless."


Bingo. Right there is the angry tiger in the closet, so to speak.

That is the great danger, the "around the edges" erosion of a right by "constitutional" restrictions.

It could ultimately end up that sure, you have a theoretic right protected by the Constitution and Supreme Court ruling, but allowed restrictions are so onerous that few can meet the requirements.


Fortunately the trend in the country has been to the opposite direction.

Take a look at the number of states over the last 20 years that have enacted shall issue Concealed Carry laws that allow all citizens to obtain a permit to carry a handgun.

In 1994, just before Virginia went to shall issue, the state was provisional issue. The local sheriff determined just who was going to get a permit. If he didn't think you should have one (and the sheriff in Fairfax County apparently only believed that people who contributed to his re-election campaign were eligible for CCW) you were screwed.

Many other states were the same way -- provisional issue (California is still this way, as is Maryland) -- and the abuses were pretty significant.

 

[Brian Pfleuger]

In other words that court would verbally acknowledge the RKBA as an individual right - but allow so many infringements on that right that it would become toothless and meaningless."

Frankly, even post McDonald, I think that's exactly where we're at right now. Really, in practical terms for the every day citizen, this ruling will change next to nothing.

The current legal system and atmosphere will allow the Antis to simply "nickel and dime us to death". Minute changes that stand until struck down by the SC, followed by yet more minute changes that stand until struck down....ad infinitum.

They won't even care if the changes (or new rules) are BLATANTLY unconstitutional, since NOTHING is unconstitutional until, essentially, the SC says so.

 

[Maromero]

The judgement is big, as in cornerstone big.

 

[zukiphile]

"I don't believe that all consentual behaviour between consenting adults is a matter enjoying categorical constitutional protection, but that is beside the point."

Actually, you're missing the point. The early Supreme Court ruling held that it was legal to criminalize private activity between one group of people while maintaining as legal the exact same activity between another group of people.

That is not the holding in Bowers. You may be remembering the code challenged in Lawrence. The code section in Bowers did not merely apply to homosexual conduct. In footnote one the court notes,

[ Footnote 1 ] Georgia Code Ann. 16-6-2 (1984) provides, in pertinent part, as follows: "(a) A person commits the offense of sodomy when he performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another. . . . "(b) A person convicted of the offense of sodomy shall be punished by imprisonment for not less than one nor more than 20 years. . . ."

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=478&invol=186


I am not missing your observations about the character of the McDonald reasoning. I am noting that these matters can seem settled until they aren't.

 

[Mike Irwin]

"I am not missing your observations about the character of the McDonald reasoning. I am noting that these matters can seem settled until they aren't."

Yes, I recognize that, and understand what you're saying.

But the salient point remains, I can find no indication that the Court has overturned a previous decision when that decision was, at its heart, the original intent of the Framers.

I think there's a lot more reticence for the court to do so.

 

[Wildalaska]

The current legal system and atmosphere will allow the Antis to simply "nickel and dime us to death". Minute changes that stand until struck down by the SC, followed by yet more minute changes that stand until struck down....ad infinitum.

Just like Gov't does with all the Bill of Rights. Parade Permits, Abortion restrictions, Stop and Frisk, Searches.......

They key thing is whats off the table....forever....(or at least as long as we are all around)

The dreaded "Ban them All" scenario. That effectively kills the radicals on both sides, leaving the rest of us to take the real issues on.

I can live with that.

The judgement is big, as in cornerstone big.

Yeah no more fundraising letters or chain emails screeching about Bobby Rush legislation

WildandthatsareliefAlaska ™

 

[Tennessee Gentleman]

Yeah no more fundraising letters or chain emails screeching about Bobby Rush legislation

Really, no more frantic fund raising letters from Uncle NRA et al

Ken, pal, I KNOW you know better than that!

These guys would then have to get real jobs!

 

[ursavus.elemensis]

Kodiakbeer wrote:

You're kidding yourself. Curious about your statement, I went to the Brady site to check PA laws, and find them extremely onerous. It's the "Boil the frog slowly" method where once the laws are in place you just take them as a given. You shouldn't be happy about these restrictions and useless bureaucratic hurdles. This ruling will give citizens in states like PA some help in getting rid of these ridiculous rules.

The fight isn't over. We just got some ammunition to continue the fight.

http://www.bradycampaign.org/stategunlaws/scorecard/PA/

Uh, first of all, you probably should not try to get your info from the Brady Campaign since, a.) there are numerous other sites that are more likely to have accurate info, and b.) they are actually not correct about PA's gun laws. In PA, the Supreme Court has ruled several times that NO LOCAL GUN LAWS can stand, none, absolutely zero, no local laws. Brady gives PA one point for "Some local control of regulations," and hence Brady is wrong. They are also wrong about the State keeping the reocrds of handgun sales. The Uniform Firearms Act specifically prohibits a State firearms registry. And, every FFL license holder will tell you that if the authorities want to trace a firearm, they have to start at the first FFL who sold it and work their way through the system that way. If the State retained records and had a registry, they would not need to go through that process to trace a firearm in PA. Get your info from more reliable sources before re-posting incorrect info on the Internet.

Second, I respectfully submit that Mr. Kodiakbeer is totally and completely wrong about the nature of PA's gun laws. We have onerous gun laws? I must point out that you are quite misinformed, kind sir. We are shall issue for CCW permits. The permits are issued without a class, without tests, without actual shooting, and the only requirement is that the applicant must get the signature of 2 references to vouch for his/her being a decent human being. There is a state-mandated limit of 45 days max for the local officials to approve the application, and permit application denials can be appealed to the Court of Common Pleas in the County of application. The permit is valid statewide, and state premption prevents any local gun regulations. We have the fewest restrcited places to carry of any state in the country. We don't have any silly bar/restaurant restrictions. We allow carry everywhere except elementary and secondary schools, courthouses, and Federal buildings. We don't have to honor those silly "you can't carry in this store" signs. Open carry without a permit is legal everywhere except for the City of Philadelphia, where a permit is required for open or concealed carry. The only thing that is even a little restrictive here is that handguns require paperwork and background check, but private citizens can buy and sell all the rifles off books that they want. no paperwork, no background checks. I do not know of a single state that has more free and less onerous gun laws than PA except for AZ, AK, and VT which do not require any CCW permits. Other than that, every other State that I know of has more restrictive gun laws than PA. Certainly Texas and Florida have FAR more restrictive laws than PA does. For a Florida permit, the applicant has to take a class and be fingerprinted! We do not require our citizens to be fingerprinted for a CCW permit in PA. In Texas, they require a class and require shooting. We don't. Texas can limit your right to carry a gun if the storeowner posts a sign saying that guns are not allowed. In PA, our laws do not allow that.

Mr. Kodiakbeer, you sir need to learn a bit more about PA gun laws before being so critical.

 

[Brian Pfleuger]

Actually, most of NY is very similar to PA.

Most places are effectively "shall issue". There are very few restrictions on carry, outside NY city. Schools, courthouses, etc, are it.

Private sales of all firearms are allowed, except that handgun must be added to the permit before change of possession.

I'm kind of amazed by how some states have an "anti-" reputation and quite often are not (NY, PA), while others (TX) have a "super-uber-pro" reputation and, in fact, are not.

 

[Maromero]

Easy bear. Easy. That was very Scaliatic.

 

[maestro pistolero]

My question in regards to that is, at what point does a closed registry of newly built machine guns, as the 86 law has been read as meaning, become a de-facto ban on ownership via the cost of purchasing one?

It is a de-facto ban now for almost all Americans. A $1000 M4 equivalent is now 10-20k because of the artificial market demand created by the closure of the registration.

 

[KyJim]

WildAlaska wrote:

In a certain sense Hennigan is right about the impact of the decision. If VA decides that one gun a month is appropriate, then both sides can work it out knowing that passing the low WONT lead to confiscation and CANT lead to confiscation.

Not necessarily. The government might pass a law limiting a person to owning a total of five guns, or a gun of no bigger than .380 caliber, etc. and then confiscate those not in compliance. Guns would still be confiscated but not banned totally.

 

[Wildalaska]

The government might pass a law limiting a person to owning a total of five guns, or a gun of no bigger than .380 caliber, etc. and then confiscate those not in compliance.

And that would never pass muster. Bans and confiscation are off the table.

WildimsuretherearemanyfolkswhoagreewiththatAlaska ™

 

[vranasaurus]

I'm kind of amazed by how some states have an "anti-" reputation and quite often are not (NY, PA), while others (TX) have a "super-uber-pro" reputation and, in fact, are not.

NY is one of what 5 states (NY, CA, CT, MA, NJ am I forgetting any HI?) that have an AWB.

While it may operate in some places it is still not shall issue.

You have to have a permit just to own a handgun. How many states make you do that?

If you were to rank the gun control laws in the US from most liberal to most restrictive NY would probably be in the top 10 of most restrictive states. (CA, MA, CT, IL, MD, NY, NJ, HI would be the 8 most restrictive)

 

[mack59]

The text of Heller and now McDonald don't seem to support any reading that I can glean - that one gun a month or AW bans or approved gun lists or rosters would be in anyway constitutional.

The decisions refute explicitly any balanced test, rational basis test, and also as stated in McDonald that just because the right to keep and bear arms may be shown to cause harm to society - that in no way enters into or justifies restricting the right to keep and bear arms. The decisions state that the RKBA is a fundamental individual right - so could the state say you have the right to worship - but only one time a month. Could the state say you have the right to worship but only in the context of government approved religions that are on a list or roster of approved religions?

Yes there are limits - you can't worship if part of your worship is human sacrifice (unless it is symbolic) and you can't test your ammo on other people nor can you always worship anywhere anytime you want (in the middle of a busy intersection where you stop traffic or in court when under oath) nor can you always bear arms anywhere anytime you want.

 

[mack59]

Illinois does suck - but there is also a world of difference between Chicago/cook county and pretty much the rest of Illinois. Chicago bans handguns (or did), has a assualt weapons ban, and requires licensing of guns including long guns.

However, downstate there are basically three garbage laws that apply or restrict gun ownership - no legal carry open or concealed is the biggest one, no NFA weapons of machine guns, and having to have a FOID card (firearm owners identification card) which is the least problematic of the three as it is basically shall issue for ten dollars and good for three years.

I expect that the FOID card as it exists now and the ban on all carry will go bye bye as a result of Heller/MacDonald in the not too distant future.

The FOID will go bye bye because if you don't have one you can be arrested for possessing a gun - and that would be akin to being arrested for speaking or going to church if you didn't have a speech card or a worship card - the FOID will probably become a CCW license down the road - which it appears the court feels is okay if it is shall issue and not onerous.

The carry ban will go away as the court from the text of MacDonald seems to clearly envision the carrying of arms as part of the right - as it specifically takes the time to note that carry may be constitutionally prohibited in government buildings, schools, and sensitive places - no reason to make that point if carry could be totally prohibited.

 

[Brian Pfleuger]

Just like Gov't does with all the Bill of Rights. Parade Permits, Abortion restrictions, Stop and Frisk, Searches.......

They key thing is whats off the table....forever....(or at least as long as we are all around)

The dreaded "Ban them All" scenario. That effectively kills the radicals on both sides, leaving the rest of us to take the real issues on.

I can live with that.

Those things like "parade permits" are a FAR cry from the current state of gun control, and a far cry from ANYTHING that I can envision in the near term.

In MOST ways, under MOST circumstances, in MOST places, there is a virtually unrestricted right to say anything you want. The same is true of religious beliefs.

(Odd that you would mention abortion, which is certainly not a clear COTUS issue, yeah or nah.)

The RKBA should be of the same standard as speech, religion and the press. There should be nearly no restrictions. Certain, fairly obvious restrictions, yes, just like there should be on religion, speech and press, but very, very few.

The current state of affairs is a far cry from true freedom in the sense of a near absolute freedom as we would understand the RKBA to be, and I see little in Heller or McDonald that will make a substantive change to the VAST majority of Americans.

 

[KyJim]

Bans and confiscation are off the table.

I hope so. But with a couple of appointments like Kagan, we will end up at best with a "rational basis" test even though Heller and McDonald imply this is inappropriate in dicta. There would not be a complete ban, nor complete confiscation. If you can limit a purchase to one a month, you can likewise rationalize a limit on total number of guns owned. But, I'm repeating myself now and I don't want to look at the negative. I just don't think we should get complacent.

 

[Tom Servo]

The RKBA should be of the same standard as speech, religion and the press. There should be nearly no restrictions. Certain, fairly obvious restrictions, yes, just like there should be on religion, speech and press, but very, very few.

Agreed. Funny thing is, on reading Scalia's opinion, I came across this nugget:

No determination of what rights the Constitution of the United States covers would be complete, of course, without a survey of what other countries do. (Scalia concurrence, p. 10, emphasis original)

Significant weight was placed by the dissenters on the idea that the 2nd Amendment protected a "different kind of right," and was therefore not entitled to the same protections as others. If anything, I wonder if this case was more about putting the 2A on the same footing as the others than about incorporation.