Chicago Law Banning Handguns in City Upheld by Court

[HailGreen28]

Do you actually want to learn about the supposed distinctions? (I may be able to take a stab at then, since I remember being taken to school by some other ES poster who knew a lot more than me on the subject.) Or would you rather just vent?

Sure. It hasn't been covered yet. Let's hear it.

[techboy]

Believe this... states' rights and strict construction will suddenly be not as important as they were the day before this case when it get to the SC.

I think many would argue that this is a case where states' rights and strict construction are in conflict with one another. I like the cynicism, though.

[HailGreen28]

Do you actually want to learn about the supposed distinctions? (I may be able to take a stab at then, since I remember being taken to school by some other ES poster who knew a lot more than me on the subject.) Or would you rather just vent?

Edit:

Allow me to point out that it was pointed out to me that, in the recent USSC decision about the DC gun ban, that the USSC went to great lengths to explain that they were not overturning this "doesn't apply to the states" ruling. That rather, they ruled that DC's gun ban wasn't covered under this precedent, because DC was federal territory, and not part of any State.

But they are still subject to the Constitution. The Federal Government is charged with upholding ALL of the Constitution, to all territories. Including all Amendments. As per the 10th Amendment, it's only "all powers not delegated to the United States" that are reserved to the States or People.

The right to bear arms is guaranteed under the 2nd amendment. It's part of the Federal government's responsibility. Only if it weren't delegated in the Constitution, could the States do as they pleased. Right?

It's not "venting" to point out, that if you uphold the Chicago gun ban, on grounds the Federal government cannot enforce it, you can't make city cops abide by the rights Miranda affirms either, or overturn state's laws on abortion. Well, not without being a massive hypocrite.

[Larry]

Disclaimer: I'm working from memory to recite an explanation somebody else gave me, concerning something I don't agree with. But . . .

The way it was explained to me was that the courts have ruled that some parts of the Constitution grant rights to the people (for example, the Fourth Amendment begins "The right of the people . . . "), and that those parts clearly prevent the States from abridging those rights. But that other parts are created as restrictions on the federal government. (I think he said that, supposedly, the First Amendment, "Congress shall make no law . . . ", was listed as one of these, until the 14th was passed after the Civil War to supposedly extend those rights downward.)

And supposedly, the courts have never ruled that the Second is one of those parts that flows downward.

(I disagree. For several reasons, including those words "the right of the people". But I think that's what I was told.)

[Larry]

BTW, regarding the ruling on the DC ban vs this case:

I also think that the USSC, in the DC case, ruled that a city does have the right to ban types of weapons. That the Second simply prohibited them from banning all weapons. And that the Second only prohibited DC from banning weapons in homes. They said nothing about them not being able to ban weapons outside the home.

From what I recall when the ruling came down, it really looked like the USSC tried very, very, hard to make their ruling as narrow and limited as they possibly could.

[HailGreen28]

Disclaimer: I'm working from memory to recite an explanation somebody else gave me, concerning something I don't agree with. But . . .

The way it was explained to me was that the courts have ruled that some parts of the Constitution grant rights to the people (for example, the Fourth Amendment begins "The right of the people . . . "), and that those parts clearly prevent the States from abridging those rights. But that other parts are created as restrictions on the federal government. (I think he said that, supposedly, the First Amendment, "Congress shall make no law . . . ", was listed as one of these, until the 14th was passed after the Civil War to supposedly extend those rights downward.)

And supposedly, the courts have never ruled that the Second is one of those parts that flows downward.

(I disagree. For several reasons, including those words "the right of the people". But I think that's what I was told.)

The Second Amendment clearly states that "the right of the people to keep and bear arms, shall not be infringed." Just like your example of the 4th amendment. It clearly states "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,"

So basically, his/her argument supports overturning the Chicago gun ban. Since Chicago does not have the authority to take away a Constitutional right of the people.

[HailGreen28]

BTW, regarding the ruling on the DC ban vs this case:

I also think that the USSC, in the DC case, ruled that a city does have the right to ban types of weapons. That the Second simply prohibited them from banning all weapons. And that the Second only prohibited DC from banning weapons in homes. They said nothing about them not being able to ban weapons outside the home.

From what I recall when the ruling came down, it really looked like the USSC tried very, very, hard to make their ruling as narrow and limited as they possibly could.

The "in homes" is a head-scratcher to me. What did they mean by that?

Some guns? I don't support raising private armies with their own tanks and artillery, but what justification is there Constitutionally to allow banning a handgun but not a shotgun?

[Larry]

The Second Amendment clearly states that "the right of the people to keep and bear arms, shall not be infringed." Just like your example of the 4th amendment. It clearly states "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated."

So basically, his/her argument supports overturning the Chicago gun ban. Since Chicago does not have the authority to take away a Constitutional right of the people.

Unfortunately, the Second begins with "A well regulated militia, being necessary to the security of a free state, . . . "

Which opens up the possibility for a lot of interpretation.

For example, I could see a ruling that the Second is the only part of the Constitution with an "expiration clause" written in. That what the framers intended was for the populace to be armed until such time as the nation was strong enough that it didn't need armed citizens to turn out to repel the Redcoats.

(I wouldn't agree with it. But I could see it.)

[Larry]

The "in homes" is a head-scratcher to me. What did they mean by that?

From what I read in the decision, the court used, as part of their decision, the common law principal that self defense was a right, and that, since the DC ban prohibited a homeowner from having any weapons in his home, that it was infringing that right.

[HailGreen28]

From what I read in the decision, the court used, as part of their decision, the common law principal that self defense was a right, and that, since the DC ban prohibited a homeowner from having any weapons in his home, that it was infringing that right.

Which would make sense. Wonder why a distinction would be drawn between public and private, rather than between public places and governmental institutions/private proprietorships?

[HailGreen28]

Unfortunately, the Second begins with "A well regulated militia, being necessary to the security of a free state, . . . "

Which opens up the possibility for a lot of interpretation.

For example, I could see a ruling that the Second is the only part of the Constitution with an "expiration clause" written in. That what the framers intended was for the populace to be armed until such time as the nation was strong enough that it didn't need armed citizens to turn out to repel the Redcoats.

(I wouldn't agree with it. But I could see it.)

Fortunately, militia is defined as all able-bodied members of the population. But using that same argument, the 4th amendment also has an expiry date, the minute we redefine what "probable cause" and "affirmation" mean after my quote. But what's the big fuss over what Bush and the Patriot Act did, right? New times, right?

[Fergasun]

Isn't this uncharted territory? I think gun laws are a relatively new phenomena (ie. the first gun law in United States was something like 1927?).

If people want guns they will get their hands on the guns. I'm not for any type of restriction on people's rights to own guns. The thought that limiting guns or banning guns will stop crime just seems like utopian futile thinking.

I found the following in the Congressional Record:

... the following observation on the second amendment taken from William Rawles `View of the Constitution' published in 1825, states: `The prohibition is general. No clause in the Constitution could by a rule of construction be conceived to give to Congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretense by state legislature. But if in blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.' Rawles was a contemporary of the Constitution's drafters and corresponded with Thomas Jefferson who shared the same ideas. (idem)

If we are gonna go back to 20th century case law, let's look at what 20th century contemporaries had to say...

[Fergasun]

Lest we forget one more fact...

But I also think we should remember that when Adolf Hitler was deciding whether to take Switzerland or France, the German staff told the Fuhrer that taking Switzerland would require a million troops, more than a year's time, and hundreds of thousands of casualties because everyone in the country was armed. They all had the weapons in their homes. They were prepared to organize the militia. They would have to go house to house at great cost of casualties in order to do that. He said how about France? They said it will take 6 weeks and less than 5,000 casualties. So obviously they took France. Switzerland managed to sit through that tragic Second World War and maintain neutrality. One of the reasons was individual Swiss citizens were prepared to defend themselves against any invasion.

[karmacop]

The issue here is called "incorporation," which is a legal term whereby the Supreme Court has "incorporated" portions of the Bill of Rights (i.e., the first ten amendments to the constitution) into the due process clause of the Fourteeth Amendment, which specifically applies to the states.

Until the Fourteenth Amendment came along in 1868, it was a common understanding that the federal constitution only applied to the federal government, not the state governments. Even afterwards, the Supreme Court made several rulings (i.e., Cruikshank) saying that the freedoms contained in the Bill of Rights did not apply to the states.

However, in the 20th century the Supreme Court has, one by one, determined that the due process clause impliedly incorporated some (but not all) of the first ten amendments.

It has specifically held that some amendments have been incorporated, like the first amendment right to free speech and the fourth amendment right to be free from unreasonable search and seizure. On the other hand, SCOTUS has also specifically held that other amendments have not been incorporated, like the fifth amendment right to a grand jury and seventh amendment right to a jury trial in civil cases.

The Supreme Court has not yet specifically addressed whether the Second Amendment has been incorporated into the Fourteenth Amendment and thereby applicable to the states. Therefore, the only binding decision is from the 1800s, and states that it is not incorporated.

Unless and until the Supreme Court overturns this 100+ year-old decision, appeals court judges (like Sotomayor and the recent Seventh Circuit) are bound by this old decision and can't simply overturn it just because they think the Supreme Court will or they believe that it should. The Ninth Circuit, unlike the Second Circuit and the Seventh Circuit, went ahead recently and held that the Second Amendment is incorporated despite the lack of a Supreme Court decision. So there is now a split in the circuits, and the Supreme Court will almost certainly hear one of these cases and make a ruling one way or the other.

Importantly, conservatives should LOVE Sotomayor's decision and the Seventh Circuit decision, since it shows juducial restraint and a decision to decline to "make policy" from the bench. Technically speaking, they followed the letter of the law and wanted to wait until the Supreme Court said otherwise before striking out on their own.

Hope this helps.

[Larry]

Unless and until the Supreme Court overturns this 100+ year-old decision, appeals court judges (like Sotomayor and the recent Seventh Circuit) are bound by this old decision and can't simply overturn it just because they think the Supreme Court will or they believe that it should. The Ninth Circuit, unlike the Second Circuit and the Seventh Circuit, went ahead recently and held that the Second Amendment is incorporated despite the lack of a Supreme Court decision. So there is now a split in the circuits, and the Supreme Court will almost certainly hear one of these cases and make a ruling one way or the other.

Importantly, conservatives should LOVE Sotomayor's decision and the Seventh Circuit decision, since it shows juducial restraint and a decision to decline to "make policy" from the bench. Technically speaking, they followed the letter of the law and wanted to wait until the Supreme Court said otherwise before striking out on their own.

Yep. This is gonna be one of those cases where it's gonna be amusing to see the labels being mis-applied all over the place.

Sotomeyer is going to be labeled an activist liberal judge for following a judicial precedent that's over 100 years old.

All of the "conservatives" are going to be wanting with all their hearts to have the Justices ignore 100 years of precedent, and rule the way they want them to, instead. (They will also desperately want the federal government to ignore the states and impose a federal ruling on the states.)

And if the Justices don't do what the "conservatives" want, then they, too, will be labeled as liberal activists who invented sweeping new government powers out of thin air.

It might not be great Justice. But it's guaranteed to be great theater.

[LaxBuddy21]

This whole thing is ridiculous. If federal government has to follow the second amendment and the states do not, then all the federal government would have to do is exactly what they did to get the drinking age to be 21. They threaten to withhold federal funding for the states unless they pass the law. In effect, the feds could basically force a gun ban nationwide without ever making it a federal law. What a joke. I dont believe for a second that is what the founding fathers ever intended. Precedent is important in SC rulings but sometimes the precedent was wrong in the first place and it is ridiculous to carry it forward just because it was set.

[karmacop]

Precedent is important in SC rulings but sometimes the precedent was wrong in the first place and it is ridiculous to carry it forward just because it was set.

That's "judicial activism" right there. So if you've ever criticized any judicial nominee for "judicial activism," you need to take it back right now.

[LaxBuddy21]

That's "judicial activism" right there. So if you've ever criticized any judicial nominee for "judicial activism," you need to take it back right now.

I dont really criticize judges for their decisions for the most part. I dont figure I am in much of a position to really. I state my opinion but rarely say so and so is a horrible judge or anything. Like I said, precedent is important but we cannot make decisions solely on precident or we never progress and never move forward.

[HailGreen28]

That's "judicial activism" right there. So if you've ever criticized any judicial nominee for "judicial activism," you need to take it back right now.

No. Judicial activism is making law instead of interpreting it. Ignoring precedent is different. Of course, you'd have to ignore previous rulings in favor of 2nd amendment rights in this case.

And this whole "the Constitution need not apply to municipalities" is what I said before. Asinine and stupid.

[Predicto]

No. Judicial activism is making law instead of interpreting it. Ignoring precedent is different.

How do you figure? I like to see this idea fleshed out a bit.

Of course, you'd have to ignore previous rulings in favor of 2nd amendment rights in this case.

Um, no. No you wouldn't. Name one (and explain how it applies here).

I guarantee you that Frank Easterbrook and Richerd Posner are not ignoring any previous rulings in order to prop up gun control.

And this whole "the Constitution need not apply to municipalities" is what I said before. Asinine and stupid.

You may be correct on this point. The Supreme Court should speak on the subject.

[HailGreen28]

How do you figure? I like to see this idea fleshed out a bit.

I thought it was a commonly understood term. When a judge basically makes a ruling that is completely different from what the law was written for. For example, whether Roe V Wade was a good outcome or not, find me the word "abortion" in the 4th, 9th, 14th, any amendment. Breaking precedent, on the other hand, is like a court reversing an earlier verdict. For example, it was a very good thing that the precedent of Plessy V Ferguson was broken.

Um, no. No you wouldn't. Name one (and explain how it applies here).

Sure. Presser v. Illinois

(after scrolling down linked page)

"It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government. But, as already stated, we think [116 U.S. 252, 266] it clear that the sections under consideration do not have this effect. "

The part I'm pointing out is the opinion that the state can't outright "prohibit the people from keeping and bearing arms".

I guarantee you that Frank Easterbrook and Richerd Posner are not ignoring any previous rulings in order to prop up gun control.

That is debatable. Sadly. While most court cases have upheld gun control laws, measures such as outright bans have been usually quashed, like Heller. There's still plenty of wiggle room. What most upsets me, is that the argument that the Constitution restricts ONLY the Federal government, not the States, from infringing on people's rights, is in the court case I cited, and other 2nd amendment cases I looked up.

What does this say about the Fourth amendment rights, which as I said earlier in this thread, are defined as "rights of the people", or any rights, from the 1st amendment to the 27th? Now I better understand the legal enviroment that would enable stuff like the Patriot Act. I knew politicians selectively viewed the Constitution. Judges do too, like the guys who came up with "seperate but equal".

You may be correct on this point. The Supreme Court should speak on the subject.

Now that I've read some 2nd Amendment, and 1st Amendment cases (Buckley V Valeo - buying elections is free speech?), I'm sad to see judges are a lot more like politicians than I thought.

[Midnight Judges]

The thought that limiting guns or banning guns will stop crime just seems like utopian futile thinking.

...

Perhaps that's why nobody has ever made that claim.

[Hubbs]

*scratches head*

Count me in with the folks who don't understand the logic behind arguing that the Constitution doesn't prohibit states from infringing upon peoples' rights. (I understand that some cases have been ruled this way, I just don't get why they were ruled that way in the first place.)

And I have no reason to believe that you're wrong about anything you've said, karmacop, but damn, we have oodles of gun law cases every year and there hasn't been a ruling about the Second Amendment applying to states since the 19th century? How the hell is that possible?