McDonald v. Chicago - Whats the chance of Strict Scrutiny?

Disagree that AWB, mag limits, discretionary CCW and such get a pass - also disagree that no other significant gun control laws will be struck down.

Why? First, Heller identified the keeping and bearing of arms as an individual right. Second, the court already has ruled out the rational basis review test - which is the weakest - level of scrutiny - else the DC ban could have been constitutional. Third, Kennedy (supposedly the weakest on the second amendment and the RKBA), has stated that the second amendment protects a fundamental right - which is also endorsed by other justices in the majority. Fourth, the majority of the court, per orals in McDonald, rejected the idea of limited incorporation as proposed by Stevens and the balance chart idea of Breyers. Fifth, while destroying the argument of Chicago's atty, the point was made, by I believe Roberts, to the Chicago atty that by rejecting the Stevens idea of limited incorporation as a line of agument (all in or all out) that Chicago and the states would (being all in or full incorporation) subject to fuller and more strict scrutiny. Sixth, the court has stated that it is unconstitutional to ban an entire type or class of firearms that are commonly owned. Seventh, the court by ruling out rational basis review is left with either intermediate scrutiny or strict scrutiny.

On that basis it seems very likely that total bans on carry will be unconstitutional, and there will have to be nondiscretionary CCW or open carry. Bans on handguns or rifles or other commonly used/owned firearms will be unconstitutional, also with no rational basis review but at least intermediate if not strict scrutiny, an AWB could not get a free pass by the government asserting that it would save lives etc... they would have to actually show real evidence supporting their assertions and show how such firearms are not commonly owned and are significantly different from other firearms.

Thus from what we can understand from the court so far is that there will be significant changes in laws regarding firearm ownership and use in many states and cities thoughout the nation from New York through Illinois, to California. Will all gun laws go away - no - but especially in state or cities with restrictive gun laws there will be many struck down - or probably you will also see a scramble by many cities and state legislatures to rewrite and repeal many gun control laws before they get forced to by the courts.

It is my guess that the USSC will allow the lower courts to begin to define the standard of scrutiny through the many cases already pending, and they will only step in as referee when or if they feel some court has gone too far or not far enough. Those lower courts will be ruling in cases where they understand out of the box that the right to keep and bear arms is a fundamental individual right fully incorporated against the states (which includes of course all cites and other local govt. entities).

Too often the Court has interpolated whatever it needed into the Constitution to alter what it truly says to fit an agenda.

Damn. Just when I was starting to feel good about the Court, too.

Woody

Click to expand...

Given that, then here's the real question:

What exactly is the court's agenda these days?

What are their goals, and what are they (possibly) up to? They have the job for life, so job security isn't it... and as far as power goes, they have more, in many respects, than the people that put them there.

And their pay isn't dependent on how well they rule or decide...

So... what's on their minds? Any guesses?


J.C.

What exactly is the court's agenda these days?

Click to expand...

The court as a whole has no agenda. There is a clear ideological divide and many decisions, especially the major ones, often come down 5-4.

I don't think it's right to say they have an agenda per se. They hear cases and must only answer the question before them. They cannot offer advisory opinions or anything like that to fulfill an "agenda."

While I have my own impressions of how the oral arguments went, I want to say how unbelievably cool it is to find a discussion group where members have actually read the transcripts and commentary on a legal topic and can discuss them intelligently. My hat is off to you all.

mack - I agree 100% and have read the transcripts, review, all there is to read on this.


If you want a great summary of where we are scroll up and read mack's post.

How woud "heightened" intermediate scrutiny be defined?

Click to expand...

Clear objective evidence to limit a fundamental right.

Strict scrutiny would be compelling, clear objective evidence to limit a fundamental right.

These are just guesses obviously.

ETA: A simple differentiation might be: Heightened intermediate scrutiny involves objective evidence from a specific region as to gun regulations proposed and an analysis of how it would impact a fundamental right. Strict scrutiny would require clear, objective evidence from a study and how it would impact a fundamental right in a specific narrowly tailored regulation.

Heightened intermediate scrutiny wouldn't have to be quite as narrowly tailored in its regulatory parameters IMHO. But it would be close to strict scrutiny.

I'm sure there are better examples but that one just "hit" me.

Well, if you'll recall, Chief Justice Roberts actually asked Feldman repeatedly why they were discussing scrutiny when this case was only about incorporation. When Roberts discussed scrutiny, it was repeatedly in the context of telling Feldman that he was arguing scrutiny issues not incorporation. That alone tells me the Chief is not real interested in elaborating on scrutiny.

Click to expand...

I understand and you are correct that scrutiny might not be addressed at all.

I do believe these questions were directed at Gura though, so I still hold a little hope that, at least, some type of framework or "clues" on scrutiny will be addressed in the decision.

I understand and you are correct that scrutiny might not be addressed at all.

Click to expand...

It seems to me that scrutiny is being decided, and the Justices know it.

What level is applied will be dependent on how the 2nd is incorporated, and to what degree, so the level of scrutiny the court wants or thinks is appropriate certainly has to play into their decision, if only in a peripheral way.

I just don't see how the two things can be separated from each other to any rational degree.



J.

I think the chance of level of scrutiny being addressed in this case approaches zero.

Its clear that if the 2A is incorporated by any means that the Chicago style bans go away.

No doubt Chicago will do the same thing DC did and come up with a ban that is slightly less restrictive.

Keep in mind it is still very difficult, but not completel;y impossioble, to legally buy and keep a handgun in DC. And that is not going to change any time real soon.

I just don't see how the two things can be separated from each other to any rational degree.

Click to expand...

The courts have made plenty of bizarre rulings in the past. Roe is just one example of those rulings as are the long line of rulings that have all but gutted the 4th and 5th amendments.

The courts have made plenty of bizarre rulings in the past. Roe is just one example of those rulings as are the long line of rulings that have all but gutted the 4th and 5th amendments.

Click to expand...

I think you're missing my point, Bob...

If the court makes a ruling that would ordinarily gain us Strict Scrutiny, but then throws some twist in there that absolutely doesn't allow it... then they have decided on and ruled on the issue of scrutiny.

They don't have to speak directly on the issue to decide it. No?


J.

To those who asked or are guessing, here are the levels of scrutiny:

Rational Basis Scrutiny (easiest to satisfy):
1. Rationally related
2. to a Legitimate state interest

Intermediate or Heightened Scrutiny:
1. Substantially related
2. to an Important state interest

Strict Scrutiny (hardest to satisfy) (we want this):
1. Narrowly tailored (meaning it is the least restrictive way to accomplish the goal)
2. to a Compelling state interest


Hopefully that will clear some things up for you guys.

As for scrutiny, won't the Court have to decide what level they intend to apply in the immediate case? I believe they will if they intend to come down on the side of incorporation be it with P or I, or DP. This is more than just about incorporation. It's about whether Chicago's handgun ban will stand.

Woody

As for scrutiny, won't the Court have to decide what level they intend to apply in the immediate case? I believe they will if they intend to come down on the side of incorporation be it with P or I, or DP. This is more than just about incorporation. It's about whether Chicago's handgun ban will stand.

Click to expand...

They can dance around it just as they did in Heller. Strike it down as violating a fundamental right and call it a day. Once they review laws less absolute than outright bans on guns (ccw, etc.), then they'll have to decide the applicable level of scrutiny. They may lay down which level of scrutiny will apply in McDonald but they certainly don't have to.

Thanks, cbrgator. Those are very helpful definitions.

Not to be funny, but in the strictest sense, the most compelling state interest is to maintain a well armed and well regulated in the use of arms population.

Woody

Not to be funny, but in the strictest sense, the most compelling state interest is to maintain a well armed and well regulated in the use of arms population.

Click to expand...

That depends on who you ask. Daley, Bloomberg, and Fenty would disagree with you quite vehemently. They would argue quite the opposite that the most compelling state interest is to rid the citizenry of guns to make us all safer.

Thanks again, cbrgator.

Lets hope they specify. I'll make all future cases much easier - especially if they apply strict scrutiny.

Woody

That depends on who you ask. Daley, Bloomberg, and Fenty would disagree with you quite vehemently. They would argue quite the opposite that the most compelling state interest is to rid the citizenry of guns to make us all safer.

Click to expand...

They'd have to prove it to me before I'd comply!

Woody

Well, disagreements are allowed. That's what the courts and legislatures are for.

They and their supporters come from the viewpoint that guns and safety are diametrically opposed, where we believe that they are inexorably interconnected.

Well, disagreements are allowed. That's what the courts and legislatures are for.

Click to expand...

Not to be picky, but I'd say the courts and legislatures are there because disagreements are NOT allowed!

Woody

The court could may well not rule on the Chicago handgun ban directly - they may just rule that the 2nd amendment is incorporated against the states and then remand the case back to the lower court for a rehearing and decision on the ban.

This is more than just about incorporation. It's about whether Chicago's handgun ban will stand.

Click to expand...

Actually, the only question before the Supreme Court is incorporation. There is no lower court record about the Chicago ban. The Supreme Court will decide the issue of incorporation and will remand to the District Court to apply the decision with respect to the Chicago ban.

Actually, the only question before the Supreme Court is incorporation. There is no lower court record about the Chicago ban. The Supreme Court will decide the issue of incorporation and will remand to the District Court to apply the decision with respect to the Chicago ban.

Click to expand...

You sure about that? Then what was the trial about? There has to be a trial in a Circuit or District court before it can reach an appellate court. Who has standing to sue for incorporation? You can't just file a claim with the Supreme Court and ask for incorporation. To have standing you have to have injury, causation, and redressability. You can't sue on a theory or a concept. Otherwise Alan Gura could have sued Chicago himself. He needed a plaintiff with standing. SO, McDonald sued Chicago over the handgun ban.

Actually, the ONLY question before the court is the Chicago handgun ban. As it turns out (and this was on purpose by Alan Gura), the SCOTUS must now address the incorporation issue in order to resolve the question before the court, which is the Chicago ban.

You sure about that? Then what was the trial about? There has to be a trial in a Circuit or District court before it can reach an appellate court.

Click to expand...

Yes, the only issue tried in the District Court was incorporation.

Here is the Motion to Narrow Legal Issues.

In pleadings and appearances before the Court in this matter, as well as in public statements, the parties and Court have acknowledged that the primary threshold legal issue in this case is incorporation. Plaintiffs submit that under any theory of Fourteenth Amendment incorporation, Defendant is bound to respect their Second Amendment rights as recently delineated in District of Columbia v. Heller, 128 S. Ct. 2783 (2008). In contrast, Defendant maintains the Second Amendment does not apply to it.

The Court must therefore determine the critical issue of this case: whether the rights secured by the Second Amendment to the United States Constitution are applicable to state and local governments through the Privileges or Immunities and/or Due Process Clauses of the Fourteenth Amendment. It is especially wise to decide this before the parties engage in lengthy and costly discovery. It would also be a waste of judicial resources to litigate this case without expediently determining the legal issue that is, by everyone’s account, the crux of the matter.

The Court has noted this, and suggested the filing of this motion.

Click to expand...

=====

Actually, the ONLY question before the court is the Chicago handgun ban.

Click to expand...

Per the Writ of Certiorari granted by the Supreme Court on September 30, 2009:

QUESTIONS PRESENTED:

Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment's Privileges or Immunities or Due Process Clauses.

Click to expand...

The Court must therefore determine the critical issue of this case: whether the rights secured by the Second Amendment to the United States Constitution are applicable to state and local governments through the Privileges or Immunities and/or Due Process Clauses of the Fourteenth Amendment.

Click to expand...

So... for SCOTUS to fully answer the question set before it by the lower court, they will have to think on the level of scrutiny as well, it seems.
( Notice I said "think on", not "rule on". )

Interesting... I wonder if they'll tell us what they've decided now, or drag it out a while longer. One way or the other, I'm not convinced that they won't have made up their minds long before they ever put pen to paper on the subject.

Their ruling in June is going to be something to see, I think. One for the history books, you might say....


J.

THanks for the discussion, but.....

To me, an outsider (not a lawyer) it appears to be a farce. Two Constitutional amendments and you are arguing "how many fairies can dance on the head of a pin?" It's about incorporation, still, since 1886, the court and the government has been twisting themselves into pretzels trying to curtail the natural rights detailed in the second amendment.

Like many court decisions, it benefits the legal profession first and foremost, and it requires individuals to spend a lot of money trying to regain bits and pieces of rights that are supposed to be guaranteed.

Click to expand...

It is more about the argument than the subject of the matter. This is a point in time akin to the period following the civil war when the fourteenth was ratified to specifically apply the BOR to the states. And the SCOTUS pooped the Slaughterhouse Case to put a cork in it, for a while. Now the cork (Heller) is out, the genie (McDonald) is out and if the court prevaricates, waffles or bs"s this case, the schism will widen and the last peaceful chance will be the November election. The intellects must not get lost in the minutiae, watch the big picture. The sheeple are not happy. They are being preyed upon, murdered and raped with growing regularity. They have been denied justice and liberty and will not be still and compliant any longer. If the court punts this issue, the result will not be either peacefull nor pleasant. IMHO.