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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that’s right.

celtnik on October 1, 2009 at 5:45 PM

You must be easily intimidated if you think I’m a thug. Clearly, you won’t do well when you reach highschool.

crr6 on October 1, 2009 at 5:49 PM

celtnik on October 1, 2009 at 4:09 PM
Here. Read up.
[http://en.wikipedia.org/wiki/Incorporation_doctrine]
crr6 on October 1, 2009 at 4:13 PM

Excuse me, but you’re supposed to be a ‘law student’, and you’re referencing the wikipedia?

Shouldn’t you have some ‘Real’ references?

Juno77 on October 1, 2009 at 5:52 PM

Shouldn’t you have some ‘Real’ references?

Juno77 on October 1, 2009 at 5:52 PM

I can access the relevant case law on Westlaw or LexisNexis, but he can’t access them unless he’s a member, which I doubt he is. Wikipedia would be the easiest source for a lay person to understand anyway.

crr6 on October 1, 2009 at 5:54 PM

Shouldn’t you have some ‘Real’ references?
Juno77 on October 1, 2009 at 5:52 PM

I can access the relevant case law on Westlaw or LexisNexis, but he can’t access them unless he’s a member, which I doubt he is. Wikipedia would be the easiest source for a lay person to understand anyway.
crr6 on October 1, 2009 at 5:54 PM

And there are No other sources for case law?

Juno77 on October 1, 2009 at 5:57 PM

crr6 on October 1, 2009 at 5:54 PM

I understand that incorporation is a tactic to say that the constitution doesn’t say what it does, and vice versa. A tactic used by thugs who can’t get their laws passed any other way. I neve said I was intimidated by you, I just said you were a thug, and a hack.

celtnik on October 1, 2009 at 5:58 PM

And there are No other sources for case law?

Juno77 on October 1, 2009 at 5:57 PM

Idk. That’s all we use in school. You can probably get SCOTUS cases off of some sort of government site, but I don’t know how.

crr6 on October 1, 2009 at 6:00 PM

Idk. That’s all we use in school.
crr6 on October 1, 2009 at 6:00 PM

The wikipedia?
I’m sure that’ll go over big in Moot court.

Juno77 on October 1, 2009 at 6:04 PM

The wikipedia?
I’m sure that’ll go over big in Moot court.

Juno77 on October 1, 2009 at 6:04 PM

No, Westlaw and LexisNexis moron.

crr6 on October 1, 2009 at 6:26 PM

As much as I like bashing our troll crr6, not everything it has said is incorrect. Its just completely disingenuous by switching legal theories to suit its liberal agenda. And, its largely ignorant of history.

I don’t entirely blame it; it is a victim of law school indoctrination. It took me about 5 years to shake it off, so there is hope.

crr6, perhaps paying off your student loans in this economy (the worst for lawyers in about 16 years) will wake you up. Good luck in this job market, even if you are a liberal.

Firefly_76 on October 1, 2009 at 6:26 PM

No, Westlaw and LexisNexis moron.
crr6 on October 1, 2009 at 6:26 PM

Well, the verbal insults should go over big as well.

Juno77 on October 1, 2009 at 6:31 PM

Good luck in this job market, even if you are a liberal.

Quoted for Truth.

Revenant on October 1, 2009 at 6:37 PM

crr6 on October 1, 2009 at 5:09 PM

That’s why you have unqualified idiots on the SCOTUS such as Ginsburg and Sotomayor, Breyer, Stevens and formerly Hugo Black, the KKK and Anti-Catholic League member who cannot correctly quote Thomas Jefferson, and believed the Danbury Letters have “precedent” in a court of law.
Ginsburg wants to use foreign law to “interpret” the Constitution….an insane notion if there ever was one. All four named above, currently on the Court, follow a 100 year tradition of violating the Constitution by legislating from the bench and should have been removed years ago. The SCOTUS has a lousy record of removing Judges who violate the Constitution….ZERO.

nelsonknows on October 1, 2009 at 6:52 PM

crr6 on October 1, 2009 at 6:26 PM

Wikipedia isn’t allowed as a source in any school of merit in this country. Are you trying to buffalo people here into believing YOU are in Law School or you still flunking junior high history?

nelsonknows on October 1, 2009 at 6:55 PM

crr6, I’ll see your “Law Student” and raise you an MSS in Constitutional History and a BSS in Military Science.
By the way, I HAVE Lexus Nexus and Westlaw, you need neither to post a link since all SCOTUS case law is posted with the SCOTUS and most every case ever tried of any substance is posted at http://www.cornell.edu, http://www.senate.gov,http:// http://www.supremecourtus.gov/
You should KNOW this if you are in law school.
As of now, I’m called BS on you.

nelsonknows on October 1, 2009 at 7:04 PM

And in other gun news, a new law goes into effect today in Montana:
http://www.helenair.com/news/local/state-and-regional/article_aac61630-ae5a-11de-a782-001cc4c002e0.html

acasilaco on October 1, 2009 at 7:30 PM

crr6, perhaps paying off your student loans in this economy (the worst for lawyers in about 16 years) will wake you up. Good luck in this job market, even if you are a liberal.

Firefly_76 on October 1, 2009 at 6:26 PM

heh, Thanks. Hopefully things will improve by the time I graduate. The 2009 grads I know are having a brutal time.

You should KNOW this if you are in law school.
As of now, I’m called BS on you.

nelsonknows on October 1, 2009 at 7:04 PM

How would you know if I should know that, you’ve never been to law school? We use Westlaw and LexisNexis for reasearch, not any of the links you posted. When looking up cases why wade around those sites when we can do a simple search on Westlaw?

crr6 on October 1, 2009 at 8:05 PM

Its just completely disingenuous by switching legal theories to suit its liberal agenda.

How so?

crr6 on October 1, 2009 at 8:07 PM

Are we so collectively stupid that our best and brightest lawyers are incapable of reading and comprehending a few simple sentences.

Wingnut on October 1, 2009 at 8:40 PM

Chicago residents just may have the opportunity to shoot back soon.

Mojave Mark on October 1, 2009 at 8:59 PM

Where is the incorporation specifically listed in the constitution?

I’d say in the equal protection guarantee of the 14th Amendment.

Chris_Balsz on October 1, 2009 at 9:54 PM

We use Westlaw and LexisNexis for reasearch, not any of the links you posted. When looking up cases why wade around those sites when we can do a simple search on Westlaw?

crr6 on October 1, 2009 at 8:05 PM

I ran up a $1600 bill on Lexis clicking on nine magazine articles.

Cornell.edu is free, and is authoritative for statute. Go to a federal court website and click the hyperlink for federal codes, it will open cornell.edu You will not get that $45 Lexis subscription out of school.

Chris_Balsz on October 1, 2009 at 9:57 PM

This line never flies outside of HA. After the Democrats began broadly supporting the civil rights agenda under Johnson, the parties pretty much switched constituencies. The southern racists who opposed reform became Republican and northern liberals and intellectuals became Democrats. In short, the racist Democrats of the past are the Republicans of today. Of course you probably know this, and are just choosing to argue dishonestly.

crr6 on September 30, 2009 at 8:24 PM

That’s gospel truth to the New York Times, but it fails to explain how the same people gave state majorities to Carter, Reagan, Clinton, and Bush. Did their racism flip on and off? Or were Carter and Clinton really racist?

Or maybe they aren’t racist?

Chris_Balsz on October 1, 2009 at 10:03 PM

Cornell.edu is free, and is authoritative for statute. Go to a federal court website and click the hyperlink for federal codes, it will open cornell.edu You will not get that $45 Lexis subscription out of school.

Chris_Balsz on October 1, 2009 at 9:57 PM

Yeah, as of now the subscription fees are included in our tuition. Thanks for the tip though, I’ll use those resources after graduation.

crr6 on October 1, 2009 at 11:09 PM

Juno77 on October 1, 2009 at 10:28 AM

So that means there should be no death penalty, since the right to life is unalienable?

mycowardice on October 1, 2009 at 10:44 AM

Not . YOU can be deprived of life if a jury of your peers says so.

huckelberry on October 2, 2009 at 12:08 AM

The meaning of the phrase “well-regulated” in the 2nd amendment:

http://www.constitution.org/cons/wellregu.htm

(hint: it doesn’t mean taxed, registered, and limited in size/number/rounds fired per trigger pull.)

freedom_nut on October 2, 2009 at 6:29 AM

Lawyers can muddle anything; it’s their job. Remember “it depends on what your definition of ‘is’ is”?

Which is specifically why the Second Amendment is so short and clear and obvious (well, except to lawyers and those who disdain freedom in general).

freedom_nut on October 2, 2009 at 6:32 AM

Are we so collectively stupid that our best and brightest lawyers are incapable of reading and comprehending a few simple sentences.

Wingnut on October 1, 2009 at 8:40 PM

This is the mansion they have built for themselves.
They maintain law is too difficult for us peons to understand & so therefore the Constitution & later documents are only for them to ‘interpret’.
I’ve been around scientists who like to talk big when in reality they know nothing.
Most anyone with a brain can understand what is written in these documents.
They were meant to be clear.
And they are.
But since people like to twist things for their own agenda, & they have eben clearly allowed to for a long time, we get this confusion when there shouldn’t be any at all.
Sometimes the answer really is black & white.

Badger40 on October 2, 2009 at 10:09 AM

The question on the Chicago gun ban is really simple. Can a city or a state, disregard the constitution? If so what is the purpose of the constitution? If it does not apply to all, who does it apply too? If the second amendment does not apply, then do any other amendments apply? If they don’t apply, does any of the constitution apply? If that is the case why is there a United States of America?

It seems to me that the Supreme Court can only reach one conclusion, either the 2nd amendment applies country/state/city wide, or we don’t have a constitution.

Dasher on October 2, 2009 at 11:25 AM

It seems to me that the Supreme Court can only reach one conclusion, either the 2nd amendment applies country/state/city wide, or we don’t have a constitution.

Dasher on October 2, 2009 at 11:25 AM

Some on this thread would have you believe otherwise.
I agree with you.
It is simple.
Others like to convolute the issue unecessarily.

Badger40 on October 2, 2009 at 11:34 AM

It seems to me that the Supreme Court can only reach one conclusion, either the 2nd amendment applies country/state/city wide, or we don’t have a constitution.

Exactly, it is clearly written,therefore it must be given the same respect as all the other amendments. If they can disregard the 2nd amendment then other states could disregard other amendments. No women voting in Massachusetts. Search and seizure in California no problem. Want to speak out against the government, well you better be outside of Connecticut or shut your pie-hole. This country is going to be real interesting with activist judicial bulls**t destroying it.

Wingnut on October 2, 2009 at 7:56 PM

freedom_nut on October 2, 2009 at 6:29 AM

This is such an easy one since it was taught in Junior High.
“Well Regulated” in terms of the 2nd Amendment, means “Well Trained”.

nelsonknows on October 2, 2009 at 10:58 PM

It meant nothing of the sort. There was no provision to train, arm, or transport the militia. It was usual for militia to serve less than a year, and serve only in the unit they recruited with. it was well-regulated in that it respected the ranks of the regular army, swore loyalty to the constitution, and served according to the laws of the state. But for 250 years, militias were formed by getting together a rich committee to serve as officers, putting up a notice board, and enrolling whoever showed up for the meeting.

Chris_Balsz on October 3, 2009 at 1:27 AM

And yes I mean 250 years. Militias were formed in North America since the late 17th century to 1906, when the Dick Act forged a National Guard. A good starting source is Robert Leckey’s “Wars of America”

Chris_Balsz on October 3, 2009 at 1:30 AM

Again, sit back and READ THIS….this was ALL spelled out in clear and PRECISE english and further defined in the Federalist Papers. A well REGULATED militia meant a well TRAINED militia.
The emphasis on the 2nd Amendment is that the PEOPLE’S right to keep and bear arms will not be infringed; BY ANYONE.
This is further carried by the 14th Amendment to protect citizen’s rights from the States, thus from the Counties and Cities as they are never autonomous from the State.
“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”.
A State CANNOT violate one’s constitutional rights, to free speech, religion, press, trial, OR TO KEEP AND BEAR ARMS, neither can a county or city within that state.
Is this FINALLY clear to everyone?
As for an “Incorporation Clause”, this is just as much fallacy as the “Establishment Clause”, neither exist and were created by overzealous SCOTUS Judges with a political agenda, pure fantasy.

nelsonknows on October 3, 2009 at 7:42 AM

Something further on the “Incorporation Clause”. No Incorporation was ever needed as the Constitution and its Amendments are clear in text and clearly define what is meant.
The 1st Amendment saying CONGRESS shall shall make no law, MEANS that Congress has no authority and just THAT.
In the 2nd, it SAYS the PEOPLE have the right to keep and bear arms, NOT the militia and not only because of the militia. Who are the People protected from violating those rights, EVERYONE.
As in the 4th Amendment, THE PEOPLE are guaranteed the right to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, which means ANY body of government. And the 4th ALSO protects from arrest or seizure of evidence except upon probable cause. Who is this protection from? ANYONE who would violate these rights.
The 5th says “NO PERSON” and means exactly that.
So on and so forth until we get to the 9th and 10th Amendments.
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The 9th protects all things not specifically named in the Constitution or the previous 8 Amendments and confirms those rights to THE PEOPLE.
The 10th. “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.”
Says clearly, if something is not specifically NAMED in the Constitution, or in the first 8 Amendments, it is SPECIFICALLY reserved as being under the jurisdiction of the STATE.
The 14th, which has been MUCH misused; Section 1. “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; nor shall any state 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 CLEARLY and plainly states that; 1. If you are born in the U.S., you are protected by the Constitution. Even though this was intended to protect slaves and ensure their rights, it also protected all U.S. Citizens from having their rights denied under the Constitution after the Civil War. (I know it didn’t intend on making children of illegal aliens automatic citizens but the Immigration Act hadn’t been written yet)
The 14th Amendment didn’t “Incorporate” the Constitution nor The Bill of Rights into anything, nor did it “incorporate” the States, as the States all agreed to honor the U.S. Constitution upon becoming a State and Agreed that they would abide by and be subject to the Constitution. No incorporation was ever needed and the 14th Amendment just strengthened the rights that were already confirmed and warned the States from any violations of the Constitution.
Don’t think for a minute that the 14th Amendment takes any power away from the 10th, it DOES NOT as The STATES STILL have jurisdiction over anything that is not specifically named in the Constitution and Amendments thereof, and or does not prohibit the States or Grants or confirms to THE PEOPLE.

nelsonknows on October 3, 2009 at 8:37 AM

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