Sunday, March 7, 2010

Gun Grabbers have their Day in Court

Are the 50 states required to obey the Second Amendment?

Or can they do whatever they want, with no obligation to respect our right to keep and bear arms?

That’s what’s at stake in the Chicago gun-ban case, McDonald v. City of Chicago (Alan Korwin)
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
-- 2nd Amendment to the US Constitution
This will be a landmark decision
Last year, The Supreme Court upheld our right to bear arms in the Heller Decision, but since it was a DC case, it was silent on such bans imposed by states and cities.

The Chicago Case before the Supreme Court is complex and involves much more that just the right to bear arms.  Can the federal government compel states to respect The Bill of Rights?  If so, is this a violation of states rights?

A straight reading of the 2nd Amendment should settle it:  Chicago may not infringe upon a person's right to own a gun.  Unfortunately, progressive lawmakers have trampled and twisted our constitution, and deferential judges have too often let them get by with it.

But the practice of constitutional law has unfortunately long since been about more than the simple application of the plain text.  That’s because the Constitution—the point of which is to limit government power—is a rather inconvenient roadblock when government wants to do something without restraints.  

Courts, in many cases, have abandoned their responsibility to apply the clear commands of the Constitution and have become extremely deferential to legislatures, especially with regard to progressive policy goals the judges themselves often share.  

Some call this judicial “restraint,” but increasingly, a more accurate term would be judicial abdication.  
This case revolves around not just the 2nd Amendment, but also the 14th.  It's a very long amendment, passed to give teeth to the 13th, which abolished slavery.  Here is the relevant section:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. 
Gun Rights champion Alan Korwin has written The Definitive Article on this case.  He breaks it down so us non-lawyers can understand it.  Here are some excerpts:
Our brief establishes this crucial point: the Second Amendment protects an American right that is long standing, deeply rooted and truly fundamental, and therefore meets the tests for incorporation under the 14th Amendment.

 The idea that the states should also be obligated to respect the fundamental rights in the national Bill of Rights didn’t arrive until 1868, with the 14th Amendment. And that was a result of the end of slavery — the former Confederate states did everything they could think of to deny virtually any rights to newly freed slaves — especially the right to keep and bear arms.

Is Chicago obligated, under the 14th Amendment, to honor and respect your rights? It says no, it can do as it pleases and screw your rights, just like other abhorrent petty tyrants currently running loose without nooses in the United States.

Gun Rights vs. States Rights? 
Here's a critical issue:  If the court overturns the ban, is it a blow to states' rights?  As important is a separate issue:  If the federal government can use the 14th Amendment to force states to respect a right mentioned in the 2nd, will liberals use this precedent to force states to recognize other "rights" that they invent?

Yes, we’re delighted that the states may be forced — by our friends the feds — to honor our right to keep arms and our right to bear arms. We can conveniently overlook and rationalize any concerns about federalism — the concept that states are sovereign and independent, and in many matters can decide on their own how their territories will be run.

Will gun rights activists end up providing cover fire for progressive schemers?
Force from federal mandates seems just fine to protect free speech or stop search-and-seizure abuse, or to protect RKBA. But how well that flies if it’s “newly discovered privileges and immunities” (polygamy? drugs? animal rights? affirmative action? debt? medicine? carbon neutrality? diversity? greenness? diet?) remains to be seen.

Those are far fetched and unlikely concerns, according to most people in the know.
Interesting stuff. I don't see this as a states rights issue because our God-given rights may not be infringed by anyone.  As for the progressive schemers, the tide seems to be turning against them.


Fredd said...

Yeah, this one could go either way, but at least the deciding vote is Anthony Kennedy, and he voted in favor of the 2nd Amendment's protection to the citizens of DC.

Scalia, Roberts, Alito, Thomas - pro gun rights.

Gun grabbers: Sotomayer, Ginsburg, Breyer, Stevens.

Kennedy will come through for all of us armed patriots.

Silverfiddle said...

The "Court Watchers" seem to think the court will decide against Chicago. Breyer may even be on board.

They say it depends on how sweeping the decision is. For instance, the same commentariat says it's unlikely everyone will be able to openly carry and brandish walking down the street.

It would be more on the order of you can't stop someone from owning a gun, keeping it in their home, and firing it in a safe manner or in self-defense.

More interesting is which part of the 14th will be used, and what the implications of that are.

Fredd said...

Without mentioning open carry, if they strike down the Chicago ban, it will not really change the very restrictive Illinois state law, which almost always guarantees at least an arrest of gun owners shooting home intruders. Currently, Illinois home owners are guilty until proven innocent regarding gun incidents within the home. That's gotta change.

'Brandishing.' Man, oh man, would I love to walk around and brandish.

Silverfiddle said...

I am familiar with Ill gun law, being a refugee from that failed state. The state's laws would probably stand because, although overly restrictive, they do allow law-abiding citizens their gun ownership rights.

Shooting an intruder is a separate issue under a separate law.

Here is Colorado we have a "Make my Day" law, which says I can shoot an intruder dead. Much hinges on how the local DA treats the case.

Here in my conservative part of the state, there have been a few cases of homeowners shooting a perp, and not one time did the DA even hint at trying to prosecute them. Needless to say, break-ins are rare...

RealityZone said...

I live in Az. We have an open carry law. We also have CCW permits. I have had mine for years and never leave home without it.
You see I am a cowboy hat, cowboy boot, jean wearin, gun toten screamin LIBERAL.
FREDD: RE "Kennedy will come through for all of us armed patriots."
I guess even though I am more liberal than most wannabe liberals I am still a patriot because I carry. LOL.

Silverfiddle said...

Carrying doesn't make one a patriot. Standing up for the constitution does.

RealityZone said...

I would love to hear FREDD'S explanation of that line.

Fredd said...

Reality: Ted Kennedy was a piece of shit. He's not going to come through for anyone, other than the 'Drink Gin until You Throw Up Club.' Or, better yet, 'Leave Women To Die in the Car You Drunkenly Wrecked' Convention.

That piece of human garbage will rot in fiery, roasting hell.

Of course, that's just my opinion, Reality.

WomanHonorThyself said...

they do allow law-abiding citizens their gun ownership least for now my friend!!

Most Rev. Gregori said...

It is my belief that States MUST uphold all of our rights that are mentioned in the Bill of Rights. That is NOT an infringement on State's Rights. All federal laws that are NOT enumerated in the Constitution as powers belonging to the three branches of government, such as Federal health care legislation, Federal involvement in our education system, involvement with our local law enforcement; police, sheriff, state police, etc., as well as in our fire departments, ambulance service,all of the various hate crimes legislation, all of the federal gun laws, such as demanding lists of private citizens who own guns, ARE a violation of States rights.

Also when the founding fathers drew up the Constitution, they did NOT intend that militias were to be the National Guard, which is under the command of the State Governors and can be placed under the command of regular military. The militia members are WE THE PEOPLE who have the RIGHT to defend ourselves and our families and homes, not only against foreign invaders and or terrorists, but also against local ones as well, including our own government should it become tyrannical.

Most Rev. Gregori said...

Silverfiddle, NOT all "law abiding citizens have the right to own or carry a gun. Many people, including myself have been denied that "RIGHT" on the whim of a federal judge. Here in New York state, they make the process so complicated that many people just give up, especially when it sometimes takes over a year from the time of application to finally receiving word that your application has been denied or accepted. If you are denied, it is often without any explanation (as was my case). I applied several times over the years and have been denied over and over again, until I finally just gave up.

Silverfiddle said...

Reverend. Everyone does have the right, but states like NY deny you that right. Hopefully, what you are talking about is the next thing to fall.

Really, they are denying you your right under the guise of "prudent regulation," which you can testify is a steaming crock.

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