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Article on Legal Challenges to 2nd Amend. in NY Times

Discussion in 'Legal' started by Speedo66, Jun 17, 2009.

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  1. Speedo66

    Speedo66 Member

    May 31, 2008
  2. peyton

    peyton Member

    Apr 20, 2006

    Gun Rulings Open Way to Supreme Court Review
    Carlos Javier Ortiz

    Published: June 16, 2009
    A year ago, the United States Supreme Court issued a landmark decision establishing the constitutional right of Americans to own guns. But the justices did not explain what the practical effect of that ruling would be on city and state gun laws.

    Could a city still ban handguns? The justices said the District of Columbia could not, but only because it is a special federal district. The question of the constitutionality of existing city and state gun laws was left unanswered.

    That left a large vacuum for the lower courts to fill. Supporters of gun rights filed a flurry of lawsuits to strike down local gun restrictions, and now federal appeals courts have begun weighing in on this divisive issue, using very different reasoning.

    One court this month upheld Chicago’s ban on automatic weapons and concealed handguns, while in April a California court disagreed on the constitutional issue.

    The differing opinions mean that the whole issue of city and state gun laws will probably head back to the Supreme Court for clarification, leading many legal experts to predict a further expansion of gun rights.

    The new cases are fallout from last year’s Supreme Court case, District of Columbia v. Heller, which struck down parts of Washington’s gun control ordinance, the strictest in the country, and stated for the first time that the Second Amendment gives individuals a right to keep and bear arms for personal use. But the court declined to say whether the Second Amendment in general applies to state and local governments.

    In January, the United States Court of Appeals for the Second Circuit, in New York, in a ruling joined by Judge Sonia Sotomayor, declined to apply the Second Amendment to a New York law that banned the martial arts device known as chukka sticks. The ban was allowed to stay in place.

    Then in April, a three-judge panel of the Ninth Circuit, in San Francisco, ruled that the Second Amendment did apply to the states, even though it allowed a California county to ban guns on government property like state fairgrounds. That case, Nordyke v. King, is being considered for a rehearing by the full Ninth Circuit.

    Those two conflicting cases set the stage for two other cases that were heard as one in the Seventh Circuit in Chicago, testing that city’s handgun ban. On June 2, a three-judge panel of the court, led by Chief Judge Frank H. Easterbrook, a well-known conservative, ruled that there was no basis for the court to apply the Second Amendment to the states. Such a decision, Judge Easterbrook wrote, should be made only by the Supreme Court, not at the appellate level.

    The right of states to make their own decisions on such matters, Judge Easterbrook wrote, “is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon.”

    The lawyers for the plaintiffs, including the National Rifle Association, have asked the Supreme Court to take up the Chicago cases.

    A split among the federal appeals circuits, especially on constitutional issues, invites Supreme Court action, said Adam Winkler, a law professor at the University of California, Los Angeles.

    “Californians, Hawaiians and Oregonians have a Second Amendment right to bear arms, but New Yorkers, Illinoisans, and Wisconsinites don’t,” Professor Winkler said. “The Supreme Court will want to correct this sooner rather than later.”

    The process of applying amendments of the Bill of Rights to the states, known as incorporation, began after the Civil War but had its heyday in the activist Supreme Court of the Earl Warren era. Much of the Bill of Rights, including the First Amendment’s freedom of speech and some rights of criminal defendants, have been applied to the states, but other elements have not, including the Seventh Amendment right to a civil jury trial and the Second Amendment.

    Incorporation fell out of favor after the 1960s, but a new generation of largely liberal scholars of law and history have brought it back into the intellectual mainstream, said Akhil Reed Amar, a law professor at Yale University, who supports the process.

    “The precedents are now supportive of incorporation of nearly every provision of the Bill of Rights,” Professor Amar said. “Now what’s odd is that the Second Amendment doesn’t apply to the states.”

    Sanford Levinson, a law professor at the University of Texas, said he would be surprised if the Supreme Court accepted these gun cases, because some of the conservative justices on the court had scoffed at incorporation arguments in the past and might not want to set a precedent.

    Professor Amar, however, argued that the justices would not only take up the case but would also ultimately vote for incorporation of the Second Amendment.

    Even if the Second Amendment becomes the controlling law of every state and town, constitutional scholars say it is still unlikely that gun laws would be overturned wholesale. The Supreme Court’s Heller decision last year, notes Nelson Lund, a law professor at George Mason University, “clearly indicates that governments will still have wide latitude to regulate firearms.”

    Even the Ninth Circuit in California, while applying the Second Amendment to the states, still upheld the gun ordinance that gave rise to the lawsuit.

    Eugene Volokh, a law professor at the University of California, Los Angeles, said the view of the Ninth Circuit reflected what polls have said was, by and large, the view of the American people.

    “There is a right to bear arms,” Professor Volokh said, “but it’s not absolute.”
  3. Happiness Is A Warm Gun

    Happiness Is A Warm Gun Member

    Jul 8, 2008
    Chesapeake, Virginia

    I don't think the word automatic even appears in McDonald v. Chicago.

    Also the issues wasn't legality of preventing CCW but the legality of a complete 100% ban on handguns.

    No way that is a mistake. A reporter can't accidentally be that wrong.
  4. Phatty

    Phatty Member

    Apr 2, 2009
    Southern Illinois
    I don't even think that Chicago has a ban on automatic weapons. It wouldn't make any sense considering that Illinois state law already bans automatic weapons.

    I really like how the author described the post-Heller cases as "fallout" which has a negative connotation.
  5. Megistopoda

    Megistopoda Member

    Nov 20, 2003
    The author has been educated, and claims to be working with the editor to revise the article. But no movement on that, yet. In some ways, I suspect they word things in certain ways purposefully. You can sway the public opinion pretty easily when you imply that the big, bad NRA is trying to overturn Chicago's common-sense ban on machine guns ...

    Dear Mr. Schwartz:

    If I may, I'd like to point out some rather serious errors in the article linked below ("Gun Rulings Open Way to Supreme Court Review" from 16 June 2009).


    First, in the photo caption and fourth paragraph, you stated that the [7th circuit] court upheld Chicago’s ban on automatic weapons and concealed handguns. Yet at question was not a ban on automatic firearms or on concealed carry of handguns. At issue was Chicago's ban on the mere possession of a handgun in the home. Automatic weapons are banned by federal law, while concealed carry is banned (in Illinois) by state law. Chicago and Oak Park are municipalities unique to the United States for banning the mere possession of handguns in the home.

    If you wish to confirm, please read the decision. But what you stated is definitely in error.


    Second, you stated in the first paragraph that in DC v. Heller, the SCOTUS issued a landmark decision establishing the constitutional right of Americans to own guns. In truth, they did no such thing. They affirmed what is considered by scholars to be the "standard model" of the second amendment (the individual rights model). Contrary to your statement, the court took pains to explain that the right to arms was pre-existing ... it was not established by the constitution, nor by the Supreme Court. Again, you can confirm by reading the decision.


    With all due respect, these glaring errors suggest to me a fundamentally flawed view of these cases on your part. I truly hope you will consider fixing these errors, and being more accurate in future articles.
  6. damien

    damien Member

    Mar 5, 2007
    Northern IL, USA
    Megistopoda, good reply. Did you send that via email or snail mail?
  7. General Geoff

    General Geoff Member

    Nov 28, 2006
    Allentown, Pennsylvania
    Why does it seem that most judges have absolutely no concept of the difference between rights and powers? STATES HAVE NO RIGHTS. Merely powers granted to them by their constituents.
  8. jfh

    jfh Member

    Aug 28, 2003
    Maple Plain, MN
    a commendation, Megistopoda!

    your letter pointing out the errors, and citing sources for your contentions, is exactly the kind of "outreach" progunners need to do--repeatedly.

    I suggest that you also copy it to the "Public" / omsbudsman editor as well, copy it into a "comments" post for the article or a relevant blog, and submit it as a "Letter to the Editor," appropriately edited.

    The changing nature of (newspaper) "journalism" is forcing the Times to hear, and thereby allowing others to hear, alternative voices to their limited vision of reality. The admission of 'counterpoints' to their typical viewpoint (East Coast Educated Elitist) generates the kind of online 'controversy' they need to generate hits. The increased hits, of course, should generate some sort of additional revenue for them.

    IOW, Literate, logical commentary will now get posted, I think--I got multiple comments past the moderators in such topics as the CC / National Park online discussion.

    Just carry your letter further into the public eye--and do keep us posted on their rewrite. Personally, my bet is that no rewrite of the existing article is done, and that if they do 'correct' the misinformation, it will show up as an opaque entry in 'Corrections' on a slow news day.

    Again, good work!

    Jim H.
    Last edited: Jun 18, 2009
  9. jfh

    jfh Member

    Aug 28, 2003
    Maple Plain, MN
    a second request for corrections has been sent

    as of nominally 10:30p. CT, the article was unchanged.

    So, I e-mailed another request--and CC'd to the Public Editor

    Dear Mr. Schwartz:

    I have noticed two substantial errors in this article, and I was wondering if you would consider providing a rewritten article and / or corrections to the versionI I find here:


    First, the recent 7th Circuit ruling was not about automatic weapons and concealed firearms; it was about firearms being banned in homes in Chicago and Oak Park.

    Second, the Heller case did not establish a constitutional right for Americans to own firearms. It affirmed an individual's right, based on pre-existing right to self-defense with weapons.

    There are pdfs at SCOTUSblog that may be referenced by you on these particular issues--

    for the first-- http://www.scotusblog.com/wp/wp-content/uploads/2009/06/7th-ca-nra-6-2-09.pdf

    and for the second-- http://www.scotusblog.com/wp/wp-content/uploads/2008/06/07-290.pdf

    Given the importance of accurate reporting on this culturally-hot topic, I am sure you would like to see the corrections made.

    Thank you for your consideration--


    EDIT: Based on the autoreponse from the Public Editor, a second e-mail was sent to nytnews@nytimes.com--the address for requesting corrections.

    Jim H.
    Last edited: Jun 19, 2009
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