Scotusblog.com thinks 2nd will be incorporated

[bushmaster1313]

According to Scotusblog.com, who had people at the court during oral argument

The Supreme Court on Tuesday seemed poised to require state and local governments to obey the Second Amendment guarantee of a personal right to a gun, but with perhaps considerable authority to regulate that right. The dominant sentiment on the Court was to extend the Amendment beyond the federal level, based on the 14th Amendment’s guarantee of “due process,” since doing so through another part of the 14th Amendment would raise too many questions about what other rights might emerge.

 

[Ohio Gun Guy]

I really want to read the transcript!

Here is where I think we are in history.

Step 1: Stop the British at Lexington from taking our guns, Fight a War against the worlds lone Superpower of the era. - and WIN.
Step 2: Add the Bill of Rights, so there is no confusion about the limited roll of government.
Step 3: Fight the Civil War, Make Sure "All Men" really means ALL MEN.
Step 4: Add the 14th Amendment to say....we really mean it.
Step 5: Fight to keep the RTKBA from being legislated out of existance, put up the some of the dumbest theories ever concocted. :banghead:
Step 6: Prove there is a Right - Heller v. DC
Step 7: Incorporate that right against all levels of Government - McDonald v. Chicago (Fingers crossed....)
Step 8: Defign scruitny and process that must be applied to limits placed on the Right (as with all others); Maybe it will be addressed in the McDonald decision, Likely not.


I would like the current court to take step 8 or part of step 8 in this decision. I'm worried that without a backstop, the current route will allow a future courts a large amount of leeway....to much leeway.

 

[Bartholomew Roberts]

From both accounts I read, P&I got totally shut down. Due Process incorporation seems to have won some support from the dissent in Heller; but it seems the dissenting Justices from Heller still want to use a level of scrutiny that makes the Second meaningless.

 

[MisterMike]

Here's the scotusblog analysis: http://www.scotusblog.com/2010/03/analysis-2d-amendment-extension-likely/#more-17012

They surmise that the Privileges and Immunities approach is dead, perhaps proving the wisdom of the NRA in pressing the due process argument. They believe that the Second Amendment will be applied to the states and cities, and that what remains to be worked out is what types of limitations may be permitted by the SCOTUS.

 

[IllHunter]

After reading the briefs....

I feel they will use "due process" The arguments for "privileges and immunities" opens so many scars, the courts calendar would be awash with challenges. Every FCC case, every FTC case, almost every decision since 1868 would be re-visited. But NRA has a good tactic "Thus we provide the Supreme Court with a menu of arguments demonstrating that the court does not need to incorporate the Second Amendment under the Due Process Clause and also showing an alternative route to incorporation via the Privileges and Imunnity Clause of the Fourteenth Amendment" WoW who'da guessed, Gura swung and missed and all the brou ha ha about the NRA "stealing time" was wasted air and the NRA hit it out of the park. I'm glad. Not for the NRA but for the cause. Now the NRA will spend serious $ touting it's actions and promoting the fight. They have the biggest warchest, the biggest staff and the perfect soapbox. But I will still go to IGOLD and lobby the pinheads in Springfield on the tenth.BZ to all involved, call me in June when the let the cat out of the bag.

 

[Ohio Gun Guy]

Section 19 provides: § 19 of the Criminal Code, act of March 4, 1909, chap. 321,

'If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same, or if two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured, they shall be fined not more than five thousand dollars and imprisoned not more than ten years, and shall, moreover, be thereafter ineligible to any office, or place of honor, profit, or trust created by the Constitution or laws of the United States.'


I happen to think, that after this, we should dust off this baby..... ^^^^
Are we not now "Securing" this right, if it now becomes established precident. Could there be a case for going after the next politition who tries to enact a ban? (I know its a stretch, but think of it!)

 

[hirundo82]

Due Process incorporation seems to have won some support from the dissent in Heller; but it seems the dissenting Justices from Heller still want to use a level of scrutiny that makes the Second meaningless.

Not surprising; even the dissents in Heller recognized an individual right to firearm ownership. They disagreed over whether the right to keep and bear arms extended to handgun ownership.

I hope we don't get some watered-down decision saying the Second Amendment does apply to the states but that they can enact most forms of gun control short of a complete firearm ban.

 

[CoRoMo]

...require state and local governments to obey the Second Amendment guarantee of a personal right to a gun, but with perhaps considerable authority to regulate that right.

I hate that in exchange for state obedience of the 2A, we will likely hand considerable authority to regulate a right, to the government. Two steps forward and two steps back IMO.

 

[TexasRifleman]

We can't really be surprised here. This is pretty much what everyone expected.

The NRA argument is interesting.

There will be some who claim that if NRA hadn't brought that angle up that the Court would have gone all the way with Gura.

I disagree with that, but there will be plenty of finger pointing I'm afraid.

It will be a step forward in the end, but a tiny step.

 

[gbw]

Maybe not worth much, but remember you're quoting an analyst from SCOTUSBLOG, who supported the wrong side in Heller. So maybe it's just wishful thinking on their part (or mine).

 

[Bartholomew Roberts]

More than SCOTUSBlog has commented on P&I being shut down and the debate over scrutiny is no shock. As for the divided argument time, it clearly didn't make a damn bit of difference either way. If even Scalia was dogpiling Gura on P&I, then that means Thomas is likely the only vote for P&I.

 

[TexasRifleman]

As for the divided argument time, it clearly didn't make a damn bit of difference either way.

Seems to me the oral arguments are mainly for show anyway. I suspect the Justices know where they stood on this long before today.

 

[testosterone]

Seems to me the oral arguments are mainly for show anyway. I suspect the Justices know where they stood on this long before today.

Agree.

This is the flip side of the whole mess, the justices are not intellectually honest. At the end of the day the 9 are the most powerful folks in the United States and they are only human.

It's scary.

 

[grahluk]

Due Process incorporation seems to have won some support from the dissent in Heller; but it seems the dissenting Justices from Heller still want to use a level of scrutiny that makes the Second meaningless. [/url]Not surprising; even the dissents in Heller recognized an individual right to firearm ownership. They disagreed over whether the right to keep and bear arms extended to handgun ownership.

I hope we don't get some watered-down decision saying the Second Amendment does apply to the states but that they can enact most forms of gun control short of a complete firearm ban.

I think that's exactly what we'll get. That's all Heller said. If incorporation happens I'm sure they won't go any further than Heller. This case is much trickier for the Justices than Heller was. The 2nd incorporation issue is the easy part. It's the messing of federal vs state rights and the avenue to do that without trampling on established doctrines of incorporation or as mentioned overturning precedent that has guided much of post civil war Scotus rulings. It's a narrow line they're walking and I imagine they are keeping their hands at their sides.

 

[testosterone]

Step 1: Stop the British at Lexington from taking our guns, Fight a War against the worlds lone Superpower of the era. - and WIN.
Step 2: Add the Bill of Rights, so there is no confusion about the limited roll of government.
Step 3: Fight the Civil War, Make Sure "All Men" really means ALL MEN.
Step 4: Add the 14th Amendment to say....we really mean it.
you missed one...

step 4a: Have the supreme court wipe their gilded butt's with the privileges and immunities clause(the meat of the 14th). In effect, they struck it down in what is almost universally regarded as a corrupt and incorrect ruling. Then have 100+ years of ruling's follow that bad precedent and now it is "just the way it is".

Step 5: Fight to keep the RTKBA from being legislated out of existance, put up the some of the dumbest theories ever concocted.
Step 6: Prove there is a Right - Heller v. DC
Step 7: Incorporate that right against all levels of Government - McDonald v. Chicago (Fingers crossed....)
Step 8: Defign scruitny and process that must be applied to limits placed on the Right (as with all others); Maybe it will be addressed in the McDonald decision, Likely not.

adding...from the cato blog, a backer of Gura.

http://www.cato-at-liberty.org/2010/03/02/gun-rights-secure-liberty-less-so/

Gun Rights Secure, Liberty Less So

Posted by Ilya Shapiro

This morning the Court heard argument in McDonald v. Chicago, the case asking whether the right to keep and bear arms extends to protecting against actions by state and local governments. Just as importantly, it asked whether the best way to extend that right would be through the Due Process Clause of Privileges or Immunities Clause of the Fourteenth Amendment (because the Second Amendment doesn’t apply directly to the states).

From the initial questioning through the end, it was quite clear that those living in Chicago — and, by extension, New York, San Francisco, and other places with extreme gun restrictions — will soon be able to rest easy, knowing that they will be able to have guns with which to protect themselves. Unfortunately, the Court did not seem inclined to adopt the arguments propounded by petitioners’ counsel Alan Gura (and supported by Cato) that the Privileges or Immunities Clause was the way to go. Chief Justice Roberts expressed reluctance at having to overturn the 1873 Slaughterhouse Cases and other justices joined in concerns over how activist judges would use the Clause if the Court revived it — even if that were the path that hewed more closely to the constitution’s true meaning.

This turn of events is unfortunate because reviving the Privileges or Immunities Clause, far from giving judges free reign to impose their policy views, would actually tie them closer to the text, structure, and history of the Constitution. As it stands now — and as it seems will be the case after McDonald is decided — many of our most cherished rights are protected only to the extent that judges are willing to label them as sufficiently “fundamental” to warrant such protection. That is an unprincipled jurisprudence and one that hurts the rule of law.

In short, it is a shame that the Supreme Court seems to be wasting a perfect opportunity to bring constitutional law closer to the Constitution. It is an even greater shame that it is wasting this chance to use guns to protect liberty.

 

[Ohio Gun Guy]

^ I like it. I feel the same way, but also thought that this was a steep cliff to ask the court to jump off (Although it should). They took a big step away from rights not granted to the State being left to the people. In the questioning, they are reported to have asked, which rights this clause would then grant? Thus, they have the viewpoint that the rights are not limitless and are inumerated in the BOR. Or you have no other right than those inumerated rights....in lieu of you have all the rights in the world including but not limited to these.....

I will be one of those wondering if the NRA offering the easy way out had any impact on the(Still pending) outcome. However, if this is the way it comes down, then I will be choking on some crow, because apposed to a loss, I would rather have the "Win" via incorporation over a loss due to a rejection of P&I. Although for them to reject the 2nd amendment would have been difficult, somewhat intellectually dishonest; perhaps they would have just crafted the decision to reflect this apparent way of thinking anyway.

 

[CoRoMo]

...deleted drift...

 

[everallm]

Courtesy of Phatty, link to the transcript

http://www.supremecourtus.gov/oral_arguments/argument_transcripts/08-1521.pdf

 

[Michael Thomson]

If anything, it sounds like NRA's motion for divided argument to argue Due Process incorporation may well have saved the case.

From Scotusblog:

"The first argument to collapse as the hearing unfolded was the plea by the lawyer for gun rights advocates, Alan Gura of Alexandria, VA, that the Court should “incorporate” the Second Amendment into the 14th Amendment through the “privileges or immunities” clause. In the first comment from the bench after Gura had barely opened, Chief Justice John G. Roberts, Jr., noted that the Court had essentially scuttled that argument with its ruling in the SlaughterHouse Cases in 1873. And within a few minutes, Justice Antonin Scalia — the author of the Heller opinion and the Court’s most fervent gun enthusiast — was sarcastically dismissing the “privileges or immunities” argument.

“Why,” Scalia asked Gura, “are you asking us to overrule 140 years of prior law….unless you are bucking for a place on some law school faculty.” The Justice said the “privileges or immunities” argument was “the darling of the professorate” but wondered why Gura would “undertake that burden.” And Scalia noted that the “due process” clause — an open-ended provision that he has strongly attacked on other occasions– was available as the vehicle for incorporation, and added: “Even I have acquisced in that.” Gura somewhat meekly said “we would be extremely happy:” if the Court used the “due process” clause to extend the Second Amendment’s reach.
"

 

[NetJunkie]

I hope we don't get some watered-down decision saying the Second Amendment does apply to the states but that they can enact most forms of gun control short of a complete firearm ban.

Discussed in the transcript..well worth the read.

 

[Ohio Gun Guy]

Michael Thompson - It may well have.

 

[testosterone]

Discussed in the transcript..well worth the read.

well have to see in the final decision, it sure seemed like "reasonable" is fine, whatever reasonable is...

 

[ArmedBear]

If anything, it sounds like NRA's motion for divided argument to argue Due Process incorporation may well have saved the case.

Yup.

I usually like Cato, but their NRA-bashing lately has been downright stupid. Gura and Cato wanted to overturn Slaughterhouse. NRA wanted to win the case. Why would making a show of trying to overturn Slaughterhouse be NRA's top priority, even if it means losing the case? Is that what NRA members are paying for?

We'll see what the decision looks like...

it sure seemed like "reasonable" is fine, whatever reasonable is...

A big cash cow for lawyers, who have been seeing their overall revenue decline lately. There's a legal theory that I think has some merit: all else being equal, the court will decide a case in whatever way helps the legal profession in general to gain power, status and money.

 

[TexasRifleman]

Gura and Cato wanted to overturn Slaughterhouse.

Exactly. Scalia even scolded them for it:

“Why,” Scalia asked Gura, “are you asking us to overrule 140 years of prior law….unless you are bucking for a place on some law school faculty.” The Justice said the “privileges or immunities” argument was “the darling of the professorate” but wondered why Gura would “undertake that burden.”

This has been a concern all along. Gura is a great guy, but he's never really been doing this for "gun" angle, rather the bigger Constitutional picture.

I agree with that 100% but having a fallback to win the gun side of this if things went south didn't seem to be in his plans.

 

[dirt_j00]

I'm trying not to be biased, but from reading the transcript, does it seem that Feldman really didn't perform very well? I got that feeling at times. Or that the justices were giving him a hard time...