Is Remanding McDonald v. Chicago less powerful then Over-turning it?

[usmarine0352_2005]

.

Three questions:



1.) Why did SCOTUS remand McDonald v. Chicago back to the lower court instead of simply over-turning it?




2.) Is McDonald v. Chicago not as strong as a decision since they remanded it instead of simply over-turning it?




3.) Will remanding it leave the 2nd Amendment more open to legal assault then over-turning it?


.

 

[bsctov]

1.) My guess is they wanted to tell the lower court "You got it wrong, now get it right or we will embarrass you and over-turn it ourselves.)

2.) I wouldn't say that due to the reason I gave above.

3.) No.

 

[usmarine0352_2005]

.

My guess is they wanted to tell the lower court "You got it wrong, now get it right or we will embarrass you and over-turn it ourselves.)

They've had no problem simply over-turning many cases in the past, I don't see why they wouldn't want to this time.


And they basically did tell them, you have it wrong.

.

 

[bsctov]

maybe they are trying to condition the lower courts to have the correct mentality? Who knows dude.

all i know is, after kagan is confirmed, our supreme court victory's will cease. Sonia sotomayor is already hard at work trying to deny americans' basic rights.

 

[Frank Ettin]

Three questions:



1.) Why did SCOTUS remand McDonald v. Chicago back to the lower court instead of simply over-turning it?




2.) Is McDonald v. Chicago not as strong as a decision since they remanded it instead of simply over-turning it?




3.) Will remanding it leave the 2nd Amendment more open to legal assault then over-turning it?

[1] Because that's the way it's done. That is proper, legal procedure. It kind of goes like this:

1. McDonald sues.
2. The trial court throws the case out saying the Second Amendment doesn't apply so there's no case to hear, and McDonald appeals.
3. The court of appeals throws the case out saying the Second Amendment doesn't apply so there's no case to hear, and McDonald takes it up to the Supreme Court.
4. The Supreme Court tells the court of appeals that it was wrong about the Second Amendment not applying to the States and therefore erred in tossing the case, so now McDonald has to be allowed to proceed with his lawsuit.
5. So now the case is reinstated and goes forward.

[2] Having followed proper procedure doesn't diminish the strength of the Supreme Court's ruling.

[3] No.

 

[Frank Ettin]

...They've had no problem simply over-turning many cases in the past, I don't see why they wouldn't want to this time...

What happens will depend on where in its procedural history the case is when the court of appeals (which could be the Supreme Court) makes a decision.

 

[chicago guy]

BSCTOV -- I don't think you are right. Kagan will only replace a liberal judge, as did Sotomoyor. It's still 5 to 4. Let's just hope none of the 5 resign till Obama's out!

 

[bushmaster1313]

More powerful to remand

Sup ct unambiguosly told.appeal court and the country that 2A applies to states

This is what was needed

 

[ArmedBear]

First off, the 7th Circuit seemed to want to incorporate, but was bound by precedent, or a lack thereof. Their decision seemed written specifically with the intent of the case's being appealed to SCOTUS (as they knew it would be), and SCOTUS had no reason to want to "embarrass" them. To suggest this only says that one knows nothing of the case, and is just inventing a narrative out of thin air.

Second, this is simply the proper role of the Supreme Court. Heller was decided, the opinion was written. The 7th said, in essence, "Yes, but we don't have any decisions that would obligate or allow us to apply Heller to a law other than a Federal law." SCOTUS said, in essence, "Here you go. You have Heller, and we rule that it applies to laws of state and local governments, as well. Go ahead and rule on the law in question, in the context of Heller incorporated."

The courts have a sort of "org chart", and that's how decisions are supposed to flow according to that system. The system may or may not be specified in the Constitution, really, but it is how the courts operate in 2010. Different levels have different roles in decisionmaking, just like in any large organization.

There is no insult intended, nor is the decision "weaker" in context.

 

[usmarine0352_2005]

Didn't SCOTUS over-turn Heller and not remand it to the lower court?


I'm assuming it was a different situation.

 

[Carl N. Brown]

My understanding is this: the lower court sent the case to SCOTUS basicly because the only, ancient, Supreme Court rulings they had on Second Amendment to go by were things like Cruikshank 1873 and Miller 1939 and in light of Heller they (the lower court) would have preferred to rule based on a more current Supreme Court view of Second Amendment in relation to the States and Cities. My impression was that the ruling was for the benefit of the lower court, not for the benefit of McDonald et al. directly, so the lower court could make a proper ruling knowing where SCOTUS stood.

 

[brboyer]

Didn't SCOTUS over-turn Heller and not remand it to the lower court?


I'm assuming it was a different situation.

Actually in Heller, the the District Court dismissed Heller's suit, he appealed and the D. C. Circuit reversed (agreeing with Heller). D.C. appealed that decision and the Supreme's upheld the Circuit Court's decision and added the opinions about the individual right.

 

[bushmaster1313]

When Sup Ct ruled in Heller the DC Appeals Court was one of only two appeals Courts that had found an individual right

When seventh Circuit got McDonald the ONLY issue was incorporation against the states. The seventh circuit said that they had no choice but to follow sup ct precedent that said no incorporation of 2nd amendment.

Because Daly insisted on not changing the ordinance and mooting the case, sup ct got it and told seventh that 2nd was incorporated.

Heller plus McDonald equals 2nd Amendment in New Jersey!

Woo Hoo
Thank you Fenty and Daly!

Palmer will ice the cake and make right to bear arms apply to all!

 

[belercous]

Fiddletown has it right.
"Sup ct unambiguosly told.appeal court and the country that 2A applies to states"
Actually, SCOTUS left a lot of ambiguity. The holding says nothing about "bearing" arms, which is a big part of the 2nd Amen. And the "shall not be infringed" part certainly has not been incorporated since some restrictions have been specifically held constitutional (under Heller & McDonald). ANY restriction is an infringment. All the McDonald holding disallowed was a blanket ban on handgun ownership.

 

[ilbob]

Fiddletown has it right.
"Sup ct unambiguosly told.appeal court and the country that 2A applies to states"
Actually, SCOTUS left a lot of ambiguity. The holding says nothing about "bearing" arms, which is a big part of the 2nd Amen. And the "shall not be infringed" part certainly has not been incorporated since some restrictions have been specifically held constitutional (under Heller & McDonald). ANY restriction is an infringment. All the McDonald holding disallowed was a blanket ban on handgun ownership.

Read these parts of the decision.

Two years ago, in District of Columbia v. Heller, 554
U. S. ___ (2008), we held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense
***
we hold that the Second Amendment right is fully applicable to the States.

The court was pretty plain that keep and bear are both covered.

However, the Heller case was only about keep and bear in the home. So is the Chicago case.

Many other cases over the next few decades will be required to flesh out the limits of keep and bear.

There seems to be a very basic misunderstanding about how the courts work. They only deal with the questions that are raised. If a question is not raised at trial, they don't deal with it.

 

[gc70]

We still don't know exactly where the case against the Chicago laws will go because that part of the case has not been tried.

• The District Court said there was no need for a trail about the Chicago laws because the Second Amendment did not apply to the states.
• The Circuit Court agreed with the District Court based on the prior Supreme Court ruling in Cruikshank.
• In McDonald, the Supreme Court said Heller changed things and the Second Amendment does apply to the states.
• The Supreme Court reversed the Circuit Court's decision and remanded the case.
• The District Court will now have a trial about the Chicago laws based on the Heller decision.

 

[belercous]

"Bearing arms" in the 18th cent. contemporaneous meaning meant to carry arms, not simply own them. That was the "keep" part of the 2nd Amen. The Court said nothing about bearing arms, only the right to "keep" them.
The Court was quite ambiguous about "bearing arms" if we are to use original intent, or even the strict constructionist views of the Constitution. (And while they overlap, they are 2 different schools of constitutional interpretation) Both schools of thought rely upon the Founding Fathers' understanding of the word "bear," which, in the 18th cent. meant "carry," not simply to possess.
Certainly many more cases are to follow which will flesh out the meaning of the 2nd Amen., which has recently changed. Who says activist courts are always bad? Case in point is Heller & McDonald. Not a good example is Citizens United. Win some, lose some.
I understand how courts work, that is why I said that the only thing McDonald did was to enshrine the right to own a handgun, and anything beyond the scope of the question before the bar (here, handgun ownership, in the home) is considered obiter dicta. Obiter dicta might be a good indication of how the Court will rule in future cases, but is not binding precedent.
Actually, sometimes SCOTUS hands down rulings that have absolutely nothing to do with the reason they were brought before the court (See; Marbury v. Madison and Roe v. Wade to name but two off of the top of my head), but you are correct, the vast majority of the time courts only rule on the question before them.
This rule does not apply to SCOTUS as 5 people in black dresses determine what the Constitution says. But only because we go along with it, SCOTUS has very little power granted it under the Constitution. Most of their power is derived by our tacit approval. From Marbury. For 209 years. Congress could strip SCOTUS from interpreting the Constitution tomorrow if they wanted. But they wouldn't dare. But they could.

 

[Frank Ettin]

...SCOTUS has very little power granted it under the Constitution. Most of their power is derived by our tacit approval. ..Congress could strip SCOTUS from interpreting the Constitution tomorrow...

You think so. What about what it says in the Constitution?

"Article III

Section 1.

The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish....

Section 2.

The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects...." (emphasis added)

 

[ilbob]

I noticed that your brilliant constitutional analysis of the limits of judicial power left out this gem.

In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

 

[Frank Ettin]

And are you thus suggesting that can override the overall grant in the Constitution of judicial power to the federal courts? It would certainly be strange to suppose that the Founding Fathers would confer judicial power on the federal courts and at the same time give Congress the power to take it all away. That would be an interesting twist on both the separation of powers and checks and balances.

 

[belercous]

Fiddletown; SCOTUS has very few cases it hears under original jurisdiction. You cited the subject matter the Court is limited to, not it's jurisdiction. SCOTUS can only hear those cases (subject matter) only IF Congerss permits them.
Congress can most cetainly override the jurisdiction of the federal courts (except SCOTUS). They created them, they can eliminate them, in toto if they so chose. The only federal court established by the Const. is SCOTUS, and their original jurisdiction is narrow. The F.F.'s did NOT confer power on the Federal courts (SCOTUS excepted), they only permitted Congress to create them.
Note that nothing in the Const. grants SCOTUS the power to decide if a law is constitutional, that is done by our tacit approval. An angry Congress could limit SCOTUS to hearing cases involving ambassadors, public officials, and states (original jurisdiction). This is a very small part of their caseload. This is why the judiciary is called the least powerful branch of gov.

 

[ArfinGreebly]

"Constitutional"

If a judgment be rendered in matters of law, and if the Constitution be the Supreme Law of the land, then it follows that findings of law necessarily include the Constitution.

The Constitution is law.

 

[belercous]

Rationally, it does. Constitutionally, it doesn't. The Const. only granted limited jurisdiction to SCOTUS (Art.III, Sec.2, Cl.2). Most of SCOTUS's caseload deals with const. interpretation.
There was a big debate about this during the drafting & adoption of the Const. As there was no consensus, nothing went in the Const. regarding const. interpretation. I believe (can't recall off the top of my head) Jefferson thought each branch should decide the meaning of the Const. for itself.
SCOTUS claimed this right for itself in Marbury v. Madison and it has been accepted as the domain of SCOTUS ever since. Again, most of SCOTUS's caseload is heard by the grace of Congress, not the Const. Const. interpretation is permitted to the judiciary by our tacit approval, not by a constitutional grant of affirmative power.
Congress, under the Const., could certainly take this right away from SCOTUS, and who could stop them? SCOTUS has no power of enforcement by itself. The President? Congress controls the purse so it could withhold all funding from the Executive branch in order to make it comply with their wishes. It is not politically likey to ever happen that SCOTUS should be stripped of this power, but nothing in the Const. prevents it.

 

[Frank Ettin]

Still an interesting take on checks and balances. But nonetheless, the Founding Fathers granted the Supreme Court (and any other federal courts established by Congress), without qualification, judicial power extending to "...to all cases, in law and equity, arising under this Constitution...". If Congress attempts to narrow jurisdiction in such a way as to completely prevent the Supreme Court from exercising that power, I suspect that would, itself, be a matter for the Supreme Court to address.

And of course any exercise of judicial power with respect to case arising under the Constitution, and thereby deciding the rights and obligations of the parties, necessarily requires applying, and therefore interpreting, the Constitution with respect to the controversy before the Court.

 

[gc70]

It would certainly be strange to suppose that the Founding Fathers would confer judicial power on the federal courts and at the same time give Congress the power to take it all away.

It appears that Congress exerts substantial control over the jurisdiction of the federal courts inferior to the Supreme Court.

United States Constitution, Article 3, Section 2, Clause 2

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Congressional Research Service's analysis of the Constitution is very interesting reading and reaches this conclusion (PDF page 209):

There thus remains a measure of doubt that Congress’ power over the federal courts is as plenary as some of the Court’s language suggests it is. Congress has a vast amount of discretion in conferring and withdrawing and structuring the original and appellate jurisdiction of the inferior federal courts and the appellate jurisdiction of the Supreme Court; so much is clear from the practice since 1789 and the holdings of many Court decisions. That its power extends to accomplishing by means of its control over jurisdiction actions which it could not do directly by substantive enactment is by no means clear from the text of the Constitution or from the cases.