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Wednesday, September 30, 2009

The Supreme Court Takes Up the 2nd Amendment

Following the Heller decision, folks in municipalities all over the country began to challenge local restrictions on gun rights. One of the most prominent bans in the country is right here in Chicago. That is about to get a full hearing in front of the Supreme Court.

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 Chicago ban has been a part of law since 1982. The law bans all handguns and semi automatic and automatic weapons. As such, in Chicago it's a total ban on firearms. As a matter of policy, this law is indefensible. Violence has not gotten any better since it went into effect. Street crime, gang violence, and gun violence are an everyday part of the inner city of the city of Chicago. The brutal beating death of Derrion Albert is yet another example of this.

As a matter of law, it's murky. On the one hand, the second amendment is pretty clear.

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

That's pretty clear. People have a right to keep and bear arms and this right can't be infringed upon. As such, the city's ordinance is a clear violation of the second amendment. Defenders of the city's ordinance would say that the 2nd amendment applies to the federal government. Municipalities can make their own laws defenders would say. This is just as dubious to me. State's rights come from the tenth amendment.

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

In this case, the right to bear arms is sacrosanct and can't be infringed. That's not me saying it but the Constitution. The ten amendment applies to anything not specified in the Constitution. The right to bear arms is clearly in the Constitution.

Ironically enough, this case will mean that most people will view the Constitution and government power in a way that is opposite of that which they normally would. The same folks that believe that gun bans are Constitutional have no use for federalism. They are the same folks that have no problem with universal health care even though health care is not a power in the Constitution. That, in my view, is an example of the tenth amendment and thus, health care is a state's right. The same people that believe that municipalities have no power to regulate gun control would normally be strong proponents of federalism, or state's and municipality's rights.

This case will likely answer, hopefully once and for all, just how far the second amendment extends. Is the second amendment strictly a federal right, or does it extend to states and municipalities? The nine in robes will soon speak.


10ksnooker said...

The base problem, the Bill of Rights (BORs) does not explicitly apply to the States. Many States have incorporated the BORs, but not all. So the Supreme Court has done a piece-meal job of Incorporation -- The Second Amendment hasn't come before the court. The SC has ruled making most but not all BORs amendments apply to the States.

And why wasn't the BORs applied to all, just the federal government, to get around slavery, which would have destoroyed any ability to ratify the Constitution.

Lincoln promised before the Civil War to get passed what became the Civil War Amendments, the issue for this case is whether the 14th says the BORs, specifically the Second Amendment is Incorporated in the State's Constitutions.

Matthew said...

Maybe I am missing something, but does this have to go to the United States Supreme Court? I think it is fairly simple, if you look at the Illinois constitution, it pretty much says the same as the 2nd Amendment. No brainer for me, Chicago and the state have overstepped the state constitution. However, I do hope the supreme court rules in favor of the people on this one and the gun laws are eleiminated.


mike volpe said...

That's a problem in your mind only snooker. The tenth amendment is pretty explicit. Everything not in the Constitution is left to the states. How can you say the bill of rights doesn't apply to the states if the tenth amendment clearly says that anything not in the Constitution is left to the states.

rightalk said...

Lost in the sauce of the fanboy enthusiasm over Heller is the fact that it was at best useless and what is likely to come out of the Chicago case will be worse than useless.

The lawyers arguing this new case are the same clueless people that were making Sarah Brady's arguments for her in the Heller case.

Black's Law Dictionary, 6th Ed. defines the word "License" as "Permission to do that which would otherwise be illegal." Therefore, any activity requiring a license must be declared illegal prior to that licensing requirement. If you are required to have a license to own a gun, or are required to register your gun, the act of owning that gun is already ILLEGAL.

So what was the result of Heller thanks to the incompetents that argued the case? You have a Constitutional right to ask for government permission to do something illegal. Sound retarded? That's because it is.

When I argued with the brainwashed lawyers who argued Heller over this very issue, their response was that they didn't have a problem with licensing because after all, "you can't yell fire in a crowded theater." So I guess it's ok to declare newspaper publishing to be illegal and require govt permission in the form a license to exercise your 1st Amendment rights because you MIGHT incite a riot with your newspaper. Maybe any public speaking should be declared to be illegal and require govt permission by license because of the same thing.

Faulty public perceptions aside, Heller was at best, useless. What may come from Chicago is likely to be the enshrinement of the positively stupid proposition that govt can declare your Constitutionally protected rights to be illegal so long as they offer you the opportunity to "Bring me a shrubbery!"

Oh, and Scalia is perfectly aware of all of this and is willing to go along with it. So much for Scalia.

E said...

As written The Constitution and the BoR only apply to the Federal Government.

The 14th, however, states categorically that these documents (the privileges or immunities therein) apply to the states. Period.

Specific, piecemeal incorporation is ludicrous on its face. The 14th defined incorporation for the whole of it, including the Second.

Anonymous said...

Mike I'm not quite sure what you're getting at with this 10th Amendment thing. You say if its not in the Constitution, the 10th Amendment says only the states can wield the authority. But the 2nd Amendment is in the Constitution. I guess I'm a little unclear as to what point you're trying to make.

mike volpe said...

No you got it. The argument in favor of Chicago's ban is to say that the 2nd amendment only applies to federal law and not state and municipal law. Yet, the tenth amendment says the states and municipalities are in charge of anything not specifically in the Constitution. The 2nd amendment is in the constitution and it's cut and dry. So, that's why, in my opinion, that's a faulty argument.