Potential Second Amendment Cases for Supreme Court.

The Supreme Court needs to clarify a number of  crucial issues left remaining after its civil rights landmark decisions in Heller and McDonald.  Among these are:
1.  What is the standard of review? ( Strict scrutiny, intermediate scrutiny, rational basis?)
2.  What does "bear arms" mean in the Second Amendment?  To  what extent does the right apply outside the home?
3.  What types of weapons are protected?  What does "arms" mean in the Second Amendmet?

Hopefully, the Court will decide one or more of these cases that have been appealed to it.

H.S. textbooks misstate Second Amendment rights

High School textbooks in at least two states (S.C. and TX), misstate the Supreme Court- approved Second Amendment rule. The  books state that the Amendment only protects the rights of those who are members of the militia.  This is contrary to what the U.S. Supreme Court ruled in D.C. v. Heller and McDonald v. Chicago.  Is this incompetence or is it ideologically motivated?  I still see lots of posts and letters from people who have probably never read either decision, limiting the right to militia members.  Ignorance is bliss for some. Our Bill of Rights is arguable the most important legal document in the land.  It's easy to defeat rights if people don't know they exist.  If you don't like the current interpretation of the Second Amendment, don't lie about it, propose an amendment.

Book Review: Jeffrey Toobin's "The Oath."

I am a long-time Supreme Court watcher and analyst and have taught courses on the Court and constitutional issues (e.g. Fourth Amendment, Second Amendment).  I eagerly took up this book.

The book “The Oath,” by Jeffery Toobin, is subtitled “the Obama White House and the  Supreme Court.” 

As the subtitle suggests, this book is primarily about the struggle between  our most liberal President ever, and the conservative faction on the Court, and the struggle between the liberal and conservative factions on the Court.  One faction is the four conservatives on the Court (Scalia, Alito, Thomas and Roberts) who are sometimes joined by Justice Kennedy, who is the Court’s most frequent swing vote.  The liberal faction is Ginsburg, Kagan, Sotomayor and Breyer.  Toobin provides an inside look at both the White House and the Court.  This review will cover only selected points.

Obama has appointed two Justices, both female (Sotomayor and Kagan), and, for the first time the Court has three females, all of whom vote in a liberal direction.  Like all recent  Presidents, Obama sought appointees who share his ideology.  His appointees have not disappointed him.

In terms of qualifications and background, Kagan’s is a very questionable choice.  Kagan had not practiced law  in two decades before being appointed Obama’s Solicitor General.  She had never had a case before the Court.   She had never been a judge anywhere.  She, unlike most recent Justices, had never clerked for a U.S. Supreme Court Justice. Prior to becoming Solicitor General, she had never argued a case in any courtroom.  Her main claim to fame was that she was the first female Dean of Harvard Law School.  Obama wanted her on the Court and his only option was to name her Solicitor General so that she would have at least some minimal qualifications.  Even this appointment was a reach.  Solicitor General frequently had long records of litigation and were active in constitutional litigation (e.g.  Johnson’s appointee Thurgood Marshall).  As has become the case recently with most nominees, Kagan danced around the questions, dodged frequently and was a vague as possible in her confirmation hearing.  In spite of her minimalist qualifications, the Democratic majority in the Senate assured her confirmation.

The book discusses the most controversial cases that came before it, including D.C. v Heller (Second Amendment gives right to individuals), McDonald v. Chicago (Second Amendment applies against the states) Citizens United (First Amendment invalidates portions of “campaign reform” legislation) NFIB v. Sebelius (upholding Obamacare).  Toobin takes the liberal position in all these cases.  Rather than celebrating the strengthening of Constitutional vales and the Bill of Rights in these decisions, Toobin bad-mouths them.   Liberal hypocrisy appears to be at work.    When the liberals lose we generally see accusations of ignoring precedent, ignoring the Constitution, blatant policy- making, etc.   When the liberals win, we generally get praise for the decision.

It is clear to Toobin who are the “bad guys,” on the Court, the four conservatives and Kennedy.  Additional bad guys are the NRA, powerful corporations and the Tea Party.  Obama ‘s policies and the Constitution are often portrayed as the victims of the conservatives on the Court.   Anyone looking for a balanced, sophisticated treatment of the decisions and the Justices will be sadly disappointed.  However, the book is informative about the Court, some of its history, Justices, important cases, etc.  It provides interesting insight into the members of the Court and their interactions.  With these caveats, I’d recommend this book for light reading.

 

Retired S.Ct. Justice Stevens continues to attack Second Amendment rights.

Retired Supreme Court Justice John Paul Stevens continues his "Feed My Ego" tour and continues to attack the individual right to keep and bear arms established in Heller and reaffirmed in McDonald.  I can't think of any case where a retired Justice campaigned against and individual right from the Bill of Rights.  These are dangerous times for those who love liberty. This is not surprising as Stevens voted against First Amendment rights in the flag-burning cases (Texas v. Johnson and U.S. v. Eichman) and Citizen's United. More left-wing authoritarianism on display.

D.C. thumbs its nose at the Supreme Court and Second Amendment.

The Constitution is the supreme law of the land. The U.S. Supreme Court has the final say on the meaning of the Constitution. All public officials take an oath to support and defend the Constitution. Chicago thumbed it's nose at the U.S. Supreme Court's 2nd Amendment decision in McDonald. D.C has done likewise with regard to Heller with it's new gun control scheme.

Newt Gingrich assaulting the power of judicial review?

Although the Supreme Court seems often to be a mixed blessing, its power of judicial review is long-established and essential to a free society. Newt Gingrich apparently would rein in the judicial branch and the Supreme Court. This is an extremely bad idea if you value a free society. Don't get me wrong, the Supreme Court has, often damaged freedom, e.g. Dred Scott, Plessy v. Ferguson, U.S. v. Miller, Korematsu v. U.S.. However, even in these cases, it only sanctioned action taken by the other branches or state legislatures) The Court has done more good than we can expect from the other two branches (e.g. Brown v. Bd. of Education, D.C. v. Heller, McDonald v. Chicago, U.S. v. Eichman). In these cases, the Court overruled unconstitutinal policy decisions by non-judicial actors. With all its warts, I trust the Supreme Court over the President and Congress. However, I am always wary of blog material without cites or links. I would appreciate a post if anyone has evidence that this blogger is wrong.

Chicago's post-McDonald Gun law exposed

It is always disgraceful when public officials deliberately attempt to defeat the Constitution (which they have sworn to uphold) and Supreme Court decisions. I am reminded of southern resistance to public school desegregation. After Chicago lost before the U.S. Supreme Court in McDonald v. Chicago, it tried the scheme challenged in this court case. This case is not over yet as the Seventh Circuit Court of Appeals approved only a preliminary injunction against the city. There is more to come in this case, but it appears that the Constitution will prevail. You really need to read this case to see how little respect the Constitution gets in Chicago. As the concurring opinion notes, this was a "thumbing of the municipal nose at the Supreme Court." If you think the fight for individual Second Amendment rights is over, you'd better think again. Another scary thing to remember in the upcoming Presidential elections is that the Second Amendment hangs by one vote in the Supreme Court. Our current President appointed two Justices who are clearly anti-Second Amendment. Fortunately, they only replaced two older Justices who were also anti-Second Amendment. To paraphrase a famous saying: "Eternal vigilance [and voting are] the price of liberty"

Weak federal gun laws a form of "racism?"

The head of one of the country's largest police departments labels weak federal gun control laws a form of "government-sponsored racism." I guess the Second Amendment is racist too. Too bad this top cop didn't read the Supreme Court's decision in McDonald v. Chicago where the Court notes that white-supremacist gun control was one of the main factors in ratification of the Fourteenth Amendment.

The Supreme Court's next Second Amend. case?

This case, Nordyke v. King, is now before the 9th Circuit. There is a good chance it will be the next U.S. Supreme Court case on the Second Amendment. Hopefully, the Supreme Court will specify the test or standard of review in Second Amendment cases. Personally, I feel strict scrutiny is the appropriate standard. LINK (see post on Wisconsin v. Schultz case below)

Sensible state court opinion on Second Amend.

The first good state court opinion on the Second Amendment since McDonald v. Chicago (2010) made the Second Amendment applicable against the states. Unfortunately, neither the Heller nor McDonald decisions specify a test or standard or review. What's good about this state court opinion is the application of "strict scrutiny" judicial review which puts some real teeth in the right. Note, however, that this is a trial court decision, not an appellate court decision, and thus has no weight as a precedent. But, you've got to start somewhere. Be sure to read the facts. This is not a guy in a bar with a .44 magnum. Go to the link, scroll down, and read the opinion in Wisconsin v. Schultz. LINK

Newest 2nd Amend. decision.

Now that the Supreme Court has ruled that the Second Amendment applies against the states (McDonald v. Chicago, 2010), we can expect a number of challenges to state laws. This is an exaMple one that is, thus far, unsuccessful. LINK This ruling is not surprising as the Supreme Court has hinted in D.C. v. Heller (2008) that this type of gun ban would be constitutional.

Provocative Article on Race and Gun Control

Strong stuff, but there is some truth in there! LINK

Great editorial on the McDonald Dissenters.

I don't always agree with conservative columnist Jacob Sullum, but he hit the the nail on the head with this critique of the dissenters in the Second Amendment incorporation (McDonald) case. Constitutional law makes strange bedfellows. It's usually the conservatives who make these arguments in civil rights cases. However, when ideologue liberals don't like the results in a civil rights case, they pull the arguments they have long dismissed out of their result-oriented tools bag. The same tool bag used by the conservative ideologues on the Court. LINK

Campus gun bans probably still safe after McDonald?

Many college campuses ban handgun possession by civilians, even those with concealed-carry licenses. Personally, I think these bans for licensees are bad policy, but I'm not sure about their constitutionality. These experts think these bans will survive Second Amendment challenges. LINK

Big Decision soon from U.S. Supreme Court

The landmark decision on whether the Second Amendment applies to the states (McDonald v. Chicago) could be released any day now. The blockbusters are almost always released late in the term which usually ends around the middle or end of June. Like many I expect a 5-4 decision for McD., and a greater victory for libertarianism, the rule of law, and constitutionalism The conservatives, Alito, Scalia, Roberts and Thomas along with the swing vote, Kennedy for McD. Majority opinion to be written by Scalia or Kennedy. The 4 liberals, Soto, Stevens, Ginsburg and Breyer for Chicago. Dissent written by Stevens or Breyer.

For some background see

http://www.scotuswiki.com/index.php?title=McDonald_v._City_of_Chicago