Civil Liberties State Politics Supreme Court

Gun Rights, the Supremes and What it Means to CA – UPDATED

bring-your-gun-to-work-day


Today, Tuesday, the US Supreme Court will take up another landmark case
with regard to the issue of gun rights.

Otis McDonald v. City of Chicago challenges Chicago’s citywide ban on the possession of handguns.


UPDATE: It appears that the justices are leaning toward really doing the no-kidding landmark thingy with this one. Here’s the LA Times take by David Savage. And here’s Adam Liptak for the NY Times on today’s hearing.


The court has posted a transcript of the hearing here.


Now for background, here’s how the folks at the Christian Science Monitor’s editorial pages explain the core of the case, and how it relates to the Supreme Court’s 2008 Heller decision that opened the door to this new case to begin with:

…Must Chicago and other locales drop their ban on handguns just as the justices forced Washington, D.C., to do two years ago?

If the high court decides yes, then state and local gun regulations across the nation could be shot full of holes. That’s why it’s so important for the justices to clarify not only where the “right to keep and bear arms” applies jurisdictionally, but how fundamental a right it is.

Is the Second Amendment right akin to First Amendment rights to free speech and the free practice of religion, which carry few restrictions? Or is it somehow a lesser right, subject to greater regulation?

This question is related to the case at hand — McDonald v. the City of Chicago — but it is not the issue immediately before the justices. What the plaintiff in the Chicago case wants to know is whether people living outside federal enclaves such as Washington, D.C., also have the individual right to own a gun for self-defense.

In the 2008 landmark case of the District of Columbia v. Heller, the justices ruled for the first time that gun ownership is an individual right — not just a right for militias. They overthrew Washington’s handgun ban, which was similar to Chicago’s, and allowed Richard Heller to have a gun in his home for self-defense. But the justices didn’t say whether this right extends beyond federal jurisdictions.

Many Chicago residents fear, including Chicago mayor, Richard Daley, that striking down the decades old ban will simply enable the city’s already healthy illegal gun trade to flourish with less hindrance, thus meaning more deaths from gun violence.

Those who want the ban overturned contend that allowing law-abiding citizens to legally arm themselves will improve safety, not the reverse.

Lawrence Hurley of the Daily Journal, has an excellent explanatory piece on how the new case could impact California—and how, Attorney General (and gubernatorial candidate) Jerry Brown (among others) views the subject.

Since the Daily Journal is hidden behind a paywall, Hurley has kindly allowed me to post the article for you below:

U.S. SUPREME COURT • Mar. 01, 2010
California Attorneys Weigh In on Guns

By Lawrence Hurley,Daily Journal Staff Writer

WASHINGTON – Reflecting strong California interest in a major gun rights case before the U.S. Supreme Court, lawyers from the state have been heavily involved on both sides as this week’s oral argument approaches.

The court will hear arguments Tuesday as to whether the Second Amendment right of individuals to own firearms can be applied to state laws and regulations via the 14th Amendment. McDonald v. Chicago, 08-1521.

Of 52 amicus briefs in the closely watched case, California-based lawyers filed 11. Another two were filed by Washington-based lawyers on behalf of clients from California.

Although the latest case before the high court is out of Chicago, it closely mirrors one currently before the 9th U.S. Circuit Court of Appeals concerning Alameda County’s gun show ban that prevents such events from being held on county-owned land.

It is also a sequel to the Supreme Court’s decision in 2008 finding that the Second Amendment extends to an individual’s right to bear arms. Heller v. District of Columbia, 554 U.S. 290. That case, which only involved federal law because the jurisdiction in question was the District of Columbia, didn’t address whether the Second Amendment applied to states.

In the California case, a unanimous 9th Circuit panel concluded in April 2009 that the Second Amendment did apply to the state but that states nevertheless had the authority to regulate. Nordyke v. King, 2009 DJDAR 5557. Judge Diarmuid F. O’Scannlain wrote in the opinion that the ban was not problematic because the Second Amendment as interpreted by the Supreme Court in Heller, protects the right to bear arms only in self-defense, not the right to carry a firearm on publicly-owned land.

The court later re-heard the case en banc in September but held off issuing a decision after the Supreme Court took up the issue.

The 7th Circuit and 2nd Circuit have both concluded that the Second Amendment isn’t incorporated against the states via the 14th Amendment guarantee of due process, meaning that the right to bear arms is not an individual right under state law unless the state provides for it in its constitution.

Among the many amicus briefs coming out of California is one filed by the gun rights activists who challenged the Alameda County regulations and California Attorney General Jerry Brown, who filed a brief back before the justices decided to hear the case, urging that the court decide the issue once and for all. Also keen to have their voices heard are 34 California district attorneys and even experts on American colonial history. Overall, seven of the briefs filed by California lawyers are in support the City of Chicago and the Village of Oak Park, which are defending their gun regulations, while four support efforts by the National Rifle Association and others to overturn the regulations. Several of the briefs were filed on behalf of out-of-state or national groups.

In Attorney General Brown’s brief, he pointed out that California, unlike 44 other states, does not have a provision in its constitution that mirrors the Second Amendment.

Brown wrote that “the court should extend to the states Heller’s core Second Amendment holding that the government cannot deny citizens the right to possess handguns in their homes, but also provide guidance on the scope of the states’ ability to reasonably regulate firearms.” Brown did not file a brief supporting either side in Heller.

Donald E.J. Kilmer Jr., the San Jose attorney who argued the 9th Circuit case on behalf of gun show operators, urged the court in his brief to not only incorporate the Second Amendment but also give lower courts guidance on how to approach cases on gun regulation like the Alameda County gun show case.

He wants the Supreme Court to require lower courts to apply strict scrutiny, the form of review reserved for balancing constitutional rights against government interests, when a fundamental right is at issue or the governmental regulation being assessed involves a “suspect classification,” when analyzing gun regulations.

“The government should have some compelling reason for saying ‘you can’t engage in this conduct’,” he said. Alameda County made no such effort in his case, he said.

What Kilmer described as “common sense” laws, such as those requiring background checks for those attempting to purchase firearms, could meet such a standard, he added.

In the brief filed on behalf of California district attorneys and other groups, attorney C.D. “Chuck” Michel of Michel & Associates in Long Beach, argues that incorporation of the Second Amendment would constitute a recognition of what most Americans believe anyway: that there is an individual right to armed self-defense, even in states like California that don’t have such a provision in state law.

“The bottom line is that once the federal right is incorporated, then the state right – or lack thereof – becomes less relevant,” Michel, who represented the NRA in the 9th Circuit, said in an interview. “In that respect, it’s critical that the Second Amendment is incorporated.”

The city of San Francisco, which settled its own case over gun regulations in public housing in the wake of Heller, signed onto a brief supporting Chicago that was filed by Henry C. Su of Howrey in Palo Alto on behalf of various cities, including Oakland, Sacramento, and Richmond.

The brief calls upon the Supreme Court not to disrupt the “delicate federal-state balance” that allows states to regulate gun ownership. Su argues that the Second Amendment was enacted solely to protect the states and citizens from federal power. Therefore “it makes no sense to incorporate the right to bear arms against the states.”

Owen J. Clements, San Francisco’s chief of special litigation, warned of the “scary prospect” of local jurisdictions, especially smaller cities with budgets to match, having to worry about litigation costs whenever a gun regulation is considered.

A Supreme Court ruling incorporating the Second Amendment would likely have “a chilling effect on reasonable gun regulations,” he added.

In another brief arguing against incorporation, Robert A. Goodin of Goodin, MacBride, Squeri, Day & Lamprey in San Francisco adopts a historical approach. He represents historians who disagree with the Supreme Court’s conclusion in Heller.

The brief contains references to historic texts like William Blackstone’s Commentaries on the Laws of England, published in 1769, the English Bill of Rights from 1688, and proceedings of the British House of Commons from the early 1800s.

Goodin, who conceded the brief is quite unlike his usual legal work, said the Second Amendment was intended only to enshrine the right of individuals to participate in the local militia.

“Heller got it wrong,” he said.

19 Comments

  • Yeah, telling the Supreme Court that they got their last gun rights decision “wrong” is a great way to endear the Justices. More likely they will fight even harder to justify the decision than reverse it. That’s fine by me. California’s gun laws are draconian to say the least. Why can’t I have the same type of guns that citizens in other states have? I am an officer in the US military now with over 17 including deployments to Iraq, yet they say I can’t own the guns I want? I’m no thug.

  • Things have been so quiet and peaceful in Chicago with guns banned — no murders, no crime, no citizens who have to worry about defending themselves. If the Supreme Court reaffirms the right to own a gun, why someone could get hurt – like maybe a house burglar, but we know that liberals love to coddle criminals.

    Oh, what would have been the end of this story without an armed mother?

    Sheriff’s deputies have charged an Ohio man with a series of sex-related crimes after he was found in the bedroom of a Tuscaloosa teen. …Sexton said Rogers was apprehended Sunday when the mother of a 14-year-old Duncanville girl found him in her daughter’s bedroom.

    The mother held Rogers at gunpoint while she notified authorities. Deputies took him into custody when they arrived at the home.

    I may have just gone ahead and shot him.

    Oh, but back to the topic. Let’s not let decent citizens have the equal access to guns that criminals have! The govenment will take care of us!

  • It seems the question is; is there a difference between regulation and restriction. I think no. The net effect is the same. The heller case answered NO! Therefore, I await the ability to purchase fully automatic rifles for the inside of my house for self protection and an anti-aircraft gun for the roof to protect myself from the “federal government”. GO NRA!!!! You guys are idiots…

  • Why wait to purchase a fully automatic rifle? For a 2 hundred dollar licensing fee, you can own it now. What ever the court decides, that right is not effected. Now, who’s the idiot?

  • I see. You can’t charge a poll tax for someone to vote (not a right) but you can charge someone a tax to own a gun (a right).

  • The NRA put out a statement about this bill that went nowhere in 2000 but would have taxed gun manufacturers $50 per handgun which would have been passed on to gun buyers.

    Not like an idiot Democrat didn’t want this bill to be law but it was thankfully rejected.

  • Two factions want to see anti-gun laws preserved: The chicago MOB and its odd bedmates, the communists.

    One very nasty old socialist euro-ghoul crazy-man wants the gun ban to stay, perhaps so he can reenact his salad days as a nazi collaborator.

    The rest of we American citizens will be delighted to see the US Supreme Court strike down this rotten, communist, anti-gun law which was inflicted by chicago’s feckless ex-mayor, Jayne Byrne, to cover her cowardice when she ran from of chicago’s urban gulag projects like a scalded rat in 1982, after vowing most piously to live amongst ‘the poor’ to demonstrate solidatity with them.

    Yeah. Right.

    Show me a gun-grabber and I’ll show you a communist liar.

    Show me a lawful gun owner and I’ll show you a level-headed, rational, decent American citizen, a lover of liberty and respecter of others’ property and rights.

    Only those who suffer from stunted emotional, sexual, and psychological development fear guns, according to Sigmund Freud, M.D.

    And then there’s mayor dailey, that paragon of virtue who is a big, fat backer of the chicago gun-grab.

    He recently expressed his sorrow for the Fort Hood Massacre by blaming the horrific murderous crimes of the mohammedan terrorist who perpetrated the killings on ‘our love of guns’ – referring not to terrorist but to American citizens.

    Do we see a pattern yet?

    Thugs, weaklings, those who exist in a closet filled with fears want guns banned.

    The rest of us who love life, liberty, and respect our fellow American citizens, whether we own firearms or not, recognize our fellow citizens’ inalienable right to own them, as guaranteed by The Second Ammendment.

    There. I said it. To all the ACORN/SEIU/commies who’re reading this and taking down names, please put me on your lists. I’m told I’ll stand in very good company. That of natural born American Citizens.

    Paul Vincent Zecchino
    Manasota Key, Florida
    02 March, 2010

  • Conservatives are of two minds on this issue. On the one hand, we hold the second amendment in at least as high regard as the first. The right to self defense is clearly a fundamental human right. For example, firearms were widely held by black civil rights activists during the bad old days, and this put a serious check on the KKK and others who were out to stop them.

    On the other hand, conservatives are federalists – we believe in states’ rights. Consequences of incorporating the 2nd Amendment could weaken states rights in other areas.

    Having successfully defended myself with a firearm at one point, I know the value of the firearms rights. It’s too bad some states and localities do not.

  • It’s been proven that gun control works…Hitler, Stalin, Amin, Ghadaffy. The right to keep and bear arms was never intended to have anything to do with “hunting”…it was to guarantee us our liberties from governments gone rogue.

  • Wasn’t it Rob Thomas that was all paraniod about right wingers having guns? If Zecchino has his quote correct guess Freud pegged him well.

    Only those who suffer from stunted emotional, sexual, and psychological development fear guns, according to Sigmund Freud, M.D.

  • Tough guys…quoting Freud.

    This comments thread is one of the funniest advertisements for Depends I’ve seen yet.

  • Incidentally, Glenn Reynolds – who is knee-jerk libertarian on the question of gun ownership – searched futilely for any such Freud quote in the original texts cited and confirmed it doesn’t exist. It’s a mis-attribution gleaned from some other guy’s interpretation of Freud interpreting somebody else’s dreams. Ridiculous. Why anyone would care about a Freud quote one way or the other, of course, is beyond me. Mr. Zecchino, may “stand in very good company” if you consider “good company” the kind of feckless morons who respond to emails from Nigeria.

  • Also let it be noted that Woody outs himself as a total idiot by claiming that voting is not a right. Read the Constitution, moron, and count how many times voting is specifically noted as a right.

    Contemporary “conservatism” is truly a pathetic rag-tag gathering of the brain-dead and chronically incontinent if the comments here – or the example of pols like Jim Bunning wearing their underwear on their head – is any indication.

  • I want to make it clear that my laughing at you guys – because you really are a gaggle of fruitcakes – has nothing to do with my opinion on the issue at hand. I’m fine with old man McDonald having a hand gun in his house.

    Of course, I would like to see a state legislature pass that as law, rather than an activist Supreme Court misinterpreting the 2nd amendment that clearly provides for citizens to bear arms in the context of regulated militias. There is no one I’m aware of who doesn’t think the right of individuals to keep and bear arms can’t be “abridged.” No one. Unless they think that individual citizens have a right to possess machine guns, bazookas, hand grenades, grenade launchers, etc. etc.

    So that textual issue over individual possession of “arms” in a modern context is moot unless one wants to take a position that’s clearly insane. (Mr. Zecchino just might be a taker…based on the level of incontinence evident in his rhetoric.) But even in circles that claim to be arguing from some “absolutist” NRA “pro individual gun right” interpretation of the amendment about “well-regulated militias”, the only thing under discussion is what forms of “abridgment” are appropriate. That’s it. Nothing more.

  • I think we have misunderstood greatly the bases of choosing the rights needed to be protected from government abuses.

    The measurement was “the god of Nature”. Now, seeing as how nature is more ready for examination then god, i’ll start there. Self-evident was a term used in the declaration of independence, and is a philosophical one, not simply just meaning obvious.

    I point his out for this reason. The courts and Government have no right to decide which rights of the individual they will recognize or not.

    I am able, as a rational being to conclude on my own, the rights I possess in natural standing.

    Humans do not have the same natural means of other animals to protect themselves. Being a species that stands erect and Bi-pedal, our arms are free for manipulation of objects.

    That has caused us to be a tool wielding species and to develop our faculties to the level of invention.

    With the greatest threat to humans, being humans, tools had to be developed for defense of the individual, and tribe.

    Individuals have the right, because they have the need, such as hunger, to defend themselves. The need highlights the right, such as the need to eat to sustain.

    It is indeed that basic. When humans surrender their individual rights to a collective, which can only occur through stunted development in rational faculties. That collective known as a Band, or gang, starting off from individual rights, often use tools for conquest and more power.

    I am saying. Governments, the legal gang, and criminal elements use these tools in conquest, and through out history, have always turned the conquest towards the locals.

    I rather fear an individual with a gun, then a collection of individuals, called the state, and their guns. At least I have a chance of surviving. As for the sarcastic remarks of grenades Bazookas, and so on above.

    You do not vote to limit the States possessing these, and the State are the ones using them against the rights of others, abroad and at home.

    I am not completely informed on the Waco situation, but I know there was Delta involvement, and high grade military toys employed against American citizens. Why? because they were stockpiling weapons, which based on this article, just might have been their right. If that’s the case, for those oppose to weapons, what right was the State exercising in the attack on these peoples private property.

    That’s right, A State is a “legal Fiction” natural rights don’t apply. Therefore what binds the state is whimsical, and eventually non existent at the populace becomes even more mentally incarcerated through the wonderful State sponsored pedagogical institutes of coercion.

    The argument here is not about guns, or rights, its really about how we are duped into believing that once individuals become apart of a group, they have an imaginary ability and power, not found or derived from the individual.

    I was never given the choice to consent to a representative, or to be classified as a citizen.

    This is forced on us from birth and taken as “Prima Facie”.

    I do not consent to any rep, nor to the authority of the supreme court. I was born on this continent, and by that, I have the have an individual right to pursue my needs, as long as I do not trespass against others, any way I see fit.

    But, the State and voters don’t see it that way.They have decided I will be represented by them without my permission.

    I don’t mean to offend, but I think with the amount of “Body of knowledge” or sciences available to us, it is time for humans to transcend the State, nationality identification disposition. This is what enslaves us.

    I am Human, not an American, Californian, or what ever artificial Persona the State constructs. And it is this being Human that the state and those complicit that is interfered with, through schools that inhibit the development of rational faculties, and the propagation of seeking a commercial value and utilitarian role rather the pursuit of Intransitive activities that aid in the development of strong, independent, and compassionate character.

    Don’t worry ye without defensive tools, when The state seeks to subjugate you further, I will defend you, because tats what Liberty lovers do. But, with the coercion and force you sponsor with your “vote”, will I have the means to?

    Thinks for considering my words all,
    Peace be upon you.

  • check out the travesty in case 8CA10541 in the CCB in downtown l.a.

    Be very afraid. Anyone could lose their rights at anytime.

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