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From Reason.com:

Does the Second Amendment Apply in Chicago?

Understanding the stakes in the Supreme Court's next gun rights case

Damon W. Root | December 15, 2009

Last year’s landmark Supreme Court decision in District of Columbia v. Heller definitively settled the fact that the Second Amendment secures an individual right—not a collective one—to keep and bear arms. Yet that ruling applied only to the federal government (which oversees Washington, D.C.). Does the Second Amendment apply against state and local governments as well?

Through a series of legal decisions handed down over the past century, the Supreme Court has gradually held that most of the protections in the Bill of Rights apply to the states via the 14th Amendment, which declares, “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.” The Second Amendment, however, has been glaringly absent from this process, leaving state and local governments free to systematically violate gun rights.

Until now.

Later this term, the Supreme Court will hear oral arguments in McDonald v. Chicago, a case that centers on whether the Windy City’s notorious handgun ban violates the 14th Amendment. As we’ll see, it most certainly does. The text of the 14th Amendment, the historical events leading to its adoption, the goals of its framers, and the statements of purpose made both by its supporters and by those who ratified it, all point in the exact same direction: The amendment was designed to secure individual rights—including the right of armed self-defense—against abusive state and local governments.

In the wake of the Civil War, the former Confederate states began passing a series of laws, ordinances, and regulations that robbed the recently freed slaves and their white allies of their political, economic, and civil rights, including the right to arms. Mississippi’s 1866 Black Code, for example, declared “that no freedman, free *****, or mulatto…shall keep or carry firearms of any kind.” In other words, America’s original gun control laws were designed to disarm African Americans and leave them at the mercy of predatory state governments.

So the Radical Republicans of the 39th Congress responded with the 14th Amendment, which was ratified in 1868, and which was explicitly designed to secure the life, liberty, and property of all Americans from tyrannical state attack. One of the leading figures in this process was Rep. John Bingham of Ohio, the author of the 14th Amendment’s first section (quoted above). In a speech before the House of Representatives, Bingham explained that “the privileges and immunities” protected by the amendment “are chiefly defined in the first eight amendments to the Constitution.” That quite obviously includes the Second Amendment.

Similarly, Sen. Jacob Howard of Michigan, who presented the 14th Amendment to the Senate, declared that its purpose was “to restrain the power of the States and compel them at all times to respect these great fundamental guarantees,” including “the right to keep and to bear arms.” As the legal scholar Michael Kent Curtis writes in his masterful history No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights, both Bingham and Howard “clearly said that the amendment would require the states to obey the Bill of Rights. Not a single senator or congressman contradicted them.”

For its part, Chicago currently maintains that the Second Amendment should have zero authority over its gun control regime, arguing that the city should enjoy “the greatest flexibility to create and enforce firearms policy” and that “Firearms regulation is a quintessential issue on which state and local governments can ‘serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”’ But of course the Supreme Court would never allow Chicago to try a novel “experiment” like banning free speech, so why should the Second Amendment enjoy any less respect than the First Amendment does?

Indeed, as the libertarian Institute for Justice argues in the superb friend of the court brief it filed in the Chicago case, “To enslave a class of people requires three basic things: destroy their self-sufficiency, prevent them from fighting back, and silence any opposition. Southern states did all of those things both before and after the Civil War, and the point of the Fourteenth Amendment was to make them stop.”

By striking down Chicago’s draconian handgun ban, the Supreme Court has the chance to finally restore both the Second Amendment and the 14th Amendment to their rightful place in our constitutional system. Let’s hope the justices get it right.

Damon W. Root is an associate editor at Reason magazine. This article originally appeared at BigGovernment.com.
Original link: http://reason.com/archives/2009/12/15/does-the-second-amendment-appl/print
 

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We live in very interesting times.

I grew up in the 60's and 70's - a time when most people, being fed their news by the MSM, believed that banning guns was the rght thing to do. I actually got in the habit of watching or reading the daily news as a teenager mostly just to hear if there were any new gun bans coming down the pike.

It seems to me that the dawning of the internet somehow got a significant number of people to realize that banning guns did nothing but disarm the people they had the least reason to worry about while doing nothing about those they should worry about.

It has been gratifying to watch gun rights make slow but steady progress against the decades of bans and restrictions which had been erected. The Heller decision was a watershed moment - even though there have been some delays in seeing much fruit born from that seed.

If we win McDonald vs Chicago there could be a clear sea change across the land for guns restrictions.

In the Heller decision SCOTUS did say that regulation is not infringement - so somewhere we will have to get more definition between those two terms. How far can a state/city regulate without infringing? (seems clear to me but SCOTUS sees it differently) I believe that if SCOTUS does rule in our favor on this one they will also have to answer this regulation/infringement question to some degree.

I still exect that places like Chicago, Hawaii, MA, etc will drag their feet as far as possible but I am looking forward to the show.
 

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Great read, but the truth is is that the states are a collective. While the constitution is an agreement within the states. States can change what they want, but it is the responsibility of the other states to deem if they want that state still in the collection. Also the state would face repercussions from the other states.

If you simply refer to the founding fathers then The National government was meant to oversee things with as little power as possible. That has morphed into close to the exact opposite throughout the years. The national government should only have the power that the states give them, but instead the states gave up so much of their power to make a "unified" America that they no longer have a voice in the grand scheme of things, just a whisper. Some still stand up and actually act on what they believe (California, while it goes against the 2nd and it shouldn't happen, at least they are acting how they should by standing on what they are doing. The other states need to grow up and accept it or show repercussion).
 

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"In the wake of the Civil War, the former Confederate states began passing a series of laws, ordinances, and regulations that robbed the recently freed slaves and their white allies of their political, economic, and civil rights, including the right to arms. Mississippi’s 1866 Black Code, for example, declared “that no freedman, free *****, or mulatto…shall keep or carry firearms of any kind.” In other words, America’s original gun control laws were designed to disarm African Americans and leave them at the mercy of predatory state governments.

So the Radical Republicans of the 39th Congress responded with the 14th Amendment, which was ratified in 1868, and which was explicitly designed to secure the life, liberty, and property of all Americans from tyrannical state attack. One of the leading figures in this process was Rep. John Bingham of Ohio, the author of the 14th Amendment’s first section (quoted above). In a speech before the House of Representatives, Bingham explained that “the privileges and immunities” protected by the amendment “are chiefly defined in the first eight amendments to the Constitution.” That quite obviously includes the Second Amendment.

Similarly, Sen. Jacob Howard of Michigan, who presented the 14th Amendment to the Senate, declared that its purpose was “to restrain the power of the States and compel them at all times to respect these great fundamental guarantees,” including “the right to keep and to bear arms.” As the legal scholar Michael Kent Curtis writes in his masterful history No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights, both Bingham and Howard “clearly said that the amendment would require the states to obey the Bill of Rights. Not a single senator or congressman contradicted them.”"

This should explain it so anybody could understand. What isn't said there, gun laws in the North began in NYC and they were intended to promote crime, not stop it. Tim Sullivan was a gangster in the Irish Five Points Gang. He became a legislator by intimidation. Then he got the Sullivan Law passed and gave himself the power to deny licenses to rival gangs.

Chicago, gangsters, crime... what a surprise/
 

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The thing that has always bothered me about the various arguments, none take into account Article VI of the Constitution. The second paragraph of Article VI (emphasis in bold is mine).

Article VI of the Constitution of the United States of America said:
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
Translation (for the idiots in Congress and the anti's out there), The Constitution is the supreme law of the land, it stands the highest of our legal documents, all others must conform to it, not the other way around. AND, the judges in EVERY STATE are bound (or compelled) to it, in spite of laws passed that run counter to, or against, the Constitution.

The Fourteenth Amendment did not require States to honor the Constitution, force them to comply or anything else, Article VI did. I do not see what part of that is not clear to these knuckleheads. But then again, I don't understand what part of, "shall not be infringed" they don't get either.

Robert
 

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The thing that has always bothered me about the various arguments, none take into account Article VI of the Constitution. The second paragraph of Article VI (emphasis in bold is mine).



Translation (for the idiots in Congress and the anti's out there), The Constitution is the supreme law of the land, it stands the highest of our legal documents, all others must conform to it, not the other way around. AND, the judges in EVERY STATE are bound (or compelled) to it, in spite of laws passed that run counter to, or against, the Constitution.

The Fourteenth Amendment did not require States to honor the Constitution, force them to comply or anything else, Article VI did. I do not see what part of that is not clear to these knuckleheads. But then again, I don't understand what part of, "shall not be infringed" they don't get either.

Robert
You oughta try sending that to theidiots in office right now. Doubt it'll do any good, but they might read it for once. Still wouldn't do any good.
 

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Actually it would be vice versa! The Supreme Court held that it was a right - which applies to the "people"

The "District" of Columbia (ever think why it's still called that? I mean Mass and Virginia are still called "Commonwealths" but that traditional (and legally binding in some cases) But the "District" originally had "NO" rights or ability to vote - it was like the Switzerland of the U.S.) So technically D.C. doesn't even count!
 

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In the Heller decision SCOTUS did say that regulation is not infringement - so somewhere we will have to get more definition between those two terms. How far can a state/city regulate without infringing? (seems clear to me but SCOTUS sees it differently) I believe that if SCOTUS does rule in our favor on this one they will also have to answer this regulation/infringement question to some degree.
It won't come overnight, but it'll set the stage. The first effect won't be very obvious, but it will be very important: we won't see any new blanket bans. The second result will be a flood of legal challenges to state-level bans on military-pattern rifles and standard-capacity magazines.

Gradually, the (most likely Circuit) courts will hammer out a baseline definition of "reasonable regulation." What defines "reasonable?" That's an implied question in this case.

Given that the 2nd Amendment has been found (218 years after being written) to protect a fundamental constitutional right, it would seem that strict scrutiny should apply, as it does to other enumerated rights. If that's the case, then any law regulating guns would have to be narrowly tailored to serve a compelling state interest.

And it would be the government's duty to prove the constitutionality of any such law.

Under strict scrutiny, many current regulations fall short. Heller didn't give us that, but it did take the opposite approach, known as "rational basis," completely off the table.

A few weeks ago, the 7th Circuit passed a ruling in US v. Skoien in which they stated that restrictions on the 2nd Amendment demand strict scrutiny in some cases. In other cases, they found that "intermediate scrutiny" is called for, but they made it clear that the government can't just say, "well, it's for the children" and get away with it.

Establishing a high standard of scrutiny will be just as big of a victory as incorporation. Now, if they decide to overturn Slaughterhouse, we could end up seeing a renaissance for the whole Bill of Rights...
 

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If we win McDonald vs Chicago there could be a clear sea change across the land for guns restrictions.

In the Heller decision SCOTUS did say that regulation is not infringement - so somewhere we will have to get more definition between those two terms. How far can a state/city regulate without infringing? (seems clear to me but SCOTUS sees it differently) I believe that if SCOTUS does rule in our favor on this one they will also have to answer this regulation/infringement question to some degree.

I'm sure we will "win" McDonald vs Chicago, but what will constitute a win could really be anything when it comes from the Supreme Court.

In the end, the USSC will have to define terms such as reasonable regulations and limitations etc... and they will have to set standards for the federal and states to draw upon, including such things as carry permits vs. purchase permits and then what constitutes a reasonable fee one can charge for the permit itself.

All of this will take years and more lawsuits.

But in the end I believe that the court will establish that a state cannot limit, either by process, fees or license schemes the ability for anyone who can legally possess a gun to buy one and in a reasonable amount of time. Which in todays technology means just a few minutes for the computerized background check to clear.

Further I believe such schemes like the NYC purchase permit will be struck down for systems that nearly every state uses to complete sales instantly.

The only permits you will hear about will be carry permits, not purchase permits.

Also I believe the USSC will rule that states cannot charge excessive fees or taxes on permits and purchases beyond the minimum needed to pay for the process of the background check and issuance. So a state won't be able to charge you $10,000 for a background check or carry permit. Stuff like that will be tried by liberal states but will be challenged and struck down quickly.

As more and more of these cases are brought and won, the less and less you will hear of places like DC dragging their feet and implementing a license schemes basically in which one simply cannot complete to buy, possess or carry a gun.

Stuff like that will be hammered in the lower courts simply on precedent.

I hope the tide is turning around and that more and more people will begin to accept the fact that your protection and self defense is ultimately in your own hands and not the responsibility of the police. That more and more will accept the visual of guns being lawfully carried by folks so that when a soccer mom sees a fellow strolling into the McDonalds for a burger with a holstered .45 on his hip she don't piss herself, scream hysterically while running off into the night, prompting calls to 911 about terrorist laying waste to the place with belt fed bazookas.
 
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