McDonald v Chicago, Part II - My Opinion

Here are my impressions of the decision.

First: Held: The judgment is reversed, and the case is remanded.

This is a win. The 2nd Amendment now officially applies to cities and states. However, the devil--and the nuances--are in the details. The local gun-panic group says the decision allows for gun control, but that email came out less than 20 minutes after the 214 page opinion was released. That leads me to believe that, as always, they are full of shit.

According to Alito's majority opinion, incorporation happened under the Due Process Clause, which, according to someone smart than I, "allows the Courts maximum flexibility in the future (since DP has no basis, it has no limits -- it's all just "make it up as we go" judicial legislation)."

Update:  Not only have I been too busy to read the entire opinion, but many, many others have beat me to it.

Wally out.

McDonald v Chicago

The short version:  We won!
From SCotUSBlog:

The opinion concludes that the 14th Amendment does incorporate the Second Amendment right recognized in Heller to keep and bear arms in self defense

5-4

Stevens dissents for himself. Breyer dissents, joined by Ginsburg and Sotomayor.

The majority seems divided, presumably on the precise standard

The majority Justices do not support all parts of the Alito opinion, but all five agree that the 2d Amendment applies to state and local government.

Alito, in the part of the opinion joined by three Justices, concludes that the 2d Amendment is incorporated through the Due Process Clause.

Thomas thinks the Amendment is incorporated, but not under Due Process. He appears to base incorporation on Privileges or Immunities.

The difference between the majority and Justice Thomas doesn't affect the fact that the Second Amendment now applies to state and local regulation.

http://www.supremecourt.gov/opinions/09pdf/08-1521.pdf

It should be noted that, in the guns case, the Court says explicitly in Alito's opinion that it would not reconsider the Slaughterhouse cases, which almost completely deprive the Privileges or Immunities Clause of any constitutional meaning.

The opinion leaves the fate of the Chicago gun ordinance in the hands of the 7th Circuit on remand.

The scope of the Chicago gun ordinance in question in McDonald is very similar to that of the DC gun law struck down in DC v. Heller in 2008. Therefore its fate is probably already determined by applying Heller's reasoning to it.

Let the hand-wringing commence!

Oleg's Latest

By Oleg Volk:

The Zeroth Rule of Gun Safety

Don't be a dumbass.

Insanity and Lies

via SayUncle:

Unhealthy:

I can’t do it. I can’t talk about guns or weapons without feeling sick and sad, even fearful.

My home is no longer private

According to the Minnesota Court of Appeals, A08-1754, State of Minnesota vs. James Jay Gradishar, my home is now a public place.

For purposes of section 624.7142, we conclude that “public place” shall be defined as: generally an indoor or outdoor area, whether privately or publicly owned, to which the public have access by right or by invitation, expressed or implied, whether by payment of money or not.

If anybody has ever been invited to my house, or accompanied a guest to my house, or accessed the yard I don't fence or booby-trap, I live on public land, for the "purposes of section 624.7142".

Jackass judges.

The 9th circuit has incorporated the Second Amendment.

http://www.ca9.uscourts.gov/datastore/o ... 715763.pdf

For the foregoing reasons, we AFFIRM the district court’s
grant of summary judgment to the County on the Nordykes’
First Amendment and equal protection claims and, although
we conclude that the Second Amendment is indeed incorporated
against the states, we AFFIRM the district court’s
refusal to grant the Nordykes leave to amend their complaint
to add a Second Amendment claim in this case.

In the words of Prof. Joseph Olson: "they(Nordyke) won the WAR but lost the BATTLE."

Nordyke v. King, No. 07-15763, 4-20-2009

My letter to the representatives

Regarding this:
To: RepDavid.Dill@house.mn,Rep.Tony.Cornish@house.mn,Rep.Marty.Seifert@house.mn
Dear Representatives,
Subject: Modifications to proposed firearm casing requirements change sell Metro residents short and create a BAD precedent


While your intentions may be good with respect to HF128 (which is now on
page 15-16 of a larger game and fish bill (HF)1238), you know what they
say about paving the road to hell.

I am greatly concerned by the unintended consequences of this bill.

I am particularly disturbed by the following concessions:
unless:
15.24(1) within the seven-county metropolitan area as defined in section
473.121,
15.25subdivision 4;
15.26(2) within an area where the discharge of a firearm has been
prohibited under section
15.27471.633;
15.28(3) within the boundaries of a home rule charter or statutory city
with a population
15.29of 2,500 or more;
15.30(4) on school grounds as regulated under section 609.66, subdivision
1d; or
15.31(5) otherwise restricted under section 97A.091, 97B.081, or 97B.086.

#1 forces tens, if not hundreds, of thousands of metropolitan gun owners
into "second class citizen" status. There are numerous places to hunt in
the metro area, and many hunters originate in the metro.

#2 creates a situation where hunters will have to know the city ordinances
of every organized city or village through which they may pass. There are
many hunters who pass through small towns between hunting locations, and
many others who stop in the same small towns for gas, or unforeseen
emergencies. Do you intend to require that hunters plan their emergencies
far enough our to check on city ordinances during business hours?

#3 creates the same issues as #2, addressed above.

Please rethink this bill. It leaves too many questions and will cause too
many problems. As I am sure you are aware, gun rights are about more than
just hunting.

Sincerely,
princewally

New gun "convenience" bill screws metro gun owners

As told by Joe Olson.

This bill must be stopped.

In the last two weeks while the bill was "hidden" in committee, Rep. Dill's uncased, unloaded CONVENIENCE BILL for shotgun hunters has morphed into a monstrosity that does the following:

1. Recognizes that the 7-county Metro area is "different" from the rest of the state, that the metro area needs "more stringent" gun laws, and makes metro gun owners into second-class gun owners,

2. Identifies handgun hunters as second-class hunters,

3. automatically bans firearm discharge in cities of 2500 population irrespective of the city's desire with no exceptions possible,

4. automatically bans firearm discharge on all "school grounds" including off-campus open fields, owned by a school district, where hunting has always been allowed with no exceptions possible, and

5. continues the ban on carry of long guns in a vehicle under a carry permit.

This bill does nothing of significant value, provides a minor convenience to a few group hunters and sporting clay shooters, and ACCEPTS the policy that METRO AREAS ARE DIFFERENT FROM THE REST OF MINNESOTA AND NEED MORE STRINGENT GUN LAWS.

If you live in the metro area, rural "pro-gun" legislators just agreed with the most virulent anti-gunners that YOU are the problem and that SECOND-CLASS GUN OWNERS like YOU need to be subject to MORE STRINGENT gun prohibitions. Yup, they sold you out for a golf cart ride!

The antis are getting, courtesy of some narrow-minded, politically insensitive, "pro-gun" legislators their most prized desire. A POLICY THAT TREATS THE METRO AREA AS A DANGEROUS PLACE TO ALLOW GUNS. They couldn't get this in 1989, 1990, 1991, 1992, 1993, 1994, 1995, 1996, 1997, 1998, 1999, 2000, 2001, 2002, 2003 (they tried to add it to the Carry Bill but lost big), 2004, 2005, 2006, 2007, or 2008. But they are getting it now!

Either this provision must be KILLED in its entirely or the "unless" clauses stripped out (which will probably kill it). The bill is now in the House Environment and Natural Resources Finance Division. The offending provisions should come out in that committee.

It is time to HAMMER on RepDavid.Dill@house.mn, on Rep.Tony.Cornish@house.mn, and on Rep.Marty.Seifert@house.mn.
Senator list to come later.

Here is HF128 which is now on page 15-16 of a larger game and fish bill (HF)1238:

Quote:

15.10 Sec. 31. Minnesota Statutes 2008, section 97B.045, subdivision 1, is amended to read: 15.11 Subdivision 1. Restrictions. (a) A person may not transport a firearm in a motor 15.12vehicle unless the firearm is: 15.13(1) unloaded and in a gun case expressly made to contain a firearm, and the case 15.14fully encloses the firearm by being zipped, snapped, buckled, tied, or otherwise fastened, 15.15and without any portion of the firearm exposed; 15.16(2) unloaded and in the closed trunk of a motor vehicle; or 15.17(3) a handgun carried in compliance with sections 624.714 and 624.715. 15.18(b) Notwithstanding paragraph (a), a person may transport an unloaded, uncased 15.19firearm, excluding a pistol as defined in paragraph (c), in a motor vehicle while at a 15.20shooting range, as defined under section 87A.01, subdivision 3, where the person has 15.21received permission from the lawful owner or possessor to discharge firearms; lawfully 15.22hunting on private or public land; or travelling to or from a site the person intends to hunt 15.23lawfully that day or has hunted lawfully that day, unless: 15.24(1) within the seven-county metropolitan area as defined in section 473.121, 15.25subdivision 4; 15.26(2) within an area where the discharge of a firearm has been prohibited under section 15.27471.633; 15.28(3) within the boundaries of a home rule charter or statutory city with a population 15.29of 2,500 or more; 15.30(4) on school grounds as regulated under section 609.66, subdivision 1d; or 15.31(5) otherwise restricted under section 97A.091, 97B.081, or 97B.086. 15.32(c) For the purposes of this section, a "pistol" includes a weapon designed to be fired 15.33by the use of a single hand and with an overall length less than 26 inches, or having a 15.34barrel or barrels of a length less than 18 inches in the case of a shotgun or having a barrel 15.35of a length less than 16 inches in the case of a rifle: 16.1(1) from which may be fired or ejected one or more solid projectiles by means 16.2of a cartridge or shell or by the action of an explosive or the igniting of flammable or 16.3explosive substances; or 16.4(2) for which the propelling force is a spring, elastic band, carbon dioxide, air or 16.5other gas, or vapor. 16.6"Pistol" does not include a device firing or ejecting a shot measuring .18 of an inch, or 16.7less, in diameter and commonly known as a "BB gun," a scuba gun, a stud gun, or nail gun 16.8used in the construction industry or children's pop guns or toys.

To understand the above you need to know about this existing statute:

Quote:

473.121 DEFINITIONS. Subdivision 1.Terms. For the purposes of this chapter, the terms defined in this section have the meanings given them in this section, except as otherwise expressly provided or indicated by the context. Subd. 4.Metropolitan county. "Metropolitan county" means any one of the following counties: Anoka, Carver, Dakota, Hennepin, Ramsey, Scott or Washington.

Join the NRA for free!

http://www.nrahq.org/nrabonus/

They are offering free memberships right now. Tell your friends!

Arsenal

ar⋅se⋅nal
   /ˈɑrsənl, ˈɑrsnəl/ [ahr-suh-nl, ahrs-nuhl]
–noun
1. plural of firearm.

Reluctant Participant, defined

In Minnesota, case law requires that you must be a reluctant participant in a self defense situation. You can't go out looking for a fight. Unfortunately, this concept is very misunderstood.

From a conversation here.

"Reluctant participant" doesn't mean you have to be dragged into the fight kicking and screaming. Defense of another means that the other can be reluctant for you. Reluctant participant is probably more accurately described as "did not provoke or escalate". The law [in Minnesota] specifically allows lethal force to be used in defense of another.

From Prof. Joe Olson:

Many on this board don't understand that "reluctant participant" is not the legal test, it's writer's shorthand (which even I've been known to use). So you tend to over emphasize that element.

What you can't be is an UNLAWFUL aggressor. Other states with more developed self-defense statutes make this clear [by using terms such as "did not provoke" the fight]. So does the case law.

Asserting your minor daughter's right to free from unwelcome physical contact is perfectly OK. Ordering them to stay away from your family is OK. Those are mere words. But, the father could have physically pushed her assailant away. Lawful use of force is not legal "provocation."

We tend to forget that "non-deadly reasonable force" can be used too. Minn. Stat. 606.06 says this:
Quote:
609.06 AUTHORIZED USE OF FORCE.
Subdivision 1. When authorized. Except [by a criminal against a cop], reasonable force may be used upon or toward the person of another without the other's consent when the following circumstances exist or the actor reasonably believes them to exist:
***
(3) when used by any person in resisting or aiding another to resist an offense against the person; or ... .


The young thugs chose to respond with unlawful force. Then THEY escalated to deadly force (the multiple assailant attack on the man down).

After the multiple-assailant attack began, the father absolutely could have defended himself if he had anything with which to do so (such as a gun). A nearby permit holder, reasonably perceiving that the victim was facing an imminent threat of death or great bodily harm (as 7 or 8 young thugs kicked the shit out of him) would have been authorized to use protective force, including deadly force. According to the criminal charges, the victim suffered skull fractures and possible bleeding on the brain which ARE injuries capable of causing death or GBH.

Business

More here.

Guns in Daycare Centers?

Why on earth would we need guns in daycare centers? Bad things don't happen there!

Oh wait.

Unorganized Militia: Propaganda Corps

I suppose I'm not actually a "gun blogger". Reading my history, I'm much closer to being a "crime blogger" or a "political blogger" or a "meaningless drivel blogger".

Oh well. I am a staunch and unapologetic believer in personal rights, personal liberty and personal responsibility.

I'm a day late...

...but so what? Buy the book anyway.

As you know, the U.S. Supreme Court’s June 2008 landmark District of Columbia v. Heller ruling finally affirmed that the Founders fully intended the Second Amendment to protect an individual right to own and bear arms. The renowned Second Amendment scholar and lawyer Dr. Stephen P. Halbrook, Research Fellow at The Independent Institute, was key to the Heller victory—as well as to three previous gun-rights victories in cases before the Supreme Court. And his definitive defense of the Second Amendment is now available in The Founders’ Second Amendment: Origins of the Right to Bear Arms the first in-depth, book-length account of the origins of the Second Amendment and the most readable, comprehensive, and compelling work ever assembled arguing that the right to own a gun is as fundamental under the U.S. Constitution as freedom of speech and freedom of religion.

Yet, even before the ink was dry on the Heller decision, efforts were underway in Washington, D.C., to resume the assault against gun rights. Further, and despite the rhetoric, both President-elect Barack Obama and his choice for Attorney General, Eric Holder, have repeatedly opposed Second Amendment rights, and any new federal judge appointments will likely be similarly biased.

Thus, preserving our constitutional rights will hinge on our ability to educate the American people on the imperative of Second Amendment rights. The Supreme Court’s Heller decision has provided us with an unprecedented opportunity to do this.

And now we have the tool to do so. Fascinating, seminal, and inspiring, The Founders’ Second Amendment is the perfect way both to educate ourselves and to reach friends and family who don’t yet understand Second Amendment rights. Our goal is to reach one million Americans with Steve Halbrook’s book during the Holiday Season and throughout the New Year ahead. Will you help?

Let’s make the Second Amendment Book Bomb a publishing phenomenon so great that even the mainstream media will have to take notice. Let’s spread The Founders’ Second Amendment so far and wide that Americans across the political spectrum, and all walks of life, will be discussing the Second Amendment in every possible venue.

With your help, we can make Stephen Halbrook’s book #1 on the New York Times bestseller list. To make this happen, please pledge to buy at least one copy of the book before or on the December 15th Second Amendment Book Bomb date (or even afterward, if this is your only option), and then spread the word to others. Let’s make this the most amazing and explosive event ever on the right to bear arms, and declare in no uncertain terms that the Second Amendment will be around for a very long time to come.