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McDonald V Chicago decision

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10. If the bearing of arms is recognized as part of the RKBA - then the politicians in Illinois - including the mayor of Chicago - are SOL (shucks out of luck) and legally bearing arms for self defense - is a fait accompli in the not too distant future in Illinois - within 3 to 5 years. The politicians in Illinois will then be faced with either passing a shall issue CCW law or allowing citizens to carry openly without a permit - I suspect given such a choice they will quickly pass a shall issue CCW law.
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I agree completely. Just like with possession of guns in the home, the SC will eventually rule that the government cannot completely ban the carrying of firearms outside the home. However, the SC will likely allow a significant amount of regulation relating to carrying of firearms (i.e. who can carry, where you can carry, manner of carrying, licensing, etc.). The problem in Illinois is that it is the only state in the country that currently has a total ban on carrying firearms off one's own property or the private property of another (with permission). Thus, the instant that a court rules that a total ban on carrying is unconstitutional, Illinois will transform from one of the strictest gun control states into one of the most lenient because it has no current scheme for regulating the carry of firearms.

The Illinois General Assembly will act quicker than it ever has in its history to implement some sort of carry scheme after a court strikes down the total carry ban.
 
I respectfully disagree with you on point 9. Good arguments are to be made for the "bear arms" clause of the 2nd Amen., but this will be a radical move that I'm not sure Justice Kennedy is willing to take. It really all hinges upon him. I can't see Kennedy throwing out, wholesale, laws which have been emplaced for ages. I wish he would, but as a cynic, I really can't see that happening. Point 10 presumes point 9.
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Recognizing a right to carry firearms outside the home will not be a radical move. As I mentioned in the post above, only one state has a total carry ban (Illinois). It would be really strange for the court to say that the right to self-defense is limited to a person's home. Just like in Heller, the SC will neuter the right to such an extent that virtually all existing laws governing the carrying of firearms will remain intact.

Also, what is the basis for your view that "it really all hinges upon [Kennedy]"? You have any evidence that Kennedy has ever been hostile in any respect to 2nd Amendment rights? You can't just say that Kennedy has been a swing voter on other issues so I think he's going to be the swing voter on this issue.
 
Just to add my 2 cents again - with 42 states essentially recognizing a right to carry (40 shall issue now or no permit and 2 open carry states that don't have shall issue) and with seven of the eight remaining states having may issue laws that would merely have to be modified to shall issue - there is only one state that a USSC decision recognizing a right to carry firearms would radically effect - Illinois. Therefore I would argue as stated above that it is not a radical step at all.

True, some of the justices in the majority of five from Heller, might given their present understanding, see it as a radical step. However, any case that is brought to them will undoubtedly also point out that the right is essentially recognized in law in 42 states already and that 7 states at least provide some legal provision for it. While only one state - Illinois totally bars open or concealed carry. Given those facts and the alternative of such a decision - which would be to render the words "bear arms" in the "right of the people to keep and bear arms" a nullity prticularily in light of the Heller decision that identified the second as also protecting a right to self defense - I believe that the current court will rule in favor of a right to bear arms. Should one of the five majority in Heller step down or be replaced, then that is a totally different senario - and we probably lose every second amendment case.
 
Should one of the five majority in Heller step down or be replaced, then that is a totally different senario - and we probably lose every second amendment case.
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It's frightening how a fundamental right, enshrined in the 2nd Amendment, could vanish in the blink of an eye if an unfortunate event such as a heart attack or other calamity struck one of the Heller five.
 
Uhh, Ehrrr, ........ Guys, You do know that Mr Heller still has to keep his gun unloaded in his house, Right? And according to two different sources (I hope I am wrong on this one) he still has to keep it dissassembled while in his home.

Yes, he has filed another suit but he has lost so far.

In other words I am not so sure of the magnitude of the victory that was Heller.:confused:

Not saying it was small or big, I just am not sure anymore.

What additional rights does ANYBODY have from Heller except the right to have a unhloaded, unassembled revolver in their apartment.

That's the right to keep and BEAR arms whish shall not be infringed?:fire:

Wondering a lot lately.

NukemJim

NukemJim
 
Yes DC has tried to play fast and loose with the Heller decision - and yes the lower courts allowed it to stand - but what DC is doing is also clearly in violation of the Heller decision and DC will be slapped down as the case progresses. Chicago will try the same crap if they can when they lose McDonald.
 
Does anyone have an idea on how a decision in Macdonald V. Chicago will affect the assault weapons ban in New Jeresy? Could it even affect it?
 
No effect on the AWB in N.J. A legal challenge to the ban based on Macdonald (if it wins) and Heller may succeed eventually. Long, long into the future, and don't bet on it.

D.C. has not just tried to flaunt Heller. They have done it, and time is working for them and against us. Now they are winning precedents in lower courts to validate their tortured point of view. It will take a set of near miracles to reverse this - the five who gave us Heller will have survive as SCJs long enough to do it again (biggest miracle); one or more good cases will have to work their way through the system (minor miracle); at least five SCJs all must a) maintain the will to deal with this issue; b) agree that D.C. is actually in violation, and c) exactly how (a&b&c together constitute a pretty big miracle).

The MSJ will not be granted. It will have to go through the appeals process which will take years. Winning the concept that 'bear' means public carry whether open or concealed will be a very heavy lift.

Just as I see it, but we can hope. I'd actually give better odds on Heller being revisited and reversed or severly curtailed if one or more of the Fab Five goes during the next year or two, or the next 6 years if we're really unlucky.
 
Does anyone have an idea on how a decision in Macdonald V. Chicago will affect the assault weapons ban in New Jeresy? Could it even affect it?
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Only in an indirect, attenuated way. The hope in McDonald is that the 2A is incorporated. Once it is (hopefully), then all the individual laws like AWBs, registration, may-issue ccw, etc. can be challenged. Until that time, the states have completely unrestricted power to regulate/ban any firearms they so choose. If McDonald comes down as we hope it will, that decision will at least allow you to make an argument, but is certainly not dispositive in any way. I think challenging AWBs is much further down the line for gun rights. Movements like this take years and years.
 
I think challenging AWBs is much further down the line for gun rights. Movements like this take years and years.
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Although I agree with you, the problem is that after waiting years and years these laws such as the AWB become "longstanding" and harder to defeat.
 
Many of these "negative" rulings in Federal courts pre-McDonald are using the rational basis test as McDonald hasn't incorporated Heller's fundamental right yet.

If McDonald results even in some form of intermediate scrutiny (which based on Heller it almost has to) then the .govs defending AWB's and may-issue laws will have to counter real evidence from other states, often in their own circuits, not just get the presumption in their favor the rational basis test provides.

Given how few AWB's/may issue laws there are, the lack of documentation that they have had an effect and/or are a narrow means of accomplishing a legitimate gov't interest (public safety) in their own states I don't see them withstanding a solid case under int. scrutiny for very long.

Note for instance the University of Colorado case. Admittedly it was just the CO Constitution and statutes in play but the example is informative.

It was arbitrarily tossed on the rational basis test. On appeal the higher court properly applied, in effect, intermediate scrutiny based on the meaning of the state Constitution and statutes. After a minimal amount of review both the school and lower court got spanked in humiliating legal detail.

Scalia's dicta is a pain, but it didn't close the door. He said such restrictions might be okay. "Might" will be decided on the evidence if intermediate scrutiny is used. The evidence is squarely on our side, even the DOJ, NIJ and CDC painfully agree.
 
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Justice Kennedy has been the swing vote since O'Connor left the Court, so pretty much any argument on a controversial topic is directed towards him. The evidence that Kennedy being hostile to the 2nd? Well, if he wasn't the swing vote, who crossed lines? If he didn't have some reservations the Heller decision would have been much broader than it was. Scalia, Thomas, Alito, & (most likely) Roberts would have just came out and said (in dicta, but letting the anti-gun side know not to raise an argument) the right applies to the states, in its entirety. This they did not do. Nor did the Court say that D.C. residents have a right to carry. I really can't see SCOTUS telling the states (state's rights, ya know) that they must allow CC. I hope I'm wrong, but I'd put money on what I believe will happen; i.e., the 2nd will not include must-issue CC when incorporated.
As for AWBs, don't look for them to be overturned anytime soon. McDonald does not address that issue. And we need time for the public to get accustomed to ARs being used for hunting, varmint, and target use before challenging such bans. Also, it will be difficult to argue for bayonet holders, hi-cap mags and flash hiders. Challenging such bans, as stated above, is much further down the road. Once again, I can foresee "state's rights" being part of the McDonald decision. Normally, the 10th Amen. gets short-shrift in SCOTUS decisions, but in the case of the 2nd, we are changing history in the way in which this amendment is being interpreted so the Court will tend to move incrementally. Remember, an activist Court can work in our favor in some instances, and this is one. Its taken 221 years to get the 2nd nationalized, so these things don't move fast.
Even if one of the 5 right wing justices should get replaced (more likely that another left wing one will first), the doctrine of stare decisis will most likely keep, at a minimum, the status quo. What will be more important is getting the public to favor more expansive gun rights. The Court will never admit it, but historically, the fact of the matter is that the Court dislikes being opposed to the popular sentiment of the country. This is why the Heller decision came down the way it did. We might all want to think that the S.C. neutrally interprets the Const., but in reality, that don't happen. FDR proved it in 1937 when Justice Owens woke up & smelled the future.
 
My probably too optimistic take...

McDonald doesn't need to mention carry, just set the level of scrutiny.

If it's Intermediate or, even better, Strict, the challenges to state AWBs and no/may-issue will then be testable, with actual evidence being required to support the state government's restrictions as both effective and narrowly tailored. Given that bans, whether of carry or AWB's are not narrow, are not in place in most states and can be shown not to work on the briefest literature review, they don't stand much chance. Similarly mag cap limits or restrictive may-issue programs. Once the state government has to start providing evidence we get to pull in the example of every similar political subdivision and every study produced to counter.

This is as opposed to the Courts simply saying the states at issue have a prima facia "reasonable power to regulate (AWs/carry/mag capacities, etc) for public safety" under the Rational Basis Test and stopping the challenge right there.

Further, I'd like to see a list of the least restrictive guidelines on carry, including location/BAC/age, on weapon type (FA, SBR/SBS/AOW), on possession, etc. that are already in place and working cross-referenced by state.

Since pretty much everything that we might want to see as "maximized freedom" on a state level is already in place and working in at least one state, we can start putting together "wish lists" for our own state representatives.

Get a wave of increased freedom, even in already mostly good states, and then use the accumulated evidence to challenge recalcitrant states and Federal restrictions.

Quit fighting the same fights over and over, make those who want to restrict rights explain publically why they think the people in their state can't handle the same exact freedoms other state's citizens can. Expose them for the bigots they are.
 
belercous,

In response to your first paragraph, the court must answer only the question before it so they couldn't go much further than they did. Yes, they could have shed light on more aspects of the greater issue, but for the most part, they had to keep it tailored to the DC gun ban. I think it may have been beyond the scope to rule on carry as the question before the court was possession, and maybe even narrower...prevention of registration. I wish they would have went a little further, but I don't think it would have been appropriate.

I honestly have no opinion, as I have no facts to base them on, on whether Kennedy will vote to include carry laws under the 2A. I have my hopes, but there's no point in speculating (other than being fun to talk about!).
 
In Heller, the question was whether or not the right was an individual right (putting to rest the collective rights theory) and whether or not a certain set of city codes infringed that right.

That's all the Court answered. Full Stop.

In McDonald, the Court is being asked whether or not the right is a fundamental right and should be incorporated into the 14th amendment as against the States.

Whatever else may be written (as in Heller) the Court will only answer this question. It does not have to decide if the laws of Chicago are valid or not. The Court does not have to set a level of scrutiny - Such level is applied to the core fundamental right by way of prior precedent.

Heller has already set the Stage. Complete handgun bans are off the table. Rational basis scrutiny, of the core right, is off the table.

Therefore, any law that infringes the right to keep and bear arms, within the home for self-defense, must fall under strict judicial scrutiny, by default.

All other aspects of the RKBA, are fights for another day.

Now the Court may invalidate Chicago's gun laws as being unconstitutional, but they certainly don't have to. The easiest solution (for the Court) is to make the pronouncement and send the case(s) back to the District Court with instructions to rule in accordance to this opinion.

Given Judge Easterbrooks opinion that self-defense is not a right and can be legislated away, I fully expect the Court to make some mention of this, even if in dicta, such that the lower courts will be on notice that this is a fundamental right (per Heller) and can not be simply legislated away. Any such response will be tailored to keep the prohibitions against felons in place.
 
I'd rather see the response tailored to force keeping violent felons locked up.
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That would be nice, but such authority is really a power of the state legislatures. We don't want our federal government mandating prison sentences for the states do we?
 
That would be nice, but such authority is really a power of the state legislatures. We don't want our federal government mandating prison sentences for the states do we?
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I'm not talking making the federal government - neither the court nor the legislature - mandating sentences. I'm talking about making it necessary for violent criminals to be kept locked up if a state or even the Union wishes to keep violent criminals' hands off guns. It would be up to the states to come up with their own legislation. I'm talking about essentially declaring the NICS and the Hughes amendment unconstitutional.

Woody
 
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I'm not talking making the federal government - neither the court nor the legislature - mandating sentences. I'm talking about making it necessary for violent criminals to be kept locked up if a state or even the Union wishes to keep violent criminals' hands off guns. It would be up to the states to come up with their own legislation. I'm talking about essentially declaring the NICS and the Hughes amendment unconstitutional.

Woody
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Don't take this as a challenge, I'm just not sure I get what you mean. Are you saying that we should get rid of NICS and Hughes, and then just enforce harsh penalties on those who misuse guns? That's how I'm reading it, not sure if I'm correct.
 
cbr,

I'm reading it as; "if they are dangerous enough to be prohibited persons, they shouldn't be out of prison yet."

If you are incarcerated until you are determined not to be a danger, we don't need NICS checks or to worry about your domestic violence status.

If you breathe free air (and I assume meet whatever age restriction) you should be able to purchase and possess.

Simple, no muss, no fuss. Much like the push is for voting, once you're out, you get the right back no questions.

Of course that would require a massive reevaluation of what crimes / mental status should result in loss of gun rights in the first place.
 
cbrgator,

carebear has essentially stated my stand correctly.

It's not necessarily a call for harsh penalties, but it is a call for sentences of sufficient length to assure the convicted violent criminal who is not executed can no longer be a danger to society upon release, or held until such time it can be proven that a person convicted of a violent crime will no longer be a threat to society.

Punishing the law abiding with infringements upon their rights does nothing to stop criminals. Removing those infringements will "encourage" governments to perform their duties in a constitutional manner.

Woody
 
Yeah, its May 1st and my blood is starting to run quicker already, I'll probably have a stroke or heart attack before the decision comes down next month!!
 
ConstitutionCowboy,

Ok, I see what you are saying now. In theory, I completely agree with you. In practice, how can we implement that? How can we know whether or not a criminal will be a recidivist? I'm not sure its possible to predict that with any accuracy and precision. Maybe we can, I don't know.

Let's just say, arguendo, that the sentence for a certain firearm felony is 10 years, say armed robbery. Will holding them for 20 years make them less likely to re-offend? I think some people will always be likely to re-offend. Should that mean they get life for armed robbery? It just seems to me it would be an unbelievably radical shift in the prison system. Punishment wouldn't be premised on the crime, but on the propensity to commit another in the future. Are we capable of determining that?

That may be exactly what you want it to be and I am not saying it is right or wrong. I am just pondering the idea out loud. What are your thoughts?
 
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