The Orcs Are Gathering
By Mitch Berg
As the clock ticks toward March and the Supreme Court arguments in re McDonald v. City of Chicago, the anti-civil-rights orcs are mustering their forces:
In a few months time, the Supreme Court will revisit the Second Amendment in McDonald v. City of Chicago, which challenges a gun-control ordinance in the city.
Not surprisingly, the case is attracting heavy interest around the country.
The Sacramento Bee today reports that Sacramento’s City Council has voted to join other cities arguing in support of Chicago’s right to regulate the posssesion and use of firearms.
Other cities invited to file briefs supporting Chicago include Baltimore, Cleveland, Los Angeles, and Philadelphia.
At last check, gun control has treated those cities so well, hasn’t it? Four of the five cities have not only among the toughest gun controls in the United States, but share an average violent crime rate of over 1,400 per 100,000 residents – well over triple the national average.
Sacramento City councilman Kevin McCarty, who supports the city’s involvement in the case, told the Bee that guns “are most likely to be used by assailants or people who shouldn’t have guns in the first place.”
Sacremento? 997/100,000, well over double the national average.
But there is plenty of firepower on the other side of the case.
Many states, including Texas, Ohio, and Pennsylvania, have filed an amicus brief arguing that Chicago’s handgun ban is unconstitutional. Here’s a link to that brief.
Note to Lori Swanson; while I’m unlikely to vote for you on any number of grounds for any office, you could certainly earn credit in heaven by filing a brief for the plaintiff here. Whatever your other faults, you’ve been right on this issue more consistently than most politicians in Minnesota.
At issue in the McDonald case is whether the Second Amendment right to bear arms applies to states.
In D.C. v. Heller, the Supremes a few terms back ruled that Washington, D.C.’s gun-control ordinance violated the Constitution, but that ruling dealt with a federal statute, not state law. Several courts, including the Seventh Circuit in the McDonald case, have since ruled that the Second Amendment does not apply to the states.
And while I dream of the Seventh Circuit being chased down the street in their underwear by a mob wielding pitchforks and torches, I’m sure they had their (faulty) reasons.
To get at whether the Second Amendment binds states and localities may require a parsing of the 14th Amendment’s Privileges and Immunities Clause, namely whether the right to bear arms is a privilege that can not be abridged by states.
The word we’re looking for is “human right”, “endowed” to “the people” by “our creator”. See to that.
December 30th, 2009 at 11:01 am
The Supreme Court already declared it a fundamental right in Heller. But that only restricts the federal government (the Constitution restrains the federal government, not state governments).
There are a series of Supreme Court cases saying that certain amendments to the Constitution were meant to extend federal restrictions to the states, under one theory or another. Even assuming that the Supreme Court extends federal government fundamental rights analysis to the state level (not at all clear since The Wise Latina has replaced Souter), you still have the question of scrutiny. In my opinion, that’s the real battleground.
The Supreme Court says certain rights are so fundamental that any state interference must pass Strict Scrutiny (example, right to abortion). That’s a high hurdle – few regulations make it. Other rights aren’t quite as fundamental so states can regulate those activities if the regulation passes Intermediate Scrutiny (example, discrimination based on sex).
Most other rights aren’t very fundamental at all. States can regulate those activities if they can dream up an excuse that half-way links the regulation to some sensible government objective (example, prohibiting people from braiding hair without a cosmetology license to protect the public from bad hair days). That’s hardly even a speed bump – most all regulations make it.
The danger is that the Supreme Court will try to appease both sides by coming up with some Solomonic-sounding decision that acknowledges the right to keep and bear arms for self defense as a fundamental right and extend that right to the state level but declaring it’s not a very fundamental right at the state level so local governments can regulate it as they please.
We need to keep hammering for extension AND for Strict Scrutiny. Anything less is a loss.
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