The McDonald Decision

[Tom Servo]

So, are we losing one part of the reason for the 2nd - the defense against liberty in the majority view and most of the discussion.

Sadly, I've noticed that as well. The 2nd Amendment used to be about the National Guard. Now it's about handguns in the home.

We've won, but to quote Al Pacino, this is a battle of inches.

Though the idea of an armed populace as a bulwark against tyranny has been brought up in supporting arguments, all we've gotten from the Supreme Court so far is the right to keep a gun for the "core right" of self-defense of the individual.

I can't really think of a case we could bring that would force the courts to accept the 2nd Amendment as a last resort against tyranny. Frankly, if we have to invoke the right, it may be too late for courts.

 

[Glenn E. Meyer]

I agree, a ban on ARs would be quite constitutional under a view of the handgun in the home for self-defense.

Granted the decision is a great step forward as compared to the view that NO guns, no way for self-defense.

But, given our own rhetoric suggests that we can do almost all the self-defense we need with a wonder handgun like the Judge rolleyes, one could see bans being successfully promoted for other guns.

Such rules would have to be fought on the political and legislative level as compared to the constitutional one, if I understand the decision.

Nor can gun bans on campus or other locations be constitutionally challenged, in the near future.

 

[Tom Servo]

I seem to recall reading about numerous cases all sitting around waiting for this day. Is there a mountain of paperwork being filed?

There's a great deal that's already been filed. Nordyke v. King was placed on hold pending the results of McDonald and should be reheard soon.

Peña v Cid should be picking up momentum soon as well.

 

[CowTowner]

OK, I'll concede it was a major win.
But, do we have any notion as to when the cases waiting in the wings will start to proceed through the system?
Perhaps I was under the misconception that these were ready to launch and simply waiting on the McDonald button to be pushed.

I guess I don't type as fast as Tom Servo. That post was made while I was typing and is exactly what I was thinking about. But I seem to recall more than 2 cases were waiting.

 

[zukiphile]

I agree, a ban on ARs would be quite constitutional under a view of the handgun in the home for self-defense.

Granted the decision is a great step forward as compared to the view that NO guns, no way for self-defense.

But, given our own rhetoric suggests that we can do almost all the self-defense we need with a wonder handgun like the Judge (), one could see bans being successfully promoted for other guns.

Such rules would have to be fought on the political and legislative level as compared to the constitutional one, if I understand the decision.

Nor can gun bans on campus or other locations be constitutionally challenged, in the near future.

I see the consequence of Heller/McDonald somewhat differently.

Neither decision indicates that the right is solely for self defense. As an analytical matter, the right is not linked to service in a particular active militia unit. However de-linking the right from service does not mean that the prefatory clause is useless in describing the scope of the right as suggested in Miller. So an AR might be less than optimal for defense in a small apartment, but no one is foreclosed from arguing its coverage under the right; a ban could still face constitutional difficulty.

I agree both that we could see successful bans for some classes of weapons, and that the political arena is where much of the contest can still take place. However the modest of Heller/McDonald does not mean that a continuing incremental approach would not have good results.

 

[Frank Ettin]

OK, I'll concede it was a major win.
But, do we have any notion as to when the cases waiting in the wings will start to proceed through the system?
Perhaps I was under the misconception that these were ready to launch and simply waiting on the McDonald button to be pushed...

Several have been on hold in California. Not only Nordyke but a couple challenging "may issue", one challenging the approved handgun list and one attacking the ammo law due to come into effect next February.

Also, for a somewhat different perspective, litigation is only the tip of the iceberg. By now the many meeting to come have already started -- in the offices of State Attorneys General and among senior members of legislatures. What laws are most vulnerable to judicial challenge? How much is dealing with the litigation going to cost? What can be done to deal with the costs and head things off? And senior people in state RKBA groups and NRA representative are, or soon will be, meeting to discuss not only litigation plans, but legislative advocacy strategies to best capitalize on McDonald.

 

[Glenn E. Meyer]

One argument that the dissenters made was that different areas had different circumstances, Chicago being different from the Wild West locales that some of us live in. Thus, Chicago might be unable to fight off a total ban on handguns but still maintain an AR ban as not being suited for apartment defense. Defense against tyranny being a different beast as tyranny is not locale specific.

In TX, Dr. Gratia-Hupp made a compelling case for handgun carry after the Luby's incident. However, during the AWB hearings, a woman who used an AR to defend herself was not convincing. That probably was due to several factors, including aggressive priming and gender stereotypes.

I'm just concerned that the self-defense focus is limiting but I might just be a worry-wart. Current political currents seem to indicate that large scale federal bans aren't going to fly. Local bans seem to be supported by the populace in those areas. NY, CA, and IL for instance could vote the bums out. But now the bums are restrained to some extent from banning all handguns. They will throw up obstacles, so you can't get that wonder HD Judge.

 

[zukiphile]

NY, CA, and IL for instance could vote the bums out. But now the bums are restrained to some extent from banning all handguns.

I am not sure about that. To the degree those places have bums, it is because the elctorate in those places like bums.

I think it is more likely that voters who like restrictive gun laws will continue to like them and vote for people who back them.

One argument that the dissenters made was that different areas had different circumstances, Chicago being different from the Wild West locales that some of us live in. Thus, Chicago might be unable to fight off a total ban on handguns but still maintain an AR ban as not being suited for apartment defense. Defense against tyranny being a different beast as tyranny is not locale specific.

You are correct that Breyer made the argument, but I don't see a persuasive argument for local tailoring of a federal right. One might also argue that some parts of the country would be better served by limiting jury trials or requiring defense counsel to be provided to criminal defendants, but that kind of policy consideration is largely removed from local political control.

 

[Glenn E. Meyer]

The local tailoring argument is in part racist. It implies that the denizens of that area are so unlawful that it is better to take away the guns or forbid ownership of guns even to the law-abiding folks in that area. These are usually the areas with large minority populations.

Thus, Breyer wants to restrain their constitutional rights in some kind of paternal view.

In the past, as Thomas pointed out the race card was played to make minorities defenseless against oppression. Today, it is to protect them from themselves. And of course, protect the priviledged classes from the spill over if some of those minorities commit crime against the priviledged. So poor old Mr. McD had to be defenseless for the greater good of his cohort, as decided by Breyer, Sotomayer, etc.

 

[Tennessee Gentleman]

Though the idea of an armed populace as a bulwark against tyranny has been brought up in supporting arguments,

Don't look for much traction in the courts for that idea. I for one don't think that was EVER part of the Second Amendment and I think the courts, legislature and American people will find the insurrection theory about as appealing as full auto and crew served weapons for all without restriction. It scares folks because it smacks of lawlessness. But that is another argument we have hashed out before.

 

[zukiphile]

The local tailoring argument is in part racist.

I would not call it racist, in part because I am generally favorable to the idea of real federalism and local solutions for local conditions. However, federalism shouldn't just matter sometimes, and a coherent view of federally enforced rights should not allow Breyer to pick and choose which to enforce and which to leave to local control according to his (or another justice's) preference.

Per Scalia,

I join the Court’s opinion. Despite my misgivings about Substantive Due Process as an original matter, I have acquiesced in the Court’s incorporation of certain guarantees
in the Bill of Rights “because it is both long established
and narrowly limited.” Albright v. Oliver, 510 U. S. 266, 275 (1994) (SCALIA, J., concurring). This case does not require me to reconsider that view, since straightforward
application of settled doctrine suffices to decide it.

Extending the limitation of federal power to the states does some violence to the corpse of federalism, but we should not pretend we've witnessed a murder. The victim was gravely ill decades before any of us were born.

 

[Glenn E. Meyer]

My comment about racist implications is that when I look at the motivations for playing the local control card, I see it not as a real argument for state vs federal perogatives. It is the view of the minority population needing to be controlled or protected against themselves as the attitudinal engine that wants to ban guns and then the local argument is used to bolster or enforce that opinion.

I'm always one to look for the emotional to drive the decision and then folks choose the cognitive rationale to support it.

 

[Evan Thomas]

People's opinions are emotionally driven? Oh, surely not. I'm shocked, shocked....

And speaking of emotional reactions, it seems excessively paranoid to me to worry that because both Heller and McDonald dealt specifically with handguns as tools for self-defense, other types of guns will suddenly be more subject to bans. As Zukiphile notes, "Neither decision indicates that the right is solely for self defense."

While these decisions don't automatically rule out such attempts, I see nothing in either that would make them easier. Rather the opposite, given the standard of "common use." And defining "common use" more clearly, along with what counts as a "class" of weapon under that standard, would seem to be high on any list of goals for upcoming cases.

 

[Brian Pfleuger]

I see nothing in either that would make them easier. Rather the opposite, given the standard of "common use." And defining "common use" more clearly, along with what counts as a "class" of weapon under that standard, would seem to be high on any list of goals for upcoming cases.

Which brings up a sort of chicken and egg question regarding the NFA, AWB and "common use". Certain weapons are not "common use" because they are banned or banned in effect... How would that issue be addressed?

 

[KyJim]

This guy nailed it on the head:

I thought I remembered this and, yep, this guy nailed it (post 399):

Ultimately, I think the Court will incorporate the 2A on due process grounds with Thomas possibly concurring through the P&I Clause. I don't think they'll say a thing about the level of scrutiny and will parrot a lot of the language of Heller on what firearms in "common useage." The question upon which the Court granted review dealt only with incorporation, not the level of scrutiny.

http://thefiringline.com/forums/showthread.php?p=3969889#post3969889 post 399

 

[44 AMP]

While the high court's decision dealt primarily with having a handgun in the home for defense, and not so much with arms in general (although there was some mention), isn't that because the case(s) before the court were about having a handgun?

Also, I don't see the rulings as establishing an individual right vs a collective right. What I see is the establishment of the individual right as well as the collective right.

How could we have a right to arms for personal defense, and not have the right to those same arms for collective defense (militia)?

 

[Aguila Blanca]

From the article quoted by Glenn E. Meyer:

Derek P. Langhauser, general counsel for the Maine Community College System, agreed that most campus bans would survive court challenges because the ruling is meant primarily to safeguard the rights of individuals to protect themselves in their homes.

How can SO many allegedly intelligent people continue to spout the utter nonsense that the decision was about people protecting themselves "in the home"? Is it the air, or is it the water? What is so bloody difficult to comprehend about "bear"?

I respectfully submit that Mr. Derek P. Langhauser should never have been allowed to graduate from whatever law school he attended.

 

[Tennessee Gentleman]

Which brings up a sort of chicken and egg question regarding the NFA, AWB and "common use". Certain weapons are not "common use" because they are banned or banned in effect... How would that issue be addressed?

Go here: http://www.youtube.com/watch?v=pNN7_TOvaUo.

Great presentation by Gura at Brown University on Law Day.
He addresses the "circularity" argument at: 1:35.29.

Good presentation of the Heller decision implications.

 

[Tom Servo]

How could we have a right to arms for personal defense, and not have the right to those same arms for collective defense (militia)?

That's a whole other ball of wax, especially given the exquisite job certain political factions have done to make "militia" conjure up images of bloodthirsty hillbillies waiting to blow up government buildings to topple the ZOG.

I imagine we'd have a chance to refute Presser used as a precedent. Still, I wonder what kind of case we could bring that would (re)establish the right to form militias...

How can SO many allegedly intelligent people continue to spout the utter nonsense that the decision was about people protecting themselves "in the home"? Is it the air, or is it the water? What is so bloody difficult to comprehend about "bear"?

The part where the Court mentioned it only in passing. What it means to "bear arms" and what the contours of that right may be are issues for future cases.

 

[mack59]

While I agree that the court did not address except in passing the bearing of arms - I do think that what they did say was highly signficant. They made it a point to specifically say that the carrying of arms could be constitutionally prohibited in government buildings, schools, and sensitive places. While this is not definitive by any means - it is highly significant in that there would be no reason to expicitly make this point if they did not in fact view the carrying or bearing of arms as a normal and a protected part of the right. It also makes sense that given the value the court placed on self-defense that the court would not truncate that right at the door to ones home.

More speculative is the courts language that the States had/have leaway to determine to some extent where, when, and how arms would be carried. I would take that to mean that States may define a preferrred method of carry and limit carry in the areas described above. Thus a State could require concealed carry over open carry or perhaps even require it in certain venues so long as the method of carry did not materially infringe the core right to self defense, which also implies a shall issue model for ccw.

This would be congruent with the courts description of the right as a fundamental right.