SCOTUS asked to review new Second Amendment case

[Pushrod]

Originally Posted by Tilted

I just noticed that Alan Gura is the attorney of record for McDonald in this case. Who is he, you might ask. He's the attorney that successfully argued the Heller case (before the Supreme Court) last year.

He was on the Glen Beck show this morning. He was saying that the chances are very small that the SCotUS could rule against him.

Another thought though, with states like Montana and Tennessee invoking the 10th amendment against the Fed government, would a Gura loss on this strengthen the States Rights cases? Such as the two mentioned above and their home grown firearms laws that they passed to get around federal firearms laws.

[Tilted]

Originally Posted by Pushrod

He was on the Glen Beck show this morning. He was saying that the chances are very small that the SCotUS could rule against him.

Another thought though, with states like Montana and Tennessee invoking the 10th amendment against the Fed government, would a Gura loss on this strengthen the States Rights cases? Such as the two mentioned above and their home grown firearms laws that they passed to get around federal firearms laws.

I'm not sure what you are referring to with regard to their firearms laws to get around federal firearms laws.

Did they pass laws that were more lax than federal laws, and are arguing that the federal laws don't apply? If so, then I would say no - this case wouldn't affect that argument.

If they passed laws that were more restrictive than federal laws, and are arguing that their state laws are valid - then, yes - a loss for McDonald (Gura) would mean that they are free to pass whatever restrictions they want to (at least, in so much as the Second Amendment would have prevented them from doing so).

I'm guessing we are talking about two different aspects of the issue.

(1) Does the Second Amendment mean that there are limits on what the states can do to regulate firearms?

(2) Does the Tenth Amendment mean that there are limits on what the federal government can do to regulate firearms (and thus, to whatever extent they can be regulated beyond those limits, only the states can do so)?

This case should answer the first question, but likely won't address the second question (unless it gets off point, there doesn't seem to be any need to address the second question). It won't limit the right of the federal government to regulate firearms - and to whatever extent the federal government has the right to regulate firearms, it supersedes the states' rights to. So, even if the ruling says that states' rights to regulate firearms are not limited by the Second Amendment (i.e. a Gura loss), the states would still only have those rights to whatever extent that the federal government did not regulate firearms - they wouldn't have the right to invalidate federal regulations.

[Pushrod]

Originally Posted by Tilted

I'm not sure what you are referring to with regard to their firearms laws to get around federal firearms laws.

Did they pass laws that were more lax than federal laws, and are arguing that the federal laws don't apply? If so, then I would say no - this case wouldn't affect that argument.

If they passed laws that were more restrictive than federal laws, and are arguing that their state laws are valid - then, yes - a loss for McDonald (Gura) would mean that they are free to pass whatever restrictions they want to (at least, in so much as the Second Amendment would have prevented them from doing so).

I'm guessing we are talking about two different aspects of the issue.

(1) Does the Second Amendment mean that there are limits on what the states can do to regulate firearms?

(2) Does the Tenth Amendment mean that there are limits on what the federal government can do to regulate firearms (and thus, to whatever extent they can be regulated beyond those limits, only the states can do so)?

This case should answer the first question, but likely won't address the second question (unless it gets off point, there doesn't seem to be any need to address the second question). It won't limit the right of the federal government to regulate firearms - and to whatever extent the federal government has the right to regulate firearms, it supersedes the states' rights to. So, even if the ruling says that states' rights to regulate firearms are not limited by the Second Amendment (i.e. a Gura loss), the states would still only have those rights to whatever extent that the federal government did not regulate firearms - they wouldn't have the right to invalidate federal regulations.

The two states I mentioned passed laws under the 10th amendment that basically says that any firearms produced and purchased within the states do not have to conform to Federal Firearms regulations (no FFL needed to construct or sell, etc...). The BATF is telling firearm makers in those states that the state law is invalid and that Federal Law trumps it under the commerce clause of the US Constitution.
I was thinking a Gura loss would be an affirmation of States Rights under the 10th and that presedence would be set to argue that the gun manufacturing laws that were just passed in these states would not fall under Federal jusridiction as long as those weapons never left those states.
All in all, I believe, due to the 14th amendment, which was ratified post-civil war era, that the states are bound by the Federal Constitution and all of the BoR and that this should be a slam dunk for Gura, and I support that!

[Tilted]

Originally Posted by Pushrod

The two states I mentioned passed laws under the 10th amendment that basically says that any firearms produced and purchased within the states do not have to conform to Federal Firearms regulations (no FFL needed to construct or sell, etc...). The BATF is telling firearm makers in those states that the state law is invalid and that Federal Law trumps it under the commerce clause of the US Constitution.
I was thinking a Gura loss would be an affirmation of States Rights under the 10th and that presedence would be set to argue that the gun manufacturing laws that were just passed in these states would not fall under Federal jusridiction as long as those weapons never left those states.
All in all, I believe, due to the 14th amendment, which was ratified post-civil war era, that the states are bound by the Federal Constitution and all of the BoR and that this should be a slam dunk for Gura, and I support that!

Now that you have refreshed my recollection, I think I remember something about it. So, I'd say the answer is no - this case won't affect their argument. This case should only affect the scope of the Second Amendment. The extent to which the Tenth Amendment restricts federal regulation of firearms would be quite a different issue. Furthermore, I think their argument is a loser. I don't have time right now to find the cases, but I'm pretty sure there is case law in which it was decided that some agricultural product that was grown and used to feed the farms animals (i.e. never left that farm), fell under the umbrella of interstate commerce for the purpose of federal regulatory authority. Sound crazy? Sure, but I'm almost certain there was a case like that.

About this case though - yes, it should be a slam dunk - but that doesn't mean it is.

[exnodak]

Article 2 of the Maryland Constitution makes the concern about Federal law trumping Maryland law moot. Maryland has mirrored the 14th amendment with Article 2 of the Maryland Constitution, so the State cannot claim any safe harbor from the 2nd amendment of the US Constitution. This defines the State's legal perspective (as opposed to practice). Such articles do not exist in many other State Constitutions. Especially those admitted to the Union after the Civil War and doubtfully in most of the Southern States.

The question to be settled then is from the Federal perspective. The basic definition needed from SCOTUS is about the individual's right to own and bear arms versus ANY governments right to control same.

I think the decision will eventually morph into a definition of what "well regulated militia" means. That phrase allows the state to regulate the militia as an organized group of armed persons, not regulate an individual person's right to own or bear arms which is expressly protected.

[Pushrod]

Originally Posted by Tilted

Now that you have refreshed my recollection, I think I remember something about it. So, I'd say the answer is no - this case won't affect their argument. This case should only affect the scope of the Second Amendment. The extent to which the Tenth Amendment restricts federal regulation of firearms would be quite a different issue. Furthermore, I think their argument is a loser. I don't have time right now to find the cases, but I'm pretty sure there is case law in which it was decided that some agricultural product that was grown and used to feed the farms animals (i.e. never left that farm), fell under the umbrella of interstate commerce for the purpose of federal regulatory authority. Sound crazy? Sure, but I'm almost certain there was a case like that.

About this case though - yes, it should be a slam dunk - but that doesn't mean it is.

Nope, you are correct. I remember reading about the farmer case. They stated that even though the feed he raised and fed to his cows never left the farm, it affected interstate commerce because he would not purchase the amount fed to his cows on the open market, which effects commerce. Kind of crazy round about null hypothesis thinking.

Although, one caveat to the ruling; This took place, if I remember correctly around the time of the Great Depression, and the farmer was receiving federal government supsidies to grow the grain, which allowed the government a larger say in how it was used. I can't remember if that part figured heavily in the ruling or not.

[Tilted]

Originally Posted by Pushrod

Nope, you are correct. I remember reading about the farmer case. They stated that even though the feed he raised and fed to his cows never left the farm, it affected interstate commerce because he would not purchase the amount fed to his cows on the open market, which effects commerce. Kind of crazy round about null hypothesis thinking.

Although, one caveat to the ruling; This took place, if I remember correctly around the time of the Great Depression, and the farmer was receiving federal government supsidies to grow the grain, which allowed the government a larger say in how it was used. I can't remember if that part figured heavily in the ruling or not.

I got a chance to look for the case - it was Wickard v Filburn (1942). And no, I don't think the fact that the farmer was receiving federal subsidies would affect the aspect of the ruling that found that his activities sufficiently affected interstate commerce, and thus the federal government had constitutional authority to regulate them.

That was a very bad period of time for the Supreme Court, and yielded a lot of terrible decisions - decisions, most of which, we have had to deal with ever since.

[Tilted]

I've been reading some commentary on this case, and some of it suggests a possibility that is quite interesting - that the Supreme Court may choose to extend Second Amendment applicability to state and local laws through the Privileges or Immunities Clause of the 14th Amendment, rather than through the Due Process Clause. Frankly, I'd never considered that a real possibility, and I'm not convinced yet that it is. In fact, I still think that it is highly unlikely, but a very intriguing consideration nonetheless. I realize that the question posed by the petitioners refers to the Privileges or Immunities Clause (as well as the Due Process Clause), but that just seems like a 'while we're here, we might as well throw this notion, implausible thought it is, out there as well' type thing to me.

If the Supreme Court were to do what I'm referring to, then this case might take on a much larger meaning, and the scope of its import could extend far beyond concerns about gun rights.

Trying not to get lost in nuance and technical specificity, this is what I'm talking about. The main portion of the 14th Amendment provides three operatively distinct provisions for safeguarding people's rights. They are the Privileges or Immunities Clause (PoIC), the Due Process Clause, and the Equal Protection Clause. Over the last century or so, the Due Process Clause has taken on a heavy workload, as it has been interpreted (though not originally) fairly expansively. Through it, the majority of the Bill of Rights has been 'incorporated' against the states, thereby protecting individuals' rights from violation by the states. On the other hand, in the Slaughterhouse Cases (1873) ruling, which pre-dated this incorporation doctrine, the Supreme Court effectively castrated the Privileges or Immunities Clause. For the most part, it has remained legally inconsequential ever since. Though people often refer to it notionally in casual conversations about rights, the reality is that, for most practical purposes, it died as an infant (the 14th Amendment was adopted in 1868).

Fast forward now to the McDonald v Chicago case. In theory, the current Supreme Court could choose to incorporate the Second Amendment against the states through the PoIC clause, rather than the Due Process Clause. This would require it to reverse the Slaughterhouse Cases decision (or at least, the interpretation of what it meant, found in later Court rulings, with regard to the doctrine of incorporation). Heretofore, the Court has never seen fit to do that, well-reasoned dissents arguing that it should notwithstanding.

So I guess, even if we assume that the Supreme Court will incorporate the Second Amendment against the states, a question of how it will do that still remains, at least in theory. It would seem that the due process route, which is the one that has traditionally been used, is the clearest, the least revolutionary, and indeed, the most likely. However, a desire to revive the legal importance of the PoIC, may tempt some of the Justices (i.e. those whom are generally referred to as liberal) to go along with an incorporation of the Second Amendment, if the full Court would do so through the PoIC. I still see that as an unlikely outcome, but the possibility makes the case even more interesting. It might make the decision in McDonald v Chicago one that is championed by people on both sides of the ideological divide, though for very different reasons. (We could also have a situation where the majority incorporates through the Due Process Clause, while a minority concurs with incorporation, but dissents on the reasononing - proffering their own as being through the PoIC.)

What would be the import of a resurrection of the Privileges and Immunities clause? It's hard to tell what the eventual importance would be, but it would open up a new avenue and potentially new causes of actions for all kinds of 'rights' advocates. Off the top of my head, I think the landscape on which the same-sex marriage battle is played out could be meaningfully altered. The devil is in the details of course, so the wording of the Supreme Court's reasoning would be important. This case already features a facially fundamental question - the possibility that I'm describing would mean we get an even more fundamental answer, and might mean that this case becomes the most important and long-term impactful decision of the Court's 2009 term.

[Tilted]

http://www.vanderbilt.edu/lawreview/...-1535-2009.pdf

There has been a good bit of legal commentary of late on the Heller decision, and the possible ramifications going forward of that decision in combination with the upcoming decision in McDonald v City of Chicago. I think the one linked above is particularly interesting - though it is a little long (it's trying to be comprehensive in a casual way). It regards the challenges that face lower courts, in the wake of Heller, of figuring out what the standards and considerations will be when reviewing the flood of challenges to firearms restrictions that are certain to come (and have already started).

Heller established that we do, in fact, have an individual right to keep and bear arms. But, what is the scope of that right, and what limits may Constitutionally be placed upon it? It will be interesting to see how things settle out in that regard over the next 5 to 10 years. Certainly some firearms restrictions will fall, but perhaps it won't be all that many. The commentary I linked to tries to read between the lines of the Heller decision a little bit, and offer objective guides for how courts might make such decisions - absent further clarification from the high Court, which may not come for a while (though we may get some from the McDonald case). Of note, the commentary quite convincingly argues that Heller lays the legal ground work for the use of a heightened scrutiny standard when assessing the Constitutionality of various firearms regulations. That is to say, that the legal test would be more onerous on them than the baseline 'rational basis' review, which would only require legislation to have a 'reasonable' relation to a 'legitimate' government interest. Under that level of scrutiny, most any legislation would pass muster - that standard kinda 'wants' to find that a particular law is Constitutional.

Assuming the Second Amendment gets incorporated, I believe it is possible that some of the 'may issue' rules will have to be modified. I've little doubt that states will be able to place restrictions on, and require licenses for, the public carrying of firearms. However, I believe that particularly onerous requirements for the issuing of those licenses, like what we have in Maryland, will be vulnerable to Second Amendment challenges. In his majority opinion (in Heller), Justice Scalia talked a good deal about what 'bear arms' meant with regard to this individual right - and I believe it lays the ground work for challenging 'may issue' permit laws. I suspect that placing a burden on an applicant to demonstrate a specific need, or a heightened risk factor, or an actual perceived threat, in order for them to acquire a carry permit, will eventually be deemed unConstitutional.

[Pushrod]

Thanks for the update. New court decisions under Heller are already coming in. See the News forum about the N.J. Handgun decision.