McDonald v. City of Chicago. This is Otis McDonald.

[Pinocchio Liberal 268]

"From behind the wheel of his hulking GMC Suburban" What does this have to do with anything?

Edited February 11, 2010 by Col. Lingus

[scandal 951]

It's on. Opening hearings were heard today at SCOTUS.

MARCH 3, 2010

Court Leans to Pro-Gun-Rights Ruling

By JESS BRAVIN

WASHINGTON—The Supreme Court seemed ready to rule that gun possession is fundamental to American freedom, a move that for the first time would give federal judges power to strike down state and local weapons laws for infringing Second Amendment rights.

A gun-control case before the Supreme Court has created some unlikely alliances between liberals and conservatives, over whether states can limit the second amendment right of individuals to bear arms.

At oral arguments Tuesday, the court considered whether its 2008 decision voiding the District of Columbia handgun ban should be extended to the rest of the country. Because Washington is a federal territory and not part of a state, the legal basis for imposing federal constitutional limits on laws adopted by states had been unclear.

None of the five justices who voted to strike down the Washington ordinance identified any reason to grant state legislatures greater leeway over gun regulations.

On its face, the legal question before the court has little relation to policy views regarding gun control, and much to do with subtle questions of constitutional history.

Before the Civil War, courts held that the Bill of Rights applied only to the federal government. After the Union victory, three Reconstruction amendments were adopted to elevate individual rights over state powers, and cement the federal role in enforcing them.

Constitutional provisions vary in scope, so the court has turned for guidance to the 14th Amendment clause that bars states from interfering with "life, liberty, or property, without due process of law."

The court has held that constitutional rights fundamental to liberty, such as the First Amendment guarantee of freedom of the press, override state laws. The question is whether the Second Amendment right to bear arms is a fundamental right like freedom of speech.

In 2008, after the court voted 5-4 along its conservative-liberal split to strike down the Washington ordinance, gun-rights forces filed suit against weapons laws around the country. Tuesday's arguments involved a challenge to handgun bans in Chicago and Oak Park, Ill.

James Feldman, a Washington lawyer representing Chicago, told the court that because guns can kill innocents and aid criminals, owning them isn't a fundamental right. Moreover, he noted, the Second Amendment right "to keep and bear arms" is prefaced by the statement that "a well regulated Militia" is "necessary to the security of a free State."

Conservative justices said they had already decided in the 2008 case, District of Columbia v. Heller, that the militia clause didn't limit the amendment's scope.

"Its rationale was that because of its fundamental character, the right to bear arms must be understood as separate from the qualifying phrase of the militia clause," said Justice Anthony Kennedy. "If it's not fundamental, then Heller is wrong, it seems to me."

Chief Justice John Roberts agreed.

"I don't see how you can read Heller and not take away from it the notion that the Second Amendment, whether you want to label it fundamental or not, was extremely important to the framers in their view of what liberty meant."

Justice Stephen Breyer, one of the liberal dissenters from Heller, said that gun possession was different in nature from the other rights described in the Constitution.

When state or local lawmakers enact gun regulations, they do so aiming to protect public safety, he said.

"Here every case will be on one side guns, on the other side human life," with statistics on either side, he said. He asked Alan Gura, an Alexandria, Va., lawyer challenging the Illinois laws, why federal judges were better-positioned to make that decision than state legislatures.

"We decide that by looking, not to which side has the better statistics, but rather to what the framers said in the Constitution, because that policy choice was made for us in the Constitution," Mr. Gura said.

Justice Antonin Scalia, who wrote the Heller decision, said that legislatures would still have discretion over some regulations.

A ruling is expected by June.

Supporters of gun rights rallied in front of the Supreme Court building. "It is your right by virtue of being a living, breathing human being to bear arms," said 54-year-old Rob Weaver. "The Second Amendment didn't even give me that right. It is a right that pre-existed the amendment."

Benna Solomon, a lawyer for Chicago, disagreed, saying it should be the choice of states how to define the right to gun ownership.

Otis McDonald, a plaintiff in the case against Chicago, said that if the justices find in his favor, he'll first sigh in relief and then buy a gun. "It gives me a fighting chance in my neighborhood," Mr. McDonald said

—Jean Spencer contributed to this article.

"It is your right by virtue of being a living, breathing human being to bear arms," said 54-year-old Rob Weaver. "The Second Amendment didn't even give me that right. It is a right that pre-existed the amendment."

I really don't understand that. I'm prepared to concede that the framers intended gun ownership to be an individual right elevated to the same platform as other fundamentally granted rights. But it was the the explicit inclusion in the Constitution that makes it so, not some preordained self evident view - which is the case with (I argue) more fundamentally-fundamental rights.

Your right to liberty, to free speech, can really thought to be at the essence of what is human. We can imagine our earliest ancestors at the dawn of human civilization arguing with each other, debating whether to be hunters or gatherers, to travel west or east, to worship the moon or the wind.

But how can you elevate the gun to that status? The gun is an invention of recent times. Gunpowder and iron metallurgy and breech loaded muskets simply did not exist for the vast span of human history. How can the right to own that particular invention (as opposed to, say - a boat, a spear, a basket, or a television or a cellphone) be elevated above all else?

American history makes the gun a unique object in our Constitution. That is granted. But to go beyond the specifics of the American experience and appeal to a broader human universal interpretation is stretching the point to incredulity.

[one...two...tree 2,762]

It's on. Opening hearings were heard today at SCOTUS.

"It is your right by virtue of being a living, breathing human being to bear arms," said 54-year-old Rob Weaver. "The Second Amendment didn't even give me that right. It is a right that pre-existed the amendment."

I really don't understand that. I'm prepared to concede that the framers intended gun ownership to be an individual right elevated to the same platform as other fundamentally granted rights. But it was the the explicit inclusion in the Constitution that makes it so, not some preordained self evident view - which is the case with (I argue) more fundamentally-fundamental rights.

Your right to liberty, to free speech, can really thought to be at the essence of what is human. We can imagine our earliest ancestors at the dawn of human civilization arguing with each other, debating whether to be hunters or gatherers, to travel west or east, to worship the moon or the wind.

But how can you elevate the gun to that status? The gun is an invention of recent times. Gunpowder and iron metallurgy and breech loaded muskets simply did not exist for the vast span of human history. How can the right to own that particular invention (as opposed to, say - a boat, a spear, a basket, or a television or a cellphone) be elevated above all else?

American history makes the gun a unique object in our Constitution. That is granted. But to go beyond the specifics of the American experience and appeal to a broader human universal interpretation is stretching the point to incredulity.

It will be interesting to see how the Court rules on this. I know Scalia prefers to leave a lot of decisions like this to the states.

[Danno 1,228]

Interesting read, Ron.

Many gun advocates have this fantasy that the presence of a gun demands respect from those who might try to harm you. Tell that to anyone who's been around gang violence. Ask them if flashing your gun deters someone from shooting at you? Having everyone possess guns on the streets will not solve the violence, it will exacerbate it.

Steve, I think you come to this conclusion out of your own stereotype of most or many gun owners.

One would have to be a fool to not assess the danger and odds of prevailing in a logical way.

You suppose that most Gun owners would actually be tranced in some Clint Eastwood persona, get real my friend.

Self preservation would dictate actions of any sane sober person.

[Danno 1,228]

It's on. Opening hearings were heard today at SCOTUS.

"It is your right by virtue of being a living, breathing human being to bear arms," said 54-year-old Rob Weaver. "The Second Amendment didn't even give me that right. It is a right that pre-existed the amendment."

But how can you elevate the gun to that status? The gun is an invention of recent times. Gunpowder and iron metallurgy and breech loaded muskets simply did not exist for the vast span of human history. How can the right to own that particular invention (as opposed to, say - a boat, a spear, a basket, or a television or a cellphone) be elevated above all else?

American history makes the gun a unique object in our Constitution. That is granted. But to go beyond the specifics of the American experience and appeal to a broader human universal interpretation is stretching the point to incredulity.

For me the concept is rooted in the most basic of rights; THe right of self defense. Guns are not the issue here, it is the government preventing a human from defending ones self.

after all, What good it the right to defend ones self if the government removed the means. This is separate from the rights of the second Amendment, this speaks to a "natural right".

Technology does change but by whatever means a person might reasonably need to defend himself, this should not be obstructed by Government.

How does an old man have a right to defend himself if the law requires he must only use his hands?

One would have to get to a pretty absurd point to imagine this would extend to more than personal arms. (say a bazzoka)

Naturally, ones right to self protection is not without some limits but in most, every-day life situations, I believe people have the right to contemporary self defense. (and the means to carry that out)

Again this is separate from the Second amendment which I believe is for a whole nuther purpose.

[scandal 951]

For me the concept is rooted in the most basic of rights; THe right of self defense. Guns are not the issue here, it is the government preventing a human from defending ones self.

after all, What good it the right to defend ones self if the government removed the means. This is separate from the rights of the second Amendment, this speaks to a "natural right".

Technology does change but by whatever means a person might reasonably need to defend himself, this should not be obstructed by Government.

How does an old man have a right to defend himself if the law requires he must only use his hands?

One would have to get to a pretty absurd point to imagine this would extend to more than personal arms. (say a bazzoka)

Naturally, ones right to self protection is not without some limits but in most, every-day life situations, I believe people have the right to contemporary self defense. (and the means to carry that out)

Again this is separate from the Second amendment which I believe is for a whole nuther purpose.

Then where then are the limits? Why not the bazooka? Why not the spear, or bow and arrow? Why not the F-15 or howitzer or plutonium bomb? Why specifically the firearm? What makes it so special, so unique?

As to self protection - why aren't deadbolt locks constitutionally enshrined? Or brass knuckles or ninja throwing stars? Or bulletproof glass, or the right to my own personal bodyguard? What if some evil government agency wanted to legislate away my right to these obvious mechanisms of self defense?

It's not just that technology changes, Danno. I understand that the Constitution does not anticipate future technologies. My point is that the firearm itself is not an intrinsic part of human history, it's not innate to the human experience. Until gunpowder was discovered in China within the last 2,000 years, the concept of a firearm was nonsensical. Roman soldiers for example could never have imagined a need or a right to a firearm. Nor could the Judeans or Britons or Gauls who opposed them. Those people could certainly understand our concepts of fighting for your freedom, your religion, your ability to express yourself freely and raise your family without intervention from Rome. All the concepts of the American Bill of Rights would make sense to those people except for one - the right to a machine that had not yet been invented.

[scandal 951]

Here's another Chicago Tribune article, germane to this topic (the probable SCOTUS overturning of Chicago's gun law).

While the headline reads "failure", if you read the article it's more nuanced. What he's really saying is that local gun control regulations are deemed to failure so long as they are isolated, with most jurisdictions not having them. The (unstated) corollary to that is that if there were state-wide, region-wide, or even national restrictions we would likely expect to see a measurable effect on gun-death statistics. And indeed, it's my understanding that the nation-wide Brady Law's mandatory waiting period and the Federal Assault weapons ban both did have material effects on gun-violence while they were in force (both are now sunsetted).

An unpublished 2004 study commissioned by the United States Department of Justice found that assault weapons were used in 2 to 8 percent of gun crimes prior to the ban. Large capacity magazines were also covered by the ban, accounting for 14% to 26% of guns used in crime prior to the ban. Following implementation of the ban, the share of gun crimes involving AWs declined by anywhere from 17% to 72% across the six localities examined by the study (Baltimore, Miami, Milwaukee, Boston, St. Louis, and Anchorage).

The article.

Chicago's pointless handgun ban

City gun ordinances proved to be a failure

Steve Chapman

2:16 a.m. CST, March 4, 2010

When Chicago passed a ban on handgun ownership in 1982, it was part of a trend. Washington, D.C., had done it in 1976, and a few Chicago suburbs took up the cause in the following years. They all expected to reduce the number of guns and thus curtail bloodshed.

District of Columbia Attorney General Linda Singer told The Washington Post in 2007, "It's a pretty common-sense idea that the more guns there are around, the more gun violence you'll have." Nadine Winters, a member of the Washington City Council in 1976, said she assumed at the time that the policy "would spread to other places."

But the fad never really caught fire — even before last summer, when the U.S. Supreme Court struck down the D.C. law and cast doubt on the others, including the Chicago ordinance before the court Tuesday. The Second Amendment may kill such restrictions, but in most places, it wasn't needed to keep them from hatching in the first place.

Maybe that's because there were so many flaws in the basic idea. Or maybe it was because strict gun control makes even less sense at the municipal level than it does on a broader scale. At any rate, the policy turned out to be a comprehensive dud.

In the years following its ban, Washington did not generate a decline in gun murders. In fact, the number of killings rose by 156 percent — at a time when murders nationally increased by just 32 percent. For a while, the city vied regularly for the title of murder capital of America.

Chicago followed a similar course. In the decade after it outlawed handguns, murders jumped by 41 percent, compared with an 18 percent rise in the entire United States.

One problem is that the bans didn't actually have any discernible effect on the availability of guns to people with felonious intent. As with drugs and hookers, when there is a demand for guns, there will always be a supply.

Who places the highest value on owning a firearm? Criminals. Who is least likely to fear being prosecuted for violating the law? Criminals. Who is most likely to have access to illicit dealers? You guessed it.

If we were starting out in a country with zero guns, it might be possible to keep such weapons away from bad guys. But that's not this country, which has more than 200 million firearms in private hands and a large, perpetual supply of legal handguns.

Only a tiny percentage of those weapons has to be diverted to the underground trade for crooks to acquire all the firepower they need. While gun bans greatly impede the law-abiding, they pose only a trivial inconvenience to the lawless.

This is especially true at the local level. Banning guns from one city makes about as much sense as banning them on one block.

It's hard enough to halt the flow of guns over international borders, where governments police traffic. It's impossible to stop them from crossing municipal boundaries — which are unmonitored, undefended and practically invisible.

Tens of thousands of cars enter Washington and Chicago each day from places where guns are easily and legally obtainable. Any of those vehicles could be transporting a carton of pistols to sell to willing thugs. If you're on an island, you're going to get splashed by the waves.

The proponents obviously knew all along this city-by-city approach had serious shortcomings. But they figured it was bound to curtail gun availability somewhat. They also hoped that by prohibiting handguns in one place, they were beginning a bigger process.

First, they expected that other cities and states would follow suit. Second, they wagered that strict controls at the local level would acclimate Americans to new regulations at the national level.

But things didn't work out that way. The persistence of crime in supposedly gun-free zones didn't build support for broader gun control by showing the limits of piecemeal legislation. It weakened the case, by proving that such regulations have little impact on the people who present the biggest danger. Instead of a broad upward avenue, it was a dead end.

Gun control supporters fear that if the Supreme Court invalidates local handgun bans, the consequences will be nothing but bad. That would be easier to believe if the laws had ever done any good.