By Jay Printz
| Thursday, July 1st, 2010 at 3:46 pm
The National Rifle Association has sent a “letter of opposition” regarding Elena Kagan’s nomination to the U.S. Supreme Court to the principals of the Senate Committee on the Judiciary.
The Honorable Patrick Leahy
Senate Committee on the Judiciary
224 Dirksen Senate Office Building
Washington, D.C. 20510
The Honorable Jeff Sessions
Senate Committee on the Judiciary
152 Dirksen Senate Office Building
Washington, D.C. 20510
Dear Chairman Leahy and Ranking Member Sessions:
We are writing to announce the National Rifle Association’s position on the confirmation of Solicitor General Elena Kagan as Associate Justice ofthe United States Supreme Court.
Other than declaring war, neither house of Congress has a more solemn responsibility than the Senate’s role in confirming justices to the U.S. Supreme Court. As the Senate considers the nomination of Solicitor General Kagan, Americans have been watching to see whether this nominee – if confirmed – would respect the Second Amendment or side with those who have declared war on the rights of America’s 80 million gun owners.
During confirmation hearings, judicial nominees make carefully crafted statements regarding issues with which they do not personally agree. They often speak in terms of “settled law” or “I understand the right”. When those statements are contradicted by an entire body of work over a nominee’s career, however, it would be foolhardy to simply take them at face value. In Ms. Kagan’s own words, “you can look to my whole life as to what kind of justice I would be.” We agree.
As she has no judicial record on which we can rely, we have only her political record to review. And throughout her political career, she has repeatedly demonstrated a clear hostility to the fundamental, individual right to keep and bear arms guaranteed under the U.S. Constitution.
As a clerk for Justice Thurgood Marshall, Ms. Kagan said she was “not sympathetic” to a challenge to Washington, D.C.’s ban on handguns and draconian registration requirements. As domestic policy advisor in the Clinton White House, a colleague described her as “immersed” in President Clinton’s gun control policy efforts. For example, she was involved in an effort to ban more than 50 types of commonly-owned semi-automatic firearms – an effort that was described as: “taking the law and bending it as far as we can to capture a whole new class of guns.” And as U.S. Solicitor General, she chose not to file a brief last year in the landmark case McDonald v. Chicago, thus taking the position that incorporating the Second Amendment and applying it to the States was of no interest to the Obama Administration or the federal government. These are not the positions of a person who supports the Second Amendment.
During her confirmation hearings last year, Justice Sonia Sotomayor repeatedly stated that the Supreme Court’s historic Heller decision was “settled law”. Even further, in response to a question from Chairman Leahy, she said “I understand the individual right fully that the Supreme Court recognized in Heller‘.” Yet last Monday in McDonald, she joined a dissenting opinion which stated: “I can find nothing in the Second Amendment’s text, history, or underlying rationale that could warrant characterizing it as ‘fundamental’ insofar as it seeks to protect the keeping and bearing of arms for private self-defense purposes”.
We would also note that both Heller and McDonald were 5-4 decisions. The fact that four justices would effectively write the Second Amendment out ofthe Constitution is completely unacceptable. Ms. Kagan has repeatedly declined to say whether she agrees with the dissenting views of justices Stevens, Breyer, Ginsburg and Sotomayor, which leaves unanswered the very serious questions of whether she would vote to overturn Heller and McDonald or narrow their holdings to a practical nullity.
This nation was founded on a set of fundamental freedoms. Our Constitution does not give us those freedoms – it guarantees and protects them. The right to defend ourselves and our loved ones is one of those. The fundamental, individual right to keep and bear arms is another. These truths are what define us as Americans.
Any individual who does not believe that the Second Amendment guarantees a fundamental right and who does not respect our God-given right of self-defense should not serve on any court, much less receive a lifetime appointment to the highest court in the land. Justice Sotomayor’s blatant reversal on this critical issue requires that we look beyond statements made during confirmation hearings and examine a nominee’s entire body of work. Unfortunately, Ms. Kagan’s record on the Second Amendment gives us no confidence that if confirmed to the Court, she will faithfully defend the fundamental, individual right to keep and bear arms of law-abiding Americans.
For these reasons, the National Rifle Association has no choice but to oppose the confirmation of Solicitor General Elena Kagan to the U.S. Supreme Court. Given the importance of this issue, this vote will be considered in NRA’s future candidate evaluations.
Thank you for your attention to our concerns. Should you have any questions or wish to discuss further, please do not hesitate to call on us personally.
Executive Vice President
cc: Majority Leader Harry Reid; Republican Leader Mitch McConnell; Members of the United States Senate
By Alan Korwin
| Wednesday, June 30th, 2010 at 9:34 pm
The big headline in the U.S. Supreme Court’s McDonald v. Chicago gun-ban-case decision, handed down on June 28, 2010, is that the individual states are now bound by the Second Amendment. Previously, only the federal government was technically bound.
The right to keep and bear arms is “incorporated” under the 14th Amendment and applies to the states, under the Due Process clause used to apply other Bill of Rights requirements to the states. For publicity, bragging rights, moral and many legal purposes, this is a big win.
And it is a win, despite some negativity floating around. The alternative — no gun-rights protection at the state level, which was avoided by just a single vote — would have been an unmitigated disaster. Everyone now has a claim to constitutional gun-rights protection instead of none, which is what four of the nine Justices would have given you.
Exactly how bound the states are though is unknown, and will be the subject of endless debate and future court actions. No standard of review for acceptable laws is provided, although the extremely low and virtually meaningless standard of “interest balancing” that Breyer would like to see is off the table. The decision is emphatic on the point. One pundit says this is virtually “strict scrutiny,” the highest standard possible, though that’s a bit overstated.
Attorney Nick Dranias at the Goldwater Institute told me he considers this the strongest part of the decision:
“…its embrace of the statement in Heller that the scope of the right to bear arms will be determined strictly by its original meaning and not by judicial balancing tests. This is something that the Court has not even said with respect to the right to free speech. The court is getting it right from the inception and may be able to avoid decades of meandering that the balancing tests in First Amendment jurisprudence forced. The court’s complete disavowal of balancing tests is huge.”
This does however still leave legislatures and lower courts to act independently, and seek further SCOTUS clarification in the years to come, but that’s to be expected, and throws us back to the need for eternal vigilance. But the decision does give the pro-rights forces a Superman-strong leg up at the bargaining table.
The very troubling sub-head of the story is that Chicago apparently will be free to act like Washington, D.C. did after Heller. Chicago’s law died, in effect, two years ago when the D.C. law died, and their response will be similar. Chicago under mayor Daley will do everything it can — including maneuvers that will be totally rejected later as unconstitutional — to keep its people repressed and deny, as fully as possible, the right to own, have and use guns for personal defense and other lawful purposes. The mayor has said as much (noted at the end of this article, along with other antis and news media gaffs).
We on the pro-rights side of the aisle had hoped for “reversed,” meaning the 7th Circuit decision saying we had no rights would be overturned. And we got it, hallelujah, but with the predictable “and remanded,” meaning the 7th Circuit will get another crack at the law, and must do something to make it acceptable. If precedent is any gauge, they’ll do as little as they can, leave Chicago dangerously unfettered, make the public hopelessly fettered, and instigate more lawsuits and endless wrestling with our rights. Hey, more lawsuits are just job security for lawyers — a pretty slick conflict of interest.
Contrary to some exuberant reports, the people of Chicago do not have their right to keep and bear arms restored. All they have is that this onerous near-total ban goes too far. And that, my friends, is disastrously troubling. Just how far can “authorities” go in infringing your rights, before they’ve gone too far? Nothing in this decision apparently comes anywhere near “shall not be infringed,” a phrase that is used a few times as a reference — but never as a tenet of the holding. It is all but ignored as the meaning of the Second Amendment. In its place is the assumption that only so much regulation is tolerable, a dangerous and moving target.
The Court clearly set the baseline for us, several times, repeating the decision in Heller: “…the Second Amendment protects the right to possess a handgun in the home for the purpose of self-defense.” This is established as a core purpose of the Amendment — not the only one, but for now, a threshold below which no statute can go.
Fortunately, the decision does recognize what many of us would put as the true core of the Amendment, the “palladium of liberty” idea (which is fortunately referenced several times) that “the right of the citizens to keep and bear arms… offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them” (quoting Justice Story from 1833).
Skeptics who have come out insisting they will not celebrate this ruling have a point too horrifying to think about. This is the first step down the road to “official” licensing, registration, list making, and condition demanding that every level of government down to the tiniest bureaucrats will insist upon, to “allow” you to have some kind of firearm, locked up and safe in your home. Yes, Heller ruled out keeping arms so locked up that they’re totally useless, but didn’t stipulate much past that.
The antis are already shifting their position to the question of how much regulation is allowed. They have craftily “conceded” that the extremes are now gone — they can’t get a complete total ban, much as they would like to, and the pro-rights people can’t have anything anytime anywhere, something that was never in fact sought. Why let facts interfere with a good argument?
In D.C., with a similar overturned law and a similar stipulation to fix it, they’ve done everything possible to ignore even that, and we can only wish the Heller decision and McDonald did more to constrain them, let alone read them the riot act.
Gun uselessness is off the table but remains what too many authorities crave, and will press for. They should be indicted for trying — as denial of civil rights under color of law (q.v., 18 USC §241 et seq.). It’s past time to dust off those fine laws that put officials in prison as common criminals for denying or attempting to deny people their rights. Read that law — you’ll like it. Some of you state folks should introduce a local version, since the feds won’t enforce it against themselves anytime soon.
Because the High Court slices its baloney very thin, you clearly will be able to legally keep handguns for self defense at home. The right to keep and bear anything else anywhere else is not addressed. Getting everything else formally back into the picture (outdoor carry, firearm types, acceptable uses, commercial activity, much more) will take many moons.
This extraordinarily event-filled day at the Court included Justice Stevens’ last day in public as a member, Justice Ginsburg’s husband’s death the night before, the beginning of senate confirmation hearings for liberal High Court candidate Elena Kagan, and the much awaited McDonald decision, on this the last day of the current session.
Although some people had held out hope that Sotomayor, in her first gun case, would lean on her known respect for civil rights and find for the right to keep and bear, she turned out to be the disappointment most expected, and voted for denial of rights in the 5-4 squeaker decision. She joined Breyer’s dissent, a masterpiece of odd reasoning and lack of appreciation for this fundamental right. Kagan, cut from similar cloth, is likely to respond similarly if confirmed.
The McDonald v. Chicago decision is a 214-page document, with a six-page syllabus (the summary that precedes decisions), a 45-page decision of the Court written by Justice Alito (which is all that’s covered below, given the amount of time this took), a 15-page concurrence by Scalia, a separate 56-page concurrence by Thomas, and two dissents — 57 pages from Stevens, and 31 pages from Breyer with a four-page appendix (joined by Ginsburg and Sotomayor). That’s a lot of reading (116 pages of “you have rights,” 92 pages of “you should not”), and by the time you see this, news organizations will have moved on to other subjects, but I will have just finished figuring out what the Court actually said. In the interest of speed, here’s Alito’s portion, and I’ll get to the concurrences and dissents soon.
Because I worked very fast (or perhaps, because I read very slowly, I have to pore over this stuff with a marker and examine and ponder every piece) you may find a slightly elevated error rate from my usually squeaky clean style. Please forgive me, and as usual, corrections will be forthcoming as needed.
The decision is remarkably well structured and addresses each of the key issues one at a time. It begins with a lengthy justification for its reasoning. The Court notes the petitioners (the pro-rights side led by Alan Gura) rest the bulk of their case on the 14th Amendment’s “privileges or immunities” clause. This broad protection of rights, 137 years old, was gutted completely by the Slaughterhouse cases in 1873, and petitioners point out convincingly that no modern scholar seriously argues that Slaughterhouse was correctly decided, and ask that P or I be reinstated. The High Court flatly rejects this and leaves P or I a dead letter. They showed disdain for it in oral arguments, and demolish the notion here.
As a second thought, petitioners suggested the Second Amendment could also be incorporated against state infringement through the 14th Amendment’s “due process” clause, which is how all other BOR provisions have been adopted. To this, the Court agrees, and it is on this point that the right to keep and bear arms won the day. The NRA in large measure championed this winning approach, over the harshly dismissed P or I stratagem.
In page after page Alito carefully justifies and explains why due process is the right tool, and how it has been used similarly in the past (with roots dating to 1884, in what’s now known as the “selective incorporation” doctrine). Because a right proposed for incorporation must be fundamental and deeply rooted in our history, he describes a mountain of evidence to establish the right to keep and bear as unassailibly fundamental, a real joy to read. (There have been as many as five guidelines to consider, simplified over the years to essentially, “fundamental to our scheme of ordered liberty… and whether this right is deeply rooted in this Nation’s history and tradition.”)
As a sidelight, the Court notes that at this point in time, all the rights of the first eight amendments have been fully incorporated except: (in addition to the right to keep and bear arms) “the Sixth Amendment right to a unanimous jury verdict… the Third Amendment’s protection against quartering of soldiers… the Fifth Amendment’s grand jury indictment requirement… the Seventh Amendment right to a jury trial in civil cases… and the Eighth Amendment’s prohibition on excessive fines,” and then provides good detail on why this is so.
The purpose of the 14th Amendment is critical to understanding the incorporation process, and even more so, its role in protecting the right to arms for blacks who were being violently disarmed after the Civil War. The fight against racism, the effort to establish equal justice, the need for anyone in the south to be protected from racist former-confederate abuses, the value of arms to oppressed masses, these were driving forces behind adoption of the 14th, and that record is now indisputably out in the open. Denials, at least rational ones, will have to cease.
[Note for future research -- the decision makes frequent reference to armed blacks being disarmed... isn't that what the arms are for, to prevent such things? Did blacks in the antebellum south do as folks in modern Louisiana did after Katrina, meekly hand over their guns when bad guys ("officials") simply showed up at the door? Where is the resistance-to-tyranny part? Where are the cold dead fingers? Many of the blacks were then shot to death after being disarmed, what did they have to lose from armed resistance? Is the armed-resistance-to-tyranny thing not exactly what it's cracked up to be? See, e.g., p. 23-25]
This decision provides blatant exposure of the need blacks had for arms, and the efforts to disarm them. The revisionists and victimization lobbies who would prefer locking away these relevant parts of history should never recover. That may turn out to be one of the best parts of this case — which after all has a black man, Otis McDonald, at its center. His desire to have a firearm at home for personal protection against thugs, much like his predecessors after the civil war, was denied by prejudicial government tyrants, and is now reinstated. This 14th Amendment debate quote from Sen. Pomeroy makes the point with remarkable color and clarity:
“Every man… should have the right to bear arms for the defense of himself and family and his homestead. And if the cabin door of the freedman is broken open and the intruder enters for purposes as vile as were known to slavery, then should a well-loaded musket be in the hand of the occupant to send the polluted wretch to another world, where his wretchedness will forever remain complete.”
The popular canard that, “When seconds count, the police are just minutes away,” gets a historical context from the Old West. Examining how state Constitutions recognized the right to arms, the Court notes how people living in lawless frontier towns had to fend for themselves:
“These state constitutional protections often reflected a lack of law enforcement in many sections of the country. In the frontier towns that did not have an effective police force, law enforcement often could not pursue criminals beyond the town borders… Settlers in the West and elsewhere, therefore, were left to repel force by force when the intervention of society… [was] too late to prevent an injury.”
The decision then moves to excoriate the respondents — Chicago and Oak Park, who sought to deny McDonald’s (and everyone’s) right to defend themselves with a firearm. The Court shows them no mercy, in large measure because their arguments are bogus, invented, specious and without value. One by one they demolish the balderdash Chicago used to justify its position.
The one I liked the most was Chicago’s suggestion that “if it is possible to imagine any civilized legal system that does not recognize a particular right, then the Due Process Clause does not make that right binding on the States.” “Therefore, the municipal respondents continue, because such countries as England, Canada, Australia, Japan, Denmark, Finland, Luxembourg, and New Zealand either ban or severely limit handgun ownership it must follow that no right to possess such weapons is protected by the Fourteenth Amendment.”
The Court virtually ridicules the suggestion, calling it “stunning,” pointing out that if this were a standard for the U.S.,
“For example, many of the rights that our Bill of Rights provides for persons accused of criminal offenses are virtually unique to this country. If our understanding of the right to a jury trial, the right against self-incrimination, and the right to counsel were necessary attributes of any civilized country, it would follow that the United States is the only civilized Nation in the world.”
The one place where I believe respondents have a point, echoed by some gun-rights enthusiasts, is that incorporation weakens federalism, and to this I have some sympathy. Incorporation does limit states’ ability to act, experimentation and variety, but this is an old argument as the Court notes, has never deterred incorporation of fundamental rights, and is an unavoidable side effect of ensuring that states don’t abuse their residents.
Where gun-rights activists will get the most stress is the Court’s assurance, repeated from Heller, that this case will not eliminate “longstanding regulatory measures [such] as ‘prohibitions on the possession of firearms by felons and the mentally ill,’ ‘laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.’ We repeat those assurances here. Despite municipal respondents’ doomsday proclamations, incorporation does not imperil every law regulating firearms.” On the other side of the coin, however, how many laws does it sanction? No one knows.
In closing, Alito first dismisses Stevens’ dissent with a wave of his hand, saying Stevens’ “eloquent opinion covers ground already addressed, and therefore little need be added in response.” Well, he does give the guy a few paragraphs of iron rebuttal.
Breyer’s dissent has essentially four arguments, and Alito takes them apart in order. First, “there is no popular consensus” that 2A is fundamental, but that falls under the overwhelming evidence, and the consensus of 251 representatives and 58 senators who filed a brief supporting incorporation (plus, consensus has never been a factor).
The argument that incorporation affects federalism has already been disposed of and is not grounds to deny action. Again, this does have a troubling aspect, but as the Court points out,
“Incorporation always restricts experimentation and local variations, but that has not stopped the Court from incorporating virtually every other provision of the Bill of Rights. The enshrinement of constitutional rights necessarily takes certain policy choices off the table.”
The idea that the right doesn’t protect minorities “and those lacking political clout” is easily dismissed, especially since 80% of murder victims in Chicago are black — that old demographic, geographic and socio-economic side of the gun “problem” the media persistently hides. Amici insist it is crucial for minorities, including Women State Legislators, Jews for the Preservation of Firearms Ownership, and the Pink Pistols specifically named in the opinion. And the lament that this would give judges a difficult task when questions arise, in an area where they lack expertise, well, the Court reiterates to Breyer that interest balancing is not acceptable, so the poor overworked judges don’t have the problem.
The bottom line ends the majority decision:
“In Heller, we held that the Second Amendment protects the right to possess a handgun in the home for the purpose of self-defense. Unless considerations of stare decisis [prior precedent] counsel otherwise, a provision of the Bill of Rights that protects a right that is fundamental from an American perspective applies equally to the Federal Government and the States… We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller.”
News Coverage Errors:
“The ruling finds it unconstitutional for state and local governments to restrict individual gun rights of law-abiding Americans.”
–Kay Bailey Hutchinson in an eblast from her Texas U.S. Senate campaign. [The decision actually supports restrictions, specifying some that are OK, and leaving the scope of the restrictions up to future court actions.]
“Thanks to the Supreme Court, average Chicago residents like Mr. McDonald will now enjoy the same right of self-defense as a squad of bodyguards provides to Mayor Richard Daley.”
–Alan Gottlieb in a same-day press release. [The sentiment is understandable and evocative, but it's impossible to imagine that Daley's bodyguards could be disarmed wherever they travel or be limited in what they can carry, while Chicagoans will have narrowly prescribed conditions under which they can keep and bear; for the moment, the decision only includes handguns, only for self defense, and only at home.]
“Today, the Supreme Court said the Second Amendment means what it says, the right to keep and bear arms shall not be infringed.”
–Judge Napolitano, FOX news 2:58 p.m. [One of my biggest complaints is that the decision fails to even address "shall not be infringed" let alone require that as a condition and in fact does the opposite, by stating infringements that are acceptable and reinforcing some from Heller, like no guns in government buildings, schools and other unnamed "sensitive" areas.]
“Americans can now carry guns anywhere,”
–The Ed Show, MSNBC [Pure hogwash meant to instill fear and misconceptions, it is totally untrue and has nothing to do with what this decision does. The idea of "can now carry" completely ignores the endless legal battles coming to define the decision, only for Chicago, before anyone can do anything. MSNBC is not expected to issue a correction.]
“The Supreme Court today told state and city governments that they can regulate the right to keep and bear arms.”
–CNN Radio same-day news [Spun to match CNN's notorious anti-rights view on the topic, this is unfortunately all too true, though it's only half the story -- since first, states and cities only have delegated powers and not rights, and basically undefined constraints were indeed placed on them by the decision.]
From the anti-rights advocates:
Jackie Hilly, Executive Director of New Yorkers Against Gun Violence, approves of the decision:
“All the other amendments have reasonable restrictions on them. So I actually really like the Heller decision and the McDonald decision because they put the Second Amendment in the context of all the other amendments… people from the gun lobby like to promote the idea that you have an absolute or god-given right to possess a gun. That’s clearly not true; your right can be restricted.”
Paul Helmke, the Brady Campaign to Promote Gun Violence (interviewed in The Atlantic):
“They both (Heller and McDonald) deal just with the right to have a gun in your home for self defense… Alito today repeated the language that Justice Scalia used two years ago and said this right is not unlimited. In his decision they talk about it… you can restrict who gets guns, you can restrict where they take the guns, you can restrict how guns are carried, you can restrict how guns are sold, you can restrict how guns are stored, you can restrict what kind of guns there are… Alito reinforced that outside of a handgun ban, cities can do a number of things… They feel that you have a right to the gun in your home for self defense, and that anything beyond that, probably, I think they’re going to defer to the government’s interest…
“The one extreme of handgun bans, total gun bans, that’s off the table now. But they’ve also taken the extreme any gun, anywhere, anybody, anytime — that’s off the table too, and once elected officials at the federal level, at the state level, get that part of the decisions through their head, I think we could actually see some progress…
“The ruling today is really is fairly narrow. It deals only with guns in the home, that you’ve got a right to a gun in the home for self defense, and that everything else is subject to reform and restriction…
“Every criminal defendant out there with a gun charge is going to raise this to try to get a better plea deal, so that’s one issue. There aren’t that many gun laws out there. There are only a few at the federal level, there aren’t that many states that have done a lot, but the ones that are out there are going to be challenged… New York’s registration and licensing scheme… California’s assault weapon restrictions… the one-gun limit restrictions in the states that have those are all going to be challenged.”
Chicago mayor Daley at his same-day press conference:
“We’ll publicly propose a new ordinance very soon… As a city we must continue to stand up and fight for a ban on assault weapons as well as a crackdown on gun shops and their owners, at the federal and state level… We’ll also look for new ways to challenge gun manufacturers, including how they market to our younger people. We’ll continue our efforts to close the gun shop (sic) loophole in Washington D.C… We are a country of laws not a nation of guns.”
Alderman Anthony Beale, chairman of Police and Fire Co. Committee on Chicago’s City Council:
“We are digesting the 200 pages and will have something tomorrow to stand up to the court’s ruling.”
The Chicago Tribune, writing the day before the decision, said:
“Daley has discussed several options if the 1982 handgun ban is no longer in effect. Chicago could require firearm owners to purchase insurance and receive training or maintain a registry of how many guns are in particular homes so that police responding to an address will know what they’re up against.”
By Nancy K. Matthis
| Monday, June 28th, 2010 at 2:29 pm
In a 5 to 4 decision announced by Justice Alito the Supreme Court decided McDonald v. Chicago in favor of Chicago resident Otis McDonald. McDonald was represented by lawyer Alan Gura, who had argued and won D.C. v. Heller in 2008, exactly two years and two days ago.
Alito, Roberts, Scalia, Kennedy and Thomas supported the Second Amendment. Despite the recent death of her husband, Justice Ruth Bader Ginsburg returned to vote against gun rights. Justices Breyer and Stevens both voted against gun rights and wrote dissenting opinions. Justices Ginsburg and Sotomayor concurred with Breyer’s dissent.
Wikipedia — McDonald v. Chicago, read this for complete background.
On June 28, 2010, the High Court ruled in a 5-4 decision that the Second Amendment was incorporated under the Fourteenth Amendment, striking down Chicago’s gun restrictions.
NRA-ILA — National Rifle Association Hails Historic Victory:
National Rifle Association Hails Historic Victory on Second Amendment Freedom in McDonald v. City of Chicago
Monday, June 28, 2010
Fairfax, Va. — The National Rifle Association of America today praised the U.S. Supreme Court’s historic decision in another landmark Second Amendment case. In a 5-4 decision, the Court ruled that the Second Amendment applies not just to Washington, D.C. and other federal enclaves, but protects the rights of all Americans throughout the country. The opinion in McDonald v. City of Chicago brings an end to the nearly 30 year-long handgun ban that the city has imposed on its law-abiding citizens….
As a party to the case, the NRA participated in oral arguments before the Court in March. The NRA persuasively argued that the Second Amendment applies to state and local governments through the Fourteenth Amendment and that handgun bans, like those in the City of Chicago and the Village of Oak Park, are unconstitutional under any standard of judicial review. This same view was shared in friend of the court briefs by a bipartisan group of 309 members of Congress from both chambers, 38 state attorneys general, and hundreds of state legislators. Public opinion polls show that it is also shared by the overwhelming majority of the American people….
Oral arguments transcript (PDF) — Here.
Cornell University Law School — Syllabus: M c DONALD et al. v . CITY OF CHICAGO, ILLINOIS, et al.
Nancy Matthis is the publisher and executive editor of the weblog format news magazine and multimedia outlet American Daughter Media Center.
By Jerry A. Kane
| Saturday, October 17th, 2009 at 3:04 pm
The leftist elite establishment has blinded the people in this nation through its educational institutions, mainstream media outlets, and the entertainment industry to garner power for a repressive society. While Brother O and his Bread and Circuses Administration zealously dismantle the sleeping middle class, Americans have become unwitting accomplices to a growing underclass.
During education’s ongoing paradigm shift to a postmodern pedagogy in the mid-1980s, a fellow graduate student recognized that tenure and promotion in the academic world depended on the ability to “quack like a duck,” i.e., absorb and regurgitate the academy’s leftist world view and withhold personal opinions. In other words, outspoken conservatives are both persona non grata and underemployed in academia.
The duck motif not only extends to “journalists” in the mainstream media, but as Rush Limbaugh recently discovered, it extends to the National Football League (NFL), a league he greatly admires.
“[T]he NFL … is the most politically correct environment I’ve ever seen in my life,” said Dennis Miller on The O’Reilly Factor. “I don’t even know why Limbaugh would want to be in [it] quite frankly.”
Like many outspoken professors and journalists, Limbaugh now suffers from the pangs of outrageous injustice, being denied his dream for criticizing and mocking the nanny notions of the statist-minded elite. Limbaugh will not be afforded the opportunity that he has earned through achievement to work in the profession he loves for no reason other than his outspoken conservative views are abhorred by the leftist elite establishment.
Since it was leaked that Limbaugh was part of a group intending to buy the St. Louis Rams football team, the propagandists in the mainstream media have worked feverishly to malign his reputation, undermine his creditability, and destroy his character. They overturned rocks for race-baiting poverty pimps and scoured the NFL for nitwit jocks or any feckless team owner they could find to denounce Limbaugh as a bigot and racist before the nation.
The attack and subsequent defamation of Limbaugh adds to the list of media assaults on outspoken conservatives in order to prevent the resurgence of Reagan conservatism from entering the mainstream of American politics and undoing the leftist elites’ socialist agenda. The leftist elite establishment fears the resurgence of a conservatism of individualism, not of country clubs and boardrooms. The establishment dreads the Reagan conservatism championed over talk radio and at town hall meetings and tea parties, which respects the law and reflects the values and traditions of the people.
Statists demagogues live in constant terror of individualists who are independent, loosely connected to groups, and don’t know their place. They commission media propagandists, ready at their beckon call, to seek out and destroy them. The statist diktat is not to refute an opponent’s argument, it is to “wipe him from the face of the earth,” Sarah Palin, Clarence Thomas, and Robert Bork are noted recipients of the left’s scorched-earth and personal destruction politics.
The mainstream media have been frantically trying to deflate Sarah Palin’s ascendancy to the leadership of a national conservative movement since her dazzling acceptance speech at the Republican National Convention in September 2008. Had she been a Democrat and espoused the statist ideology of Brother O or Hillary Clinton, Palin’s astounding rise from housewife, to mayor, to governor, to vice presidential candidate would have been praised by propagandists, extolled by environmentalists, lionized by leftists, and fawned over by feminists throughout the nation.
People who use common sense and apply the principles of the Constitution obstruct progressive governance, which explains why the media upended Robert Bork’s nomination and tried to stop Clarence Thomas’ confirmation to the Supreme Court. The media permitted and perpetuated the malicious, baseless allegations of the Democrat smear merchants to damage the reputations and destroy the creditability of both men.
Such reprehensible media campaigns, waged to disgrace both men, “did not resemble an argument so much as a lynching.” Bork was depicted as a judicial tyrant, his wife was falsely accused of being a Holocaust denier, and even his movie viewing habits were called into question. Likewise, Thomas was caricatured as a freakish feel-copping porno pervert in order to humiliate him, strip him of his dignity, and dishonor him for life.
The NFL’s management, owners, and players union along with most of the mainstream media and entertainment industry detest and despise Limbaugh as much as they do Palin, Thomas, and Bork. Yet Limbaugh persists in his love for the National Football League regardless of whether the sentiment is mutual.
Like the pedestaled wife of a fawning cuckold, the NFL graciously accepts Limbaugh’s lavish praises, glowing endorsements, and personal expenditures, yet abhors the very thought of embracing him. When the NFL’s leftist elite establishment denied Limbaugh limited ownership in a football franchise, it denied all outspoken conservatives and sent a subtle message to its owners, coaches, and players to suppress conservative opinion and quack like a duck.
The environment is ripe to don the special sunglasses, face the unadorned reality, and see the hideous leftist potentates and mindless moguls for the despicable fascists they truly are. In the grand scheme of things, the significance of the NFL pales in comparison to that of the USA. The country needs a wake up call, and the time has come for Limbaugh to stop chewing bubble gum and phone it in.
By Nancy K. Matthis
| Thursday, June 26th, 2008 at 10:15 am
We’ll be collecting reactions to the Supreme Court decision as they come in, so keep checking back:
SCOTUS Wiki — Case background, including complete listing of links to amicus briefs
Wikipedia — Background
National Rifle Association — Background, including complete listing of links to amicus briefs
Oral arguments transcript (PDF) — Here.
Note from American Daughter: We won! This moment is sweet, very sweet. And I want all of my fellow conservatives to enjoy this day. Spend time savoring the victory! But never relax your vigilance. Remember that if there had been just one less Reagan appointee or just one more Clinton appointee on the Supreme Court, we would have lost the Constitutional rights guaranteed by our founding fathers through judicial activism.
The Opinion (PDF) — Syllabus: DISTRICT OF COLUMBIA ET AL. v. HELLER
1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home…..
2. Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For xample, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons….
3. The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense….
SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, THOMAS, and ALITO, JJ., joined. STEVENS, J., filed a dissenting opinion, in which SOUTER, GINSBURG, and BREYER, JJ., joined. BREYER, J., filed a dissenting opinion, in which STEVENS, SOUTER, and GINSBURG, JJ., joined.
SCOTUS Blog — My Sense of the Bottom-Line from Heller (updated at 11:30)
Individuals have a constitutional right to possess a basic firearm (the line drawn is unclear, but is basically those weapons in general lawful use and does not extend to automatic weapons) and to use that firearm in self-defense. The government can prohibit possession of firearms by, for example, felons and the mentally ill. And it can also regulate the sale of firearms, presumably through background checks. The Court leaves open the constitutionality of a licensing requirement….
The opinion leaves open the question whether the Second Amendment is incorporated against the States, but strongly suggests it is. So today’s ruling likely applies equally to State regulation.
National Rifle Association — U. S. Supreme Court Strikes Down D.C. Gun Ban! Declares That the Second Amendment Guarantees an Individual Right to Keep and Bear Arms
“This is a great moment in American history. It vindicates individual Americans all over this country who have always known that this is their freedom worth protecting,” declared NRA Executive Vice President Wayne LaPierre. “Our founding fathers wrote and intended the Second Amendment to be an individual right. The Supreme Court has now acknowledged it. The Second Amendment as an individual right now becomes a real permanent part of American Constitutional law.”
Alan Korwin’s blog — Gun Law Update — Flash — Heller Case Affirmed!
5 to 4 Decision Saves Gun Rights In America
D.C. Gun Ban Is Unconstitutional and Overturned
Second Amendment Protects an Individual Right Unconnected with Militia Service, and is preserved by a single vote
Use of firearms for traditional lawful purposes such as self defense at home is a protected right
The history, precedents, scholarship and wording of the Second Amendment support the Court’s decision….
John Lott’s blog — List of links to media outlets that will be coverning this and Heller: DC gun ban struck down (Just links to Dave Hardy’s blog post)
Dave Hardy’s blog — HELLER WIN!
….It’s 5-4, the majority signing the one opinion, no concurrences or fragmentation. Individual right not linked to militia service. No need to settle standard of review, since a complete ban on a wide class of arms fails all of them…..
Clayton Cramer’s blog — We Won!
Justice Scalia wrote the decision in Heller. It was a 5-4 decision, but they ruled:
1. The Second Amendment protects an individual right, not tied to or limited to militia duty.
2. It protects handguns and other weapons “in common use.”….
Snowflakes in Hell — Victory in Heller!
The Supreme Court has ruled in the case of DC vs. Heller that DC’s ordinances are a violation of the Second Amendment. This is a momentous occasion. Let the celebrations begin.
While we may not follow our constitution to the letter, at the very least, the Bill of Rights means something, no matter how much the gun haters wish it didn’t.
Long Live the Bill of Rights! Long live the Second Amendment, the individual right of Americans to keep and bear arms….
Alphecca Blog — DC vs Heller Decision: Individual Right, DC Ban Struck Down
I think we won!
Jay Printz (NRA-BoD), via email — 2nd Amendment & Heller Case
Of course, the usual anti-Constitution, Supreme Court suspects were against our rights. But, it looks like we can breathe a little easier. Yippy Ki Yay, Brady Bunch……..
Jim Gilmore (NRA-BoD), via email — Supreme Court decision is a victory for the Second Amendment
Alexandira – Former Governor and current U.S. Senate candidate Jim Gilmore hailed the Supreme Court’s decision to overturn the District of Columbia’s ban on possessing a firearm as a victory for the Second Amendment. “Like all Virginia gun owners, sportsmen and hunters I am pleased by the Supreme Court’s decision to strike down the unconstitutional ban on possessing a firearm.”
Gilmore, a member of the Board of Directors for the National Rifle Association, has been an outspoken advocate for the Second Amendment. “I have always believed that personal and responsible firearm ownership is a fundamental right guaranteed to us by the Constitution and we must only punish those who use firearms illegally to commit crimes. As Virginia’s U.S. Senator I will vote to ensure the Second Amendment rights of law abiding citizens are never infringed upon by the Federal government.”
Gilmore noted “Today is another reminder of the necessity of appointing strict constructionist judges who properly interpret the Constitution.”
Virginia Shooting Sports Association Blog — Heller Wins – Second Amendment is an Individual Right Provides links to material already cited above.
Buckeye Firearms Association — Victory in The United States Supreme Court!
Voting with the majority were Chief Justice Roberts, Justice Alito, Justice Thomas, Justice Kennedy, and Justice Scalia, who wrote the opinion. Justices Breyer, Ginsburg, Souter and Stevens voted to uphold D.C.’s complete gun ban….
Prior to today’s decision, the majority of the federal court circuits had utilized the collectivist theory, mostly as a means to uphold criminal convictions for violations of federal firearm laws. Clearly bad facts make bad law, and today’s decision is the reprieve gun owners have been looking for….
Pennsylvania Firearm Owners Association — Supreme Court Rules Second Amendment Secures an Individual Right
The Supreme Court announced its decision today in Heller v District of Columbia, stating by a vote of 5-4 that the 2nd Amendment confers an individual right to keep and bear arms.
Note: Pennsylvania Firearm Owners Association is collecting news and links to information regarding the decision on this page.
Shooters’ Committee On Political Education — News — SCOPE has an aggregator for related news headlines powered by Moreover.
Second Amendment Foundation — SECOND AMENDMENT TRIUMPH: JUSTICES UPHOLD INDIVIDUAL RIGHT!
With this morning’s ruling on the case of District of Columbia v. Heller, America has begun “its long march back toward liberty under a Second Amendment that means what it says,” the Second Amendment Foundation said.
“Today’s ruling by the Supreme Court should forever put to rest any contention that the right to keep and bear arms is not a fundamental, individual civil right,” said SAF founder Alan M. Gottlieb. “For six decades, anti-gun rights extremists have engaged in a monumental fraud that has been unfortunately perpetuated by activist judges who erroneously insisted that the right to keep and bear arms applies only to service in a militia….”
Fox News’ Election HG — Raw Data: Candidates on Supreme Court’s Ruling on D.C. Handgun Ban
John McCain issued the following statement regarding Thursday’s U.S. Supreme Court ruling striking down Washington, D.C.’s handgun ban:
“Today’s decision is a landmark victory for Second Amendment freedom in the United States. For this first time in the history of our Republic, the U.S. Supreme Court affirmed that the Second Amendment right to keep and bear arms was and is an individual right as intended by our Founding Fathers. I applaud this decision as well as the overturning of the District of Columbias ban on handguns and limitations on the ability to use firearms for self-defense.
“Unlike Senator Obama, who refused to join me in signing a bipartisan amicus brief, I was pleased to express my support and call for the ruling issued today….”
Dave Kopel’s bog — Nothing yet
CPL Trainer — Nothing yet
Citizens’ Committee for the Right to Keep and Bear Arms — Nothing yet
What many folk do not realize is the fact that Alan Gura, who argued FOR Heller before the Supreme Court, had never tried a case before the Supreme Court until this one. From an article in WaPo:
Even for a lawyer with decades of experience and a résumé of eminent achievements, an opportunity to help shape constitutional history might never come along.
Then there’s Alan Gura, 37, Class of ’95 at Georgetown University Law Center. For him, the chance has just arrived.
When the U.S. Supreme Court hears arguments today in District of Columbia v. Heller, a case that could lead to a landmark ruling on the Second Amendment, Gura will address the justices for the first time in his career.
He’ll ask them to uphold a lower appellate ruling that struck down the District’s handgun ban, one of the nation’s toughest gun control laws, which was passed in 1976. He’ll urge them to interpret the Constitution as guaranteeing people the right to own firearms.
To merely call this the biggest case of Gura’s relatively short professional life — well, that wouldn’t do it justice. Constitutional scholars everywhere are watching. To oppose him, the city has hired a 66-year-old legal titan who was winning arguments in the Supreme Court when Gura was still studying for the bar exam….
OUR FREEDOM HANGS BY SUCH A SLIM THREAD!
Nancy Matthis is the publisher and executive editor of the weblog format news magazine and multimedia outlet American Daughter Media Center.
By Nancy K. Matthis
| Wednesday, June 25th, 2008 at 8:18 pm
Today yielded a Supreme Court ruling that dismayed a broad sector of the American public. CNN reports:
Child rapists can’t be executed, Supreme Court rules
The U.S. Supreme Court ruled 5-4 Wednesday that child rapists cannot be executed, concluding that capital punishment for crimes against individuals can be applied only to murderers….
As many observers have noted, this calls into question the use of the death penalty for treason.
Jay at Stop The ACLU Blog immediately pounced on the decision:
Supreme Court: No Death Penalty for Child Rape
It just wouldn’t be right if I didn’t comment on the 5-4 decision for the Supreme Court to rule itself over State’s rights, and the majority’s standard. This is just another example of how important it is to have someone that will appoint constitutionalist judges….
Go read the rest.
The case was based on a death penalty appeal by a child rapist condemned to death in Louisiana. So immediate reaction came from disappointed Louisiana governor Bobby Jindal, quoted in the Chicago Tribune:
“The opinion reads more like an out-of-control legislative debate than a constitutional analysis,” said Louisiana Gov. Bobby Jindal, a Republican. “One thing is clear: The five members of the court who issued the opinion do not share the same ‘standards of decency’ as the people of Louisiana.”
Prepared for this eventuality, the Louisiana legislature had another bill ready for Jindal’s signature, which he signed at once From WRNO (Radio New Orleans):
Jindal Signs Bill Allowing Chemical Castration
Governor Bobby Jindal has signed into law a bill allowing for the chemical castration of sex offenders.
Jindal said, “The Sex Offender Chemical Castration Bill is a good bill, and I am especially glad to sign it into Louisiana law today, on the same day the Supreme Court has made an atrocious ruling against our state’s ability to sentence those who sexually assault our children to the fullest extent. Those who prey on our children are among the very worst criminals imaginable.”
So child rapists won’t be dead in Louisiana, but at least they will be geldings.
And, Jay at Stop The ACLU Blog points to a future solution:
Louisiana Governor Jindal Vows to Amend State Law to Maintain Death as a Penalty for Child Rape
I am glad to know there are still some politicians willing to stand up to the tyrants in black robes!….
Barack Obama got out in front of this quickly, expressing his opposistion to this decision. It was, as MSNBC’s First Read quickly noted, a way to avoid the “Willie Horton” pitfall that ruined Dukakis’ presidential bid:
OBAMA’S NON-DUKAKIS ANSWER
Michael Dukakis, Obama is not.
On the death penalty today, Obama sidestepped a potential political land mine. Opponents could have had something recent and tangible to tag him anew as a hard-left liberal had he answered any differently than he did on the issue.
When asked about Supreme Court ruling against the use of the death penalty in instances of child rape today at a news conference in Chicago, Obama answered, “I disagree with the decision….”
[This is relevant, because lots of observers had been making the comparison between Obama's timeline appoval profile and that of the unfortunate Dukakis, who enjoyed an exciting early lead and subsequently lost forty states.]
Over at Stop The ACLU Blog Jay is surprised:
Shocker: Obama Also Disagrees With Idiotic Supreme Court Decision
You know that the Court has mis-stepped when the most liberal individual in the Senate agrees with the Conservatives….
Well, we don’t really believe this would be Obama’s take under ordinary circumstances, but it makes for opportunistic campaign posturing on a subject where he doesn’t have to prove his commitment. Why don’t we believe him? Because he winked at the prevalent hospital-based infanticide occurring in Illinois when he was in the state Senate.
The Anti-Idiotarian Rottweiler parses the illogic:
Justice Kennedy, defending child rapists’ right to live, argues that they’re merely following a “changing ethos” among the population, which is a remarkably idiotic thing to assert, even for a liberal, when you’re striking down a law passed by the representatives of said population.
Jen O’Hara at Shining City examines the assumptions about our cultural norm:
States’ rights, people! The death penalty is perfectly justifiable for rape, especially child rape! What the heck is wrong with this country? ….
Noting that Justice Kennedy said the absence of any executions for rape and the small number of states that allow it demonstrate “there is a national consensus against capital punishment for the crime of child rape” Jen goes on to say:
There is? Really? I’m not so sure. Even in prison, child molesters have to be kept out of the general population lest they be beaten to death by the other criminals.
Very good point, Jen.
At Webloggin M.K.Freeberg makes a stunning comparison between the text of the majority decision and the passage from the pediatric forensic report that describes the child’s injuries in the test case. Skip this part if you have a weak stomach:
A laceration to the left wall of the vagina had separated her cervix from the back of her vagina, causing her rectum to protrude into the vaginal structure. Her entire perineum was torn from the posterior fourchette to the anus.
Go read the complete comparison.
Bloggers were incredulous that SCOTUS would fail to protect the innocents in our society. Typical was the reaction of Buster at In Muscatine:
SCOTUS Loses Their Minds …. Once again proving that in the Liberal mind there is no criminal too heinous to protect….
Buster’s outlook is fairly typical of the hundreds of weblog responses.
If nothing else, this monumentally disappointing decision elicited an outpouring of commentary in the Blogosphere that proves once again the value of our “citizen journalism.” The mainstream media fail to examine all the nuances of events, but collectively, the bloggers leave no stone unturned.
You would not find an exposure of the flawed logic, such as the “Nice Doggie” made in the MSM. Nor would the MSM have done the homework to pore through the documents and produce the striking juxtaposition created by M.K.Freeberg. Jen’s right-on-target example illustrating our cultural norm didn’t appear in major outlets. So our interactive conversation in the Blogosphere serves to inform us better than traditional media.
The SCOTUSblog post is here.
UPDATE, Thursday morning — Jay comments about the chemical castration in Louisiana:
I think a lot of folks will like Bobby Jindal’s response to the idiotic ruling of the Supreme Court. Since they don’t think death is proportional punishment, I wonder how they’ll feel about castration?
Nancy Matthis is the publisher and executive editor of the weblog format news magazine and multimedia outlet American Daughter Media Center.
By Dan Cameron Rodill
| Thursday, June 19th, 2008 at 11:35 am
George Bush, his poll numbers almost as dismal as those for the US Congress, is not normally mentioned with Democratic icon Franklin Delano Roosevelt and Republican icon Abraham Lincoln. Arguably bashed as much as “the gangly ape” Lincoln was, Bush is thought to have little in common with them, except for presiding over a war. Could this week’s momentous legal decision change that? It could. But that would depend on George Bush.
According to Chief Justice John Roberts, the Boumediene v. Bush 5-4 decision marks a very dark day in Supreme Court history. To paraphrase Roberts, with a little help from FDR: This day will live in judicial infamy.
For the first time ever, alien prisoners captured on a battlefield are to be granted habeas corpus rights. The Mujahadeen are to get the Constitutional rights of a US citizen. A lawyer’s dream? A legal nightmare for the US military and court system? It’s certainly one giant step for turning warfare into lawfare. The American soldier, besides the national defense, must be ready to gather evidence for his own defense. His every action, including pulling a trigger, can be subject to subpoena. Judges now rule 300 million Americans?
Liberals and Democrats are grinning wide. They feel they have socked it to George Bush again and struck a blow for “human rights,” a progressive twofer. The SCOTUS decision was a case of five liberals (including a Bush pere appointee) against four conservatives.
Conservatives and Republicans are groaning that, for liberals, the desire to bash Bush and score points trumps common sense and national security every time.
Republicans say these Guantanamo prisoners, being held indefinitely, are very dangerous Islamic fanatics. (Monica Crowley, who visited there and saw them up close, concurs.) It’s been documented that some of those released have gone on to kill Americans. The Democrats counter that not all of them are dangerous, some are innocent, and therefore you need to put them all through the (already clogged) US court system, no matter how much time, money and chaos it takes.
The gringomanic response:
Of course the Democrats are transparent, increasingly partisan, increasingly “progressive.” To see them is to see through them.
But as for George Bush, how serious is he? Mildly? Very? Or what?
If Bush is deeply concerned, he doesn’t have to cite Franklin Roosevelt, who thought nothing of holding German prisoners in WW II, when no Democrat “progressive” would dare to squawk about their “human rights” and did not even complain when FDR and the military tribunal ordered them executed.
What is to stop George Bush from hearkening back to Abraham Lincoln, if he’s serious? In 1861 Lincoln suspended civil rights wherever he thought peaceniks and others endangered the war effort. There was no ACLU on the attack.If there had been, all indications are that Lincoln would have tossed it into prison without a second thought. In 1862 Lincoln suspended habeas corpus and had copperhead democrats arrested for interfering with the war effort. The ACLU wouldn’t have stood a chance against Lincoln.
George Bush would not have to go near as far as Honest Abe. Lincoln suspended habeas corpus nationally, and for U.S. citizens. Bush could be much milder. What is to stop him from suspending habeas corpus for any alien prisoner — who arguably does not have that right in the first place? Georgie could suspend it just for good measure, for anyone who believes that the five liberal activist Judges were acting Constitutionally.
There is precedent, as the legalists like to say. It is there for the President.
Would a globalist guy like George Bush, a “compassionate conservative,” never too fussy about borders, be inclined? Would he mind the full-court press of liberals barking and yelping at him for suspending a “global right” of these aliens — a “right” that never was until their Judges said it is?