McDonald v. Chicago

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McDonald Decision: It’s Not Just About Guns Anymore

July 4, 2010 by

Glenn Reynolds, the Instapundit, thinks that Tea Party activists, libertarians, and conservatives should look to the Supreme Court’s decision in McDonald v. Chicago as inspiration.

let me offer a positive lesson from this experience, one with relevance for today’s motivated Tea Party activists and depressed conservatives and libertarians alike. Because the story of the Second Amendment, and of gun rights generally, over the past two decades is a story that offers hope for those interested in protecting and restoring liberty in all sorts of areas.

Read the whole article here.

His conclusion –

So in little more than 15 years, we’ve seen an amazing turnaround on an issue where the “establishment” side had broad support from politicians (in both parties, really) and almost universal support from the media. Gun control now is nearly dead as an issue, and the “establishment” view that the Second Amendment didn’t protect any sort of individual right, but merely a right of states to have national guards, did not get the support of a single Supreme Court justice.

So what’s the lesson for today? It’s that activism matters.

Now the issue on which activists differ from the establishment is the size of government. Politicians (in both parties, really) are pretty happy with big government. In this, they have the near-universal support of the media (now using covert e-mail lists to agree on how to slant their stories).

But if people care about shrinking government as much as gun rights activists care about protecting the Second Amendment, then this situation, too, can see a turnaround.

For the sake of the country, it had better.

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Clogging the Courts?

July 2, 2010 by

From the Legal Community Against Violence:

LCAV anticipates a substantial increase in the volume of Second Amendment litigation already clogging the nation’s courts, despite the fact that most, if not all, state and local firearms laws do not prevent a law-abiding citizen from possessing a firearm in the home for self-defense, and thus, would satisfy the holdings in Heller and McDonald.

They have a strange view of civil rights if they think that free citizens seeking to uphold the protections afforded them through the Second and Fourteenth Amendments should be considered “clogging” the courts.

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Reality Bites

July 1, 2010 by

Sayre Weaver is one of the leading legal lights of the gun control movement in California. She is one of the lead attorneys for the County of Alameda in the Nordyke case and she helped the City of West Hollywood develop their law prohibiting the sale of “junk guns”(sic). She has won awards from Women Against Gun Violence and the California Wellness Foundation for her work on gun control. The LA Times writes glowing articles about her that characterize her “as the California gun lobby’s Public Enemy No. 1.” So, when she says the McDonald decision is likely to spawn lawsuits challenging local gun control laws, I listen.

Weaver released her analysis on the impact of McDonald v. Chicago on Monday. Her analysis centers on the likely immediate impact that McDonald will have for local governments in California.

  • Local ordinances regulating firearm possession and sale are now more open to challenge on Second Amendment grounds

It appears likely that McDonald will generate challenges to a wide range of local firearms regulations, as well as ammunition regulations…..Because the Court has given little guidance on what standard a firearms regulation must meet to survive challenge under the Second Amendment, we anticipate that the decision will embolden individual litigants to challenge a wide range of firearms laws, including long standing laws that have previously survived challenge in the courts.

  • Local firearms ordinances must now meet a more rigorous constitutional standard to survive legal challenge

Because any restriction on firearms possession or sale might be argued to create some burden on the right to possess a firearm for self-defense in the home, local governments should anticipate numerous lawsuits challenging a wide range of firearms laws. There are already a number of such challenges in the California courts, which were stayed while those courts waited for McDonald.

  • Local ordinances regulating possession of handguns or prohibiting certain types of handguns are more vulnerable to challenge under the Second Amendment

Because the Second Amendment right articulated by the Court pertains to possession of handguns, which the Court characterizes as the most popular weapon among Americans for self-defense, it is likely that local regulations of handguns will be challenged under the Second Amendment.

  • Successful Second Amendment challenges to local laws may result in the award of attorney fees against a city and to the challenging party

While she doesn’t come out and say it, if a city loses a challenge to a firearm restriction in court, they will end up paying the costs for both the defense and the plaintiffs. In case-strapped California, this should make some municipalities think twice.

  • Local governments considering adopting new firearms ordinances may wish to consult with their City Attorneys

…ordinances will now be subject to a stricter test in the courts, and the legislative findings that may be needed for a given law to pass muster under the Second Amendment will be of particular importance.

The bottom line for Weaver is that the world as she knew it has changed with McDonald.

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Hypocrisy from the Dissenters

July 1, 2010 by

Jacob Sullum writes a very perceptive piece on the McDonald dissents of Justices Stevens, Breyer, Ginsburg, and Sotomayor. He notes that these Justices worry that overturning the Chicago gun ban would “undermine democracy.” However, these same Justices would never let local prejudices stand in the way of other rights guaranteed in the Bill of Rights.

Ah, but the Second Amendment is different, they say:

Second Amendment rights are different, Breyer says, because “determining the constitutionality of a particular state gun law requires finding answers to complex empirically based questions.” So does weighing the claims in favor of banning child pornography or depictions of animal cruelty, relaxing the Miranda rule, admitting illegally obtained evidence, or allowing warrantless pat-downs, dog sniffs, or infrared surveillance.

When they decide whether a law or practice violates a constitutional right, courts cannot avoid empirical questions. In cases involving racial discrimination or content-based speech restrictions, for example, they ask whether the challenged law is “narrowly tailored to serve a compelling state interest” and is the “least restrictive means” of doing so.

Sullum saves his strongest scorn for their claims that it will invite more litigation:

The dissenters’ most frivolous objection is that making states obey the Second Amendment “invites an avalanche of litigation,” as Stevens puts it. Every day we hear about cases in which people argue that the government has violated their rights under the First, Fourth, Fifth, Sixth, or Eighth amendment. Neither Stevens nor Breyer wants to stop this “avalanche.” Only when the Second Amendment is added to the mix do they recoil in horror at the prospect that Americans will use the courts to vindicate their rights.

Read the whole article.

H/T Instapundit

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A McDonald Decision Round-up

June 29, 2010 by

Two years and two days ago, the Supreme Court found that Dick Heller had the right to own a handgun to protect his family in his home in the Federal enclave of the District of Columbia. The Court held that the Second Amendment was an individual – not collective – right. Today, the Supreme Court held that Otis McDonald had that same individual right and that the Second Amendment was incorporated through the Fourteenth Amendment to the states. A plurality thought the Second Amendment was incorporated through the Due Process Clause while Justice Thomas thought the Privileges or Immunities Clause incorporated this right.

The Decision

The full opinion of the Court, the concurring opinions, and the dissents cover 214 pages. You can order a paper copy for FREE directly from the Supreme Court. It is called a slip decision. Just call 202-479-3211 ext. 1 and ask for the slip opinion in Case 08-1521. This makes a nice memento!

Reaction of the participants

And now Hizzoner Mayor Daley.

Reaction from the Second Amendment Foundation. 

And the Illinois State Rifle Association.

Both the Second Amendment Foundation and the Illinois State Rifle Association were instrumental in bringing this case.

The NRA, which was given time to argue as a respondent on behalf of the plaintiff but were not a part of the McDonald case, issued this statement.

From the Gun Bloggers

Sebastian of Snowflakes in Hell Blog has spent most of the day reading and analyzing the decision.

Live Blog – The Decision

Scalia’s Concurrence

Reactions

Thomas’ Privileges or Immunities Opinion

Says Uncle has some interesting posts in his quick and to the point manner.

VPC on McDonald.  And if you have the Violence Policy Center, then you have to have Brady.

Breda of The Breda Fallacy has this reminder, Congratulations, Chicago

And in a short post Michael Bane has this to say, SCOTUS Rules! Second is Fully Incorporated….

The great Dave Hardy in his Of Arms and the Law Blog notes the number of citations of many of the Second Amendment scholars in the decision.

The Law Bloggers were not to be outdone

The Instapundit, Glenn Reynolds, a law professor at the University of Tennessee, has a number of posts.

Very interesting to see both the majority and Justice Thomas reference the racist roots of gun control so strongly. Also, while Alan Gura didn’t win on the privileges and immunities argument, he did better than he might have. And by arguing that way, he made due-process incorporation of the Second Amendment, which looked radical not too long ago, look moderate by comparison!

He offers his first impressions here. And he links to this interesting post on the power of paradox.

Reynolds and other bloggers are featured in a discussion on the case in the New York Times.  And as a sidebar here, I’d love to have the gun collection pictured in the New York Times story!

The lovely Professor Ann Althouse weighs in here.

The Volokh Conspiracy has a number of important posts from their collection of law professors on the case.

Predicting the Impact of McDonald

What Now for Limits on Gun Possession by 18-to-20-Year-Olds?

McDonald v. City of Chicago and the Standard of Review for Gun Control Laws

Why Not the Privileges Or Immunities Clause?

And finally, the SCOTUS Blog has a number of posts on the case.

McDonald: big victory for liberty

McDonald impact: slew of new legal challenges

Still fighting the last war on the blog is Professor Jack Rakove of Stanford, A challenge of Heller’s historical interpretations

Thomas’ concurrence on the Privileges or Immunities Clause

Privileges or Immunities Clause alive again

Analysis: Gun rights go national McDonald, et al., v. City of Chicago, Opinion recap

And that sums it up for the evening. While there are a ton more posts opining on the case, I’m whupped!

Wait – just one more! The Law Blog in the Wall Street Journal calls Clarence Thomas’s concurrence potentially his finest hour.