The McDonald Decision
Text here.
Thoughts later; Volokh synopsis here:
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The Supreme Court holds in McDonald v. Chicago that the Second Amendment is fully applicable to the states through the 14th Amendment. The opinion for the Court is by Justice Alito. All the opinions together are a whopping 214 pages. Justice Alito, joined by the Chief Justice, and Justices Scalia and Kennedy holds that the Second Amendment is incorporated through the Due Process Clause. Justice Thomas concurs separately (in a fifty-plus page opinion) and would hold that the right to keep and bear arms is a privlege of citizenship protected by the 14th Amendment. Justice Stevens dissents alone, and Justice Breyer dissents joined by Justices Ginsburg and Sotomayor. Justice Scalia has a concurring opinion responding to Justice Stevens’ dissent. [UPDATE: Justice Scalia’s concurrence is a strongly worded attack on Justice Stevens’ concurrence over matters of constitutional interpretation. So much for being nice to the guy on his last day at work. Those who love Scalia opinions will love this one. Those who don’t, well . . . ]
The Supreme Court holds in McDonald v. Chicago that the Second Amendment is fully applicable to the states through the 14th Amendment. The opinion for the Court is by Justice Alito. All the opinions together are a whopping 214 pages. Justice Alito, joined by the Chief Justice, and Justices Scalia and Kennedy holds that the Second Amendment is incorporated through the Due Process Clause. Justice Thomas concurs separately (in a fifty-plus page opinion) and would hold that the right to keep and bear arms is a privlege of citizenship protected by the 14th Amendment. Justice Stevens dissents alone, and Justice Breyer dissents joined by Justices Ginsburg and Sotomayor. Justice Scalia has a concurring opinion responding to Justice Stevens’ dissent. [UPDATE: Justice Scalia’s concurrence is a strongly worded attack on Justice Stevens’ concurrence over matters of constitutional interpretation. So much for being nice to the guy on his last day at work. Those who love Scalia opinions will love this one. Those who don’t, well . . . ]
posted by Concerned American | 6:17 PM
13 Comments:
The people of that city have been waiting too long. Now go out and buy yourself a nice one!
So when can we hold an armed RTC demo on the National Mall??
I'm reading Scalia's opinion now, although it's insufficient with regard to the meaning of the Second Amendment in particular and the Bill of Rights in general, it looks interesting.
Well, I'm into Scalia's opinion, entirely written to address Stevens dissent, and to say it is blistering would be an understatement.
I'm not a fan of Scalia, he's an anti-rights justice more often than not, but in this case, he gives Stevens a right royal arse reaming.
A good send off to Stevens retirement.
"Justice Thomas concurs separately (in a fifty-plus page opinion) and would hold that the right to keep and bear arms is a "privlege" of citizenship protected by the 14th Amendment"
This is a very telling comment..
"because it is a privilege of American citizenship" since priveleges can be revoked or annulled like your drivers license.
His play on words should be an alarm for us all.
While I am pleased with the outcome, I struggle with the means used to achieve that end.
"Incorporation" through the 14th Amendment, by way of the Privileges and Immunities Clause, sidesteps the ownership and posession of the tools for self defense as a fundamental right of man.
The Reconstruction Amendments have been challenged as an usurpment of power for national government, destructive of States Rights and perhaps not even legally ratified.
We cannot be satisfied that something so fundamental as the right to keep and bear arms has been justified on such a shoddy platform as the 14th Amendment.
While saying the 2nd Amendment exists, they also asserted that... If you aren't dead, in jail, or in financial ruin by trying to publicly keep and bear arms -Then today's SCOTUS acknowledged your right to beg lawyer to help you beg a court to help you appeal to beg SCOTUS again.
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If some infringement is OK, then aplying similar logic to the 14th Amendment... some local slavery is OK, is it not? The decision addressed both, didn't it?
Let the taking of slaves commence! Will slaves have to be registered? Can more than one be purchased per month? Will there be a national registry of slaves?
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Right to lawyers? Check.
Right of governments to restrict individual rights? Check
Right of citizens to Keep and Bear Arms? err, ah, not so much.
They are no longer Justices, just traitors in robes, supporting a Lawyer work-fare project which they hope to perpetuate.
"Laws repugnant to the Constitution are null and void"
- John Marshall, SCOTUS, Marbury vs Madison, 1803
Governments repugnant to the Constitution are null and void.
Reason prevailed, I see the tide a turning! Onward fellow Patriots!
This is a very telling comment..
"because it is a privilege of American citizenship" since priveleges can be revoked or annulled like your drivers license.
His play on words should be an alarm for us all.--spitnyri
To borrow a phrase from Inigo Montoya, I don't think the "Privileges and Immunities" clause means what you think it means.
MALTHUS
Justice Clarence Thomas explains:
As tensions between England and the Colonies increased, the colonists adopted protest resolutions reasserting their claim to the inalienable rights of Englishmen. Again, they used the terms "privileges" and "immunities" to describe these rights. As the Massachusetts Resolves declared:
"Resolved, That there are certain essential Rights of the British Constitution of Government, which are founded in the Law of God and Nature, and are the common Rights of Mankind--Therefore... . .
"Resolved, That no Man can justly take the Property of another without his Consent: And that upon this original Principle the Right of Representation . . . is evidently founded... . Resolved, That this inherent Right, together with all other, essential Rights, Liberties, Privileges and Immunities of the People of Great Britain, have been fully confirmed to them by Magna Charta." The Massachusetts Resolves (Oct. 29, 1765), reprinted in Prologue to Revolution: Sources and Documents on the Stamp Act Crisis, 1764-1766, p. 56 (E. Morgan ed. 1959) (some emphasis added).4
In keeping with this practice, the First Continental Congress declared in 1774 that the King had wrongfully denied the colonists "the rights, liberties, and immunities of free and natural-born subjects ... within the realm of England."
Justice Thomas' opinion is better than you think. The "Privileges and Immunities" clause of the 14th amendment has long been considered a dead letter due to some bad jurisprudence years ago, and he wisely revives it. Thomas dissects the historical usage of "privileges and immunities" language from the time of the founders up to the 14th amendment, and demonstrates how, far from being something revocable at whim, said "privileges" were understood to be inherent to citizenship (which is why it was necessary for the 14th amendment to declare blacks citizens, against the Dred Scott decision).
Spitnyri said:
"This is a very telling comment..
"because it is a privilege of American citizenship" since priveleges can be revoked or annulled like your drivers license."
This isn't true - the term "privileges and immunities" in the 14th Amendment has a very specific meaning. "Privileges" as mentioned there are not the same as in the ordinary course of conversation or usage. Such privileges (14th Amendment ones) are inextricably entwined with citizenship - they exist for ALL citizens, and cannot be revoked unless your citizenship is revoked.
Thomas is the guy that any pro-gun rights person should want to see cloned 8 times, with all 9 sitting on the Supreme Court. Were that (wet) dream to come true, you'd be able to walk into Wallyworld with some cash, and walk out 5 minutes later with a full auto, no background check, no tax stamp, no LEO sign-off - just pay and go. Alas, the other 8 are idiots (though 4 of them to a decidedly lesser degree than the rest).
Anon@ 7PM on 6/29:
Don't kid yourself. Privileges are just that...granted by the ruling authority and easily suspended or revoked; in time of war, in time of civil unrest, during political campaigns, in certain areas, etc,. They will think of a hundred ways to Sunday to "reasonably" restrict your privilege.
The right to keep and bear arms is an inherent Human Right, recognized by the original intent of the Constitution. With out the right of self defense you don't have any other rights.
KPN3%
I started writing some thoughts but it grew too long so I had to make it a post:
http://freedomguide.blogspot.com/2010/07/mcdonald-vs-chicago-gun-control-ruling.html
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