Whether 2nd Amendment Applies to States Goes to Supreme Court

[DAL]

High court to look at local gun control laws

By MARK SHERMAN, Associated Press Writer

WASHINGTON – The Supreme Court agreed Wednesday to decide whether strict local and state gun control laws violate the Second Amendment, ensuring another high-profile battle over the rights of gun owners.

The court said it will review a lower court ruling that upheld a handgun ban in Chicago. Gun rights supporters challenged gun laws in Chicago and some suburbs immediately following the high court's decision in June 2008 that struck down a handgun ban in the District of Columbia, a federal enclave.

The new case tests whether last year's ruling applies as well to local and state laws.

The 7th U.S. Circuit Court of Appeals upheld ordinances barring the ownership of handguns in most cases in Chicago and suburban Oak Park, Ill.

Judge Frank Easterbrook, an appointee of President Ronald Reagan, said that "the Constitution establishes a federal republic where local differences are to be cherished as elements of liberty rather than extirpated in order to produce a single, nationally applicable rule."

"Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon," Easterbrook wrote.

Evaluating arguments over the extension of the Second Amendment is a job "for the justices rather than a court of appeals," he said.

The high court took his suggestion Wednesday.

Justice Sonia Sotomayor, then an appeals court judge, was part of a three-judge panel in New York that reached a similar conclusion in January.

Judges on both courts — Republican nominees in Chicago and Democratic nominees in New York — said only the Supreme Court could decide whether to extend last year's ruling throughout the country. Many, but not all, of the constitutional protections in the Bill of Rights have been applied to cities and states.

The New York ruling also has been challenged, but the court did not act on it Wednesday. Sotomayor would have to sit out any case involving decisions she was part of on the appeals court. Although the issue is the same in the Chicago case, there is no ethical bar to her participation in its consideration by the Supreme Court.

Several Republican senators cited the Sotomayor gun ruling, as well as her reticence on the topic at her confirmation hearing, in explaining their decision to oppose her confirmation to the high court.

The case will be argued next year.

Note that a conservative appellate judge held that the Second Amendment does not apply to the states.

[az4code23]

This case reminds me of District of Columbia vs. Heller that ruled that he Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home" and "that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Justice Stevens argued whether or not the Second Amendment protects a “collective right” or an “individual right.” But all in all, in the end, I believe under the laws upheld by the constitution, we should have the right to bear arms, and that right should not be excused; but rather implemented and encouraged.

[HEDP]

.


Now that SCOTUS has decided to hear McDonald vs. Chicago on Incorporation:




1.) What is the anti's argument against Incorporation?




2.) How solid is the case against Incorporation?




3.) What is the chance of us winning this?





4.) When will the decision most likely be?





.

[SgtScott31]

I think your title is a little misleading DAL. It seems that they are asking that the recent ruling in the DC case should apply nationwide. I would hope that no other state attempts to make firearm possession illegal in one's own home, but I don't think the ruling would necessarily give a leg up on other restrictions states impose on their firearms laws. Obviously the DC gun ban was way overboard and I don't see a problem with SCOTUS making sure it doesn't happen anywhere else.

[DAL]

I think your title is a little misleading DAL. It seems that they are asking that the recent ruling in the DC case should apply nationwide. I would hope that no other state attempts to make firearm possession illegal in one's own home, but I don't think the ruling would necessarily give a leg up on other restrictions states impose on their firearms laws. Obviously the DC gun ban was way overboard and I don't see a problem with SCOTUS making sure it doesn't happen anywhere else.

I am not sure what you are saying. Taking this case will require the Supreme Court to decide whether to extend Heller to the states, which entails deciding whether the Second Amendment applies to the states. How much regulation the Second Amendment permits is a different issue that was not addressed in Heller, and will not be addressed in this new case unless the cities had complete bans on handgun possession in the home.

The headline "High court to look at local gun control laws" was written by the AP, not me. My title was narrower and more accurate.

As for HEDP's questions, the strongest case against incorporation likely is expressed in Judge Easterbrook's opinion. He is a very intelligent and well-respected judge.

I think it is more likely than not that the Supreme Court will extend Heller to the states.

If argument is held early next year, I would expect a ruling by June.

[az4code23]

I am not sure what you are saying. Taking this case will require the Supreme Court to decide whether to extend Heller to the states, which entails deciding whether the Second Amendment applies to the states. How much regulation the Second Amendment permits is a different issue that was not addressed in Heller, and will not be addressed in this new case unless the cities had complete bans on handgun possession in the home.

As for HEDP's questions, the strongest case against incorporation likely is expressed in Judge Easterbrook's opinion. He is a very intelligent and well-respected judge.

I think it is more likely than not that the Supreme Court will extend Heller to the states.

If argument is held early next year, I would expect a ruling by June.

I agree that the Supreme Court will also extendHeller to the states, you make a good point.

[GangGreen712]

I look at it this way:

What about the First Amendment? What if, say, San Francisco decided that all churches and places of worship were to be banned and everyone had to turn in their Bibles? What if Chicago decided that it was a felony to criticize Mayor Daly and anyone who did it could be punished without a trial?

Why is it only the 2nd Amendment that does not apply to anything?

The Bill of Rights was written to ensure that the citizens of this country were protected from all enemies foreign and domestic. If the Constitution didn't apply to the individual states, why do states even have to ratify it? Are they basically saying, "Well, all the Constitution is saying is that if you exercise your constitutional rights, federal agents won't be breaking down your door and dragging you off to jail. However, if your state forms a secret police force and they do it, you're on your own, buddy."? The idea that we cannot be ensured protection from our local government by the US Constitution is ludicrous.

[GoldStarTeam]

I have a question...

In my City that I work there is a city ordinance stating that there can be no loaded firearm within city limits. It does not get into specifics as far as in your home or in your vehicle.

I caught someone with a loaded firearm within a suspects home, he is in violation... 2nd Amendment says right to BARE arms but not bare them loaded...

What is everyone's input...

[HEDP]

.
I was one of you legal eagles would answer these questions..................




1.) What is the anti's argument against Incorporation?




2.) How solid is the case against Incorporation?




3.) What is the chance of us winning this?





4.) When will the decision most likely be?




5.) Is this the best case out of the of the 4 Incorporation cases available?




6.) What is the chance of SCOTUS sending this case back down to the lower courts?




7.) What is the chance of SCOTUS striking down Chicago's law, but leaving Incorporation un-answered?




8.) Is this case too big, bringing in stuff that doesn't pertain as much to the 2nd Amendment as this states?: (See below quote)

In addition to claiming the 2nd amendment should be incorporated through the selective incorporation process, McDonald is unique among post-Heller gun cases in that it is asking the court to overturn the 1873 Slaughter-House Cases. Slaughterhouse determined that the 14th Amendment's Privileges or Immunities Clause did not apply the Bill of Rights to the actions of states (and by extension, local governments). If overturned, the Selective Incorporation process would be moot and unnecessary, as the entire Bill of Rights, including the 2nd Amendment, would be applied against the states.

In attempting to overturn Slaughterhouse, this case has garnered the attention and support of liberal legal scholars interested in its potential application in areas outside of firearms law.[9] [10] If Slaughterhouse is overturned, it is likely that constitutional guarantees such as the right to a jury in civil cases, right to a grand jury in felony cases, and other parts of the Bill of Rights, as well as future court rulings, not universally guaranteed in actions by the states would be applied against the states automatically.

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[asullivan]

woops, I just posted this in the political section....Oh well,The fight gets heavier.........

[NYCDep]

I always thought the right to bear arms meant that we could own either kind; grizzly or polar.

Opposing arguments?



Sorry, just wanted to be part of the debate.

[DAL]

Article from LA Times

Supreme Court decision may open up other gun laws to challenges

By agreeing to hear a 2nd Amendment challenge to Chicago's handgun ban, justices may open the door to similar lawsuits in cities and states nationwide.

By David G. Savage
September 30, 2009 | 7:09 p.m.

Reporting from Washington - The Supreme Court's decision Wednesday to hear a 2nd Amendment challenge to Chicago's handgun ban could open the door to similar lawsuits in cities and states across the nation.

At issue is whether the right to keep and bear arms is a full-fledged constitutional privilege that can be invoked by individuals against the government at all levels, or a freedom that applies only as it concerns the federal government.

Last year, the justices in a 5-4 ruling said for the first time that the 2nd Amendment protected an individual's right to have a handgun at home for self-defense. Though that ruling struck down a handgun ban in the nation's capital -- which is a federal enclave -- it did not decide whether the right extended to states and cities.

After the Civil War, the Supreme Court on several occasions ruled that the 2nd Amendment applied only to national laws. In the last year, gun rights advocates in Chicago and New York went to court to challenge local or state gun restrictions, but lost. Judges said they were bound by the high court's 19th century rulings.

On Wednesday, the justices said they would decide the issue in the fall term, which begins Monday.

Legal experts have said that gun rights advocates are likely to prevail in the Chicago case. The five justices who ruled against the District of Columbia handgun ban, led by Antonin Scalia, are likely to extend the same gun rights to states and municipalities.

But lawyers disagree on the practical impact of such a ruling.

Chicago and the nearby village of Oak Park, Ill., are thought to be the only municipalities that enforce a ban on the private possession of handguns. Several other cities, including New York, make it difficult to legally register a handgun. But many other communities have regulations that could be challenged.

Alan Gura, a Virginia lawyer who won last year's ruling and now represents the gun owners in the Chicago case, said Americans have the right to carry guns in public for self-defense, including across state lines.

"This case will not be the end of all gun control, but it means politicians must be aware this is a fundamental right," he said in an interview.

Under the 1st Amendment, restrictions on free speech are suspect and need a strong justification, he said, adding that "the same should be true with gun restrictions."

Gura sued on behalf of four Chicagoans, including Otis McDonald, a retired maintenance engineer who said he has been threatened by drug dealers in his neighborhood.

"I only want a handgun in my house for my protection," McDonald said when the suit was filed. "This lawsuit, I hope, will allow me to bring my handgun into the city legally."

Even if McDonald and the others succeed in striking down the city's ban, a lawyer for the Brady Center to Prevent Gun Violence predicted the ruling would not result in the overturning of most other gun control measures. "It will likely lead to more challenges to state and local gun laws. But when the dust settles, the vast majority of the existing state and local laws will survive," lawyer Dennis Henigan said.

In last year's decision, Scalia agreed that laws restricting felons or the mentally ill from having guns were constitutional. He also agreed the government could keep guns out of airports or government buildings.

The gun rights cause is not limited to conservatives. Libertarians and some self-proclaimed progressives say the court should rule that the Bill of Rights' protections are a "privilege" of U.S citizenship.

The 14th Amendment says that states may not "abridge the privileges" of a U.S. citizen. At the time the amendment was written, this was seen as extending the rights -- such as freedom of speech or freedom from unreasonable searches -- to protect citizens against state and local officials. However, the Supreme Court disagreed in 1873, and this provision was left unenforceable.

In the Chicago case, the justices agreed to rule on whether the 2nd Amendment and its right "to keep and bear arms" was a privilege of citizenship.

"The correct answer to this question should be important to all Americans, not just those focused on gun rights," said Doug Kendall, president of the Constitutional Accountability Center, a liberal think tank. He and other scholars argue that reviving the "privileges" clause would strengthen other constitutional rights.

Lawyers for the city of Chicago, however, have urged the justices to turn away the challenge. They said easily concealed handguns pose a special danger in cities. "Homicides are most often committed with guns, especially handguns," they said, citing a Justice Department report. They also stressed it was legal for homeowners to have a rifle or shotgun for self-defense.

The court said it would hear arguments in the case, McDonald vs. Chicago, in February.

[email protected]

[DAL]

I have a question...

In my City that I work there is a city ordinance stating that there can be no loaded firearm within city limits. It does not get into specifics as far as in your home or in your vehicle.

I caught someone with a loaded firearm within a suspects home, he is in violation... 2nd Amendment says right to BARE arms but not bare them loaded...

What is everyone's input...

Doesn't Texas have a state law preempting local laws like this? Even in California, cities cannot prohibit you from having a loaded gun in your house.

If the Second Amendment is held to apply to state and local governments, and the suspect was in his own house, then he legally could possess a loaded firearm, unless he was a convicted felon or a member of some other class prohibited from owning firearms.

From your perspective, you are entitled to presume that your city's ordinance is valid, unless there are appellate cases or a statute in Texas that make it clear that the ordinance is not enforceable.

[mikeymedic]

hope all works out for the best.

[dadyswat]

I look at it this way:

What about the First Amendment? What if, say, San Francisco decided that all churches and places of worship were to be banned and everyone had to turn in their Bibles? What if Chicago decided that it was a felony to criticize Mayor Daly and anyone who did it could be punished without a trial?

Why is it only the 2nd Amendment that does not apply to anything?

The Bill of Rights was written to ensure that the citizens of this country were protected from all enemies foreign and domestic. If the Constitution didn't apply to the individual states, why do states even have to ratify it? Are they basically saying, "Well, all the Constitution is saying is that if you exercise your constitutional rights, federal agents won't be breaking down your door and dragging you off to jail. However, if your state forms a secret police force and they do it, you're on your own, buddy."? The idea that we cannot be ensured protection from our local government by the US Constitution is ludicrous.

Read the news it may be coming to that.