Supreme Court to look at Chicago gun ban

posted at 12:15 pm on September 30, 2009 by Ed Morrissey

The Supreme Court has decided to tackle another local gun ban, this time in Chicago, where a lower court upheld an ordinance outlawing handguns.  The decision indicates that the Roberts Court wants to clarify further its decision in Heller, which struck down a similar ban in Washington DC as unconstitutional.  The McDonald case gives the court an entree to broadening its incorporation doctrine for the Second Amendment (via The Right Scoop):

The Supreme Court agreed Wednesday to decide whether strict local and state gun control laws violate the Second Amendment, ensuring another high-profile battle over the rights of gun owners.

The court said it will review a lower court ruling that upheld a handgun ban in Chicago. Gun rights supporters challenged gun laws in Chicago and some suburbs immediately following the high court’s decision in June 2008 that struck down a handgun ban in the District of Columbia, a federal enclave.

The new case tests whether last year’s ruling applies as well to local and state laws.

The doctrine of “incorporation” holds that the rights enumerated to individuals in the Constitution have to be respected by states and localities as well.  This may seem rather obvious, and usually gets applied to questions of free speech, religious practice, and so on.  However, courts have vacillated on incorporation, and even Heller didn’t directly rule on it, as DC is a federal jurisdiction.

At the time, Justice Antonin Scalia hinted that the court would address incorporation more directly. McDonald gives them that opportunity.  If they rule that the states must respect the US Constitution as a baseline of protections for American citizens in all states, then gun bans such as those in McDonald cannot stand.  Second Amendment advocates have long argued this, and they may soon have the victory they seek.

That could have other implications as well. Tom King noted that liberals might like that kind of ruling in order to force all 50 states to use grand jury proceedings for indictments in order to comply with the Fifth Amendment.  If so, defense attorneys could already be preparing habeas corpus motions by the bucketload in the roughly half of the states that don’t require it.

The court itself will be interesting to watch on this question.  Its newest member, Justice Sonia Sotomayor, ruled on another case in the same manner as the appellate court in McDonald.  She replaced David Souter, who would likely have voted similarly, so the balance of the court has not shifted to the left since Heller.  It may give the current court an interesting opportunity to rebuke one of their colleagues, albeit indirectly.  Just the fact that they have decided to hear McDonald indicates a desire to settle the incorporation and Second Amendment issues forcefully, and we’ll see if they follow through on that promise.


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We don’t need no stinking guns in Chicago. We have railroad ties/

Knucklehead on September 30, 2009 at 12:20 PM

The 16 year old honor student that was murdered by 2 gangs of thugs wished he had a gun.

VegasRick on September 30, 2009 at 12:20 PM

This is good news. Very good news.

Not sure what the libs want to do with the fifth amendment though.

Chaz706 on September 30, 2009 at 12:20 PM

Heh. Let’s see how conservatives feel about the incorporation doctrine now. I’m sure there will be universal condemnation of this potential infringement on states rights….

crr6 on September 30, 2009 at 12:21 PM

How does this help the Obama’s bring the Olympics to Chicago?

CBP on September 30, 2009 at 12:21 PM

Any time anyone talks about “common sense” or “reasonable” restrictions on the 2nd Amendment, once should always rephrase with “reasonable, common sense” restrictions on the 1st Amendment. Gotta keep those dangerous newspapers out of the hands of radicals, you know.

JamesLee on September 30, 2009 at 12:21 PM

Shitcago will have to comply with the Constitution eventually. As will NY, NYC, CA and several other criminal safe-havens.

tx2654 on September 30, 2009 at 12:22 PM

If we have a right guaranteed by the constitution, how can local law trump? Seems to be a no-brainer to me.

TXMomof3 on September 30, 2009 at 12:22 PM

Excellent. As an Illinois resident, I can tell you that there is a rapidly-growing community of 2A advocates agitating for this here. They have seen tremendous progress, and a win here would be an impetus for taking back more ground from the Joyce Foundation’s cronies.

Flyover Country on September 30, 2009 at 12:22 PM

Yeah, it’s good news, I suppose leaving out the fact that Incorporation is a flawed and disastrous doctrine that completely neutered meaningful federalism on several key levels.

But, that aside, since Incorporation will never be overruled, ever, we might as well use it, too.

exlibris on September 30, 2009 at 12:24 PM

How does this help the Obama’s bring the Olympics to Chicago?

CBP on September 30, 2009 at 12:21 PM

Of course it helps. Now Olympic Shooting will no longer be an underground affair in Chicago! I hate to see those back alley shooting contests in the Olympics.

Mo_mac on September 30, 2009 at 12:25 PM

What’s preferable:

(A) the federal constitution protecting the right to bear arms and have that protection incorporated into all 50 states.

(B) Protecting the right to bear arms in the constitutions of all 50 states as it is in the federal constitution (and this seems to be the case today in many state constitutions).

I choose (B).

WashJeff on September 30, 2009 at 12:25 PM

Good for the SCOTUS. I am glad they are hearing this case and should rule on it appropriately. Begs the question…If the court strikes down the ban, will they be accused of “acting stupidly” or by not being “radical enough?”

just a thought.

ted c on September 30, 2009 at 12:25 PM

How does this help the Obama’s bring the Olympics to Chicago?

CBP on September 30, 2009 at 12:21 PM

..well, for one thing, it would allow them to hold the pistol matches.

VoyskaPVO on September 30, 2009 at 12:26 PM

And here in the Valley of the Sun, we can walk into a bar with a gun starting today. Unless the bar owner bans guns from his / her establishment.

This allows bartenders & tavern owners to have a gun on hand in their bar. It does not allow patrons drinking alcohol to have a gun.

DrW on September 30, 2009 at 12:26 PM

I say 5-4, but which way? Can we count on Kennedy this go around?

mwdiver on September 30, 2009 at 12:27 PM

And here in the Valley of the Sun, we can walk into a bar with a gun starting today. Unless the bar owner bans guns from his / her establishment.

This allows bartenders & tavern owners to have a gun on hand in their bar. It does not allow patrons drinking alcohol to have a gun.

DrW on September 30, 2009 at 12:26 PM

I like how the AZ law repects the property rights of the bar owner over the gun rights of the potential patrons.

WashJeff on September 30, 2009 at 12:30 PM

Why is it abortion is nationally protected without being spelled out, but a right that is explicitly hardwired into the Bill of Rights must be the subject of so much scrutiny and given over to the states? They got the 10th Amendment all screwed up there!

Orange Doorhinge on September 30, 2009 at 12:30 PM

If we have a right guaranteed by the constitution, how can local law trump? Seems to be a no-brainer to me.

TXMomof3 on September 30, 2009 at 12:22 PM

Because previous case law held that the Bill of Rights applies only to the Federal Government, not the States. Legal conservatives have traditionally despised the incorporation doctrine, but predictably their support isn’t based on any actual principles. They support it now that it may benefit their policy preferences.

crr6 on September 30, 2009 at 12:31 PM

(A) the federal constitution protecting the right to bear arms and have that protection incorporated into all 50 states.

(B) Protecting the right to bear arms in the constitutions of all 50 states as it is in the federal constitution (and this seems to be the case today in many state constitutions).

I choose (B).

WashJeff on September 30, 2009 at 12:25 PM

I agree that (B) would be a better idea, BUT seeing that (i) some states are outright communist and (ii) SOMEONE thought it was so important to put it in the federal constitution then I also feel that option (A) would be appropriate as well.

Chaz706 on September 30, 2009 at 12:33 PM

Rights enumerated to individuals in the Constitution

The second amendment reaffirms a pre-existing right.

Juno77 on September 30, 2009 at 12:33 PM

I’m sick of these unelected, unaccountable judges imposing their policy preferences on us by overturning the decisions of elected legislatures. If the 2nd amendment is incorporated, it will be because of undemocratic judicial activism.

Right?

crr6 on September 30, 2009 at 12:33 PM

Actually, I was being somewhat serious in asking how it helps with the Olympics. I think it is funny that this news comes out at the same time the Obama’s are in Copenhagen promoting the Olympics. Can you imagine the behind the doors questions – “Okay, do we want to go to a city where there is a chance that the citizens may have a newly established right to be armed, or do we choose another city where they never had that right?”

CBP on September 30, 2009 at 12:34 PM

But if they make guns legal in Chicago, then criminals in Chicago will have guns! Oh, wait…

Realist on September 30, 2009 at 12:34 PM

I like how the AZ law repects (sic) the property rights of the bar owner over the gun rights of the potential patrons.

WashJeff on September 30, 2009 at 12:30 PM

Nice try, no cigar. It gives business freedom to run their business and they damn please, not the government with another regulation.

Wade on September 30, 2009 at 12:34 PM

News to me. Liberals never seemed to have any trouble suing local govt in federal court–what else has the cross-stripping movement been about? I thought this was decided in 1867 with the enactment of the 14th Amendment, its just that the Supreme Court denied any jurisdiction had to respect an individual right to bear arms, until last year.

Chris_Balsz on September 30, 2009 at 12:35 PM

They support it now that it may benefit their policy preferences.

crr6 on September 30, 2009 at 12:31 PM

The converse is also the case. But I’m sure you realize this just didn’t feel like mentioning it.

Liberals who love incorporation will suddenly be appalled about it now. Right?

lorien1973 on September 30, 2009 at 12:36 PM

Chaz706 on September 30, 2009 at 12:33 PM

There will always be states that would protect the right to bears arms, probably greater than half. So, you could always move from a state that goes in the wrong direction.

Also, would it not be interesting to see the crime statistics of states that protect the right to bear arms and those that do not? State labatories.

I think it is more consistent with the conservative

principles to defend the rights of the states to make constitutions and laws that serve its, the state’s, citizens.

WashJeff on September 30, 2009 at 12:37 PM

One thing is pretty clear. Chicago either needs a whole lot less guns, and railroad ties, or a whole lot more guns. The current situation just ain’t cuttin’ it.

MB4 on September 30, 2009 at 12:37 PM

Supreme Court denied any jurisdiction had to respect an individual right to bear arms, until last year.

Chris_Balsz on September 30, 2009 at 12:35 PM

Nope. Just federal jurisdictions, like Washington D.C. and the territories.

crr6 on September 30, 2009 at 12:37 PM

Amendment 9
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment 10
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

We don’t these apply as well?

Juno77 on September 30, 2009 at 12:37 PM

If the 2nd amendment is incorporated, it will be because of undemocratic judicial activism.

Right?

crr6 on September 30, 2009 at 12:33 PM

Wrong. We are not dealing with emanations of penumbras
here, but specific rights spelled out. Judicial activism would be to find the second amendment didn’t apply. The Constitution is a wonderful read. You might try it.

mwdiver on September 30, 2009 at 12:38 PM

There will always be states that would protect the right to bears arms, probably greater than half. So, you could always move from a state that goes in the wrong direction.

Also, would it not be interesting to see the crime statistics of states that protect the right to bear arms and those that do not? State labatories.

I think it is more consistent with the conservative
principles to defend the rights of the states to make constitutions and laws that serve its, the state’s, citizens.
WashJeff on September 30, 2009 at 12:37 PM

On this I agree with you WashJeff. Incorporation might be nice to secure a victory against gun control but it also works against classic federalism.

Chaz706 on September 30, 2009 at 12:38 PM

Nice try, no cigar. It gives business freedom to run their business and they damn please, not the government with another regulation.

Wade on September 30, 2009 at 12:34 PM

Actually there is a regulation attached. The bar owner must post a sign that says no firearms allowed on the premisis.

What im I “trying” anyway?

WashJeff on September 30, 2009 at 12:39 PM

I am seriously wondering what the anti-gun people are really looking for if the Chicago gun ban is ruled unconstitutional. There is something that I am missing here and that bothers me. Leaving aside the 5th amendement and Grand Jury stuff (which I personally think is a good idea), there is something that seems to me to be sinister in their support. The anti-guners that I know and have met would never, ever support this case being pushed to SCOTUS. It is just something they would not get onboard with, but yet it is happening. Hmmmm…….

Johnnyreb on September 30, 2009 at 12:40 PM

Can you imagine the behind the doors questions – “Okay, do we want to go to a city where there is a chance that the citizens may have a newly established right to be armed, or do we choose another city where they never had that right?”

CBP on September 30, 2009 at 12:34 PM

Or better question “Do we want to give the Olympics to a city where they murder kids in the street using railroad ties”?

Knucklehead on September 30, 2009 at 12:41 PM

Liberals who love incorporation will suddenly be appalled about it now. Right?

lorien1973 on September 30, 2009 at 12:36 PM

I would agree that the right should be incorporated, but I don’t agree with the court’s current interpretation of that right (from Heller).

So in short, I agree that the right of state militias to keep and bear arms should be incorporated. My quibble isn’t with the incorporation doctrine, but with the recent case law interpreting the 2nd amendment.

crr6 on September 30, 2009 at 12:41 PM

…the right of the people to keep and bear Arms, shall not be infringed.

I really fail to see the problem with that…it’s perfectly clear. To bear arms is a “right”, which “shall not” be taken.

JetBoy on September 30, 2009 at 12:42 PM

crr6 on September 30, 2009 at 12:41 PM

You have a point.

I think a free country is one where only the government is armed. People should be helpless and docile.

lorien1973 on September 30, 2009 at 12:43 PM

crr6 on September 30, 2009 at 12:41 PM

So what? you don’t like the idea that the average citizen can own a weapon?

SHARPTOOTH on September 30, 2009 at 12:44 PM

This is going to get intresting…

Either they force Chicago to drop its gun ban…

or…

They say the “incorporation” has limits, in which case States can go after Roe Vs. Wade?

Romeo13 on September 30, 2009 at 12:44 PM

Also, would it not be interesting to see the crime statistics of states that protect the right to bear arms and those that do not?
WashJeff on September 30, 2009 at 12:37 PM

The stats you seek are readily available on the internet. Just look up “Gun Myths.” But in brief, the states with the most lenient gun laws, as a rule, have the least crime.

mwdiver on September 30, 2009 at 12:45 PM

crr6 on September 30, 2009 at 12:41 PM

So you have no problem with the city of Chicago violating the state of Illinois’ constitution?

lorien1973 on September 30, 2009 at 12:46 PM

crr6 on September 30, 2009 at 12:41 PM

Problem is that under CURRENT US Law, all adult males ARE part of the militia. And Militias historicly kept and maintained their OWN arms, and brought them to the fight…

Romeo13 on September 30, 2009 at 12:46 PM

Amendment 10
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

We don’t these apply as well?

The 10th Amendment has been held by SCOTUS to be essentially a truism. I.E., the states have everything not given up by adopting the Federal Constitution. Changing interpretations of the Federal Constitution, e.g. the Commerce Clause, Wickard v. Fillburn, etc appear to “remove” powers from the states or the people–but unless SCOTUS changes its interpretation of the 10th Amendment, the states have already gave those powers away at the Founding. The 10th only guarantees that the states kept whatever they did not already give away.

Currently, the 10th Amendment is far weaker than many think it is.

Revenant on September 30, 2009 at 12:47 PM

Maybe the leftists can explain why places that ban guns have the most crime?

Maybe the Leftist can explain how Criminals are still able to get guns?

Maybe the Leftist can explain why a lot of mass shootings occur in “Gun-free” zones?

Juno77 on September 30, 2009 at 12:48 PM

Actually, I was being somewhat serious in asking how it helps with the Olympics. I think it is funny that this news comes out at the same time the Obama’s are in Copenhagen promoting the Olympics. Can you imagine the behind the doors questions – “Okay, do we want to go to a city where there is a chance that the citizens may have a newly established right to be armed, or do we choose another city where they never had that right?”

CBP on September 30, 2009 at 12:34 PM

Having had some experience with the IOC I would guess that the members who are brothers-in-law of the dictators of whatever kleptocracy they represent are out drinking, chasing hookers, and soliciting bribes; the ones who are reasonably sincere sports bureucrats are horse-trading to prserve Olympic status for whatever obscure but nationally significant sport was mistakenly elevated (baseball, synchronized swimming); and the rest are gossipping about what a mess the Commonwealth Games are shaping up to be.

And, given the way the venue is selected — after each round of voting, if no city gets 50%, the last-place finisher drops out and another vote is held — there time needed for really complex logrolling is significant.

So, probably nobody is paying much attention to the Supreme Court granting cert on a Chicago gun case.

Bleeds Blue on September 30, 2009 at 12:49 PM

So in short, I agree that the right of state militias to keep and bear arms should be incorporated. My quibble isn’t with the incorporation doctrine, but with the recent case law interpreting the 2nd amendment.

crr6 on September 30, 2009 at 12:41 PM

Illinois constitution:

SECTION 1. MEMBERSHIP
The State militia consists of all able-bodied persons
residing in the State except those exempted by law.

SECTION 22. RIGHT TO ARMS
Subject only to the police power, the right of the
individual citizen to keep and bear arms shall not be
infringed.
(Source: Illinois Constitution.)

lorien1973 on September 30, 2009 at 12:49 PM

Gun Free Zone.

http://www.youtube.com/watch?v=S7pGt_O1uM8

mwdiver on September 30, 2009 at 12:49 PM

This should have been an open and shut case in every court in the United States. Gun bans are explicitly illegal anywhere in the U.S. under not only the 2nd Amendment but the 14th Amendment, Section 1, and the Commerce Clause. The right of the people to keep and bear arms, shall not be infringed. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. Congress may regulate commerce with foreign nations, and among the several states, and with the Indian tribes.
Constitutional rights are guaranteed the day a U.S. citizens first draws a breath or takes the oath of citizenship and these rights are not granted by our Constitution but are AFFIRMED by the Constitution as they were established at birth or upon taken oath.

nelsonknows on September 30, 2009 at 12:49 PM

Not sure what the libs want to do with the fifth amendment though.

Chaz706 on September 30, 2009 at 12:20 PM

When a grand jury faces an increased load of cases, studies have shown they are MORE likely to err on the side of the prosecutor. It is an “old trick” to hold an borderline case for when the GJ is loaded up. “You make me work through lunch and someone is going to pay.”

barnone on September 30, 2009 at 12:51 PM

Folks, it is the right of the PEOPLE, not the militia, to keep and bear arms and that right shall NOT be infringed.

nelsonknows on September 30, 2009 at 12:51 PM

I love what Glenn Beck had to say about this on the air this morning:

To paraphrase: Oh, no. There’s hardly any violence in Chicago.

madmonkphotog on September 30, 2009 at 12:51 PM

I have one question WashJeff concerning Incorporation:

Would the founding fathers want the bill of rights to apply only to the federal government, hoping perhaps the states would follow the precedent of the federal bill of rights? Or did the the fathers want the bill of rights to have ‘teeth’ under the jurisdiction of the federal government via incorporation?

Chaz706 on September 30, 2009 at 12:51 PM

They say the “incorporation” has limits, in which case States can go after Roe Vs. Wade?

Apples and Oranges. Roe v. Wade is founded not on incorporation of a specific item within the Bill of Rights, but rather on substantive due process. An incorporationist argument seeks to use the due process clause of the 14th amendment to apply the Bill of Rights to the states. A substantive due process argument seeks to use the due process clause of the 14th Amendment to have the court create a right that it must then protect.

Revenant on September 30, 2009 at 12:51 PM

So what? you don’t like the idea that the average citizen can own a weapon?

SHARPTOOTH on September 30, 2009 at 12:44 PM

If their state constitution allows them to sure. I don’t think it’s a “fundamental right” that the founders wanted to guarantee in the Bill of Rights, and it shouldn’t be treated as such.

So you have no problem with the city of Chicago violating the state of Illinois’ constitution?
lorien1973 on September 30, 2009 at 12:46 PM

If it might violate the state constitution, then it should be tried in state courts. If they decide it’s unconstitutional that’s fine. I don’t know the procedural history of the case, but it seems to me it has only been brought before federal courts. Did the Illinois Supreme Court rule the law unconstitutional?

crr6 on September 30, 2009 at 12:51 PM

So you have no problem with the city of Chicago violating the state of Illinois’ constitution?

lorien1973 on September 30, 2009 at 12:46 PM

For reference, the IL constitution:

SECTION 22. RIGHT TO ARMS
Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed.

WashJeff on September 30, 2009 at 12:52 PM

But, but no one’s got guns in Chicago. There’s a ban. And we all know that gang members and other lawbreakers totes pay attention to laws!!!

Except when I was living there and heard gun shots pretty much all the time and had to avoid the El for a while because of the gang shooting on the El….

mjk on September 30, 2009 at 12:53 PM

SECTION 1. MEMBERSHIP
The State militia consists of all able-bodied persons
residing in the State except those exempted by law.

SECTION 22. RIGHT TO ARMS
Subject only to the police power, the right of the
individual citizen to keep and bear arms shall not be
infringed.
(Source: Illinois Constitution.)

lorien1973 on September 30, 2009 at 12:49 PM

Fine, then bring suit at the state level asserting that the gun ban violates the state constitution. If the court agrees, great. It shouldn’t be in federal court.

crr6 on September 30, 2009 at 12:53 PM

This should have been an open and shut case in every court in the United States. Gun bans are explicitly illegal anywhere in the U.S. under not only the 2nd Amendment but the 14th Amendment, Section 1, and the Commerce Clause.

nelsonknows on September 30, 2009 at 12:49 PM

They don’t call it a “ban”, they call it the “well regulation of the militia”. They just regulate it so well that you can’t get a license. In fact the regulations in Chicago is that you must have a license to have a handgun. They just don’t issue a license.

barnone on September 30, 2009 at 12:54 PM

Did the Illinois Supreme Court rule the law unconstitutional?

crr6 on September 30, 2009 at 12:51 PM

Googled that, did not find any cases based in IL on the issue. I am thinking that both sides of the issue prefer the nebulus understanding of Section 22 of the IL constitution.

WashJeff on September 30, 2009 at 12:55 PM

crr6 on September 30, 2009 at 12:51 PM

So i can legally own a gun in my home state, (for example)but if i move to say….your state i could be breaking the law, does that about sum up your thoughts?

SHARPTOOTH on September 30, 2009 at 12:56 PM

So i can legally own a gun in my home state, (for example)but if i move to say….your state i could be breaking the law, does that about sum up your thoughts?

SHARPTOOTH on September 30, 2009 at 12:56 PM

Yep.

crr6 on September 30, 2009 at 12:58 PM

crr6 on September 30, 2009 at 12:53 PM

I’d try reading before typing.

The court said it will review a lower court ruling that upheld a handgun ban in Chicago.

Then, if you still don’t get why the supremes are looking at it, I’d figure out how the appeals process works.

lorien1973 on September 30, 2009 at 12:58 PM

crr6 on September 30, 2009 at 12:58 PM

So you really think people should be searched and items seized as they move from state to state?

lorien1973 on September 30, 2009 at 12:59 PM

Since when do the folks in Chicago need a gun to kill their neighbor? Why not just ban all guns, sharp objects and take every bodies belts away?

I guess when your school system fails, family structure is substituted with welfare, belief in anything greater than yourself is not allowed in public and banning of the Ten Commandments is the law, you have to start taking weapons away from the law abiding?

Hening on September 30, 2009 at 1:00 PM

crr6 on September 30, 2009 at 12:58 PM

I have brown hair and blue eyes, is that legal in your state?

SHARPTOOTH on September 30, 2009 at 1:00 PM

I think it is more consistent with the conservative
principles to defend the rights of the states to make constitutions and laws that serve its, the state’s, citizens.
WashJeff on September 30, 2009 at 12:37 PM

The 14th Amendment,Section 1, is very clear that States CANNOT violate a citizen’s rights that is guaranteed by the Constitution. Counties cannot, cities cannot. The 10th Amendment gives the States ONLY powers not granted to Congress in Article 1, Section 8 or affirmed as rights to the people. Also the 9th Amendment has some validity here; The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

nelsonknows on September 30, 2009 at 1:00 PM

lorien1973 on September 30, 2009 at 12:58 PM

In fairness to the discussion, I believe the lower court ruling referred to was a federal court ruling, not a state court ruling. I could be wrong…

mwdiver on September 30, 2009 at 1:00 PM

I don’t think it’s a “fundamental right” that the founders wanted to guarantee in the Bill of Rights, and it shouldn’t be treated as such.

crr6 on September 30, 2009 at 12:51 PM

Then HOW do you explain the following:

Amendment II
A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

How do explain the FACT that it Says The Right of the PEOPLE?????

The people as in “We the People”

Note It doesn’t say: The right of the Militia or the government, but the people,

How do you explain that?

Juno77 on September 30, 2009 at 1:01 PM

I choose (B).

WashJeff on September 30, 2009 at 12:25 PM

I’m with you. I’d rather the Court revisit incorporation than extend it, even if it means a few states may restrict gun rights. This is just another nail in federalism’s coffin when we need a resurgence in States’ rights the most to thwart the federal leviathian. arggh

Firefly_76 on September 30, 2009 at 1:01 PM

The 7th U.S. Circuit Court of Appeals upheld ordinances barring the ownership of handguns in most cases in Chicago and suburban Oak Park, Ill.

Judge Frank Easterbrook, an appointee of President Ronald Reagan, said that “the Constitution establishes a federal republic where local differences are to be cherished as elements of liberty rather than extirpated in order to produce a single, nationally applicable rule.”

“Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon,” Easterbrook wrote.

Evaluating arguments over the extension of the Second Amendment is a job “for the justices rather than a court of appeals,” he said.

The high court took his suggestion Wednesday.

It was a federal, not a state challenge. Judge Easterbrook is fairly conservative also, IIRC.

Revenant on September 30, 2009 at 1:01 PM

So you really think people should be searched and items seized as they move from state to state?

lorien1973 on September 30, 2009 at 12:59 PM

No. But if someone finds a gun on them in a state where it’s illegal then they might be subject to arrest. The concept isn’t too hard to grasp. If abortion was left to the states, as many of you here wish, a similar situation would arise. You could have a right to choose abortion in one state, but move and have that right disappear.

Then, if you still don’t get why the supremes are looking at it, I’d figure out how the appeals process works.

lorien1973 on September 30, 2009 at 12:58 PM

The lower court was a federal court, not a state court. Apparently it wasn’t tried before the Illinois Supreme Court. Don’t get testy if you don’t know what you’re talking about.

crr6 on September 30, 2009 at 1:02 PM

mwdiver on September 30, 2009 at 1:00 PM

It’d go federal eventually anyways. If it started in state, it’d hit the state supreme court, then the supreme court if there was ground for appeals.

The IL constitution is pretty explicit on who can own a gun. To me, it’s amazing it’s even under discussion at all.

lorien1973 on September 30, 2009 at 1:02 PM

They don’t call it a “ban”, they call it the “well regulation of the militia”. They just regulate it so well that you can’t get a license. In fact the regulations in Chicago is that you must have a license to have a handgun. They just don’t issue a license.

barnone on September 30, 2009 at 12:54 PM

The right to keep and bear arms isn’t guaranteed to the “Militia”, it is guaranteed to the PEOPLE.

nelsonknows on September 30, 2009 at 1:02 PM

Revenant on September 30, 2009 at 12:51 PM

NO, because Roe v Wade decision was based on the “Right” of Privacy, which stemmed from Property Rights… protected by the Federal Constitution…

Thus, the right to keep and bear arms can be regulated by a State (to the point of banning guns), it opens the door to the arguement that the “Right” granted under Roe could also be “regulated” by the State.

Romeo13 on September 30, 2009 at 1:03 PM

Then, if you still don’t get why the supremes are looking at it, I’d figure out how the appeals process works.

lorien1973 on September 30, 2009 at 12:58 PM

Wasn’t that lower court a federal appeals (or district)court. I do not think any IL state court has had this issue brought up to it.

WashJeff on September 30, 2009 at 1:03 PM

WashJeff on September 30, 2009 at 12:30 PM

While I generally like your postings you have this one wrong. Arizona Gun Carry laws allow individuals to carry in public. Businesses are allowed to say no by posting a no carry sign in a conspicuous place at the place of business. What this law did was correct a problem. The previous law made it illegal to carry into a business (think Restaurents) that served alcohol even if you didn’t drink. These businesses do not lose their rights to forbid the carrying of weapons. Many have now posted no carry.
Dr.W is correct about bars. You still may not carry into a business (think bar) whose primary purpose is to sell alcohol.

chemman on September 30, 2009 at 1:03 PM

I don’t think it’s a “fundamental right” that the founders wanted to guarantee in the Bill of Rights, and it shouldn’t be treated as such.

crr6 on September 30, 2009 at 12:51 PM

Everything in the Bill of Rights is fundamental. That’s why they were incorporated before the Constitution was signed. Don’t they teach that in US History anymore?

Vashta.Nerada on September 30, 2009 at 1:04 PM

If abortion was left to the states, as many of you here wish, a similar situation would arise. You could have a right to choose abortion in one state, but move and have that right disappear.

If moved to a state that didn’t allow abortions but you had one in the past, you wouldn’t be subject to arrest. Ideally, at least, I suppose.

Whereas lawful possession of something would make you subject to arrest under your thought.

lorien1973 on September 30, 2009 at 1:05 PM

crr6 on September 30, 2009 at 12:51 PM

So i can legally own a gun in my home state, (for example)but if i move to say….your state i could be breaking the law, does that about sum up your thoughts?

SHARPTOOTH on September 30, 2009 at 12:56 PM

I moved from Maine to Massachusetts (after owning and using firearms for decades) and had to get rid of my rifle until I take a course and apply for a license to carry. Am going for the carry concealed since if I’m going through all this crap to own a rifle, I might as well be allowed to carry concealed. If you want crime statistics to drop, let thieves know that anyone can be armed in their home.

Hening on September 30, 2009 at 1:05 PM

Forget the guns, ban gangs.

HornetSting on September 30, 2009 at 1:05 PM

nelsonknows on September 30, 2009 at 1:00 PM

More importantly is the WAY the Bill of Rights was written.

“Congress shall make no law” about things like Press, and Religion… which is a direct limitation on Congress…

but the RIGHT to Keep and Bear Arms is Explicit… its granted directly to the people…

Romeo13 on September 30, 2009 at 1:06 PM

Liberalism is a mental disease.

jukin on September 30, 2009 at 1:06 PM

Hening on September 30, 2009 at 1:05 PM

Which is what’s funny, isn’t it?

the people actually killing each other in Chicago with guns don’t give a crap that the law says they can’t have one.

It’s the people who wnat to defend themselves that are punished. And you have people on here saying – yeah, that’s a good idea.

lorien1973 on September 30, 2009 at 1:07 PM

crr6 on September 30, 2009 at 12:58 PM

Normally i would just call you a troll and move on,but i am just gonna tell you that you are completely wrong, I have served my country for eight and half years in unifom, went to combat more than once when told to only to come home and have to be told that i don’t have certain rights. like a criminal. I don’t think so….liberalism really is evil.

SHARPTOOTH on September 30, 2009 at 1:07 PM

Here in AZ we had more reinforcement of our 2nd Amendment rights. Firearm ownership begins and ends with personal choice and responsibility.

Why is it Lib’s & Demo’s are always for choice until it comes to my firearms (and now my healthcare).

I think Wade stated it best…….

Kennedy’s car has killed more people than my guns

Wade on September 30, 2009 at 12:28 PM

http://www.azleg.gov/legtext/49leg/1r/bills/sb1168h.pdf

VikingGoneWild on September 30, 2009 at 1:07 PM

Perhaps I’m naïve, but doesn’t this settle it?

The tenth amendment states “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Is not the Bill of Rights delegated to the United States (all 50 of them)? If not, does that mean any state could prohibit freedom of speech?

valentine on September 30, 2009 at 1:08 PM

I don’t think it’s a “fundamental right” that the founders wanted to guarantee in the Bill of Rights, and it shouldn’t be treated as such.
crr6 on September 30, 2009 at 12:51 PM

Amendment II
A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

Answer the Question: If you don’t think it’s a “fundamental right”, then why are those words in the bill of rights?
Why is the second amendment in the bill of rights, affirming a Pre-existing right?

Juno77 on September 30, 2009 at 1:08 PM

nelsonknows on September 30, 2009 at 1:00 PM

I think the intent of the 14th amendment was because the form slaves were not being treated equally. Its intent was what ever laws states impose, they must apply equally to all of its citizens. Incorporation is just a twisted interpretation of the qth amendment in my mind.

WashJeff on September 30, 2009 at 1:09 PM

lorien1973 on September 30, 2009 at 1:02 PM

I agree with you, but I don’t see where it was ever heard at the state level, either. If SCOTUS believes it is a state issue, they can refuse to hear it. Since the Supremes are hearing it, it will (presumably, until the SCOTUS make-up changes), be decided.

mwdiver on September 30, 2009 at 1:09 PM

Why is it Lib’s & Demo’s are always for choice until it comes to my firearms (and now my healthcare).

Libs are only for choice, when they can force a choice upon you.

lorien1973 on September 30, 2009 at 1:09 PM

crr6:

Do you have the Right to Defend yourself?

Juno77 on September 30, 2009 at 1:10 PM

NO, because Roe v Wade decision was based on the “Right” of Privacy, which stemmed from Property Rights… protected by the Federal Constitution…

The “Right” of Privacy was a court created right. It does not stem from property rights, but rather through what the justices considered the “due process” meant.

http://en.wikipedia.org/wiki/Due_process

Thus, the right to keep and bear arms can be regulated by a State (to the point of banning guns), it opens the door to the arguement that the “Right” granted under Roe could also be “regulated” by the State.

Incorrect. The right of a woman to have an abortion, within certain time restrictions, is a right upheld by the Federal Constitution. The States can’t touch it because of the Supremecy Clause. It will take another SCOTUS opinion to declare that there is no federal fundamental right to abortion before the states can regulate it again. (And, were that day to come, it would be permissible for some states to allow abortion and others not to).

You’re comparing Apples to Oranges.

Revenant on September 30, 2009 at 1:10 PM

You still may not carry into a business (think bar) whose primary purpose is to sell alcohol.

chemman on September 30, 2009 at 1:03 PM

What I read this morning is that you can carry into bars that have not posted the sign, but you, the gun carrier, cannot be served alcohol.

I would definitely disagree with AZ previous law forbidding a gun into a business. If the business owner is ok with it, alright by me.

WashJeff on September 30, 2009 at 1:12 PM

You’re comparing Apples to Oranges.

Revenant on September 30, 2009 at 1:10 PM

NO, I’m comparing one “RIGHT” with another “RIGHT”.

How is that apples and oranges?

If a State can limit a right (keep and bear arms), to the point of extinction (ban guns), then they also can make the arguement that they can limit other Rights, to the point of extinction (ban abortion).

Point is that IF the Supremes uphold the Chicago gun law, its going to open up a whole bunch of other Constitutional challenges.

Romeo13 on September 30, 2009 at 1:17 PM

crr6 on September 30, 2009 at 12:31 PM

When states violate our God-given rights, the feds might step in, you know, like in Little Rock.

Akzed on September 30, 2009 at 1:17 PM

The 14th Amendment,Section 1, is very clear that States CANNOT violate a citizen’s rights that is guaranteed by the Constitution. Counties cannot, cities cannot. The 10th Amendment gives the States ONLY powers not granted to Congress in Article 1, Section 8 or affirmed as rights to the people. Also the 9th Amendment has some validity here; The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

nelsonknows on September 30, 2009 at 1:00 PM

Technically, it only says that no state shall make or enforce any law that abridges the privileges and immunities of citizens of the United States nor shall States deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. The 14th Amendment could have said expressly that the other amendments or certain ones applied to the States. It did not.

If read narrowly, States could protect such rights in any myriad of ways, not necessarily in the same exact manner as the rights in the BoR have been interpreted by the S.Ct.

But, if Incorporation stays, OK the 2nd A needs to be protected as well.

Firefly_76 on September 30, 2009 at 1:17 PM

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