McDonald v. Chicago

[kick'em.down]

I figured the LL had a thread about thism so we might as well have one too. You can read the full slip opinion here (http://www.supremecourt.gov/opinions/09pdf/08-1521.pdf), but essentially the Supreme Court, in a 5-4 decision, overturned a Chicago handgun ban, rendering it unconstitutional. Justice Alito in the majority oppinion, affirmed that the 2nd amendment was indeed made applicable to the states via the 14th amendment. The court was divided as such:
Alito Bryer
Roberts Ginsberg
Kennedy Sotomeyor
------ --------
Thomas Stevens
------
Scalia

On another note, I won some money on this case. Not a lot though since I split the money with 5 other people in my Constitutional Rights and Liberties Class. Yeah, that's how we have our fun, whatev. But honestly, this case wasn't that hard to predict. Here's my chart that I made at the beginning of the year alligning the supreme court justices:
http://img228.imageshack.us/img228/572/39758419.png (http://img228.imageshack.us/i/39758419.png/)

[Kaboose]

Time to cover my downtown studio apartment in guns!

[Walph Roolard]

we'll see where this takes us.

[kick'em.down]

Obviously, strikes down a great deal of existing gun control legislation. Additionally, while not all precedent is good precedent it takes a great deal to overturn precedent which has existed for approximately 137 years. It survived for a reason and this case simply does not demonstrate that the second amendment ... See Moreshould be incorporated to the states. Of course not everyone is free to get a handgun, however, increased ownership makes crime more lethal. If everyone were a law abiding careful gun owner, we wouldn't have this problem in the first place, and not all firearm related deaths can be attributed to illegally purchased firearms.

[Zat0pek]

Originally posted by kick'em.down@Jun 29 2010, 08:27 AM
Obviously, strikes down a great deal of existing gun control legislation. Additionally, while not all precedent is good precedent it takes a great deal to overturn precedent which has existed for approximately 137 years. It survived for a reason and this case simply does not demonstrate that the second amendment ... See Moreshould be incorporated to the states. Of course not everyone is free to get a handgun, however, increased ownership makes crime more lethal. If everyone were a law abiding careful gun owner, we wouldn't have this problem in the first place, and not all firearm related deaths can be attributed to illegally purchased firearms.
Disclosure: I am an attorney, concealed carry permit holder and NRA member.

This is incorrect. This really doesn't strike down anything except outright bans like existed in Chicago and DC.

It also doesn't strike down precedent in my opinion. Everyone mistakenly believes that the 1939 decision in U.S. v. Miller addressed this issue of the individual right directly, and it did not.

There is an excellent Yale Law Review article from 1989 called The Embarrassing Second Amendment that was really one of the first objective scholarly analysis of the Second Amendment. You can read it here: The Embarrassing Second Amendment (http://www.constitution.org/2ll/2ndschol/70embar.pdf) I don't think we spent ten minutes on the Second Amendment in law school, despite an entire year of constitutional law.

The Second Amendment, up to Heller and now McDonald, was in a sort of a legal never-never land. There had been virtually no case law or scholarly analysis of it. However, in 2001, the Fifth Circuit handed down a decision that is what I believe to be the first real in-depth analysis of the Second Amendment on par with what we have seen for centuries with the First, Fourth, Fifth and other Amendments in the Bill of Rights. It was an exhaustive opinion that, in my opinion, nailed it legally and historically. This issue was whether a guy who was subject to a temporary injunction filed by his ex-wife could be lawfully prohibited from possessing a firearm. The Fifth Circuit issued an opinion which, for the first time, really dug in to the Second Amendment and came to what I believed then was the correct conclusion and which is now consistent with Heller and McDonald: (1) The Second Amendment confers an individual right and (2) barring this idiot from possessing a firearm was a legitimate restriction on that right. You can read Emerson here: U.S. v. Emerson (http://www.ca5.uscourts.gov/opinions/pub/99/99-10331.cr0.wpd.pdf)

Because the Second Amendment was so ignored for so many years, its analysis became purely political and was largely fear-driven. The "anti-gun" forces (Handgun Control, Inc., Brady, etc) were terrified of rulings like Heller and McDonald and denied that an individual right existed at every turn out of fear that such a ruling would prevent any and all gun regulation. The "pro-gun" forces (NRA, etc.) were terrified of restrictions out of fear that, absent a clear legal ruling regarding the individual nature of the right, restrictions would erode exercise of the Second Amendment right.

They were both wrong, in my opinion.

These rulings were needed because it was imperative to get the Second Amendment in a posture like the other Amendments: It confers an individual right which is subject to reasonable regulation. All rights have limitations. Your First Amendment right to the free exercise of religion does not extend to allowing you to participate in human sacrifice, even if it is an a requirement of your "religion".

Now, FINALLY, the Second Amendment is where it belongs. The individual nature of the right has been clarified and so has its application to the states. NOW we can begin to define what the legitimate restrictions are on that right, just like we've been doing for centuries with the First Amendment, and continue to do so today. Heller and McDonald didn't eliminate gun regulation; they simply provided the same framework that we've had for all other enumerated individual rights contained in the Bill of Rights.

What will happen now is what should have happened long ago Various gun regulations will be passed and challenged in court, just like various restrictions on other rights have been tested. Some will be upheld and some will be struck down. Over time, the legitimate restrictions on the right will emerge and the situation will become more stable and predictable. Here are some restrictions and my opinion of their constitutionality:

Constitutional (degree of certainty parenthetically):

* Backgrounds checks and denial of sale based on same (definitely)
* Non-possession/ownership based on felony or domestic violence convictions and mental illness history (definitely)
* Reasonable waiting periods (possibly; depends on facts, e.g, a woman has received death threats from her ex. In that situation a waiting period could cost her her life).
* Reasonable and non-burdensome licensing/training requirements (almost definitely so long as they don't impose an economic burden that would create an obstacle to the poor)
* Bans on weapons not "in common use" such as fully automatic weapons, explosives, etc. (definitely)

Unconstitutional (degree of certainty parenthetically):

* Bans on categories of guns "in common use" such as handguns(definitely)
* Bans on guns in public housing such as San Francisco's law (definitely and furthermore probably also now an Equal Protection violation based on race under a disparate impact theory in addition to a Second Amendment violation; Equal Protection requires a violation of another constitutional right, which would now be the Second Amendment)
* Required restrictions that render a gun useless in time of need, such as disassembly and trigger locks (definitely)

Unclear:

* Required modifications to guns "in common use" such as limitations on clip sizes for semiauto pistols and rifles
* Limitations on sub-groups of guns "in common use" by caliber or style, eg, semiauto rifles or pistols or only certain calibers in semiauto or limits on clip sizes for certain semiauto calibers, etc.

The conclusion to The Embarrassing Second Amendment is worth everyone reading:

[quote][b]There is one further problem of no small import: if one does accept the plausibility of any of the arguments on behalf of a strong reading of the Second Amendment, but, nevertheless, rejects them in the name of social prudence and the present-day consequences produced by finicky adherence to earlier understandings, why do we not apply such consequentialist criteria to each and every part of the Bill of Rights?

[DiscoGary]

Obviously, strikes down a great deal of existing gun control legislation. Additionally, while not all precedent is good precedent it takes a great deal to overturn precedent which has existed for approximately 137 years. It survived for a reason and this case simply does not demonstrate that the second amendment ... See Moreshould be incorporated to the states. Of course not everyone is free to get a handgun, however, increased ownership makes crime more lethal. If everyone were a law abiding careful gun owner, we wouldn't have this problem in the first place, and not all firearm related deaths can be attributed to illegally purchased firearms.


Actually, more gun ownership leads to less crime.

More Guns, Less Crime by John Lott

[TeamOrange]

Actually, more gun ownership leads to less crime.

More Guns, Less Crime by John Lott


http://books.google.com/books?id=nChWOCgeX2oC&pg=PA287&lpg=PA287&dq=Evaluating+Gun+Policy+john+donohue&source=bl&ots=LMCOGWpb6E&sig=CZIfY3CqEGA62roO5p6397L4RHw&hl=en&ei=OUk1TNzoEYP7lwfi-OjSBw&sa=X&oi=book_result&ct=result&resnum=1&ved=0CBIQ6AEwAA#v=onepage&q&f=false

Read pages 289-340

[hjfrick]

Actually, more gun ownership leads to less crime.

More Guns, Less Crime by John Lott

Having not read the text, I would be interested as to what evidence it uses to support this claim. Does it claim that more gun ownership becomes a deterrent force? Because that is a concept I personally have a hard time believing.

[DiscoGary]

Having not read the text, I would be interested as to what evidence it uses to support this claim. Does it claim that more gun ownership becomes a deterrent force? Because that is a concept I personally have a hard time believing.

They actually study cases where both gun bans were put into effect, and where gun restrictions were lifted. One of the most convincing cases was where Florida put into place a right to carry law, and many people predicted that it would turn into the wild west with shootings everywhere. After many years and many thousands of permits issued, there were almost no cases of lawfully carried fire arms used for a crime, and overall crime went down.

They also make the case for the "halo" effect. This means that the gun owned by your neighbor helps protect you even though you don't own one.

I know all this goes against common sense, but once you see the data it's pretty convincing. In fact, John Lott started out studying gun ownership with the assumption that the presence of guns would facilitate (brain lock, couldn't come up with a better word) violent and fatal crimes. He decided to do a comprehensive study to prove his assumption and found out he was wrong.

Unfortunately the gun issue is so emotionally charged that it is nearly impossible to have a serious discussion. There is only one topic that I will refuse to discuss in person... gun rights. I have had my life threatened so many times trying to discuss this topic that I have decided to stay away from it.

[hjfrick]

Unfortunately the gun issue is so emotionally charged that it is nearly impossible to have a serious discussion. There is only one topic that I will refuse to discuss in person... gun rights. I have had my life threatened so many times trying to discuss this topic that I have decided to stay away from it.
The really ironic part of this statement is that, since I'm fairly certain you are supporting the right to carry, that the people threatening you would then be the same people who want restrictions on carrying- pretty funny.

As far as my feelings on gun ownership, I have no problem with the right of a citizen to own guns. However, I do think there should be certain restrictions, chiefly that fully automatic guns should be outlawed nationally, tougher restrictions should be imposed on who can buy a semi-auto vs. a non-semi-auto, things of that nature, which I think many people who are pro-gun can understand.

I also do not support concealed carrying, and here's why: if you want to carry a concealed weapon, you're doing so because you think it may be necessary to carry one. I'm not saying this under the presumption that everyone, or anyone for that matter, willfully wants to use their concealed weapon. I'm saying this because, by my logic, if you're carrying a concealed weapon you are doing so as a measure of safety. Obviously, I would never will on anyone a situation in which they feel so unsafe that they must produce a firearm, but situations like that do happen, and I can understand why people would want to be "prepared" in such a situation. However, I feel that these situations are rare enough that they do not, in and of themselves, merit the carrying of a concealed weapon. Thus, I believe there is basically no point to carrying the gun. That by itself would not necessarily be enough, in my mind, to prohibit the carrying though, so the next step my logic takes is that these guns can come to be used in situations where they are not necessary, and the problems stemming from that.

That's just my two cents.

[TeamOrange]

http://www.scienceblog.com/community/older/archives/K/3/pub3439.html

Just sayin'

[homeless]

http://www.scienceblog.com/community/older/archives/K/3/pub3439.html

Just sayin'

The link has none of the study. :confused:

I grew up in a gun heavy area in South Jersey. Almost no crime. Everyone knew everyone had shotguns. Everyone acted accordingly.

I attended college in Virginia and had a carry permit. It's a different world there. I know if I was a criminal I'd have a different attitude in a carry permit state. I only carried it when I had to go out late at night for some reason or when I was out camping. Once camping it probably kept me and a GF alive. A guy kept circling back and forth passing us on a remote portion of the AT, probably 3 times, staring at the lady. Real weird in a remote trail. 3rd time I simply made sure the gun was visible. He stayed away.

People legally purchasing firearms, and then going through the carry permit process are NOT the problem. I'd be curious to see what percentage of people who legally purchased and then legally obtained a carry permit have committed crimes with said gun.

I'll guess it's an amazingly low percentage.

[TeamOrange]

The link has none of the study. :confused:

I grew up in a gun heavy area in South Jersey. Almost no crime. Everyone knew everyone had shotguns. Everyone acted accordingly.

I attended college in Virginia and had a carry permit. It's a different world there. I know if I was a criminal I'd have a different attitude in a carry permit state. I only carried it when I had to go out late at night for some reason or when I was out camping. Once camping it probably kept me and a GF alive. A guy kept circling back and forth passing us on a remote portion of the AT, probably 3 times, staring at the lady. Real weird in a remote trail. 3rd time I simply made sure the gun was visible. He stayed away.

People legally purchasing firearms, and then going through the carry permit process are NOT the problem. I'd be curious to see what percentage of people who legally purchased and then legally obtained a carry permit have committed crimes with said gun.

I'll guess it's an amazingly low percentage.

The article I showed briefly summarized the journal entry I posted and because I know no one read ~50-60 pages I felt it was the best summary.

It probably is very low but illegally purchasing of guns from people who legitimately buy or illegally sell them are very high. According to a recent ATF report, there is a significant diversion to the illegal gun market from FFLs. The report states that "of the 120,370 crime guns that were traced to purchases from the FFLs then in business, 27.7 % of these firearms were seized by law enforcement in connection with a crime within two years of the original sale. (Source: http://www.pbs.org/wgbh/pages/frontline/shows/guns/procon/guns.html) (http://www.pbs.org/wgbh/pages/frontline/shows/guns/procon/guns.html%29). The point is it still is very easy to obtain a gun from crimes. We do need stricter gun control laws and ways to track guns.

My guess for why your area has low crime rate is because it is a good town who raises good children. My town has virtually no guns in it. No convince stores or gas stations do, probably very few private citizens do. We have had 1 gun fatality in the past 20 years. I go to school in Philadelphia, many people possess a guns. I have been near 2 shootings and have heard of too many more.

We also cannot forget that suicide account for a decent amount of gun deaths. I am willing to bet that suicide victims have a high amount of legally purchased guns.

Another quick statistic:

In a single year, 3,012 children and teens were killed by gunfire in the United States, according to the latest national data released in 2002. That is one child every three hours; eight children every day; and more than 50 children every week. And every year, at least 4 to 5 times as many kids and teens suffer from non-fatal firearm injuries. (Children's Defense Fund and National Center for Health Statistics)
http://www.neahin.org/programs/schoolsafety/gunsafety/statistics.htm

I am not against legitimate people owning guns but I am for stricter control on who sells the guns and a more intensive process into the person's background and intent for the gun. I am against assault rifles for private citizens.

[homeless]

I shall disclose, I am an NRA member...that being said, let me touch on each of your points. I think you'll see I'm an open minded, left leaning NRA type.

Tracking new firearms sales - I am an advocate of running a round through the chamber of all new firearms, thus creating a ballistics record to be referred to. This eliminates the worry of a gun being untraceable because the serial numbers have been scratched off. Similarly, I have to believe the guns can be made with a serial number somewhere that is not easily removed. If I shoot someone, I'll be admitting it. If someone buys guns to sell to criminals, this would allow the gun to be traced back to the buyer.

Area I was raised - My area is not a great area. Probably 5 of 30 kids in my class went to college. The guns keep people in check IMO. No police force since about '75. None needed.

Suicide - It is what it is. It's a personal choice. People should have options. BTW- I'm not kidding.

Kids - The gun owner should be responsible. If they aren't, and kids are injured because they gained access, throw the book at the owner.

[HappyJack]

The ballistics record although a good idea isn't failsafe. Replacement barrels can readily be made or purchased. If a gun owner sells a weapon to someone who legally isn't suppose to own one or didn't do the necessary transfer paperwork should face the same penalty as the criminal does. That might reduce the number of illegal transfers. Or not, but they should be held accountable.

[homeless]

The ballistics record although a good idea isn't failsafe. Replacement barrels can readily be made or purchased. If a gun owner sells a weapon to someone who legally isn't suppose to own one or didn't do the necessary transfer paperwork should face the same penalty as the criminal does. That might reduce the number of illegal transfers. Or not, but they should be held accountable.

We agree on accountability, thus my suggestion. Nothing is failsafe, but the ballistics run through is better than a serial number.

Point is, I'm a pro gun type who is also 100% pro accountability. Most aren't.

There is already a very serious set of consequences for people who sell guns illegally. The problem is matching up the gun to the original/prior owner and tracing the transfer forms backwards to find where illegal transfers occurred.

[hjfrick]

NYT Op-Ed on gun control (http://www.nytimes.com/2010/07/11/opinion/11sun1.html?scp=2&sq=gun%20control&st=cse) and reader response (http://www.nytimes.com/2010/07/16/opinion/l16guns.html?_r=1&partner=rss&emc=rss).