Tuesday
Mar022010
Supreme Court Likely To Strike Down Some Gun Laws, But How Many?
Tuesday, March 2, 2010 at 1:29PM
Even liberal Justices seemed to agree in today's Supreme Court oral arguments that the Second Amendment must prevent cities and states from passing certain gun regulations. The Supreme Court in 2008 ruled that the Second Amendment protects an individual's right to bear firearms, but that ruling applied to only the federal government, and today's case, McDonald v. Chicago, raised the question of whether states as well are prevented from restricting access to guns.
The 2008 case of DC v. Heller held, in a controversial 5-4 decision, that the Second Amendment to the Constitution protects not only the right of the citizens in a militia to own guns, but also the fundamental right of individual citizens to own guns. If such a right is fundamental, liberal Justices asked today, is there any way the Court can consistently say that states are allowed to infringe upon that right?
Alan Gura, the lawyer for Otis McDonald, began today's session by arguing that the Supreme Court should toss out an interpretation of the Fourteenth Amendment dating back to 1873, and should instead adopt a new justification for recognizing civil rights. But Justice Antonin Scalia admitted that even though he disagrees with the current interpretation, "even I have acquiesced in it." Scalia went further, dismissing Gura's theory as the "darling of the professoriate," since a number of high-profile law professors filed briefs urging support for Gura's side. Still, Scalia did seem to strongly favor the application of the Second Amendment to the states, arguing that the Court has found that the Constitution prevents states from outlawing "homosexual conduct and … abortion on demand," so the same logic must apply to gun rights.
Justice Ruth Bader Ginsburg asked pointed questions of Gura, saying that at the time of the ratification of the Fourteenth Amendment, there were still many Americans who were denied fundamental rights, and not just in the southern states. Gura, confused, responded, "I'm sorry?" Ginsburg then explained that she was referring to married women, who at the time did not have the right to enter into contracts. If the Fourteenth Amendment was meant to ensure no American was denied these fundamental rights, she asked, why were women excluded?
There was some agreement among the Justices, though. Justices John Roberts, John Paul Stevens, Anthony Kennedy, and Stephen Breyer all seemed to be looking for a way for the Court to rule narrowly and say that the Second Amendment applies to states, but not get into the details of what that meant. Though Justice Scalia seemed to argue in favor of strong gun rights, his opinion in DC v. Heller followed this model, finding that the Second Amendment protected an individual right but declining to say how extensive that right is. That kind of minimalist decision, one favored by Chief Justice Roberts in other cases, may carry the day when the case is decided this summer.
The 2008 case of DC v. Heller held, in a controversial 5-4 decision, that the Second Amendment to the Constitution protects not only the right of the citizens in a militia to own guns, but also the fundamental right of individual citizens to own guns. If such a right is fundamental, liberal Justices asked today, is there any way the Court can consistently say that states are allowed to infringe upon that right?
Alan Gura, the lawyer for Otis McDonald, began today's session by arguing that the Supreme Court should toss out an interpretation of the Fourteenth Amendment dating back to 1873, and should instead adopt a new justification for recognizing civil rights. But Justice Antonin Scalia admitted that even though he disagrees with the current interpretation, "even I have acquiesced in it." Scalia went further, dismissing Gura's theory as the "darling of the professoriate," since a number of high-profile law professors filed briefs urging support for Gura's side. Still, Scalia did seem to strongly favor the application of the Second Amendment to the states, arguing that the Court has found that the Constitution prevents states from outlawing "homosexual conduct and … abortion on demand," so the same logic must apply to gun rights.
Justice Ruth Bader Ginsburg asked pointed questions of Gura, saying that at the time of the ratification of the Fourteenth Amendment, there were still many Americans who were denied fundamental rights, and not just in the southern states. Gura, confused, responded, "I'm sorry?" Ginsburg then explained that she was referring to married women, who at the time did not have the right to enter into contracts. If the Fourteenth Amendment was meant to ensure no American was denied these fundamental rights, she asked, why were women excluded?
There was some agreement among the Justices, though. Justices John Roberts, John Paul Stevens, Anthony Kennedy, and Stephen Breyer all seemed to be looking for a way for the Court to rule narrowly and say that the Second Amendment applies to states, but not get into the details of what that meant. Though Justice Scalia seemed to argue in favor of strong gun rights, his opinion in DC v. Heller followed this model, finding that the Second Amendment protected an individual right but declining to say how extensive that right is. That kind of minimalist decision, one favored by Chief Justice Roberts in other cases, may carry the day when the case is decided this summer.
Reader Comments (2)
The Right to Bare Arms: Men and women have a right to bare arms, because it is a God-given right. We are born into the world with bare arms, so no government can attempt to infringe on bare arm rights without getting a mouthful of bare knuckles. On the other hand, the right to bear arms is the right to use arms good enough for stopping bears, especially against bare bears. States issuing regulations that infringe on the right to bear bear arms, are endangering the public to marauding bears, lewd bears, and mugging bears. Because of global warming, many bear habitats are less able to provide the wild forage to keep bears fed and out of people's kitchens and garbage cans, even in Illinois where bears are commonly found disturbing the peace in the early morning. The right to bare arms necessitates the right to bear bear arms in order to protect humans from the pervasive and overreaching powers of nature and the wild. Humans impairing the right to bear bear arms should spend a few hours confined with bare bears to fully appreciate the hazards of bare bear tyranny. This key issue keeps reappearing ever since a key requirement for assuming political office was removed: Once upon a time, candidates had to demonstrate their prowess for public service by submitting to public bear wrestling matches. Lacking this one requirement to demonstrate bear combat skills has led to generations of barely qualified politicians and to the passage of weak-kneed laws written by overbearing lobbyists. And, that's the bare truth.
Working people, in particular, who own a home or business have the fundamental right to defend themselves from non working bad guys.
Good people follow the law. Bad guys are going to own a gun and not worry about the law. The real question is why can't honest hardworking people own a firearm?