McDonald V Chicago decision
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hirundo82
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Controversial and important opinions are usually the last to be announced. The decision in Heller was the last opinion of the last day of the term. The last day of the current term for orders to be announced (unless more dates are added, which does happen) is June 28th.
Phatty
Member
hirundo82 is correct. I'd bet a lot of money that the McDonald opinion will be released on June 28.
gbran
Member
Heller was released as about the last item in their session also. Ditto on late June.
Definitely end of June. Sit tight! If the SCOTUS strikes down the law, maybe Chicago won't need the National Guard marched in there (if anyone has been following the news). Apologize if that's too political. Feel free to edit that last sentence mods.
And that is an extremely optimistic viewpoint IMHO.
:banghead:
Daley and his machine will fight this not tooth and nail but down to the cellular level and they will spend every taxdollar, donation, and bribe they can get to fight CCW, and that is a LOT.
Plus the Illinois legislature is heavily influenced by Daley. Chicago and Cook County already has lots of gun laws the rest of the state does not have. Adding a few more would not be a problem for them.
I would love to be wrong but please note that Mr Heller lost his 2nd case (though he is appelling) regarding the right to BEAR arms.
Indiana looks better every day.
NukemJim
MisterMike
Member
Depending on how you define the term "punt," the answer is may be "yes." Though the Court sometimes takes a more activist approach, the historical approach has been to issue fairly narrow opinions, answering only the question presented to the Court.
I think it's quite likely that the Court will find the Second Amendment applicable to the states under the Fourteenth Amendment. Hopefully they will announce the level of judicial scrutiny that will be applied to laws and conduct impinging on the right to keep and bear arms, but that is by no means a given.
I think it's unlikely that they will go so far as to speak to the question of how far the right to bear arms extends. So, yes . . . barring the unexpected, even if they rule that the Second Amendment applies to the states (in itself a hugely important question), there will still be years of ambiguity about the extent of the rights recognized under the Second.
belercous
Member
Its gonna be a 5-4 decision with Justice Kennedy deciding the outcome. Note that the holding in Heller specifically recognizes a state's right to ban concealed carry, albeit in obiter dicta as that question was not then before the Court. The McDonald case is about ownership and possession in the home, not CC. That would fall under the "bear arms" clause of the 2nd Amen. which is not at issue in this case.
Nota Bene to all Illinois residents: Centre County, PA issues concealed carry permits to out-of-state residents. For us Illinoisians (Illinoids?) this means sending a photo-copy of your driver's license and FOID with a SASE and a check for $26.00. The permit is good for 5 yrs. Mine took about 2 weeks and is recognized (by reciprocity) in 26 states of the union. Mo, KY, and IN are border states which recognize PA's CC permit.
On the down-side; We (Illinoisians) are not gonna see CC carry enacted (in the next 50 yrs) unless we secede from Chicago. Not gonna happen, no matter how much wishful thinking or prayer takes place. While the 2 largest downstate counties (Madison & St. Claire) sheriffs have recently came out in favor of CC, and both are Democratic controlled, the reality is that Chicago has the votes in the House.
Unless and until we get a real activist SCOTUS (and this SC is activist to be sure, but it's not REAL activist) CC is gonna be left to the states, if the Heller decision is any indicator
Nota Bene to all Illinois residents: Centre County, PA issues concealed carry permits to out-of-state residents. For us Illinoisians (Illinoids?) this means sending a photo-copy of your driver's license and FOID with a SASE and a check for $26.00. The permit is good for 5 yrs. Mine took about 2 weeks and is recognized (by reciprocity) in 26 states of the union. Mo, KY, and IN are border states which recognize PA's CC permit.
On the down-side; We (Illinoisians) are not gonna see CC carry enacted (in the next 50 yrs) unless we secede from Chicago. Not gonna happen, no matter how much wishful thinking or prayer takes place. While the 2 largest downstate counties (Madison & St. Claire) sheriffs have recently came out in favor of CC, and both are Democratic controlled, the reality is that Chicago has the votes in the House.
Unless and until we get a real activist SCOTUS (and this SC is activist to be sure, but it's not REAL activist) CC is gonna be left to the states, if the Heller decision is any indicator
hirundo82
Member
Do you think Canada would take Chicago?
This would be a disaster if McDonald does'nt prevail...The gun grabbers would go nuts...its like a make or break deal for gun owners again. Us against them again. Whats really discouraging is it should'nt even be a question for any court about our right to bear arms...
My confidence that McDonald will prevail lies in these facts:
Justices are not stupid people. They are actually unbelievably smart, even if you don't agree with their decisions. The 5 Justices in Heller's majority knew, for sure, that the very next challenge in the wake of Heller would be one of incorporation. My belief is that they would not have gone through all the trouble to strike down DC's gun ban just to let Chicago's stand two years later. If those 5 Justices believe that the RKBA is an individual right, as they said they have, I have no doubt Chicago's ban is done for. The 2A will be incorporated as most of the Bill of Rights already has been.
Most people, experts, etc. even those on the Brady/VPC side of things believe this is a slam dunk for gun rights. The only issues I have really seen discussed was how they would incorporate it, not if, and whether they would decide what level of scrutiny applies to gun restrictions (hopefully strict scrutiny).
Maybe I'm just overly optimistic but I wouldn't worry about the Court striking down the ban.
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ConstitutionCowboy
member
I just learned Daley and some of his friends want to take his suit against the gun industry to the World Court. I got the alert from the NRA-ILA News Letter.
Here are the first three paragraphs:
FRAN SPIELMAN at suntimes.com said:
I'll start a new thread about it.
Woody
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belercous
Member
Cbrgator: I feel confident that Justice Kennedy will uphold the RKBA, but only as it applies to one's home and no further. The Heller decision said that restrictions are permissible, so "strict scrutiny" is way off the table.
"Strict Scrutiny" only applies to rights considered (by 5 people in black dresses) to be so fundamental to liberty and self-governance that any but the most widely recognized neccessary limitations are off-limits. With the 2nd, we'll be lucky if they grant it even "intermediate scrutiny," but that (likely) is to be hashed out in another case further on down the line.
"Strict Scrutiny" only applies to rights considered (by 5 people in black dresses) to be so fundamental to liberty and self-governance that any but the most widely recognized neccessary limitations are off-limits. With the 2nd, we'll be lucky if they grant it even "intermediate scrutiny," but that (likely) is to be hashed out in another case further on down the line.
belercous,
I think intermediate scrutiny is a minimum here. A gun ban would pass rational basis scrutiny (as nearly every law would) so if they strike it down, some form of heightened scrutiny will have to apply. Or, if they say that the outright ban fails rational basis, certainly every law narrower in scope than an outright ban would pass. I agree that strict scrutiny is unlikely, although SOME restrictions like background checks I believe would pass even strict scrutiny. My guess is intermediate scrutiny, "substantially related to an important government interest."
I think intermediate scrutiny is a minimum here. A gun ban would pass rational basis scrutiny (as nearly every law would) so if they strike it down, some form of heightened scrutiny will have to apply. Or, if they say that the outright ban fails rational basis, certainly every law narrower in scope than an outright ban would pass. I agree that strict scrutiny is unlikely, although SOME restrictions like background checks I believe would pass even strict scrutiny. My guess is intermediate scrutiny, "substantially related to an important government interest."
gbw
Member
Then aren't we toast, eventually?
Anti's won't find it hard to make the case, surely in gun-hostile locations at least, that an important governmental interest lies in protecting lives, and their 'common sense' gun-ban-like laws are clearly substantially related to such interest and so pass scrutiny. It won't take many such wins to re-start the anti-RKBA legal snowball bigger and better than ever. Looks like the loophole that will keep on giving (for the antis).
SCOTUS didn't quite make the goal line in theory (Heller), they left too much open to really nail down the individual right, q.v. the successful D.C. retrenchment of their gun laws. And if incorporation provides only intermediate scrutiny, they will ultimately have failed utterly in practice (McDonald). I hope I'm wrong.
belercous
Member
I hope we get intermediate scrutiny, but since there are so many gun laws already on the books I wouldn't bet on it. Rational scrutiny, as you stated, allows pretty much anything government does to be valid. As the 2nd RKBA is a newly found right (or we all hope it will be) incorporated onto the states, and the prevelance of restictive gun laws, combined with the fact that SCOTUS is usaully hesitant to overturn vast amounts of laws, I wouldn't bet on getting intermediate scrutiny for 2A laws. Its really up to Kennedy. And it is also likely that the Court will not even address this issue as it is not before the bar in McDonald, so really anything they say in this case (in re; constitutional tests) is likely to be dicta. I'd tend to think they would leave wide latitude to the states on this issue as 7 members of the Court have been appointed by republican presidents who tend to favor those supporting states rights. Here, I can foresee the state's rights issue (and stare decisis) biting us in the @ss.
If Congress were to pass legislation providing for concealed carry nationaly, and do it under the rubric of the Commerce Clause, there would be no way it could fail. (Yes, I know all about the Lopez case failing under the Commerce Clause, however the same law was re-passed by Congress with the words "interstate commerce" included and found valid) Anything that Congress does citing "interstate commerce" gets found constitutional. That would be the way to go to secure the "bear arms" part of the 2nd Amen. I'm not sure if anything Congress has done citing the Commerce Clause has ever been found unconstitutional. I don't agree with this, but that's our history, the 10th Amen. means next to nothing.
If Congress were to pass legislation providing for concealed carry nationaly, and do it under the rubric of the Commerce Clause, there would be no way it could fail. (Yes, I know all about the Lopez case failing under the Commerce Clause, however the same law was re-passed by Congress with the words "interstate commerce" included and found valid) Anything that Congress does citing "interstate commerce" gets found constitutional. That would be the way to go to secure the "bear arms" part of the 2nd Amen. I'm not sure if anything Congress has done citing the Commerce Clause has ever been found unconstitutional. I don't agree with this, but that's our history, the 10th Amen. means next to nothing.
gbw
Member
We'll see. I hope you're right, but I think satisfaction, in practice, on this issue will be at least as much a political as a legal question, I remain skeptical.
1. The court is expected to rule for incorporation.
2. The court will not itself directly seek to fully define the parameters of the RKBA much beyond the issues in the case before it - that they will leave to the lower courts to flesh out and will then take limited cases appealed from the lower courts to shape the right protected.
3. The dicta in the Heller case that refers to allowable restrictions can be read anyway that one wants to read it - except that rational review was taken off the table so we know that the level of review must be either strict scrutiny or intermediate scrutiny.
4. In other dicta in Heller there is allusion to the RKBA as a fundamental right as in the right to self defense - that argues for strict scrutiny - which contrary to popular belief does not rule out regulations including many mentioned in the Heller dicta - particularily if they are narrowly taylored.
5. Even if it is strict scrutiny there will be restrictions on the right - even the first amendment right to free speech - which is identified as a fundamental right with strict scrutiny allows for some restrictions - and the dicta in Heller regarding restrictions are not specific enough to in any serious sense conflict with the recognition of the RKBA as a fundamental right that will be given strict scrutiny.
6. This second amendment jurisprudence is so new that the court obviously does not and could not in the Heller case - develop a full blown and completely developed definition of the limits and guidelines for the RKBA - it will develop over time just like the first amendment did with the right to free speech.
7. Given that it will develop over time one should not assume what the limitations of the right will be - particularily when Heller was the first case this court dealt with and given that they will undoubtly allow the lower courts to begin to develop the parameters to the right. Undoubtly the courts own understanding of the right will evolve as they see cases decided by lower courts and hear and read opinions from subsequent cases. While the justices are incredibly intelligent and deeply versed in the law - they are not as educated about the practical aspects the firearms and their use - as evidenced by some their comments in regards to firearms and their effects and use by individuals - see Breyer in particular.
8. Having read the Heller decision a number of times - I think it is actually rather clear that the court sees the RKBA as a fundamental right - but again that does not imply that the parameters of that right are set or discernable.
9. Regarding the bearing of arms - such as CCW or open carry - I think that the dicta in no way indicates that the right does not protect these in a fundamental way as under strict scrutiny - in fact Gura has a specific case in the courts dealing with this - arguing that a state may prohibit or restrict or deny CCW or open carry - but it cannot deny or significantly restrict both. It is in my opinion a winning argument - particularily as the courts are not immune to the political realities of the nation - thus when the overwelming majority of states allow open carry and have shall issue CCW laws - and the sky has not fallen - the court is more likely to endorse the view that yes - bearing arms is a real part of the amendment and must be recognized either by freely allowing open carry or CCW - but a state or other govt cannot ban both.
10. If the bearing of arms is recognized as part of the RKBA - then the politicians in Illinois - including the mayor of Chicago - are SOL (shucks out of luck) and legally bearing arms for self defense - is a fait accompli in the not too distant future in Illinois - within 3 to 5 years. The politicians in Illinois will then be faced with either passing a shall issue CCW law or allowing citizens to carry openly without a permit - I suspect given such a choice they will quickly pass a shall issue CCW law.
11. Finally, in regards to Mayor Daley - he is not all powerful and he is not immortal - he is getting older and will retire one day - in fact his losses in the long run in this area will in my opinion contribute to a decision to retire in the next 5 to 8 years - though there are other factors that will contribute as much or more to such a decision - but this is not the place for that full discussion.
2. The court will not itself directly seek to fully define the parameters of the RKBA much beyond the issues in the case before it - that they will leave to the lower courts to flesh out and will then take limited cases appealed from the lower courts to shape the right protected.
3. The dicta in the Heller case that refers to allowable restrictions can be read anyway that one wants to read it - except that rational review was taken off the table so we know that the level of review must be either strict scrutiny or intermediate scrutiny.
4. In other dicta in Heller there is allusion to the RKBA as a fundamental right as in the right to self defense - that argues for strict scrutiny - which contrary to popular belief does not rule out regulations including many mentioned in the Heller dicta - particularily if they are narrowly taylored.
5. Even if it is strict scrutiny there will be restrictions on the right - even the first amendment right to free speech - which is identified as a fundamental right with strict scrutiny allows for some restrictions - and the dicta in Heller regarding restrictions are not specific enough to in any serious sense conflict with the recognition of the RKBA as a fundamental right that will be given strict scrutiny.
6. This second amendment jurisprudence is so new that the court obviously does not and could not in the Heller case - develop a full blown and completely developed definition of the limits and guidelines for the RKBA - it will develop over time just like the first amendment did with the right to free speech.
7. Given that it will develop over time one should not assume what the limitations of the right will be - particularily when Heller was the first case this court dealt with and given that they will undoubtly allow the lower courts to begin to develop the parameters to the right. Undoubtly the courts own understanding of the right will evolve as they see cases decided by lower courts and hear and read opinions from subsequent cases. While the justices are incredibly intelligent and deeply versed in the law - they are not as educated about the practical aspects the firearms and their use - as evidenced by some their comments in regards to firearms and their effects and use by individuals - see Breyer in particular.
8. Having read the Heller decision a number of times - I think it is actually rather clear that the court sees the RKBA as a fundamental right - but again that does not imply that the parameters of that right are set or discernable.
9. Regarding the bearing of arms - such as CCW or open carry - I think that the dicta in no way indicates that the right does not protect these in a fundamental way as under strict scrutiny - in fact Gura has a specific case in the courts dealing with this - arguing that a state may prohibit or restrict or deny CCW or open carry - but it cannot deny or significantly restrict both. It is in my opinion a winning argument - particularily as the courts are not immune to the political realities of the nation - thus when the overwelming majority of states allow open carry and have shall issue CCW laws - and the sky has not fallen - the court is more likely to endorse the view that yes - bearing arms is a real part of the amendment and must be recognized either by freely allowing open carry or CCW - but a state or other govt cannot ban both.
10. If the bearing of arms is recognized as part of the RKBA - then the politicians in Illinois - including the mayor of Chicago - are SOL (shucks out of luck) and legally bearing arms for self defense - is a fait accompli in the not too distant future in Illinois - within 3 to 5 years. The politicians in Illinois will then be faced with either passing a shall issue CCW law or allowing citizens to carry openly without a permit - I suspect given such a choice they will quickly pass a shall issue CCW law.
11. Finally, in regards to Mayor Daley - he is not all powerful and he is not immortal - he is getting older and will retire one day - in fact his losses in the long run in this area will in my opinion contribute to a decision to retire in the next 5 to 8 years - though there are other factors that will contribute as much or more to such a decision - but this is not the place for that full discussion.
belercous
Member
Mack: Excellent commentary and analysis. I respectfully disagree with you on point 9. Good arguments are to be made for the "bear arms" clause of the 2nd Amen., but this will be a radical move that I'm not sure Justice Kennedy is willing to take. It really all hinges upon him. I can't see Kennedy throwing out, wholesale, laws which have been emplaced for ages. I wish he would, but as a cynic, I really can't see that happening.
Point 10 presumes point 9.
Daley is not all powerful, and he really hates that fact. Illinois is a solid blue state, but the downstate Democrats are not even close to being in lock-step with Chicago. In fact, we really don't like Chicago and secession from Cook County probably would not bother too many of us at all. In actuality, Chicago gets less creedence in the legislature every day. Blago was hard-Chicago and we all know where he's going. Right now its too close to call, but the GOP has a real shot at getting Obama's old seat.
Once again, you provide great commentary and analysis. You should go to law school, with thinking like that, you'd make some coin.
Point 10 presumes point 9.
Daley is not all powerful, and he really hates that fact. Illinois is a solid blue state, but the downstate Democrats are not even close to being in lock-step with Chicago. In fact, we really don't like Chicago and secession from Cook County probably would not bother too many of us at all. In actuality, Chicago gets less creedence in the legislature every day. Blago was hard-Chicago and we all know where he's going. Right now its too close to call, but the GOP has a real shot at getting Obama's old seat.
Once again, you provide great commentary and analysis. You should go to law school, with thinking like that, you'd make some coin.
Bartholomew Roberts
Member
Well, five Justices do anyway... let's hope they can hang in there long enough to establish some meaningful Second Amendment precedent.
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