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X_Digger Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Aug-23-09 11:10 AM
Original message
Second Amendment cases up early
http://www.scotusblog.com/wp/second-amendment-cases-up-... /
The Supreme Court will consider two new cases on the scope of individuals Second Amendment right to have guns at its first Conference for the new Term, on Sept. 29, according to the Courts electronic docket. Both petitions challenge a Seventh Circuit Court ruling that the Amendment does not restrict gun control laws adopted by state, county or city government, but applies only to federal laws. The cases are National Rifle Association v. Chicago (08-1497) and McDonald v. Chicago (08-1521).

The so-called incorporation issue is the most significant sequel issue raised in the wake of the Courts 2008 decision in District of Columbia v. Heller, recognizing for the first time a personal right to have a gun for self-defense, at least in ones home.


If you've never visited scotusblog, it's a great resource for what's happening at the SCOTUS.
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sharesunited Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Aug-23-09 12:24 PM
Response to Original message
1. Those are easy ones to decide against the City of Chicago.
Let's see some jurisprudence on the right to manufacture, distribute, sell guns and ammo.

That is the route to much narrower construction.
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PavePusher Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Aug-23-09 01:25 PM
Response to Reply #1
2. Don't you have another record?
Edited on Sun Aug-23-09 01:25 PM by PavePusher
This one is broken.

scritch.... scritch... scritch... scritch...
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sharesunited Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Aug-23-09 01:32 PM
Response to Reply #2
3. Don't you have any causes? Any strongly held public policy beliefs?
Wherever there is a gun worshipper berating a guy who favors eradication, I'll be there.

Yeah, I'm Tom Joad.
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ProgressiveProfessor Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Aug-23-09 02:59 PM
Response to Reply #3
4. Hardly, you are an bigot, more precisely an anti gun bigot. Such actions make me wonder
what other rights you oppose in a strongly held manner
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sharesunited Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Aug-23-09 04:30 PM
Response to Reply #4
7. We disagree on the existence and scope of this so-called "right"
and whether or not the whole concept has been rendered moot by the march of time.
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Tejas Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Aug-23-09 09:02 PM
Response to Reply #7
16. Be careful of what you wish for,
computers vs free speech could be next. But I'm sure you wouldn't have a problem restricting the 1st even more than it is already.
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iverglas Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Aug-23-09 09:03 PM
Response to Reply #4
17. if you'd managed to make any sense

you'd have been going over the line for this site.

Hardly, you are an bigot, more precisely an anti gun bigot.

Fortunately for you, that's just nonsense babble.

Such actions make me wonder what other rights you oppose in a strongly held manner

Such impenetrable prose makes me wonder where you learned English.

Ew.
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ProgressiveProfessor Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Aug-23-09 10:22 PM
Response to Reply #17
19. Ottawa, but I am recovering from the experience
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iverglas Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Aug-23-09 11:04 PM
Response to Reply #19
20. "Some will find my academic pedantry annoying."

Hahahahahaha.

Taught business, did you?

That crap wasn't "academic pedantry". And Ottawa wasn't in Hawaii, last time I looked.
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ProgressiveProfessor Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Aug-23-09 03:01 PM
Response to Reply #1
5. You are right, Chicago is going to lose and we may witness Daley melting down permanently
Edited on Sun Aug-23-09 03:02 PM by ProgressiveProfessor
Some will try and excessively control the other issues you mention, but like abortion restrictions, they will be seen for what they are by the courts.
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rrneck Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Aug-23-09 04:38 PM
Response to Reply #1
8. Lets see
your reasoning behind the need for that jurisprudence.
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sharesunited Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Aug-23-09 04:51 PM
Response to Reply #8
9. For example, if ATF declined to renew gun dealers' or manufacturers' licenses
in an effort to reduce the presence of NEW guns and ammo in the hands of the American public, and the NRA challenged such action, it would be an opportunity for the Court to hold that the RKBA is not the same as the right to engage in firearms commerce. And that commerce engaged therein enjoys NO constitutional protection whatsoever.

These are not inconsistent positions to hold, inasmuch as all the gun lovers here at DU delight in telling me how easy it is for them to make their own guns and ammo. OK then, says the Court to the public. You go ahead and do that, just as in olden times.
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Statistical Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Aug-23-09 05:42 PM
Response to Reply #9
10. How can that not be the same as RKBA?
Without FFL (dealers & manufacturers) there is no RKBA.

While it is possible to keep and bear arms without purchasing it would be similar to saying that book publishers or internet service providers could be banned without affecting the first.

It is possible to have free speech without access to publishers or the internet but any govt interference with the intent to reduce that access is infringement.

Would no commercial access completely eliminate the right to keep and bear arms? Of course not. However that is an insane standard. It would INFRINGE upon that right and substantially so.

So what is the standard that determines what is acceptable restrictions v. govt infringement?

Well if in McDonald or some future case the courts find that the 2nd is a fundamental right (fundamental is a test for incorporation) then the standard is strict scrutiny.

http://en.wikipedia.org/wiki/Strict_scrutiny



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sharesunited Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Aug-23-09 05:59 PM
Response to Reply #10
12. Same limitation as with commercial speech.
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sharesunited Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Aug-23-09 05:56 PM
Response to Reply #9
11. The same angle, I suppose, by which commercial speech enjoys less protection.
No tobacco advertising allowed on radio and television.

Is that an infringement on speech? Sure it is. But speech engaged in for pecuniary profit. With the harm from tobacco weighed against the benefit of allowing its praises to be spoken of.

This is the way I think we find our refuge from the harm being caused by the Second Amendment.
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Statistical Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Aug-23-09 08:40 PM
Response to Reply #11
13. Utter lunacy.
Limits of speech don't prevent speech from being excercised.

Even though there is no right to tobacco even limits on tobacco (age, mandatory ID check, warnings, limits on advertising) don't make tobacco use impossible.

Banning (not renewing is simply a nice way of saying it) all future FFL licenses would end RKBA.

Comparing it to a limit on tobacco advertising is a strawman at best but I think you honestly believe they are ocmparable which is lunacy.

If you were making the argument there should be limits on firearm advertising that would be one thing but removing all FFL licenses as they expire (5 years) would end all firearm purchases. Correction it would end all legal firearm purchases.

It would be more comparable to terminating all broadcast, and cable licenses as they expire.
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rrneck Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Aug-23-09 08:52 PM
Response to Reply #11
15. It is very difficult
to construct a suitable analogy for firearms with another product. (But dog knows people try).

Nobody ever had to defend themselves from assault with a cigarette. The standard, in application, would have to be different.
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rrneck Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Aug-23-09 08:46 PM
Response to Reply #9
14. Sounds like a distinction without a difference.
RKBA is not the same as the right to engage in firearms commerce

If we have a right to keep and bear arms, we have a right to purchase them and someone has a right to manufacture them for purchase.

I don't think you will ever regulate firearms out of existence.

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AtheistCrusader Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Aug-24-09 12:14 AM
Response to Reply #9
21. I would happily trade the right to purchase new weapons and ammo from manufacturers
for the right to make whatever the fuck I want myself. There are virtually no limits to what I COULD make, beyond the physical size of my shop. And I can always knock out a wall or two.
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Statistical Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Aug-23-09 03:31 PM
Response to Original message
6. Chicago will lose 5-4.
I would hope Sotomayor would follow the testimony she gave in confirmation (Heller is established law) and make it 6-3 but that is extremely unlikely.

Like usual the power of the opinion will come down to the nuts and bolts, the fine details.
However McDonald will establish the precedent reached in Heller applies fully and equally to all states and local govts.

Of course the tazpayers in Chicago will pay twice for this. Once for the millions in legal defense and then for millions more when the lawyers for McDonald and NRA sue Chicago for cost of litigation on civil rights grounds.
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Hoopla Phil Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Aug-23-09 10:07 PM
Response to Reply #6
18. I agree. But what do you think about SCOTUS addressing the
scrutiny standard? I had expected it in the Heller decision but it was not there.
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Statistical Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Aug-24-09 01:00 AM
Response to Reply #18
22. I think scrutiny will come up and here is why....
There is previous SCOTUS precedent (too late too look it up right now) that essentially boils selective incorporation down to a question of fundamental rights.

Of course the term "fundamental right" is not the english common definition but rather a specific legal definition. If a right is fundamental then it must be incorporated. If it isn't then likely there is no sufficient reason for the feds to impose constraint on the states.

I find it nearly impossible to believe that a case on incorporation won't discss "fundamental rights".

So what do my late hour ramblings have to do with scrutiny? If the court rules 5-4 in favor of incorporation then my belief is that they will have done so by finding the 2nd to protect a "fundamental right".

Fundamental rights are protected by strict scrutiny and likely the court will reaffirm that at the same time.

So this could be a very important decision with 3 major (and lots of minor) points:
* the 2nd is incorporated to the states
* the 2nd is a fundamental right
* scrict scrutiny

To pro-RKBA members if you don't know why "scrutiny" matters start here:
http://en.wikipedia.org/wiki/Strict_scrutiny

Layman one paragraph explanation. For a law restricting a fundamental right to be Constitutional it must:
* have a compelling govt interest
* be narrowly tailored
* be the least restrictive method to achieve the govt interest.

Yo overturn a law restricting a fundamental right by lawsuit you only need to prove one of the three is invalid, the govt would need to affirm all three. If strict scrutiny is applied to the 2nd then the ability for the govt (especially local & state govts) to infringe becomes 1000x harder.
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