After McDonald, what's next?

[Ashlar]

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

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

[chabouk]

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

I hope it's to hold the federal government to the same standard.

The post-'86 machine gun ban cannot stand a strict scrutiny challenge, nor can blanket bans on possessing or bearing guns on federal property or in federal facilities (especially when those are drastically different from the surrounding state).

The $200 NFA tax imposed in 1934 is no different than a poll tax, or requiring a fee to exercise free speech.

[hirundo82]

What's the next check mark in Gura's "to-do" list?

Concealed carry. Heller and McDonald are cases about keeping arms; next up are cases on bearing arms.

Palmer v. District of Columbia

[Kythas]

What's the next check mark in Gura's "to-do" list?

Concealed carry. Heller and McDonald are cases about keeping arms; next up are cases on bearing arms.

Palmer v. District of Columbia

But didn't SCOTUS include the bearing of arms in the Heller decision? While stating it is not an unlimited right, the Heller decision does state:

There seems to us no doubt, on the basis of both text
and history, that the Second Amendment conferred an
individual right to keep and bear arms.

[grad_Student]

I'd just like to add the Gura's "privileges or immunities" argument might have been the worst argument to come with. There hasn't been a successful "privileges or immunities" clause argument since 1873. As a first year law student you learn that it hasn't worked in a 140 years so it's very doubtful that the argument would work this go-round. I did enjoy Gura's attempt at getting the Second amendment incorporated in the 14th through it, but damn, he wasted most of time by even bringing up the issue.

[KD5NRH]

I'd just like to add the Gura's "privileges or immunities" argument might have been the worst argument to come with. There hasn't been a successful "privileges or immunities" clause argument since 1873.

If no one tries it, there will never be a successful attempt.

PoI isn't just there to fill some extra space they had on the page. At some point, some court is going to have to concede that it means something.

[AEA]

I think the next thing to accomplish is to strip Kommiefornia of all it's senseless gun restrictions and other hindrances to the full 2nd amendment enjoyed by all the other States. One country, one law, no exceptions (even though no one pays any attention to them anyway).

That, or get them to secede and join Mexico! Just build the fence at Oregon and down the full length of the Eastern boundary.

[chabouk]

I'd just like to add the Gura's "privileges or immunities" argument might have been the worst argument to come with. There hasn't been a successful "privileges or immunities" clause argument since 1873.

Practically every constitutional scholar, lawyer, and political historian agree that Slaughterhouse was junk, and that it neutered the 14th Amendment into meaninglessness just five years after it was ratified, and yet the Court seems terrified at the prospect of overturning the case. Ginsburg's oxymoronic plea for Gura to "list the unenumerated rights" that would result from the "Pandora's box" of overturning Slaughterhouse would be comical if it wasn't so frightening: she seems to really believe that no rights count unless they're enumerated, and that the Court will have to tackle everything anyone does to decide if it is a "right" or not.

I know there has been a lot of debate over the NRA being granted oral argument time in this case, but the time for debating that is past. It's important to remember now that the oral argument Gura presented is most likely not the argument he would have presented if not for Clement coming right behind him with a due process argument.

[MechAg94]

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

I hope it's to hold the federal government to the same standard.

The post-'86 machine gun ban cannot stand a strict scrutiny challenge, nor can blanket bans on possessing or bearing guns on federal property or in federal facilities (especially when those are drastically different from the surrounding state).

The $200 NFA tax imposed in 1934 is no different than a poll tax, or requiring a fee to exercise free speech.

I was thinking about that $200 tax. I saw on an inflation calculator that $200 in 1934 is almost $3300 in today's dollar. If they were to reopen the registry yet raise that tax proportionally, would most consider that too high? Would it be accepted at all?

I would love to see an argument made against closing the gun registry. Not sure what that would be though.

[Ashlar]

Here's a thought about Gura using the P or I as his 'first line' argument.. it gives him room to come back to sdp as a fallback, 'more sensible' position.

(Like when haggling, you start from a position you're willing to give on.)

[casingpoint]

At some point, some court is going to have to concede that it means something.

When the SCOTUS law clerks get through filling in the blanks, incorporation through the Privileges or Immunities clause of the Fourteenth Amendment may be more palatable to the Supremes than it was during Tuesday's garbled and sometimes almost incoherent judicial babble. Resident liberals on the court may have some back door interests in seeing the PorI clause brought back to life to incorporate the entire Bill of Rights to the states, as explained herein: http://jonathanturley.org/2010/03/02/gu ... -gun-case/" onclick="window.open(this.href);return false;.

Whoever writes opinion, it will be interesting to see if they give an in-depth analysis to Gura's proposition to bring back the PorI clause, or simply quote M.C. Hammer when he said, "You Can't Touch This," and close the door on an overturn of the erroneous Slaughterhouse decision of 1873.

[joe817]

I came across a very interesting podcast interview of Jim Shpherd who was at SCOTUS yesterday. It's an entertaining listen. It's 28:19 but makes good listening when browsing the forum:

http://www.downrange.tv/blog/?p=2197" onclick="window.open(this.href);return false;

This link has 5 more articles about yesterday's hearing. Also If you want to read the entire 77 page transcript of the proceedings there's a link to it.

[Ashlar]

The transcript really is worth a read. Feldman must've had nightmares last night, he got smacked around a lot.

[A-R]

At some point, some court is going to have to concede that it means something.

When the SCOTUS law clerks get through filling in the blanks, incorporation through the Privileges or Immunities clause of the Fourteenth Amendment may be more palatable to the Supremes than it was during Tuesday's garbled and sometimes almost incoherent judicial babble. Resident liberals on the court may have some back door interests in seeing the PorI clause brought back to life to incorporate the entire Bill of Rights to the states, as explained herein: http://jonathanturley.org/2010/03/02/gu ... -gun-case/" onclick="window.open(this.href);return false;.

Whoever writes opinion, it will be interesting to see if they give an in-depth analysis to Gura's proposition to bring back the PorI clause, or simply quote M.C. Hammer when he said, "You Can't Touch This," and close the door on an overturn of the erroneous Slaughterhouse decision of 1873.

That Turley article is well worth reading. I LOVE this quote from it:

The Bill of Rights is part of the privileges of all citizens and no state should be able to abridge those rights

[Charles L. Cotton]

I'd just like to add the Gura's "privileges or immunities" argument might have been the worst argument to come with. There hasn't been a successful "privileges or immunities" clause argument since 1873. As a first year law student you learn that it hasn't worked in a 140 years so it's very doubtful that the argument would work this go-round. I did enjoy Gura's attempt at getting the Second amendment incorporated in the 14th through it, but darn, he wasted most of time by even bringing up the issue.

You are absolutely correct! Thankfully the NRA was allowed time so a proper 14th Amendment argument.

Chas.

Edited to add: My comment is based upon a briefing I received; I have not had time to read the transcript.