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McDonald v. Chicago
Just got back from oral argument. Short form: I think we have five votes. MIGHT do better than five, but five seem secure. Roberts, Scalia and Kennedy seemed VERY strongly against Chicago's position, Alito seemed against it, Thomas asked no questions but is thorough pro-2a and 14thA, so it looks like the Heller majority holds. Conversely, Breyer attacked Heller and kept arguing against incorporation. Majority did not like privileges or immunities, but due process seemed solid.
Humor: the room was packed, hundreds of people, every seat taken. After McDonald, the Court remained in place to hear the next case. As I left I heard the chief justice say "Well, counsel, WE're still here." I looked back and saw what he meant -- there were perhaps 20 people staying for the next case, as hundreds left.
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Agreed...there's a link and a quote under the comments at the previous blog entry on " One argument I can't understand".
I don't understand it either.
My takeaway from the various reports and analyses I've read so far is that, as I commented elsewhere, that the application of a few law degrees and some black robes apparently works to demolish the ability to read and comprehend English.
And, that it also appears to create a deep love of one's own ability to re-reason perfectly plain language into restrictions, compromises, misdirections, caveats, and just plain embrace of authority.
What the heck are these people thinking?
I'm going thru the transcripts now, Can you tell me does Feldman stutter? I''m looking at pages 31, 32 I-- I-- I -- I you know........
Just how hard is it to understand "shall not be infringed"?
P&I or PoI is uncharted territory. And none of these folks are interested in taking the Union into uncharted territory. A real live, by God, bomb throwing, damn the torpedoes, and full speed ahead kind of person will never make it onto the Supreme Court.
Incoporating by the "P & I" clause means the words "shall not be infringed" come along with it. Incorporating by "due process" means the states or cities can use due process to kill any practical effect incorporation may have.
It's really simple and the court is going for another Heller.
I am opposed to the use of the 14th amendment, Hell, I'm opposed to the amendment. The rest of the constitution is crystal clear, and every state had to agree to abide by it to become a state. The 14th says "you gotta do watchya said ya wud do, but if ya don't, hey, we got nothin'. anyway we may not like some parts of liberty under the rest of the constitution so, we'll use the 14th like a chinese restuarant menu."
It's a pretty sorry state of affairs when reliance on a subsequent amendment is required to honor the original plain as day "shall not be infringed" amendmnent. Yeah I know we should feel fortunate that we are getting a second bite of the apple. And I would, if I didn't recognize the fact that like the Heller decision, this one too is subject to be only correct enough to forestall armed insurrection without really dismantling any of those prohibited infringements.
Infringements from which we had already been indemnified by the second amendment that was part and parcel of the original document. The original document which every state was compelled to honor as regards the rights of citizens anywhere and everywhere in the United States. Look it up.
Sorry, I can't get too excited that much will change. I remember the road map provided to abusers in Heller. I also remember Kelo. I am not inclined to place much trust in people who can arrive at either decision.
The justices asked one question repeatedly of Gura and Clement and both missed their opportunity to clarify the issue.
The question in various forms regarded whether a right incorporated against the states had to be incorporated in its entirety or would piecemeal and/or altered versions of those rights (meaning restricted) be justified.
Both attorneys missed the answer. Of course, every time Gura tried to answer some black-robed nancy boy interrupted him. However, the response should have been simple. Incorporation had to be complete and identical to the federal right as laid out in the constitution because to incorporate the 2nd amendment means the words "shall not be infringed" must also be incorporated. Anything else is a defacto amendment to the constitution requiring a constitutional convention and very high requirements for ratification.
Secondly the court is determined to maintain the myth of infallibility even if they must endorse bad law (Slaughterhouse) using the stupid excuse that "It has been wrong for 140 years and has become sacred".
Is there a set date when the Supreme Court will release their decision?
It's important to remember that Gura was simply representing his clients, who simply want a right to have a handgun in their homes. That his efforts will probably have positive results beyond that is wonderful, but it was not his job to carry the water for the complete restoration of all firearm freedoms. That will be a battle of increments.
MR. GURA: But at least we know one thing, which is that in 1868 the right to keep and bear arms was understood to be a privilege or immunity of citizenship, and if the Court is considering watering down the Second Amendment perhaps it should look to text and history.
CHIEF JUSTICE ROBERTS: Thank you, counsel.
MR. GURA: Thanks.
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Yes Mr. Gura, that is exactly what they are going to do.
The SCOTUS has been watching too many Senate confirmation hearings. This wasn't an opportunity for the attorneys to argue their cases, it was an opportunity for the respective justices to state their own opinions.
It's interesting that those who have been hammered by authority figures just can't seen to pass the experience onto others at first opportunity.
[W-III]
Was there any hint as to what level of scrutiny would be applied?
Jim - Kennedy made comments suggestive of strict scrutiny.
The Court looked to text in Heller, but as to history, not as much. Justice Scalia failed to point out the major historical error Justice Stevens founded his dissent on. David Hardy very explicitly examined and documented that error in his Cardozo Law Review article Ducking the Bullet: District of Columbia v. Heller and the Stevens Dissent
Mayor Daley sites horror stories of people who were hurt by guns in his town as a reason to ban guns. He fails to point out that these happened under his watch and his austere rules, witch failed to protect them. Perhaps some of them might have been spared if they were not perceived as unarmed and helpless. The shooters might have thought better of it if and held there fire. Wolves attack sheep not bears.
Criminals are immune to gun laws. The primary problem with all gun laws is the very people they are aimed at are those least likely to follow them. The penalties for gun possession pal in comparison to those for the much greater affiances they are committing. Many gun confiscations from criminals are as a result of unlawful searches and not prosecutable. Thus the deterrent is small compared to the perceived utility.
Criminals must have guns to stay in business or run the risk of losing their ill-gotten gains and their life to another criminal. Predators are themselves prayed upon by stronger meaner predators. Remember they are not going to call 911. They need to intimidate or kill witnesses, victims and competitors. No criminal wants a confrontation on equal terms. They strike from a position of advantage. No one knows how many crimes have been deterred by the perception (real or imagined) that the intended victim can return aggression in kind. With out the advantage of being the only one armed they might even be forced to work for a living. What a terrible thing.
I just read the roundup over at SCOTUSBlog. It's disappointing just how hostile all the justices seemed towards "privileges & immunities". In terms of the account given there, NRA called this one correctly, and it seems clear that libertarian ideals are anathema to the SCOTUS. If nothing else, it serves as a strong reminder that neither wing of the court is particularly friendly towards individual rights (if perhaps for different reasons on different issues).