Are these two statements true about McDonald and Heller

[usmarine0352_2005]

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1.) McDonald and Heller were weak decisions, thus precedent may not apply. (Or both cases may even be over-turned someday)



http://www.fredericknewspost.com/sections/opinion/display_columnist.htm?StoryID=107195

Those justices who oppose the Heller and McDonald decisions are apt to continue to oppose them, maintaining that they were wrongly decided. Therefore, these decisions will not be accepted as establishing precedent for future cases involving the Second Amendment.

2.) Strict Scrutiny will apply to the 2nd Amendment:

Even the 7th Circuit says this:

Russ v. Watts, 414 F.3d 783, 789 (7th Cir. 2005) (Illinois) (citing Wash. v. Glucksberg, 521 U.S. 702 (U.S. 1997)).
The United States Supreme Court has articulated a two-part analysis for substantive due process claims: First, the Court has regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation's history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed. Second, it has required in substantive-due-process cases a careful description of the asserted fundamental liberty interest. A strict scrutiny test applies; the Fourteenth Amendment forbids the government to infringe fundamental liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.

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[TexasBill]

This is where the real wrangling starts. Don't forget, the Supreme Court ruling did not reverse the Chicago ban; it sent the decision back to the lower courts for a new ruling consistent with the Supreme Court's ruling. And that's where we'll see some real action: the federal district and appeals courts.

The latest set of Chicago ordinances raise a whole bunch of legal questions including what is defined as your home. The city of Chicago says it is the structure and the land upon which the structure stands is not included. There is a major lawsuit right there. The one operational gun per household is another issue; is it really a compelling public interest?

There are also challenges that will likely be brought in a number of states like California, New York, Massachusetts and even some states that might surprise you. States that require prior licensing to purchase a handgun could find their statutes challenged simply because other states do not require such licensing. If the Second Amendment is incorporated in the Fourteenth Amendment, the federal requirement pursuant to GCA 1968 should be all that's required of any eligible U.S. citizen. State restrictions should be treated like poll taxes and similar Jim Crow laws and ruled unconstitutional. Currently, Alaska, Arizona and Vermont are the only states where the law conforms closely to the wording of the Second Amendment.

 

[gc70]

Supreme Court cases establish precedent, which lower courts are bound to follow. We will probably see many, many lower court decisions before a Circuit split arises that could even warrant another case going to the Supreme Court. The Supreme Court is reluctant to overturn precedents and more often works around the edges of prior decisions, largely because that is the focus of the questions presented by new cases.

Heller and McDonald do not come out and declare "strict scrutiny" using that term, but they use all of the language that describes the tests for strict scrutiny.

 

[Igloodude]

Those justices who oppose the Heller and McDonald decisions are apt to continue to oppose them, maintaining that they were wrongly decided. Therefore, these decisions will not be accepted as establishing precedent for future cases involving the Second Amendment.

IANAL, but I do have a degree in Political Science from USNA, and I'd have to say "bullcrap" on this one. Is a law not enforced because it squeaked past Congress by a single vote margin? Now, you will certainly have judges and justices that will try to avoid applying the precedent because they disagree with the decision, but that would happen whether it was 5-4 or 9-0, and whether the dissenting four maintained their opposition or not (just as you have Attorneys General and police that try to enforce or avoid enforcing laws according to their own disagreements with those laws).

 

[61chalk]

I would think if you lived in Chicago, an bought an had a handgun in your home. What would the city do if they found out or if the police for what ever reason knew you had it now...? If they arrested you, would you not be able to sue an have the Supreme Court on your side...? How many lawsuits does the city want...but I do see an on going battle.

 

[natman]

1) What's a "weak decision"? Are you not really Super Bowl champs if you only win by 3 points? Sounds like coulda, woulda, shoulda, to me.

"Absolute truth is a 5-4 decision in the Supreme Court" Odd Bodkins.

2) Probably, although it has not yet been formally decided. The phrase "fundamental liberty" is usually associated with strict scrutiny.

 

[usmarine0352_2005]

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Didn't McDonald v. Chicago basically over-turn these 3 Supreme Court Cases though?


So, every once and awhile SCOTUS does over-turn prior cases and goes against precedent, right?



United States v. Cruikshank, Presser v. Illinois, and Miller v. Texas.
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[everallm]

You mean like equal suffrage, slavery etc......?

Yes, when CASES come to the SC which have a plain basis in legal scholarship where it can be DEMONSTRATED that the decisions previously made do not fit into the framework of law as currently understood, then the SC MAY revisit.

Plainly however, as can be seen in McDonald, as an example, the SC are very very very conservative (small C).

They very carefully stated here that the Slaugherhouse and associated cases that impinge directy on P+I and the doctrine of selective incoproration (even when Slaugherhouse is particularly egregious) were upheld. They could (and in many opinions SHOULD) have revisited them but ring fenced them out. Ditto with any conceivable case that would even peripherally point to a de-incorporation of 2A.

So yes the SC CAN revist, they rarely do, it needs a damn good and well supported case to even be granted Cert and even then the cases rarely overturn established law. Their preference as alluded to above is to tinker at the edges and smooth the rough edges where practical.

Next time this MIGHT be revisted fully is in 50 or more years so don't hold your breath.

The only areas we need to worry about now are

Explicit or agreed implicit level of scrutiny (IMHO it will end up as a Heightened Intermediate akin to sexual discrimination that is a Strict Scrutiny in all but name)

The "Bear" portion of Keep and Bear

Is a registration system constititional if it is not used to restrict the "keep and bear"

What does the incorporation of 2A implicity mean in the context of firearms law when an individual moves from state to state. As an example, if an individual moves from say PA to NJ and they already own long arms on the "bad gun" list of NJ, say an L1A1 can they really be deprived of this firearm. If not then why can't a lifelong NJ native own said firearm......This one will be very interesting to see fought out in the courts

CCW in general and specifics.

This is by no means an exhaustive list, I could add, cities such as NY believing they can have more rigorous laws than the sate they inhabit, CA and the handgun list, NJ and the Permit to Purchase a Pistol and effectively dicretionary FID system etc

Lost to see, lots to do but USMarine, move on, the 2A issue as identified in Heller and McDonald is DONE.

 

[Victor1Echo]

I think they are both true, and that decision clearly indicated to me that the second amendment is soon to be history. In my simple mind all of the SCOTUS should have found in favor of Macdonald, and sent a message to Chicago and the rest of the Unamerican states. And they did. This Soetero fellow will put Kagen on the bench, then it's all over. More important than all the legal issues is the SPIRIT that this group of people exhibit. Had they ruled on this, it would have been precedent. Now when it comes up again and Kagen is on the bench it will 5-4 against the right to keep and bear arms.

 

[gc70]

Now when it comes up again and Kagen is on the bench it will 5-4 against the right to keep and bear arms.

The math: 4 dissented - Stevens, Breyer, Ginsberg and Sotomayor; if Kagan replaces Stevens, who is retiring, that would still be 4 votes against.

Didn't McDonald v. Chicago basically over-turn these 3 Supreme Court Cases though?

So, every once and awhile SCOTUS does over-turn prior cases and goes against precedent, right?

United States v. Cruikshank, Presser v. Illinois, and Miller v. Texas.

Look at McDonald again:

For many decades, the question of the rights protected bythe Fourteenth Amendment against state infringement has been analyzed under the Due Process Clause of that Amendment and not under the Privileges or Immunities Clause. We therefore decline to disturb the Slaughter-House holding.

At the same time, however, this Court’s decisions in Cruikshank, Presser, and Miller do not preclude us from considering whether the Due Process Clause of the Fourteenth Amendment makes the Second Amendment right binding on the States.

McDonald did not directly overturn Cruikshank, Presser, and Miller, but took a different path to get around those cases. Even Dred Scott was not explicitly overturned; the Supreme Court just noted that part of the decision was mooted by the adoption of the 14th Amendment.

Don't hold your breath waiting for the Supreme Court's recognition of a fundamental Constitutional right to be overturned. The right will be subject to some limits and that is where the legal action will be in the future.

 

[mack]

Kagan doesn't change a thing by herself she is replacing one of the minority of four (Stevens) who opposed incorporation, so the numbers don't change. Also, other than Breyer, I would find it highly unlikely that the court would vote to reverse or overturn Heller or McDonald - as they would be deeply enraging a large portion of the population and they would be engaging in such blatant politics that they would be endangering Roe v Wade and similar decisions in future courts. That is why with a conservative court that Roe v Wade is still that law of the land and not over turned. The legal danger to the Second Amendment at this time and especially should there be a liberal USSC is that the Second Amendment will remain an individual right in name but that the court would allow so many infringements and employ such a low level of scrutiny that for practical purposes the RKBA would be severely restricted and infringed.

There is however a war being waged in the media right now - and it is important. Gun control advocates are selling the idea to their buddies in the media and thus to the public that Heller and McDonald are limited decisions that define the RKBA to keeping a handgun in the home and that other than that all gun control is pretty much fine and constitutional. They focus their discussion and talking points on the reasonable restrictions language and on the language that states not all gun control is unconstitutional. Of course this is how they want to characterize and limit the decision - a careful reading of Heller and McDonald do not support their conclusions and point more to a first amendment model for the RKBA - which would end a lot though not all state gun control laws. I do believe that the court moved to protect the machine gun NFA laws through their use of the term "common use" in their decision.

It is important the RKBA advocates respond to the gun control advocates attempts to publicly minimize the Heller and McDonald decisions as they are attempting to strangle the right in its crib, by publicly defining it before the jurisprudence has a chance to develop. You might think of it as an attempt to poison the well.

 

[belercous]

What TexasBill said was basically true, except that (so far) only part of the 2nd Amen. has been incorporated under the 14th Amen. Not all, but the right to own a handgun in the home proper has.
Some parts of the homeowners property have not yet been included. The home proper has, but the curtilage has not. Curtilage is a term of law refering to the immediate area around the home (residence, dwelling area) such as one's front yard. This is a fine distinction which can be further hashed out in cases involving say, the right to carry a gun in the common areas of an apartment building (such as hallways or the front door). Those are areas which can be construed as the curtilage of a residence, but also the curtilage of other residences as well, hence, a conflict. Neither Heller nor McDonald dealt with that bit of legal minutiae.
gc70's post is also correct, except that I'm not totally certain that the language of the Court's decision necessarily entails the "strict Scutiny" test to be used on 2A claims.

Quote: "Those justices who oppose the Heller and McDonald decisions are apt to continue to oppose them, maintaining that they were wrongly decided. Therefore, these decisions will not be accepted as establishing precedent for future cases involving the Second Amendment."

Judges do not like to have their decisions overturned, it makes them look bad when SCOTUS has set precedent (which the inferior courts are bound to follow). Even if a district court judge were to not follow McDonald, the circuit court would correct such error. I don't foresee this bering a problem. But remember, McDonald was decided on a narrow basis, the 2nd Amen. is far from being fleshed out. SCOTUS is not yet done with the 2nd Amen.

Occaisionally, SCOTUS does overturn cases, they are not constrained by precedent. They set precedent, and as such, they can change precedent. The cases cited by usmarine0352 have not been overturned, but they must now be interpreted in light of the Heller & McDonald holdings.
Again, it is Justice Kennedy who is the swing vote in close cases. Any close case presented to the Court has an argument geared towards him. And he loves being the deciding vote. Justice Kennedy used to be a solid right-wing vote, but after O'Connor left the bench, he assumed the role of the swing-voter. Gives him more attention and makes him feel important. Which, he is. Don't look for him to move too much more to the right. I could be wrong on that, but the smart money says he'll stay a swing-vote.

I have to go now as I need to take my medication. It seems that I have a serious bourbon defieciency which needs to be attended to. And me prattling on here detracts from my medical care. It took me 23 different doctors until I found the one who knew how to cure me, so I certainly cannot go against medical advice. I hope you understand.

 

[ldcarson]

It would be rather interesting for someone in Chicago to file for a re-valuation of their property tax if now they believe the supreme courts rulling only extends to your home and not the property associated with it...Particulary when they tax you for the property as "Part" of your home...

 

[usmarine0352_2005]

It would be rather interesting for someone in Chicago to file for a re-valuation of their property tax if now they believe the supreme courts rulling only extends to your home and not the property associated with it...Particulary when they tax you for the property as "Part" of your home...

Interesting point.