Monday, June 28, 2010

More Thoughts on McDonald v. Chicago

IMO, the McDonald decision is interesting for several reasons:

1. The right to keep and bear arms (RKBA) is recognized as a "fundamental right," which places it on par with freedom of speech and freedom of religion, among others.   Although the level of scrutiny wasn't specified, I'll be very surprised to see anything less than strict scrutiny apply.

Strict scrutiny won't necessarily void gun registration schemes, but it will void outright bans, discretionary licensing requirements (see Scalia's discussion of "arbitrary and capricious" licensing requirements in Heller), and prohibitive taxes or licensing fees.

It should also void the Lautenberg Amendment, which extend the class of prohibited persons to those convicted of misdemeanor domestic violence crimes.  AFAIK, this is the only instance when a fundamental right is revoked based upon a misdemeanor.

Related to the above, the court's recognition of the Second Amendment as protecting the RKBA especially as it relates to the right of self defense may prove to be the undoing of the "sporting purposes" requirement in 18 U.S.C. Sec. 922.

2. Alito discussed in detail the intent of the 14th Amendment's framers to protect the RKBA of recently freed slaves, which was being restricted by gun control laws in the South. The racist roots of gun control laws are clearly laid out in this opinion.

3. Scalia's concurring opinion was more about eviscerating Stevens' dissent than taking another tack on incorporation. Scalia absolutely trashed Stevens' judicial philosophy.

I would really like to have dinner with Scalia. :-)

4. Thomas concurred in the result but felt that the Second Amendment should have been incorporated via the Privileges or Immunities Clause, essentially overruling The Slaughterhouse Cases.  At least since the mid-90s (when I took ConLaw in my 2L year), academics have viewed the reasoning in Slaughterhouse as bogus. My own reaction upon reading it was, "WTF?!?" I suspect the reason the court declined to follow this road to incorporation was that they weren't able to get at least 5 justices to agree to it. So, they took the safe way out.

5. None of the justices in the minority on Heller voted in McDonald to incorporate the Second Amendment, despite the fact that Heller established the individual nature of the right. Instead, they continued to fight tooth and nail against extending the protection of the 2A to all Americans, letting their own personal ideologies overcome their judicial reasoning (such as it is).  Shame on them.

What now?

Well, despite what the mainstream news is reporting, the court in McDonald did NOT strike down Chicago's handgun ban.  Rather, it remanded the case to the 7th Circuit Court of Appeals, which had previously upheld the trial court's dismissal of the case.  So, the case can now either go back down to the district court level for trial or perhaps the appellate court can rule on whether the Chicago law violates the Second Amendment.

It's quite possible that Chicago will revise the law to bring it into what it feels is compliance with the constitution, but this fight isn't over by a long shot.  A lot of how McDonald proceeds will depend upon how many taxpayer dollars Fuhrer Daley wants to waste.

Aside from the Chicago law, others are now ripe for being challenged, including the draconian and arbitrary pistol ownership licensing schemes in places like NYC, CA, and NJ. Additionally, the assault weapons bans in NY, NJ and CA are in jeopardy.

With the Second Amendment now recognized as protecting a fundamental right, discretionary carry license laws such as those in NY, NJ, MD, and CA may also eventually be replaced with shall-issue laws.

But no matter what, we need to recognize that the enemies of freedom have never given ground willingly, and we still have a long fight ahead of us.

Edit 6/29/10: This post seems to be generating a lot of visits.  If you're new to this blog, welcome, and please do check out the rest of my posts.


J.R. said...

We in Chicago refer to Mayor Richard Daley as "King Shortshanks", not "Fuhrer", with a tip of the hat to columnist John Kass.

Dave Markowitz said...

That's pretty good, too.

geekWithA.45 said...

Other eventual fallout, to my mind:

*Some sort of national reciprocity for carry licenses under "full faith and credit"

*End of prohibition on non violent offenders...IIRC, 68 GCA has exemptions for certain classes of biz related white collar crime that's totally ripe for an equal protection play.

*Carry prohibition in places that probably aren't genuinely "sensitive", like bars, hospitals, public gatherings, venues holding more than so many people, etc

*I think a lot of states "shall issue" requirements will eventually be reviewed, training/tests & whatnot are a little too "poll taxy". My guess is that it'll wind up looking a lot like PA in that regard...and speaking of PA, since when do you need 2 friends to vouch for you to exercise a fundamental right? (Thinking of that suit from the senior citizen who had no friends left and wanted an LTCF)

Stuart said...

IMO, all restrictions that rely on the arbitrary decisions of bureaucrats rather than objective criteria as in shall-issue jurisdictions (criminal record, training, etc.) for any sort of possession will be open to challenge. Same for exorbitant fees.

Moreover, keep an eye on the explosion of AR15-type guns for sporting purposes and home defense - remember Scalia's words in Heller: "typically possessed by law-abiding citizens for lawful purposes." A lot of firearms that would be considered "assault weapons" under the defunct ban are now truly "typically possessed by law-abiding citizens for lawful purposes" in great numbers. The time will come when this fact will have considerable weight. In fact, in places like NJ and CA, I can see litigation coming. (Hell, in NJ you can't even own an M1 Carbine.)

All the best, Stu (Michigan)

Paul W said...

As a refugee from the PDRNJ (having escaped to Texas about 10 years ago), I look forward to the NJ AWB being thrown unceremoniously into the trash heap of history. It reeks of "arbitrary and capricious" (the only reason that the Ruger Mini-14 is not banned, despite being a mag-fed semi-auto firing the same cartridge as the AR-15, is that one of the legislators owned one and didn't want it banned), and the absolute ban on any magazine of over 15 rounds capacity is absurd beyond belief (I don't even think that it is rational). I'm sure that the Court won't look favorably upon jail time being imposed on someone for owning a plastic or metal box containing a spring - how is it lethal or dangerous compared to a brick, a scythe, a chainsaw or common household chemicals like fertilizer and ammonia?

"But no matter what, we need to recognize that the enemies of freedom have never given ground willingly, and we still have a long fight ahead of us."

The good thing about this fight is that when they lose, they really don't lose anything (except the intangible and hypothetical ability to control the rest of us to a greater degree), whereas if we lose, we REALLY lose - we and our progeny, forever. As such, the heart in this fight is on our side, which encourages me.

Also encouraging is the fact that the states and most local governments are financial basket cases. They don't have the money to fight the multitude of suits as effectively as before. Further, it will become increasingly unpopular for them to do so for 2 reasons: first, they'll be laying off public employees - and the governors and mayors will have to justify fighting a battle that will likely be a loser while laying these connected and vocal people off to pay for it. Second, the more decisions that go our way (even if rather imperfectly so), the more the idea of accepting the RKBA as normal enters the consciousness of the fence-sitting population, and the more people will own guns (or at least tolerate/accept them). It'll take a while, but I think that ultimately you will find anti-gun politicians being just as popular as pro-segration ones (i.e. there will always be some, but they'll become increasingly ineffective and irrelevant).

Paul W said...

I am curious about the effect of Heller and McDonald on Title 18, Section 922(o) (the '86 machine gun ban).

This law is a complete ban on the civilian (i.e. non-law enforcement) ownership of any full auto manufactured after May 19, 1986. I simply don't understand the rational basis of this law, as the very same person could (and might already) own a functionally-identical weapon manufactured on the same assembly line the day before the ban, but one manufactured a day after the ban is utterly verboten.

Further, this is a law that forbids an agency of the government from collecting a tax. The NFA itself was defended by the government in the 1930's as NOT being a ban on guns, but as a tax - but now the tax cannot be collected because of a different law. Seems to me that the NFA provisions regarding the necessity of a tax stamp for the legal possession of a full auto were invalidated the moment that the '86 FOPA was signed into law.

Finally, an entire class of guns has been banned - I thought that this was prohibited by Heller. How this class of guns (post-5/19/1986 full autos) is supposed to be abnormally or unusually dangerous is beyond my reasoning powers, given that functionally-identical pre-ban guns are fully legal to own and, in fact, there has been literally ONE crime committed with a legally-owned full auto in the last 76 years (and that by an off-duty police officer - so much for the "Only Ones" being better than the rest of us). IOW, there is simply no rational basis on which to defend this complete ban on an entire class of weapons (and it is federal - Heller covers this, McDonald is pretty much irrelevant). Whatever level of scrutiny the USSC ultimately decides that the 2nd Amendment deserves (and it WILL have to decide that someday), not one single analysis of Heller or McDonald has even suggested that the lowly Rational Basis test would be the one - so this POS law should join DC's and Chicago's gun ban on the trash heap of history.

I eagerly await comments on this.

Mikee said...

Stevens' dissent was the scariest document I have read from a judge in my entire life. The man wants judges to act as God-Kings, using solely their own opinions to decide cases.

The dissent by the other three re-argued their failed dissent in Heller. Scalia did not re-eviscerate it, unfortunately.