Supreme Court seems ready to extend gun rights to local gov

[frigidmagi]

Christian Science Monitor

[quote]The US Supreme Court appears to be on verge of extending the constitutional protection of the Second Amendment’s right to keep and bear arms to every jurisdiction in the nation.

During an hour-long oral argument at the high court on Tuesday, several justices exhibited a willingness to enforce their landmark 2008 gun-rights decision at the state and local level.

If they do so, the decision may doom not only the Chicago handgun ban at the center of Tuesday’s case, but other handgun bans and some of the toughest state and local gun-control laws in the country. (For Monitor coverage of what the case means for gun-control laws, click here.)

The only remaining question in McDonald v. Chicago was which constitutional mechanism the majority justices might use to apply the 2008 holding to state and local governments. (For a preview of the case, click here.)

In pictures: The debate over gun rights

Two years ago, the high court recognized an individual right to possess handguns in the home for self defense. By a 5-to-4 vote, the court struck down a ban on handguns in Washington, D.C. That case was District of Columbia v. Heller.

Because the Second Amendment has never been applied to the states, the ruling could only be enforced against the national government and in federal enclaves like the District of Columbia.

A similar handgun ban is at issue in the Chicago case. But before judges can consider the constitutionality of the ban, the Supreme Court must decide whether the same Second Amendment rights it imposed in the Heller case will also apply in Chicago and across the country. (For Monitor commentary, click here.)

There are two possible ways for the high court to extend Second Amendment protections to state and local governments. Both are found within the text of the 14th Amendment.

Questions and comments by four of the justices who formed the five-justice majority in the Heller case suggest a preference for using the due-process clause of the 14th Amendment.
'Why are you asking us to overturn 140 years of ... law?'

The lead legal brief in the Chicago case, filed on behalf of the Second Amendment Foundation, had suggested that the high court bypass the traditional due-process clause approach and instead chart a wholly new constitutional path by relying on the 14th Amendment’s “privileges and immunitiesâ€

[Cynical Cat]

Of course the interstate commerce clause is stretched. What the federal government can and should handle has changed considerably from the late eighteenth century and its easier to use the commerce clause than to try and change the constitution.

[SirNitram]

I remain wary of overturning handgun bans and regulations. Hell, I'll be blunt: Don't like it. And I don't like it how it always becomes a sideshow of 2nd Amendment, 2nd Amendment!

When's the Full Faith And Credit Clause get it's day of being trumpeted? Oh right, NEVER.

[General Havoc]

The reason it becomes a sideshow of the 2nd amendment is because it's a 2nd amendment issue. I think it's rather foolish complain about which elements of the constitution get the most airtime.

I'm not Scalia's biggest fan either, but I think he's right in this case.

[frigidmagi]

When's the Full Faith And Credit Clause get it's day of being trumpeted? Oh right, NEVER.

Pretty much all the issues on that one have been ironed out before we were born Martin. Unless you mean Gay Marriage. On that one... from what I understand cases are being prepped to make their way. Frankly I hope they take some time. I do not believe in the current Supreme Court's ability to judge such a case rationally.

For those wondering Nitram is talking about Article 4 of the Constitution which discusses States conduct towards each other and the people of those states. The Full Faith and Credit Clause is Section I. I'll qoute:

Section 1 - Each State to Honor all others

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

Now ways around this have been set up. This is why a concealed carry permit in AZ is no good in California. California can claim that their requirements are higher then AZ and as such the permit carries no weight. This is legal and has been tested before the Supreme Court. This is done to a number of documents besides firearm permits. Commercial Driver licenses or Teacher Certifications for example.

As for me the bolded part seems pretty clear. If (oh just to give an example) a gay couple is married in Hawaii, they fucking married in Arizona to. Whether the people of AZ like it or not.

However some states (*coughKansascough*) have had votes declaring they will not recognize such marriages. So we have conflict. For my money such votes are clearly unconstitutional. Since the Constitution is Sovereign over the land... The will of the People be damned. They may attempt to alter the Constitution (hope they're ready for a political blood bath) or suck it the hell up.

[General Havoc]

Votes to refuse to recognize gay marriage are clearly unconstitutional, but the problem as I see it is the workarounds you spoke of before Frigid. If California can make the claim that their concealed carry requirements are higher than Arizona's and consequently invalidate Arizonan permits within California, it doesn't take a tremendous legal leap for Kansas to do the same to Vermont's marriages. Kansas can (with some legitimacy) make the claim that their requirements are tighter than Vermont's, and as such...

The problem is that we invented ways around the Full Faith and Credit clause to suit our own immediate political ends, and now we're surprised that people who don't share our views are doing the same thing. This is what happens when you treat the constitution as a legal tapdancing course rather than the supreme law of the land.

If you want to force states to recognize gay marriages performed in other states, you need to find a way to bring this clause back into full force. And I mean full force, not "let's selectively apply it in this case and no other cases", because that shit doesn't fly. That means that all of the various bypasses that we've used to permit one state to trump the will of another, including gun permits, interstate trucking licenses, and financial regulatory codes are all out the window. Period. Lowest common denominator permit requirements on everything from guns to brokerages to interstate trafficking of organic produce.

Is it worth doing? I think so. But it's gonna cause a lot of unintended consequences along the way.

[SirNitram]

The reason it becomes a sideshow of the 2nd amendment is because it's a 2nd amendment issue. I think it's rather foolish complain about which elements of the constitution get the most airtime.

It's the 'AMENDMENT! YOU CAN'T DARE SAY ANYTHING!' that gets me pissed. It's not an argument. It holds as much weight as 'Article 2, Section 2!' for someone defending slavery in the pre-Civil War South. Or 18th Amendment!

That's my issue, man. Tautological justifications as a way to remove all regulation and restriction.

[General Havoc]

The Eighteenth Amendment was explicitly repealed by the Twenty First Amendment. As to Article 2, Section 2, that the Presidential Powers section of the Constitution, and I confess, I don't know what that has to do with the issue of Slavery in the antebellum South. I'm assuming you meant the Three Fifths clause, (Article 1, Section 2), which again, was suspended explicitly by the Fourteenth Amendment. Neither clause is valid today. The Second amendment is.

If you want to argue the moral imperative of gun control (which I disagree with, but can concede that there are others who do not), then that's fine, and neither the Second Amendment nor any other law has any bearing on the matter.

But if you're approaching the matter from a legal perspective, then you have no choice but to return constantly to the Second Amendment. Constitutional amendments are designed precisely to be the legal equivalent of Tautologies, statements considered automatically correct in and of themselves. They are the framework through which the law operates. The Supreme Court is not empowered to rule on morality, only on the Law. The Second Amendment is the relevant Law. Thus we return to it over and over again. I agree that the mere fact that the Second Amendment exists does not magically make Gun Control some kind of moral evil, nor empower the right to bear arms with moral virtue. But if we're talking about what the Supreme Court is and is not doing, then the Second Amendment is where it all comes down to. There's no other venue for debate really, from a legal perspective.

[frigidmagi]

Votes to refuse to recognize gay marriage are clearly unconstitutional, but the problem as I see it is the workarounds you spoke of before Frigid. If California can make the claim that their concealed carry requirements are higher than Arizona's and consequently invalidate Arizonan permits within California, it doesn't take a tremendous legal leap for Kansas to do the same to Vermont's marriages. Kansas can (with some legitimacy) make the claim that their requirements are tighter than Vermont's, and as such...

That's a point sure. But the Supreme Court didn't see that way when interracial marriage came up, all I'm suggesting is we let Loving vs Virginia stand and acknowledge the statements accompanying it. Which are already part of US law. Nothing has to change here.

Let me quote the statement:

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival...

But this is the big thing that makes up the generation gap today.

[SirNitram]

I am neither looking at it legally or morally. I am looking at it logically. It's a brain-damaged circus, where The Public Welfare and Common Defense are ignored in favor of chanting tautologies.

Gun laws are NOT one size fits all, nor do I think they should be. But that's where we're steaming forward to, because logic is overriden by a mindless cleaving to one of the extremes of the interpretation. Otherwise, you'd judge it by municipalities and other points of data.

[frigidmagi]

You may be right, but frankly the Supreme Court is required to look at it legally. That means looking at the laws that apply. That means the 2nd Amendment. You're just gonna have to accept that Nitram. You don't have to like it though.

[General Havoc]

Very few things in the world are one size fits all, but laws themselves are merely our best approximation of the common ground of men. They by nature have to be one size fits all-within-the-jurisdiction. If you want to claim that gun control is an issue that shouldn't be federal in the first place (which, frankly, I must admit is perfectly reasonable), that's fine. It probably should not be. But for better or worse, it is (and not just because of the Second Amendment). Hence the primacy of that particular clause in the debate.

[SirNitram]

You may be right, but frankly the Supreme Court is required to look at it legally. That means looking at the laws that apply. That means the 2nd Amendment. You're just gonna have to accept that Nitram. You don't have to like it though.

Obviously. I'm bitching about it, not leading a campaign.