The McDonald Decision

The court did say that arms could be prohibited from schools - my assumption is that this certainly means at least elementary though H.S., whether or not this also applies to colleges - I am less certain - particularily where there is student housing on campus.
 
That the court even went partially down the road of "bearing" arms surprised me. Frankly I expected a simple yes or know on incorporation and batting it back to the lower courts.

Never expect any more from a SCOTUS case than the very narrow question being asked.
 
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.
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The majority said that a right is applicable to the states in the same manner it is applicable to the federal government.

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.
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Federalism was substantially gutted by the civil war and the subsequent consitutional amendments.

The intent of the 14th amendment was clearly to apply consitutional rights and protections to actions by state governments and thus change federalism. And I don't really have a problem with that because it was done through the process laid out in the consitution. While the founders couldn't foresee a time when the states would be the agents of Tyranny the congress in the years following the civil war saw it and started the process to amend the constitution.

The gutting of federalism was done largely because of the civil war but the process used was the one laid out in the consitution. The congress passed the amendment and it was ratified by a sufficient number of the states. The states essentially decided that federalism needed to change and agreed to the change as required by the consitution.
 
Federalism was substantially gutted by the civil war and the subsequent consitutional amendments.
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Is Federalism a pale shadow of its former self? Yes, but I'd blame abuses of the commerce clause, not the 14th Amendment.

Freedom of economic experimentation is one thing. Infringing on fundamental rights, especially when these states ratified the Bill of Rights upon entry to the union, is a different thing altogether.

If Arkansas wants to suspend the income tax, or charge more than Texas, they've got that option. If Colorado wants to lower the speed limit to 35, that's their prerogative. None of those states, being parts of the union, have the authority to tell me how to worship, search my house without a warrant, or tell me that I can't arm myself.

...and let's please not use the term "state's rights." Individuals have rights; governments have powers. Those are two completely different animals.
 
Tom Servo said:
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...
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Many (most?) of us already have the right to form militias. Most of us, in fact, ARE the (unorganized) militia. My state does not prohibit the establishment of a private militia; we only prohibit using same to overthrow the government. I know of several other states whose laws substantially mirror that position.
 
The intent of the 14th amendment was clearly to apply consitutional rights and protections to actions by state governments and thus change federalism. And I don't really have a problem with that because it was done through the process laid out in the consitution.
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Reading that actually made me shudder ... the intent of the 14th is not nearly as clear as some people imagine ... I tend to see it as an antidiscriminatory amendment ... and it most certainly was not done through the amendment process ... I've read that Virginia considered the 14th Amendment and it received 0 votes in our house and 0 votes in our senate ... so the US put Virginia under military rule, reducing us to "US Military District Number One", until we voted for an amendment we did not want. That is not the amendment process, consentual government, or anything of that nature. In fact, it is the very thing that the Second Amendment is intended to prevent. There seems to be room for doubt about what the 39th Congress intended the 14th Amendment to do, and little doubt that the amendment failed the amendment process.
 
Many (most?) of us already have the right to form militias. Most of us, in fact, ARE the (unorganized) militia.
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I wasn't clear on that. In theory, we have the right in many places. In practice, it's not so clear.

What constitutes a militia, and what actions are protected? Where does a liberal state decide that an innocent group of armed, prepared citizens might be domestic terrorists in training? What criteria are there? Is a militia considered a distinct political/lobbying organization if its members try to encourage or discourage legislation? How many members would said militia have to have to qualify? Does it come under federal scrutiny if it has membership across state lines?

I can remember the government doing its absolute best to demonize the very word "militia" during the Waco/Ruby Ridge/Oklahoma City period, and many people still have a very bad impression. Just last year the SPLC was publishing "studies" attacking the idea of civilian militias.

Our definition of militia is quite clear. To the general public and the legal system, it is still murky.

Perhaps a case in which a local militia is harassed will provide a means to challenge Presser and establish a favorable precedent.
 
Tom Servo said:
...and let's please not use the term "state's rights." Individuals have rights; governments have powers. Those are two completely different animals.
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I do not know how or when this particular form of linguistic purity arose, but it is not helpful in understanding the roots of federalism. Writings during the founding era often mentioned both government powers and rights, sometimes interchangeably.

The Articles of Confederation, Article II. Each state retains its sovereignty, freedom, and independence, and every Power, Jurisdiction, and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.
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James Monroe, Views of the President of the United States on the Subject of Internal Improvements

This view of the exclusive jurisdiction of the several States over the territory within their respective limits, except in cases otherwise specially provided for, is supported by the obvious intent of the several powers granted to Congress, to which a more particular attention is now due.
... the right to declare war ...
The right to lay taxes, duties, imposts, and excises ...
... the right to raise and support armies ...

To the other powers of the General Government the same remarks are applicable and with greater force.
The right to regulate commerce with foreign powers ...
The right to borrow and coin money ...
... the right to punish piracy ...
The right to establish an uniform rule of naturalization ...
The right to promote the progress of useful arts and sciences ...
The right to constitute courts inferior to the Supreme Court ...
The right to establish post-offices and post-roads ...
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Aguila Blanca said:
Many (most?) of us already have the right to form militias.
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The States have a right to form militias. Individuals have no constitutional right to form a militia. Your state may not prohibit one but many do and that prohibition would withstand any constitutional challenge.

Aguila Blanca said:
Most of us, in fact, ARE the (unorganized) militia.
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males 18 to 45 with no rights, duties or responsibilities that we can assert against.

Tom, the militias you speak of are unauthorized paramilitary organizations. they are not protected by the Second Amendment.
 
Individuals have no constitutional right to form a militia. Your state may not prohibit one but many do and that prohibition would withstand any constitutional challenge.
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I am aware of no state that prohibits private militias. Some states prohibit parade of or public funding of private militias.

The first amendment should be sufficient to protect the right to form private associations.
 
Quick! Somebody trot out the ruling in Presser!

Folks, the McDonald decision had nothing to do with the militia clause of the 2A. So let's not go there.
 
What is the Fundamental Right?

I believe in Heller, the Supreme Court of the United States ruled by 5-4 that the Second Amendment in the US Constitution protected a FUNDAMENTAL, INDIVIDUAL right. In McDonald, the USSC ruled by 5-4 that the 2nd A. also applies to the states and local governments. There are all kinds of open questions up in the air because of this.

However, many people say that all that they've done is to protect keeping a gun IN THE HOME for self defense. I'm not sure that is the case.

The "right" in question, and which is protected by the 2nd A. is the "right to keep AND bear arms". Notice the right involves both of those actions and is a singular right, not a plural one. It's not the right to keep arms and the right to bear arms. It's not the right to keep OR bear arms. It's not the right to keep arms or bear arms. It's the right "TO KEEP AND BEAR ARMS". So, if the 2nd A. protects the fundamental, individual, right "to keep AND bear arms", how are they going to wiggle into saying this only permits someone to keep a gun in the home for self defense. It would seem that the new Chicago law, saying you cannot have a gun on the porch, in the yard, or in the garage, already runs afoul of the rulings in Heller and McDonald.

It's one right which encompasses two distinct yet related actions. You can't say the right is protected for keeping arms but not for bearing arms. This will be interesting to see how it plays out, especially in Chicago and Washington, D.C.

Don't get me wrong. I'm under no illusions that either of those two cities will come to their senses any time soon and agree with what I've stated here. They will continue to twist, obfuscate, lie, and do anything they can think of to keep their citizens from being free and exercising ALL of their rights, especially when it comes to the 2nd A. They are tyrants. In some ways I have pity on their subjects. On the other hand, those subjects voted for the tyrants and continue to do so. They've locked themselves up in their own virtual prisons in many respects. Too bad for them. I feel the most sorry for the freedom loving people who have voted against the tyrants and fought them any way they could. They have to suffer or leave. I just might pick the latter, though I understand that's not always an easy proposition, nor a desirable one.
 
Tom, the militias you speak of are unauthorized paramilitary organizations. they are not protected by the Second Amendment.
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I don't believe the Second Amendment protects any sort of militia. It protects "the right of the people to keep and bear arms", one of the reasons being that a well regulated militia is necessary for a free state.

I do believe that it should be up to the authorities within the states to call forth their respective militia before a bunch of guys just show up with guns ready to do whatever they think is necessary for whatever reasons. I don't believe what the founders had in mind was for armed individuals to take matters into their own hands outside of any governing influence or official notice. If there is a natural disaster and the governor of a specific state, for whatever reason, asks for volunteers to show up with their own arms to perform some duty under the guidance and direction of a state government official, that's just fine and dandy. No one can force you to show up, but if you want to, go for it.

If the crap were to really hit the fan, all bets are off. Who knows what that would look like, when it would happen, what the conditions would be, or what would end up being done? I don't believe that's something we can plan for. If it ever came to that, we'd all try to do our best to cope with it. Certain people would assume leadership roles, and others would follow them or form their own groups. You can't predict what might happen amongst humans when a nasty crisis causes panic and turmoil on a grand scale.

Guys getting together on their own to practice military duties is fine as long as they don't break any laws or specifically and intentionally target any individual(s) for harm. But a group who does that is more of a private army than what was meant by "the militia" during the early days of the nation. That's my opinion.
 
I believe in Heller, the Supreme Court of the United States ruled by 5-4 that the Second Amendment in the US Constitution protected a FUNDAMENTAL, INDIVIDUAL right.
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Just a small correction: the Court did not rule that the RKBA was "fundamental." That may have been the fly in the ointment for a couple of minor post-Heller suits.

That one little word carries a great deal of legal weight. Fortunately, Alito saw fit to echo the Palko language in his opinion:

In sum, it is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty. [Majority Opinion, p. 31]
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As such, the 2nd Amendment (at least the part we've got so far) gets elevated to a higher standard of protection.
 
I hate to be nit-picky, but there is STILL no firm standard. The ruling may indicate that the 2nd should be considered at an equal level as other fundamental rights, but they never actually agreed upon a standard of review. We certainly know some justices profess to "respecting" the 2nd, but would happily apply something like "rational basis" when reviewing infringements to the RTKBA (and maybe even call it "intermediate scrutiny."):(

On a different line,
Does anyone see anything in Heller and/or McDonald that could be used against the new Chicago ordinance?
 
Right now I think that the best thing that "gun people" could do would be to confront the activities of the Chicago council as being racist, besides transparently unconstitutional.

Which will need publicity.
 
It's easy to say they are racist or unconstitutional in a post but I would ask for a specific as to why.

I've said that the locale rationale is racist. Thus, I'd agree that pointing out that this rationale was to deprive people of color the right to defend themselves.

Also, we are stuck with reasonable restrictions and the SCOTUS has the opinion that counts. Chicago now will allow you a gun at home for self-defense (SCOTUS likes home defense). It has a test but TX and quite a few states have concealed carry tests - so is that an unreasonable restriction?

Unless we go back to the argument that any restrictions are unconstitutional, it would be hard to argue that Chicago's are in violation of the SCOTUS ruling. The remedy is legislative.

This would take quite a bit of time. TX - a gun friendly state can't get off the dime on parking lot guns because of business interests blocking it and getting their legislative buddies to keep the bill from a vote.
 
I think part of it is a matter of public relations and shocking media into actually thinking - I don't think most of them are malevolent - they're just LAZY.

We need to send out a picture of Otis, with the caption (and story around it...) "Black Man Victim of Chicago Gun Laws."
 
I recall actually seeing that point made on some nightly news - could have been Diane Sawyer. The point was made that an elderly African-American wanted to defend himself.

Thomas made the point of laws being used to deprive blacks of the ability to defend themselves against racists and government supported racists.

However, I think the left is paternalistic towards people of color and would try to disarm all of them for their own good. However, this paternalism is covering a fear of people of color.

Complicated, isn't it?

I agree that I would like to see someone call out a left wing anti on the racist view of depriving people of color. However, some of the classic gun world probably have their own racial issues and this doesn't appeal to them.

I might be skirting our rules when I say this and after to delete myself but that's my read of the research on guns and some attached attitudes from some sections of the gun world. Sigh - :(
 
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