After McDonald, what's next?

[X_Digger]

Allow me to take a stroll into a possible future.

June, 2010. The MSM is all abuzz over the recent SCOTUS decision incorporating the second amendment. Pundits are more apoplectic over this decision than the one concerning the first amendment and corporations. Doom and gloom, "blood running in the streets", return to the "Wild West", all the tired clichés, memes, and pedantic canards have been trotted out this week.

In actuality, the impact to Chicago is about the same as the Heller decision in 2008. The immediate impact is that Chicago must not ban handgun possession.

In finding that the second amendment is incorporated via the fourteenth amendment against the states and localities, the court opened up the door to a whole slew of challenges. With the SCOTUS setting the standard of review at 'strict scrutiny', the bar is set extremely high for gun regulation.

For those not in the know, strict scrutiny means that any infringement of a right must meet certain criteria:
1. Must serve a compelling government interest- this interest must be necessary or crucial, not just preferred. This interest must be concrete, not a generalization or vague 'maintain order' kind of interest.
2. Must be narrowly tailored- it must target the compelling interest squarely. Too broad, and it fails this test.
3. Must be the least restrictive means- Another less restrictive means must not exist that achieves the same compelling interest.

As a practical exercise, let's look at restrictions on some fundamental rights that were ruled unconstitutional and compare to gun laws.

Cantwell v. Connecticut

In 1940, in Connecticut, a solicitor of any stripe was required to obtain a license before going door to door, whether to sell vacuum cleaners, encyclopedias, or their particular flavor of religion.

Newton Cantwell and two of his sons were proselytizing in a heavily catholic neighborhood. The trio were arrested for soliciting without a license.

Connecticut courts sided with the state. The SCOTUS disagreed- "to condition the solicitation of aid for the perpetuation of religious views or systems upon a license, the grant of which rests in the exercise of a determination by state authority as to what is a religious cause, is to lay a forbidden burden upon the exercise of liberty protected by the Constitution."

Now, if we imagined this as a gun case against registration, would this be an analogous case? Maybe, but it's a stretch. It definitely sounds as though it would make a good analogue against 'may issue' CHL licensing, as the core problem seems to be the "determination by the state" on non-concrete grounds (in this case determination about what is or isn't a valid religion, but in 'may issue' states, the language in various state laws about a 'justified reason', or 'reputation of the licensee' sounds just as vague.)

Or how about this one..

Harper v. Virginia Board of Elections

In 1966 (two years after passage of the twenty-fourth amendment's prohibition on poll taxes in federal elections) Annie E. Harper was refused voter registration in Virginia. The SCOTUS ruled on Harper's side, saying in part, "a state violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution whenever it makes the affluence of the voter or payment of any fee an electoral standard. Voter qualifications have no relation to wealth."

Now, could this be analogous to registration fees and CHL fees for guns and gun owners? Possibly. The salient point I see is the last line.. paraphrasing for this context, "exercise of a constitutional right has no relation to wealth." Courts have found reasonable fees for demonstration permits acceptable, sure, but to require a fee to stand on a soap box on a corner? Nope.

One more..

Talley v. California

A Los Angeles city ordinance prohibited the distribution of flyers without the writer's name and address (among other things.) Talley was arrested and the case eventually made it's way to the SCOTUS. The court ruled in Talley's favor, saying "We have recently had occasion to hold in two cases that there are times and circumstances when States may not compel members of groups engaged in the dissemination of ideas to be publicly identified. Bates v. Little Rock, 361 U.S. 516; N. A. A. C. P. v. Alabama, 357 U.S. 449, 462. The reason for those holdings was that identification and fear of reprisal might deter perfectly peaceful discussions of public matters of importance. This broad Los Angeles ordinance is subject to the same infirmity. We hold that it, like the Griffin, Georgia, ordinance, is void on its face."

Bear with me on this one. If the intent- the reason- for the second amendment is to allow the citizens of the United States to be armed, as a counter to federal power (remember, standing armies were loathed at the time of the second amendment's passage), then might registration of firearm owners not serve a similar purpose: (paraphrased) "identification and fear of reprisal might deter perfectly peaceful exercise of the people's right to keep and bear arms"? Anonymous firearms ownership is something that I think the drafters of the second amendment would agree with.

So those are some cases that, if you squint at them right, might provide some insight into future cases based on the findings in McDonald.

Here are the things that I think are off the table once the proper case comes up-
-banning handguns (duh *grin*)
-Assault Weapon Bans
-'may issue' CHL standards
-'registration'
-exorbitant fees for firearms ownership
-'sporting use' clause

What do you think the legacy of McDonald will be? What's the next check mark in Gura's "to-do" list?

[Bold Lib]

1. If we get strict scrutiny I predict

that the Hughes amendment goes down and the $200.00 NFA tax will go away. The NFA may stay largely intact but you cannot tax a right, like the voting tax was done away with so will the NFA tax. Also, we will have to revisit the legal length of a rifle and shotgun. The current m-4 is, what, a 14 inch barrel? And now the IRS is getting 14 inch shotguns??? Such examples means that the original lengths set were nothing short of capricious or arbitrary.

Many things will change, it will only be a matter of time.

[X_Digger]

2. I thought about Hughes & the 1934 NFA..

.. especially since the NFA is a tax law, not a criminal-type law.

[Pullo]

14. If you're expecting strict scrutiny .....

..... I think you'll be pretty disappointed by McDonald.

During the oral arguments of Heller, Roberts was pretty clear he didn't see a need to assign a standard of review(strict scrutiny, intermediate scrutiny, or rational basis) to the 2A just because that sort of thing developed in other BoR cases.

I'm not sure why we have to articulate some very intricate standard. I mean, these standards that apply in the First Amendment just kind of developed over the years as sort of baggage that the First Amendment picked up. But I don't know why when we are starting afresh, we would try to articulate a whole standard that would apply in every case?

Chief Justice Roberts, to General Clement during oral arguments of Heller

I'd wager McDonald will just incorporate Heller and go no further. The Roberts court is renowned for narrowly tailoring its decisions to decide just the case in front of it, to the point of giving the lower courts little guidance in deciding cases they are likely to see in the wake of rulings from the SC. That's been a consistent theme in criticisms of the Roberts court.

[Bold Lib]

3. And what was that?? I drive by unrecomend?

[spin]

4. I believe Chicago will place numerous hurdles in the path of handgun ownership...

an applicant will have to fill out several forms and take days off of work to deliver these forms to the correct department.

All "i"s and "t"s on the forms will have to be dotted and crossed.

The firearm will have to be submitted to the police dept for a test firing to obtain fired cases and projectiles.

If you do obtain a permit to own a handgun, you will have to store it in a locked container unloaded.

Eventually, further lawsuits will simplify the process somewhat, but it still will be a pain in the ass.

[X_Digger]

5. Well, I think we can cross off..

.. the locked and unloaded bit. If I recall correctly, that was part of the Heller case that, as of McDonald, will apply to Chitown as well.

I'll admit, though, I'm not familiar enough with incorporation to know if the rulings at a federal level, and all the things that can't be done at that level- if they trickle down to the state level once incorporated.

[spin]

6. I think you are right about Washington D.C.

handguns don't have to be locked away.

If SCOTUS does make a decision that will allow handguns in Chicago, much will depend on the wording.

[PavePusher]

7. Or the SC could actually earn their pay...

by grasping the nettle firmly, deliniate exactly what a state may or may not do, and finally be done with the issue.

But I don't put that much faith in their courage or view of their duties.

The People should not have to continually pay out the ass to exercise their Civil Rights. And the Courts should support that.

[rusty_rebar]

8. The Second amendment is pretty clear

The right of the people to keep and bear arms shall not be infringed.

Heller on "the people"

" In determining whether the Second Amendment’s guarantee
is an individual one, or some sort of collective right, the most
important word is the one the drafters chose to describe the
holders of the right—“the people.” That term is found in the
First, Second, Fourth, Ninth, and Tenth Amendments. It has
never been doubted that these provisions were designed to
protect the interests of individuals against government intrusion,
interference, or usurpation."

Heller on "keep"

" We think “keep” is a
straightforward term that implies ownership or possession of a
functioning weapon by an individual for private use."

Heller on "bear arms"

“Surely a most familiar meaning firearm’] is, as the Constitution’s Second Amendment (‘keep
and bear Arms’) and Black’s Law Dictionary . . . indicate:
‘wear, bear, or carry . . . upon the person or in the clothing or in
a pocket, for the purpose . . . of being armed and ready for
offensive or defensive action in a case of conflict with another
person.”

What Heller did not do is incorporate the 2A against the states through the 14A, and that is where McDonald comes in.

So they basically said the the people, as in the people of this country, have an individual right to keep (or posses) and bear (carry with them) arms.

When 2A is incorporated after McDonald, I don't think we will see much change initially. However, if Strict Scrutiny is applied (and I think it will for at least self defense purposes), it will be quite hard for the states to pass any laws that will restrict the ability of someone to buy a firearm, or carry the firearm with them.

I think we will see many lawsuits challenging many laws that are currently on the books. In fact there are quite a few in holding patterns right now until the outcome of McDonald.

In short. Thing are about to get interesting.

[X_Digger]

9. Agreed!

I don't think people realize what a game changer McDonald will be, especially if we get strict scrutiny as well.

Will it be immediate? Nah, but as you mentioned, there are cases on hold or waiting in the wings.

I fully expect DU and the gungeon to melt down ;)

[Glassunion]

10. Burger King

:hide:

[eqfan592]

11. Let us not forget Illinois and Wisconsin.

These two remaining "no issue" states are going to have some pretty serious problems keeping to that if things go the way they should, which is part of the reason why Wisconsin is already looking to adopt some sort of concealed carry system.

[Will E Orwontee]

12. A big ol', IT DEPENDS!

Incorporation under PoI would have more impact than just due process especially for uniform CCW.

McDonald affords two interesting prongs . . . The biggest potential rollbacks of unconstitutional laws will be in states without a state constitutional RKBA provisions. States like California and especially NJ never established a sophisticated legal justification for their gun control laws within the framework of their state's constitution / laws. They lazily relied on the lower federal "state's right" and/or "collective right" holdings from the 1940's (Cases, Tot) and basked in the luxury of the 2nd not impacting state law.

California's primary holding for denying the gun rights of individual citizens is Hickman and as the 9th said in Nordyke, Hickman is toast:

". . . we must first decide whether Heller abrogated Hickman. It did. Hickman rested on our conclusion that the Second Amendment protects only a collective right; Heller squarely overruled such conclusion. . . . Thus the basis for Hickman’s holding has evaporated, and the opinion is clearly irreconcilable with Heller. In such circumstances, we consider our prior decision abrogated by higher authority."

http://www.ca9.uscourts.gov/datastore/opinions/2009/04/20/0715763.pdf">Nordyke v King, pg 4475-4476, (April 20, 2009) (194KB .pdf)

There is no possible justification for the en banc rehearing decision to alter that holding if McDonald goes our way; thus much of California's gun control schemes are resting on infirm constitutional ground.

New Jersey is another state without a RKBA provision and a very thin RKBA case law of its own. NJ's courts also lazily relied on Tot for validating NJ's ID cards and purchase permits, registration schemes and a myriad of other state and local discriminatory practices (see Burton v. Sills, http://www.abanet.org/gunviol/docs/burton.pdf">248 A.2d 521 (N.J. 1968). . . It is all on life support now awaiting the order to pull the plug to be issued by the Supreme Court.

The second factor will be McDonald inspecting the extent of governmental authority under the situation of a state having a RKBA provision but expressly conditioning / limiting it. The Illinois constitution's RKBA provision conditioned their RKBA, "subject to the police power." The Illinois provision was enacted in 1970, I'll leave to the reader to discern what societal issues were paramount in the period before the provision's enactment. Illinois had no RKBA provision prior to 1970 and IMNSHO, the "RKBA' provision was written to enable strict gun control to be written, not protect rights.

So, in honesty, based on the rulings of the Supreme Court (including Heller, which could not address incorporation), the 7th Circuit's own decisions and also guided by state court rulings that followed the applicable law, the 7th Circuit had only one way to rule, exactly as it did in both McDonald and the NRA cases.

I welcomed the 7th's decision; unlike California and New Jersey, Illinois has had a very deep and extensive examination of their citizen's CONDITIONED RKBA and SCOTUS examining that legal history in the context of the 2nd Amendment being applied to the states will result in a quite comprehensive, philosophically deep decision in McDonald.

[Jackson1999]

13. Karnak says.......

DC will be the first place Gura challenges restrictive gun laws. It is the path of least legal resistance. Then he will save his money to take on NYC.