McDonald v. Chicago - Whats the chance of Strict Scrutiny?
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ConstitutionCowboy
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I know how it goes. I keep an eye on the hand I wish to fill and a roll of TP for the other hand. How's that for pragmatism!
Woody
Woody
Oh man would I laugh if USSC incorporated under P&I - doubt it but it would be such a slap to all the legal professionals on the legal blogs. Most likely incorporation under due process with no level of scrutiny established by the court. Level of scrutiny will be set by later cases from the lower courts with the USSC playing referee.
Even if the court does not set forth the level of scrutiny, which is likely for previously stated reasons, it would necessarily be higher than rational basis. The test for rational basis scrutiny is:
1. rationally related to a
2. legitimate government interest.
This is a very low standard and its near impossible for a law to not meet the criteria. It can happen, but very rarely.
I would think that Chicago's laws would pass muster under rational basis scrutiny. If that's true, the Court would not strike down a law and then later invoke a level of scrutiny that the law would have passed. I would say we are looking at intermediate scrutiny at the least whenever its determined down the line.
1. rationally related to a
2. legitimate government interest.
This is a very low standard and its near impossible for a law to not meet the criteria. It can happen, but very rarely.
I would think that Chicago's laws would pass muster under rational basis scrutiny. If that's true, the Court would not strike down a law and then later invoke a level of scrutiny that the law would have passed. I would say we are looking at intermediate scrutiny at the least whenever its determined down the line.
Golden_006
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chances = 0%
scotusblog hints that they are leaning toward ruling with states and cities deciding 'reasonable restrictions' and that is still 2a protected (?)
translation = we're back to where we started with regulation and ban of so called 'assault weapons'; a permt and registration system; mag limits etc. Although i guess havingthe highcourt rule that guns aren't just hunting or state militias is good (like i needed a 5-4 decision and to wait decades for a decision to know that)
scotusblog hints that they are leaning toward ruling with states and cities deciding 'reasonable restrictions' and that is still 2a protected (?)
translation = we're back to where we started with regulation and ban of so called 'assault weapons'; a permt and registration system; mag limits etc. Although i guess havingthe highcourt rule that guns aren't just hunting or state militias is good (like i needed a 5-4 decision and to wait decades for a decision to know that)
Your "translation" does not follow even what scotusblog "hints".
What follows is that the ruling will, like Heller, say that there is room for "reasonable restrictions", as there is with the First Amendment, and, for that matter, all guaranteed rights.
It does not imply what those restrictions are, and it does not in the least automatically validate magazine limits, bans on certain cosmetic features of guns, etc. What it does is require a court case to fight every single bit of such restriction, and what it allows is the Court to decide bit by bit what they believe is an "infringement".
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. It is, indeed, disgusting, in my personal view, though no more disgusting than many other decisions.
What it does not mean is that "we're back to where we started" which was essentially no guarantee of individual RKBA.
What follows is that the ruling will, like Heller, say that there is room for "reasonable restrictions", as there is with the First Amendment, and, for that matter, all guaranteed rights.
It does not imply what those restrictions are, and it does not in the least automatically validate magazine limits, bans on certain cosmetic features of guns, etc. What it does is require a court case to fight every single bit of such restriction, and what it allows is the Court to decide bit by bit what they believe is an "infringement".
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. It is, indeed, disgusting, in my personal view, though no more disgusting than many other decisions.
What it does not mean is that "we're back to where we started" which was essentially no guarantee of individual RKBA.
Golden_006
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I guess if you start counting from the 1950s instead of the 1750s then i guess you are right
Cosmoline
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Also, prior to the 14th (passed in the aftermath of the Civil War), none of the BOR applied to mere state action. Unless the state's constitution prohibited laws in infringement of free expression, for example, they could put you away for bad mouthing the governor.
The alternative would be to have the high court act as a quasi-legislative body and spell out all of their beliefs in a single opinion. To the extent they've tried this sort of judicial legislation in the past, the results have been dubious. I don't want them doing it. They operate best on a case-by-case basis, acting as a court rather than legislature.
The alternative would be to have the high court act as a quasi-legislative body and spell out all of their beliefs in a single opinion. To the extent they've tried this sort of judicial legislation in the past, the results have been dubious. I don't want them doing it. They operate best on a case-by-case basis, acting as a court rather than legislature.
Cosmoline
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True, they can absolutely screw up on a case-by-case basis, too ;-) But it's far worse when they try to outline the whole of an issue beyond the facts before them. Brown, for example, and Brown II, where they decided they were sociologists and legislators and made sweeping changes to the nation's school system. For decades after that federal district courts became legislative agencies to the Supreme Court, enacting and enforcing highly unpopular desegregation plans. In the end accomplishing nothing.
In the Second Amendment context, I don't want to see them trying to spell out all the lines and permutations in a single case, then ordering the district courts to "make it so." They would almost certainly screw it up.
In the Second Amendment context, I don't want to see them trying to spell out all the lines and permutations in a single case, then ordering the district courts to "make it so." They would almost certainly screw it up.
Golden_006
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I don't know what you're talking about. In the 19th century and 18th century most men were armed. There was no question of self-defense as a right. That started changing in the 1950's witt the state militia arguments..
Further what's the point of a supreme court ruling if they leave regulations up to city counsils who require guns unloaded, trigger locked , and for sporting purposes; does that sound like self defense to you? They would've had to pull a rabitout of a hat toprove 2A was tied to state militia service and almost did.
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Ohio Gun Guy
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^^^^
He is refering to American History. Otis McDonald as an African American would have been denied his God Given and Constitutional rights for most of our nations history. For all of the Language and wisdom in our founding documents, there was a very dark stain on our history. The Civil War freed the slaves, kind of - only to be put into a condition of near slavery, and constantly denied their rights and the ability to defend themselves. Now, as a result of where he lives, he is being denied the right to defend himself, not as a racial issue, but as a matter of where he lives.
He is refering to American History. Otis McDonald as an African American would have been denied his God Given and Constitutional rights for most of our nations history. For all of the Language and wisdom in our founding documents, there was a very dark stain on our history. The Civil War freed the slaves, kind of - only to be put into a condition of near slavery, and constantly denied their rights and the ability to defend themselves. Now, as a result of where he lives, he is being denied the right to defend himself, not as a racial issue, but as a matter of where he lives.
Ohio Gun Guy
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The 14th amendment was written to extend the BOR against the States and to the benifit of ALL MEN.
Slavery predated our founding, Civil War ends in 1865, Not until the 1960's did much of the active oppression BEGIN to end.
Slavery predated our founding, Civil War ends in 1865, Not until the 1960's did much of the active oppression BEGIN to end.
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It's good to know you have moved beyond race, and didn't notice his skin color. But his ethnicity would have most likely precluded his being armed, or having any right to be armed, or having any right to a damned thing including his own person, in 1750 and in 1850.
I have no idea what point the rest of your post is trying to make, really, but I assure you, I do have a bit of a clue about the history of this stuff...
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Completely OT: He looks like Morgan Freeman, somewhat. Neat!This is Otis McDonald, of McDonald vs. Chicago.
Do you think HE would have had the right to keep and bear arms in 1750? What about 1850?
At least learn something about the case.
Anyway, I'll be happy with "just" P&I vs. DP. ANY favorable outcome at this point would be grand.
Eating the elephant, and all that.
Not so sure scrutiny will be left off the table after reading the above quote from the oral arguments.
Heller said reasonable scrutiny was not appropriate, so I would assume intermediate or strict scrutiny is what is left for them to decide.
Since the SCOTUS has to decide first if the 2nd Amendment is incorporated, they then logically seem to have to decide what is incorporated.
I wouldn't lose all hope yet for a scrutiny analysis/ruling. But time will tell.
I mean, Roberts and Kennedy asked the question as to how the 2nd Amendment would be applied against the States. Why would they ask that question if no decision on scrutiny and/or a framework is set for what the States have to follow? It would seem to me, that by asking those questions, an answer will be provided.
ETA: Oh, I forgot to answer the OP's original question.
With all I said above my answer to what level of scrutiny will be addressed, if addressed at all is.............I have no idea!!
(But if I had to guess it would be heightened intermediate scrutiny.)
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gc70
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How woud "heightened" intermediate scrutiny be defined?
Bartholomew Roberts
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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.
As to the Justice Kennedy quote, Kennedy is responding directly to the notion that Justices Breyer and Stevens were putting out that you can have an "incorporation lite" where only the "core right" (i.e. the militia right described in the Heller dissent in the minds of Stevens and Breyer) is incorporated; but the rest (the right described by the majority in Heller) applies only to the federal government.
The fact that Stevens and Breyer are arguing this ridiculous incorporation lite theory instead of arguing for the standard of scrutiny is another big hint that the decision is not likely to add much new to what we know about the standard of scrutiny.
Also for those who noted Sieyes decision on scrutiny in the Seventh Circuit, the Seventh has agreed to rehear that decision en banc.
ConstitutionCowboy
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ArmedBear said:
In Heller the Court didn't say that there is room for "reasonable restrictions."
Bart said:
I get the hint that scrutiny must be on their minds, however. Bart's comments in Post # 44 reminded me that there was some discussion (Pages 12, 13, and 14 in the transcript) as to whether - if incorporated to the states - all the accumulated jurisprudence established on the federal level vis-a-vis the Second Amendment would automatically be included/applicable to the several states if incorporated under P or I as has been accumulated under DP. If so, I'd imagine whatever level of scrutiny was applicable in those federal cases would also be carried forward to - or on down to, depending on your point of view - the states. Whether it is mentioned in the final decision in any fashion beyond in passing remains to be seen.
Woody
Jamie C.
Member
I got the impression from reading and re-reading the transcripts that there's a very real chance of incorporation under P or I... It seemed to be something that Chief Justice Roberts certainly had on his mind. ( Why else re-visit it in the last 3 minutes of arguments, if it was completely dismissed in the first few? )
I've also read several opinions from legal experts that far more justices may be inclined to vote for incorporation if it's done under P or I. ( Reading the words "throw Sara Brady under the bus" in one article sure gave me a big grin. )
I don't know how much truth there is to any of those opinions, but if that actually happens, I would think Strict Scrutiny is very likely, if not certain.
J.
I've also read several opinions from legal experts that far more justices may be inclined to vote for incorporation if it's done under P or I. ( Reading the words "throw Sara Brady under the bus" in one article sure gave me a big grin.
)I don't know how much truth there is to any of those opinions, but if that actually happens, I would think Strict Scrutiny is very likely, if not certain.
J.
ConstitutionCowboy
member
Jamie C. said:
Yup. It's kind of hard to wiggle around "shall not be infringed". It says "NO!" plain and simple! I see no "if", no "and", no "or", no "but", no "unless", etc., etc.
Woody
ConstitutionCowboy
member
cbrgator said:
Actually, "couldn't" doesn't fit their modus operandi any more. As far as my limited knowledge of the goings-on on the Court takes me, the last time I'm aware of that the Court ran into a "couldn't" and didn't was in Marbury v Madison. Therefore, I'll accept your "couldn't" as a "wouldn't." So, you are right. 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
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Agreed 100%.
I think the court will find the 2A applies to states but that is the end of it. With the last decision at 5-4 I would not look for any radical jurisprudence to come out of this. They have shown an extreme reluctance to dismantle legislation duly enacted.
Anyone looking to the Court to strike down the usual gun control crp will be sorely disappointed. That will need to come from the state legislatures.
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