McDonald vs Chicago question?

[LickitySplit]

We already know (or have a pretty good idea), how Alan Guara is going to present and argue McDonalds side of the case, but what is Chicagos presentation going to be?

They can't possibly say that the 2nd only applies to militias (or can they?), especially in front of the judges that contradicted that notion.

Nor could I see them arguing that even if the RKBA did apply to individuals, Chicagos handgun ban is an acceptable restriction (even though it's nearly identical to the ban DC imposed).

That leaves the incorporation angle (which is really the heart of the matter in this case).

Is their only defense going to be that the 2nd amendment shouldn't be incorporated (for whatever ungodly reason), despite 100 years of precedent of incorporating other rights?

If that's going to be their defense, what possible arguments can they present to support it?

 

[kingpin008]

Sorry, I'm *completely* out of the loop on this one. Any chance I can get the cliff's notes on the case?

 

[smoking357]

"That leaves the incorporation angle (which is really the heart of the matter in this case)."

Quite.

The case will turn on this issue. Please note that the Republican Mayor of Indianapolis, just down the road, has argued, just this Summer, that 2A does not apply to municipalities, as it is not "incorporated."

 

[everallm]

The issue will not be 2A is incorporated it will, in no particular order be...

Is 2A incorporated through self incorporation (highly unlikely)
Is 2A incorporated via the 9th Amendment (possible but a stretch)
Is 2A incorporated via the 14th (the likely path in most opinions)
If via the 14th will it be via Due Process or Priviliges and Immunities

Once that is out the way and the way will be critical in the next part

What level of scrutiny is to be applied, Strict, Intermediate or a new and novel manner.

Based upon that will laws be challengeable or not.

IMHO (its free so worth what you paid for it)

2A will be incorporated
Via the 14th
Big fight between DP and P+I, tending to P+I with the Liberal wing deciding the way
NOT Strict Scrutiny but stronger than "classic" Intermediate
Existing federal law such as GCA, post '86 FA not touched at this time.
Laws will be mainly affected in NYC, NY, NJ, CA etc with major rear guard action from the political castes in place.
CCW will not be addressed or expanded
Lawyers will get richer on a swathe of lawsuits beating down no longer compliant state laws in NY, NJ, CA etc.

 

[Radagast]

kingpin008:
Very basic Cliffs Notes as follows.
Alan Gura is the lawyer who created and won the Heller case in the Supreme Court of the US against Washington DC. This ruled that the right to keep and bear arms was an individual right, that the DC handgun ban was unconstitutional, and that the right to own and have access to handguns to self defence did exist.
It did not address whether licensing or registration was unconstitutional and as DC is a Federal enclave, the ruling did not decide whether the second amendment restricted the states and local governments created under the states.
Gura then sued the city of Chicago in the seventh circuit court to have the Chicago handgun ban overturned on the basis that the second amendment was incorporated against (restricts) the states. The seventh circuit ruled against him, effectively stating that incorporation was a matter for the Supreme Court.

Gura petitioned to the Supreme Court and his case has been accepted for review. If the court does decide to incorporate against the states, then the Chicago hand gun ban will probably be thrown out. Depending on the level of scrutiny (justification for a law that infringes a right that shall not be infringed) that SCOTUS decides upon as being required, many if not most firearms laws at the state level may be subject to constitutional challenge.

Lots of stuff at:
http://volokh.com/ (Libertarian lawyer site, do a search, there are multiple posts and links to legal papers).
http://www.chicagoguncase.com/ (Guras site)
http://www.examiner.com/x-17034-Chicago-Gun-Rights-Examiner (run by a THR Moderator)

-------------
everallm: Off-topic, are you an Aussie as well?

Radagast the Aussie.

 

[Phatty]

The issue will not be 2A is incorporated it will, in no particular order be...

Is 2A incorporated through self incorporation (highly unlikely)
Is 2A incorporated via the 9th Amendment (possible but a stretch)
Is 2A incorporated via the 14th (the likely path in most opinions)
If via the 14th will it be via Due Process or Priviliges and Immunities

The question presented to the court is:

"Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment's Privileges or Immunities or Due Process Clauses."

The court granted certiorari on that question. Any other issues are not before the court.

If the Court holds that the 2A is incorporated (very likely) it will almost certainly remand the McDonald case, along with the other two gun cases currently pending before the court, to the lower courts for those courts to determine whether the applicable laws violate the 2A. The lower courts never reached that issue the first time around because they had found the 2A was inapplicable to the states.

 

[Gatorbait]

And then the argument that the Second applies only to the States and individuals and not to the Federal government at all, which could be why it isn't part of the First, which did have to be incorporated. Thus: I researched the military and political environment up until ratification of the Second. I found no command structure for a militia in the administrative branch of the government. The Constitution did not make the President the CinC of the militia; it only provided that he would be CinC of the militias if they were called to Federal service. There was no provision for any level of command between the President and the State militias if they were called. The militias had never been called to Federal service after ratification of the Constitution and through ratification of the 10 Bill of Rights amendments that made the grade (12 were offered). The Militia Act of 1892 specifies in exhaustive detail the Organization and Equipment of the STATE militias down to flags and bugles and command structure; the State militia commander would report directly to the President/CinC. The militia act specified precisely the weapons and ancillary supplies and equipment--balls, poweder, water bottles--that MUST be acquired by INDIVIDUALS and brought to local musters. IOW, the Second and the implementing legislation was enforceable on the States and individuals ONLY. The Act went beyond the Second Amendment by implementing it; understand that it REQUIRED citizens to keep and bear arms. The ongoing controversy in unnecessary but is making a lot of money for lawyers and interest group directors. They've chose to stand on their heads to examine the matter.

I'm a competent student and researcher of constitutional law and surrounding disciplines, having started in graduate school under a highly respected professor and having used my knowledge in a practical way through most of a long career in contract military research and analysis. I am not, though, of the anointed and not worth the attention of the nomenklatura.

 

[CypherNinja]

General info about case: http://en.wikipedia.org/wiki/McDonald_v._Chicago

Remember everybody, SCOTUS picked a case that is asking them to do more than Incorporate the 2A. They are being asked to possibly overturn Slaughterhouse! This whole Incorporation issue was a big deal to start with, but now it has a chance to be one of the most important court cases of the decade or even this generation. I sorta doubt that SCOTUS will go that far with it, but the potential that is there is amazing.

It's that aspect of the case that will get liberals on board with us and not Chicago. It may even cause a little stricter (NOT "Strict", you and I wish) scrutiny applied.

Here's Jim March's take on the whole thing:
http://www.thehighroad.us/showthread.php?t=413093&highlight=mcdonald