Althouse: Guns and federalism!

September 30, 2009

Guns and federalism!

Cert. grant!

40 comments:

miller said...: Wow! This will be a lively SC session.; 9/30/09, 11:24 AM
victoria said...: No ,no no no no. No guns, anywhere.Not on trains, not in offices, certainly not in homes.; 9/30/09, 11:33 AM
Roger J. said...: IANAL cavet pertains. OK so Heller was decided this summer. I assume that because it pertained to the District of Columbia, Heller does not pertain to the states? Can I get a legal interpretation here?; 9/30/09, 11:33 AM
David said...: Can someone explain the issues involved? Inquiring minds want to know.; 9/30/09, 11:38 AM
Cedarford said...: Hopefully SCOTUS will acknowledge the true problem in cities is not law-abiding people having a firearm to protect them when police can't.

The problem is black thugs and other miscreants carrying unlawful guns despite dozens of laws and whomping people to death with 2X4s when a gun isn't handy. Them and various non-black gang-bangers that have overwhelmed cops and the law's ability to deal with their dysfunctionalism.

Continued gun bans do little except make liberals feel good about themselves. They do not improve safety of the citizenry.; 9/30/09, 11:52 AM
Photog714 said...: Here is the petition for cert.; 9/30/09, 11:59 AM
traditionalguy said...: Armed citizens are not the threat that causes deaths. Armed citizens discourage violence with clubs and fists and knives, as well as shootings. That is such a powerful fact that only mass delusion from other fearful citizens who believe in the Disney Channel type of reality can Amend the Constitution. I eagerly await the wise Latino's participation on this one.; 9/30/09, 12:09 PM
Tyrone Slothrop said...: I have always believed that defense of one's goods, family and person is a secondary right as protected by the second amendment. I believe that a right to self defense was taken for granted by the framers. The primary motivation for including a right to bear arms is so that the citizens may defend themselves against the government when necessary. This is why liberals hate the second amendment. You should not be permitted to oppose the government in any meaningful way because it is smarter and more magnanimous than you are, knows better than you do what is good for you, and is, well, a lot more powerful so just give up already.; 9/30/09, 12:14 PM
Fred4Pres said...: Supreme Court Cases Should Have Soundtracks; 9/30/09, 12:15 PM
Rich said...: David -- here's the short version.

The Bill of Rights was by design and in practice only intended to apply to the US federal government, not the states.

In the wake of the Civil War Republicans decided that was a bad idea and promulgated the 14th Amendment which was designed to (among other things) make the BoR binding on the states as well. The 14th was ratified.

However, the SCOTUS of the day didn't like this idea and so in The Slaughter-House Cases eviscerated that "incorporation" aspect of the 14th Amendment by rendering the "Privileges and Immunities" clause a near nullity.

Since then, SCOTUS has used the "Due Process" clause of the 14th to selectively incorporate various pieces of the BoR against the states. Presumably on stare decisis grounds the Court has been unwilling to reverse The Slaughter-House Cases even though those are now considered wrongly decided.

The last time SCOTUS touched on this (Presser, I think) they said the 2A was not binding on the states. However, that was well before modern incorporation doctrine.

This McDonald case is asking SCOTUS to rule that the 2A is binding on the states, either by the Due Process clause or by overturning The Slaughter-House Cases and using the P&I clause.

My prediction is that the 2A will be incorporated against the states one way or the other (why else would the Heller majority presumably vote to grant cert?).

The bigger question will be what standard of scrutiny will be adopted. Heller thankfully ruled out rational basis scrutiny which would have made the 2A mean nothing at all. But even only the next step up will leave just a shell of a right.; 9/30/09, 12:20 PM
Bruce Hayden said...: IANAL cavet pertains. OK so Heller was decided this summer. I assume that because it pertained to the District of Columbia, Heller does not pertain to the states? Can I get a legal interpretation here?

Ann of course is the one who teaches the stuff, but my understanding is that it is unclear whether the 2nd Amdt. is "incorporated" (and thus made applicable) through the 14th Amdt. for the several States. And that will possibly be one of the issues.

Most of the rest of the fundamental rights enshrined in the Bill of Rights have been incorporated for the states via the 14th Amdt., but, as I noted, the 2nd is up in the air there. I cannot think of a good reason why it should be treated differently, from, say, the 1st, but I am sure that some will make a plausible argument why it should.; 9/30/09, 12:24 PM
Bruce Hayden said...: The bigger question will be what standard of scrutiny will be adopted. Heller thankfully ruled out rational basis scrutiny which would have made the 2A mean nothing at all. But even only the next step up will leave just a shell of a right.

I would be interested in reasons why it shouldn't face strict scrutiny. Otherwise, SCOTUS will have a hard time reconciling applying strict scrutiny to unenumerated rights (like privacy, abortion, etc.) and applying a lower standard of review to one of the first enumerated rights.; 9/30/09, 12:27 PM
Roger J. said...: Bruce--thank you for your explanation; 9/30/09, 12:33 PM
David said...: Thank you Rich.; 9/30/09, 12:35 PM
Roger J. said...: and thank you Rich as well; 9/30/09, 12:36 PM
traditionalguy said...: Thank you Rich for the analysis. Do you think that this decision can come down with the prospect for a replacement for Ginsberg in the very near future?; 9/30/09, 12:49 PM
Chris said...: The question I want them to address is whether the 14A incorporates the 2A by definition (analytically, just in virtue of the meaning of its words, a la "all bachelors are unmarried") or in virtue of the place of self-defense rights in the American tradition of civil liberty, state constitutional law, and the like (synthetically, a la "there are no bachelors on the Supreme Court"). I think the analytic-synthetic distinction is the key to distinguishing original meaning from original application (see here and here).; 9/30/09, 12:56 PM
NotWhoIUsedtoBe said...: Good.

For the gun control crowd-

Many amendments in the bill of rights have a cost, often in human lives. When criminals are let go because of a procedural violation, they may rob or kill again. Does that mean we should abandon the fourth amendment? People often commit violent acts because of violent rhetoric. Do we ignore the first amendment?

Some bad consequences should not mean ignoring or overly proscribing a constitutional right. Freedom has consequences. Whether people are allowed to own firearms seems to have little effect on the crime rate. That being the case, I think we should come down on the side of liberty and self defense.

It's not an unfettered right, any more than the other amendments are. There are limits. But it seems to me it means more than most cities have allowed.

And I'm really annoyed at being treated as a criminal whenever firearms and the government meet. I'm not, and neither are most gun owners. It's the people that matter, not the guns.; 9/30/09, 1:13 PM
Fred4Pres said...: And Thank You for states that do not restrict firearm ownership.

Personally, on federalist grounds, I suppose New York City should have some ability to craft its own gun laws. There is a remedy, the voters of New York City rejecting such restrictions. But they should not be so restrictive that it is virtually impossible for a law abiding citizen to own a gun in New York City (unless you are Donald Trump). It is almost impossible to own a rifle or shotgun in NYC, which is crazy given everyone north of Westchester has several (even Pete Seeger).

Okay, I am not sure if Pete Seeger has a rifle or shotgun.; 9/30/09, 1:58 PM
PJ said...: Okay, I am not sure if Pete Seeger has a rifle or shotgun.

He doesn't need one. He has a banjo.; 9/30/09, 2:08 PM
NotWhoIUsedtoBe said...: I think Seeger has a sickle.; 9/30/09, 2:10 PM
Fred4Pres said...: Well I know he has one of these too!; 9/30/09, 2:16 PM
NotWhoIUsedtoBe said...: Haha!; 9/30/09, 2:17 PM
former law student said...: As a byproduct, Obama's former colleagues on the UC law faculty, Judges Posner and Easterbrook, are very likely to be overturned. This will lower their batting average, making them seem unfit to be Supreme Court Justices.

Of course, handguns can legally be owned in Chicago. They have to have been registered continually there since 1983 or so, when the city quit accepting new registrations. But anyone 48 or older, continuously resident, had his chance.; 9/30/09, 2:20 PM
Bart DePalma said...: David:

Rich said...

The last time SCOTUS touched on this (Presser, I think) they said the 2A was not binding on the states. However, that was well before modern incorporation doctrine.

Slight correction here.

In Cruikshank and Presser, the Reconstruction SCOTUS cited pre 14th Amendment precedent and held that the 2A like the rest of the Bill of Rights did not apply to the KKK and the States on their own strength. It never addressed the issue of incorporation in either case. In the turn of the century case Miller v. Texas, the SCOTUS recognized this omission in Cruikshank and Presser, but again declined to rule on incorporation because the issue was not raised at trial.

One of the appellant's arguments will be that the current SCOTUS does not need to reverse Cruikshank and Presser to incorporate the 2A under the Due Process Clause because these cases never addressed the issue.

A panel of the Ninth Circuit adopted this position in holding that the 14A DPC incorporated the 2A before the entire Ninth Circuit decided to review that case. I believe the Ninth is waiting on SCOTUS to decide the issue now.; 9/30/09, 2:21 PM
Salamandyr said...: Fred4Pres,

While on the one hand, one might argue that there are federalist arguments for letting New York State have the gun laws it wants, I don't really see how there can be a good argument for why the First Amendment (and the Third, and the Fourth, etc.) are incorporated, but the Second does not, except that our legal system occasionally allows wishful thinking to overrule logic.; 9/30/09, 2:22 PM
XWL said...: Is that a cert. grant in your pocket, or are you just happy to see me?; 9/30/09, 2:33 PM
al said...: @fls

If you're a connected alderman and "forgot" to renew your registration the city will bend the rules for you and let you renew. If you're a regular citizen you better get rid of the gun because you're now a criminal.

All of this has zero impact on the criminals in Chicago because gun control isn't about guns, it's about control.; 9/30/09, 2:35 PM
Fred4Pres said...: I would like to see Heller be confirmed as applying to states and the 2A incorporated. Heller would allow states and municipalities signficiant legislative ability to restrict firearms, just not draconian total ban restrictions as are in NYC and some other cities.; 9/30/09, 2:57 PM
dbp said...: It never made sense to me that the 1st has long been incorporated while the 2nd hasn't.

The first amendment is written in a more limiting way: "Congress shall make no law..." while the 2nd is more general: "...the right of the people..."

The first would seem to be a limit on what Congress can do while the 2nd is indicating a right that all the people should have.; 9/30/09, 3:35 PM
Zachary Sire said...: Good. We need as many people as possible carrying guns in Chicago.; 9/30/09, 4:36 PM
Salamandyr said...: Good. We need as many people as possible carrying guns in Chicago.

Damn straight. It might protect people from all those jerks carrying 2x4's.; 9/30/09, 4:54 PM
daubiere said...: hows the gay pornography business, zach?

funny that your livelihood depends upon an extremely loose reading of the first amendment but you cant give the time of day to the explicit wording of the second....; 9/30/09, 4:55 PM
al said...: We need as many people as possible carrying guns in Chicago.

Let me fix that statement for you.

We need as many law abiding citizens as possible carrying guns in Chicago.

The bad guys (criminals and alderman) are already carrying.; 9/30/09, 7:19 PM
Pastafarian said...: Actually, I've never understood why we'd need to extend "incorporation" to the Second Amendment, in order for it to apply to states and municipalities.

If you look at the wording of the First Amendment, it explicitly says that "Congress shall make no law respecting an establishment of religion...", so it's putting a limit on Congress, and Congress alone.

But the Second Amendment states: "...the right of the people to keep and bear arms shall not be infringed."

It doesn't just prevent Congress from infringing on this right -- it clearly states that these rights shall not be infringed, ever, by anyone. Not by Congress, not by states, not by anyone.

If we can't just read the damned document and understand it from the plain meaning of the words, then what's the point of having a constitution?; 9/30/09, 8:48 PM
Rich said...: [i]It doesn't just prevent Congress from infringing on this right -- it clearly states that these rights shall not be infringed, ever, by anyone. Not by Congress, not by states, not by anyone.[/i]

That's where you're wrong. The proponents and drafters of the Bill of Rights only intended it to apply to the Federal Government. That was clearly understood all the way from the 1790s.; 9/30/09, 9:06 PM
former law student said...: Not by Congress, not by states, not by anyone.

The Framers were afraid of an all-powerful central government taking people's rights away, not their good old ex-colonies which they knew well.; 9/30/09, 9:16 PM
PJ said...: @Pasta: I think Rich and FLS are correct in stating that the whole Bill of Rights was originally understood to apply only as against the federal government. But I have wondered, too, about the specific reference to Congress in the 1st Amendment. Why does the 1st restrain only Congress while the 2nd appears to restrain all three branches of government? Maybe the idea was that the federal courts could recognize common-law limitations on speech, religious observances, etc., but Congress could not add to those limitations? (Professor?)

wv: unsuramp, leads to electrical fires; 10/1/09, 12:46 AM
Largo said...: @victoria:

Not in the sun, not in the rain.
Not on a boat, not on a plane.

You may not carry in your home,
You may not carry out alone.
You may not carry here nor there:
You may not carry anywhere!

You will not keep a gun on hand.
We do not like it, Sam-I-am.

[with apologies, etc.]; 10/1/09, 7:58 AM
Chris said...: Regarding Pastafarian's point that the 2A is written in passive voice that would seem to apply to states too, it's useful to compare the provisions in Article I section 9 and Article I section 10. I/9/3 says "No Bill of Attainder or ex post facto Law shall be passed," but I/10/1 says "No State shall ... pass any Bill of Attainder [or] ex post facto Law..." The implication is that when restrictions in the federal constitution just have passive voice, they apply just to the federal government; when states are restricted, they're mentioned. This was Marshall's argument in Barron v. Baltimore in 1833.; 10/2/09, 12:33 PM