McDonald: Reversed and Remanded

[Jarrod]

Am I missing it? What is the level of scruitiny? Strict, or not?

[Peaceful John]

Originally Posted by RomanDad

Ive used this analogy before..... Ever watch Pro Wrestling? The Script for the Tag Team matches is almost always the same.... There is a small, well loved "Good guy" (the gun owners), he has a BIG strong partner (The Pro 2a Attorneys) the Small good guyy is in the ring and the bad guys (The anti gun politicians and anti gun groups) are taking turn pummeling him..... Blatantly breaking the rules to the crowds dismay.... Each time it looks like the good guy is going to tag in his partner, the bad guys cheat and pull him back in the middle of the ring.... When the strong partner tries to rush the ring on his own the Ref (the Judges) push him back out because he didnt make the tag...

And then the good guy builds up this incredible surge of strength... He reaches out his hand as far as he can, and the tag is made... And the big strong partner runs into the ring and cleans house....

McDonald is the TAG... The attorneys can now enter the ring... And SUE for the gun owners rights....

RomanDad, that's a great visualization.

[unusedusername]

I apologize if this has already been answered, but I don't see it anywhere.

I know that CGF has at least 2 cases on hold until the resolution of the Chicago case. Are those cases now off hold or do we need to wait for the lower court to revise their opinions as well?

[ArticleTheFourth]

Originally Posted by ANDREWMENDEZ

498 currently viewing the 2nd Amendment Section!

753 now viewing!

[Eargasm]

I shamelessly copied this from yahoo news. It's a simple FAQ for today's decision. I think it'll provide some answers for those of us who want to sidestep the bickering that's rampant in this thread and get some upfront answers. Some of the answers might not be entirely correct, but that's what you get with Yahoo news.

By LAURA E. DAVIS, Yahoo! News

With its decision Monday in the case of McDonald v. City of Chicago, the Supreme Court forever changed the terms of debate over the right to bear arms. The 5-4 vote extends principles the court laid out in 2008, when it struck down a handgun ban in Washington, D.C. In finding that the Second Amendment extends to state and local laws, the court has unequivocally affirmed an individual right to own handguns for self-defense, and has restricted every city and state in the kinds of gun-control laws they may enact.

Of course, there will still be limits on the right to keep and bear arms — and plenty of litigation to redefine them after this landmark decision. But if you're wondering about the decision's immediate legal effects, here are some plainspoken answers.

What are the specific terms of the ruling?
The court essentially said state and local laws banning handguns (which preclude citizens from owning handguns for self-defense in the home) are too strict. The decision flows directly from the court's ruling in the 2008 case, District of Columbia v. Heller, which struck down Washington, D.C.'s blanket ban on handguns. While that case already addressed the meaning of the Second Amendment by affirming the right of citizens to own handguns, it applied only on a federal level. (D.C. is under federal jurisdiction.) This case — by way of the due process clause of the 14th Amendment — extends the same interpretation of the Second Amendment to state and local levels. Taken together, these rulings say that the Constitution bars various levels of government from banning handgun ownership.

Will this ruling affect gun laws where I live?
For now, this Supreme Court ruling is only likely to affect gun laws in Chicago and Oak Park, Ill. — there is no immediate effect on any other laws. So if you live in another city that restricts gun possession in some way, that law remains in effect for the moment. Both the National Rifle Association and the Brady Center to Prevent Gun Violence say no other communities currently ban handgun possession in the home, so no other laws are clearly rendered unconstitutional. However, this Supreme Court ruling on the Second Amendment can be used to challenge other gun laws in cities and states. So this case may result in incremental change across the country as gun laws are challenged one by one.

If I live in a city where handgun ownership is restricted, can I buy a handgun now?
No, you will still be subject to the restrictions that were already in place. So if you had to get a license to buy a handgun, you will still need to go through that process. Even in Chicago and Oak Park, the cities where the handgun bans were challenged, the restrictions remain in place for now. The high court interpreted the Constitution but left the actual decision regarding the cities' laws to a lower court. It's likely under the Supreme Court's ruling that the lower court will find the laws unconstitutional, and at that time the cities will probably be able to rewrite their laws to comply with the ruling while still enacting some gun restrictions.

Does this mean I can purchase any kind of gun I want?
A: No. The Supreme Court has previously ruled that ownership of many kinds of guns, such as assault weapons, can be banned.

Does this mean felons can purchase guns?
No. Just as the Supreme Court has allowed restrictions on the kinds of guns people can own, it has permitted some restrictions on who can own them. The Brady Center notes that the federal Gun Control Act of 1968 explicitly bars felons from buying guns.

How does the ruling affect carrying weapons in public?
It doesn't. This ruling affects only handgun ownership, not where you can take that gun. So laws that prohibit guns in public still stand.

Could other pending cases further expand what's allowed under the Second Amendment?
None are before the Supreme Court right now, but UCLA law professor Eugene Volokh told Yahoo! News that the McDonald case "will doubtless trigger a new round of litigation" — for example, challenges to local restrictions on gun possession by people younger than 21 or by noncitizens. And D.C. isn’t out of the legal woods: A plaintiff from the Heller case is trying to gain the right to carry weapons in public, while other gun-rights advocates are challenging the new D.C. law that was written to comply with Heller.

Edit: I bolded the questions

[odysseus]

Outstanding!

Though always cautionary, once again 5-4 on what is a core Constitutional premise.

[armedoffroader]

Originally Posted by Serpentine

Looks like the 10 day waiting period is a goner, but does it mean some poor sacrificial dealer has to violate that CA regulation, then get charged and taken to court to strike this regulation down?


.



.

WHOA! What? No more 10 day wait?!?

[MichaelKent]

Originally Posted by hill billy

Does this mean that Cruikshank, Miller and Presser are all dead?

No, not yet.

We still don’t have a right to indictment by Grand Jury (Amendment V), a right to jury trial in civil cases (Amendment VII), or protection against excessive bail and fines (Amendment VIII). However, we finally have the second amendment at the state and local level.

Originally Posted by xr650r

Now what about that 1st amendment...would that have been a 5-4 squeaker, too?

Actually, yes it was, for parts of it.

Incorporating the first amendment free speech was a 7-2 decision. Establishment clause of religion was a 5-4 decision, freedom of press was also a 5-4. Freedom of assembly and free exercise were both unanimous.

I think most people here aren’t familiar with the Supreme Court, a 5-4 decision is extremely common and is a rather normal result, not a “Squeeker” by any means.

Originally Posted by Midian

This is great news, of course.

But it should have been 9-zip instead of 5-4

This shows that the anti-constitutional enemy is still very alive and well in our country and needs to be exposed, and above all else, resisted.

See above, 9-0 is extremely rare in Supreme Court history, many of the Bill of Rights that have been incorporated were done so at slim margins. Were these justices unconstitutional? No.

This is something most of you need to realize: The Bill of Rights, as written, was only ever intended to apply to the Federal government. It was a way of reassuring the states and getting the Constitution ratified, many framers didn’t even think the Bill was necessary as this was common sense stuff at the time.

The states could (and sometimes did) ban "rights" like free speech, ban gun ownership, perform unwarranted search and seizures, etc. and this was 100% Constitutional! Or it was until the “liberal” (at the time) Justices of the SCOTUS started deciding that parts of the Bill of Rights would apply to the state and local governments as well. This excluded the 2nd Amendment - until today.

So to make this extremely clear since it’s a common mistake I see here: States banning guns was Constitutional. Today’s decision changed that. It’s a huge step.

Technically you could say this decision results in “bigger government,” it’s an expansion of Federal government intruding on state rights not directly sponsored or intended by the Constitution (See how easy Glenn Beck style spin works?)…

But today was a damn good decision!!

[the_quark]

Originally Posted by unusedusername

I apologize if this has already been answered, but I don't see it anywhere.

I know that CGF has at least 2 cases on hold until the resolution of the Chicago case. Are those cases now off hold or do we need to wait for the lower court to revise their opinions as well?

Unfortunately, at least one (Peña) is on hold pending Nordyke. Obviously we'll petition to say "Nordyke doesn't matter in light of McDonald", but we'll have to see. I suspect it'll be a relatively slow road (in Internet time) to get the cases rolling again, especially with it being the summer and what-not. Gene will have a better handle on this but I think the most optimistic timing would be getting going again in 45-90 days. Worst case, we actually have to wait for Nordyke to get started again. I'd think the wheels should be turning in earnest again by late fall, at the latest, but we're really at the mercy of the courts, here.

[Matt C]

Originally Posted by Jarrod

Am I missing it? What is the level of scruitiny? Strict, or not?

The Court actually said that in terms of what is protected by the 2A, there is some higher level than strict, where no regulation is allowed at all. But of course what exactly IS protected by the 2A it still (for the most part) very much up in the air. Where and how the courts will draw the line on various issues remains to be seen.

[the_quark]

Originally Posted by armedoffroader

WHOA! What? No more 10 day wait?!?

I believe he was speculating the 10 day wait wouldn't survive further cases. To be clear, there is still a 10-day wait in California.

My personal opinion is that the initial 10-day wait will survive future cases, but that subsequent waits don't even pass "rational basis", so I think for those of us who are already gun-owners, that will eventually become a non-issue.

[Serpentine]

Originally Posted by wildhawker

No. Challenging bad law via criminal cases, especially in California, is a way to lose quickly and make it hurt in the process.

Hang tight, all, we may or may not have something (some things?) in mind...

If a CA licensed 01FFL dealer denies delivery of a firearm upon date of purchase (due to the mandatory "10 day cooling off period.") Could that customer then sue the dealer for denying him his right to self defense with "unreasonable restrictions."

Or, would the dealer be held not accountable for following state law?



.

[Liberty1]

from the Volokh Conspiracy

http://volokh.com/2010/06/28/todays-opinions/

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.

and don't let the door hit you in the tookus on the way out!

[yakmon]

to paul helmke, and the brady bunch.

[gunsmith]

Originally Posted by 7x57

What we post endlessly about on Calguns.

7x57

LOL!! hahahahahahahah LOL!

I expect lots of changes over the years, we got them on the ropes, we need to keep punching

[CharAznable]

I don't want to be a debbie downer but I'm in the camp of those who don't see this really doing much for us in CA. While our laws are really bad they aren't an outright ban. I'd love to hear what the smart guys from CGF say about it, though.

[turinreza]

Congratulations!

I believe the ruling just stated that the 2nd Amemdment is incorporated
and thus any law that prohibits a person from COMPLETELY owning a handgun in the home is unconstitutional. The WAY to BEAR that handgun has
not been defined by the SCOTUS. (such as what limitations of
rounds that handgun can have, what kind of ammo, how much ammo, etc)

I feel that the portion of the Second Amendent "a well REGULATED militia"
will be used by the Antis to state that the portion "well regulated" applies to the militia AND to the PEOPLE In the same way that the "right to bear arms" applies both to the militia and the PEOPLE.

Thus, the next battles will be what does it mean to "well regulate"
people owning handguns or firearms in their home. Surely,
the person must at least own 1 round of ammo up to a WELL REGULATED amount.

Those in favor of the 2nd Amemdment will use the term "well regulated"
to say, if the MILITIA is well regulated yet the MILITIA has firearms
other than handguns (rifles, semi-autos) similar to those of the Military
in order to OPPOSE an invading force or protect the home land, then
that "well regulated" part allows for the "people" to own (rifles, semi-autos)
under the same "well regulated" way the militia is bearing arms.

Since all citizens are inherently part of the militia then "well regulated"
should allow for owning and bearing such arms as at least an infrantry
man in the militia. However, since an infrantry man does not own
the tanks or bazookas or rocket launchers in the military but makes use
of those types of weapons that belong to every member of the militia,
then the "well regulated" portion should limit individual persons from
owning such weapons (tanks, bazooka, rocket launchers) in the home
because that would not follow the "well regulated" portions of the militia.
IMHO.

[the_quark]

Originally Posted by Serpentine

If a CA licensed 01FFL dealer denies delivery of a firearm upon date of purchase (due to the mandatory "10 day cooling off period.") Could that customer then sue the dealer for denying him his right to self defense with "unreasonable restrictions."

Or, would the dealer be held not accountable for following state law?

As a private actor, I'd think the dealer has no obligation to do anything to help you with your 2nd Amendment rights. Any more than his refusing outright to sell you a gun would be a violation of your rights. And, even if you could sue him and win, that wouldn't change the law.

The way this should be challenged is that we'd put together a case suing the state for violating our 2nd Amendment rights (similar to Peña).

[thayne]

Originally Posted by hill billy

BTW, The Brady's are calling this a win for them. Big surprise.

http://www.bradycenter.org/

Talk about spin city! LOL

[Liberty1]

from the Volokh Conspiracy

http://volokh.com/2010/06/28/todays-opinions/

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.

and don't let the door hit you in the tookus on the way out!

and

http://volokh.com/2010/06/28/second-...nth-amendment/

[Barabas]

Originally Posted by guayuque

Angle? Not sure I understand. i am simply sharing my opinion on what this case says and what it does not say.

It does not invalidate anything, ANYTHING but what Chicago tried to do in terms of outright bans. It reiterates regulation of all sorts. It does not apply any standard of scrutiny. It incorporates thus providing an opening. That's it.

Originally Posted by guayuque

I do not disagree with any of these comments. Yes, what regulations California can issue may be attacked but I do not think much in California will change in the next few years.

Originally Posted by guayuque

I do not disgaree. What I do point out is that those suggesting this is some talisman that will make us free from regulation and that things will be different tomorrow are incorrect.

Originally Posted by guayuque

No, i don't think I created a straw man.

All I am saying and have said that the decision is narrow, does give incorporation but does not identify how the analsysi should go in terms of scrutiny, and reiterates Hellers in terms of being accommodating to regulations.

You say all this as if incorporation wasn't the point of McDonald. Anyone who believed that McDonald was going to overturn any law other than the Chicago/Deer Park handgun bans weren't up to speed. You HAVE created a strawman in arguing against a position only the most naive (which is curable) held.

Incorporation is all about now having the standing to overturn unconstitutional law, which recent court cases proved we didn't have until today. If you are an attorney, you ought to know that the government doesn't just remove sections of law, whole cloth, because of a court case. Each little niggling detail has to be argued in the courts now, which is AWESOME because we actually have standing to do so now. What other method do we have within the law, to address constitutionality?

This is a WIN! There is no other way to spin this without being dishonest. This could have been a different kind of win, had we incorporated under PorI, but it is nevertheless THE stepping stone that was required to overturn generations of civil rights violations and racist/classist legislation. The right to self defense is unequivocally a civil right. No more arguments.

[2009_gunner]

And Robert Levy, who got the whole ball rolling

http://en.wikipedia.org/wiki/Robert_...mbia_v._Heller

[gun toting monkeyboy]

Ok, nobody has said it in a few pages, so:

Wooo Hoooo!!!

Yes, it is a small step. And there will be no radical or instantaneous change to the laws here. Not right away. But this is a very important step. It opens the door for us. Now the big brains on our side have a bit more legal footing when they take their cases to court. Long term, this baby step will be HUGE.

[CharAznable]

Originally Posted by Barabas

This is a WIN! There is no other way to spin this without being dishonest. This could have been a different kind of win, had we incorporated under PorI, but it is nevertheless THE stepping stone that was required to overturn generations of civil rights violations and racist/classist legislation. The right to self defense is unequivocally a civil right. No more arguments.

I think two many folks thought they were going to get to wake up, see this decision, and then bam they'd get CCW, off list guns, and bullet money from the tooth fairy.

All this means is that we can start fighting now. And there's no guarantee at all that we'll win this fight.

[pMcW]

Today is my birthday. What a nice gift from SCOTUS!

[Matt C]

Originally Posted by the_quark

As a private actor, I'd think the dealer has no obligation to do anything to help you with your 2nd Amendment rights. Any more than his refusing outright to sell you a gun would be a violation of your rights. And, even if you could sue him and win, that wouldn't change the law.

While I have no idea why you would sue a dealer for following a state law and trying to stay in business, I have to disagree if the refusal to sell a gun is arbitrary or discriminatory. Federal and Unruh Civil Rights Acts should apply here.

[sierratangofoxtrotunion]

Originally Posted by turinreza

Congratulations!

I believe the ruling just stated that the 2nd Amemdment is incorporated
and thus any law that prohibits a person from COMPLETELY owning a handgun in the home is unconstitutional. The WAY to BEAR that handgun has
not been defined by the SCOTUS. (such as what limitations of
rounds that handgun can have, what kind of ammo, how much ammo, etc)

I feel that the portion of the Second Amendent "a well REGULATED militia"
will be used by the Antis to state that the portion "well regulated" applies to the militia AND to the PEOPLE In the same way that the "right to bear arms" applies both to the militia and the PEOPLE.

Thus, the next battles will be what does it mean to "well regulate"
people owning handguns or firearms in their home. Surely,
the person must at least own 1 round of ammo up to a WELL REGULATED amount.

Those in favor of the 2nd Amemdment will use the term "well regulated"
to say, if the MILITIA is well regulated yet the MILITIA has firearms
other than handguns (rifles, semi-autos) similar to those of the Military
in order to OPPOSE an invading force or protect the home land, then
that "well regulated" part allows for the "people" to own (rifles, semi-autos)
under the same "well regulated" way the militia is bearing arms.

Since all citizens are inherently part of the militia then "well regulated"
should allow for owning and bearing such arms as at least an infrantry
man in the militia. However, since an infrantry man does not own
the tanks or bazookas or rocket launchers in the military but makes use
of those types of weapons that belong to every member of the militia,
then the "well regulated" portion should limit individual persons from
owning such weapons (tanks, bazooka, rocket launchers) in the home
because that would not follow the "well regulated" portions of the militia.
IMHO.

I like the way you think. A soldier in the military is "issued" his rifle and ammo, but he is not "issued" a tank or a ship. So what an infantry man is issued, which in my head kind of amounts to weapons that can be used by a single person without assistance, are weapons that the civilian militia should be allowed, and even proscribed, to own, maintain, and use.

[biofire]

What a nice change to wake up to good news!

If anyone wants to buy me a Christmas present, I'll take a California CCW permit.

[sierratangofoxtrotunion]

Originally Posted by CharAznable

I think two many folks thought they were going to get to wake up, see this decision, and then bam they'd get CCW, off list guns, and bullet money from the tooth fairy.

All this means is that we can start fighting now. And there's no guarantee at all that we'll win this fight.

Similar to the people who thought Obama would pay their mortgage.

[orangeusa]

What would be the next case for CGF?

Peña vs. CID - which pends on Nordyke (gun shows), which pends on McDonald...

Can Peña vs. CID be directly addressed?

And happenstance - I pick up a pistol today!! Double WIN!!!

[Barabas]

Regulated, in this context, does not have the same meaning today as it did when the framers wrote the 2nd. Well regulated means only finely tuned, precise, well made, etc. You might notice grandfather clocks that state "REGULATED" on the face, meaning accurate and tested.

Originally Posted by turinreza

Thus, the next battles will be what does it mean to "well regulate"
people owning handguns or firearms in their home. Surely,
the person must at least own 1 round of ammo up to a WELL REGULATED amount.

[Matt C]

Originally Posted by sierratangofoxtrotunion

I like the way you think. A soldier in the military is "issued" his rifle and ammo, but he is not "issued" a tank or a ship. So what an infantry man is issued, which in my head kind of amounts to weapons that can be used by a single person without assistance, are weapons that the civilian militia should be allowed, and even proscribed, to own, maintain, and use.

Eh, not much here. Militia element is pretty much gone from 2A law at this point (thanks to Miller). Anyway there isn't really that much differentiation between how a rifle or a tank (or a helmet for that matter) are issued, you sign for everything...

[Donny1]

Originally Posted by CharAznable

I think two many folks thought they were going to get to wake up, see this decision, and then bam they'd get CCW, off list guns, and bullet money from the tooth fairy.

I see having the right to own, and defend as being upheld helping CCW but what about the roster? Since it says states still have the right to certain regulation.

[FatalKitty]

Anyone have BRADY's official reaction to this?

[CharAznable]

Originally Posted by Donny1

I see having the right to own, and defend as being upheld helping CCW but what about the roster? Since it says states still have the right to certain regulation.

Again, it's what people thought they were going to get out of McDonald, even after repeatedly being told here what would happen. Personally, I view it as nice but not impacting me at all - yet.

[Meplat]

I hope it is more like a storm in the desert. Beautiful things start to pop up everywhere.

Originally Posted by Wrangler John

If I recall, some cities and counties prohibit new gun shops through zoning and business licensing ordinances. Palo Alto comes to mind, among some others. Which causes me to wonder that if the 2nd is now applicable in California, will there be a basis to challenge such prohibitions as unlawfully interfering with the exercise of a "fundamental right" to self defense through restraint of trade in arms necessary to its purpose?

I also wonder if the McDonald ruling isn't like a cloud burst on an unstable slope. While nothing much happens immediately, eventually the entire hillside slides in an avalanche of mud, boulders and uprooted trees. Gotta give it time and plenty of water. It's too soon to say how big the slide will be, or exactly when it will happen. We are now in possession of a very large watering can.

[sierratangofoxtrotunion]

Originally Posted by Blackwater OPS

I'm reading this:



But yeah they specifically refused to reexamine the historic P&I cases, then went right on to mention how P&I protected 2A.

Is that from Alito? Do you have a page number for that?

[Donny1]

Originally Posted by CharAznable

Again, it's what people thought they were going to get out of McDonald, even after repeatedly being told here what would happen. Personally, I view it as nice but not impacting me at all - yet.

I never thought that, my glass is not half full. I was asking how, going forward, this will help challenge the rosters limitations.

[sierratangofoxtrotunion]

Originally Posted by Blackwater OPS

Eh, not much here. Militia element is pretty much gone from 2A law at this point (thanks to Miller). Anyway there isn't really that much differentiation between how a rifle or a tank (or a helmet for that matter) are issued, you sign for everything...

Oh no I agree, it has nothing to do with today's decision. Just thinking out loud. Your response raised a couple more questions in my head, but I'll stop hijacking this thread.

[wildhawker]

Originally Posted by Blackwater OPS

While I have no idea why you would sue a dealer for following a state law and trying to stay in business, I have to disagree if the refusal to sell a gun is arbitrary or discriminatory. Federal and Unruh Civil Rights Acts should apply here.

FFLs are obligated to conform to Federal, state and local laws as a condition of their license.

FFLs are not the enforcers [nor government administrators or advocates] of the statute, DOJ BOF and BATFE are.