SCOTUS Strikes Down Chicago Gun Ban

 

The Court today struck down Chicago’s ban on handguns as a violation of the Second Amendment, as incorporated against the states through the Fourteenth Amendment.  Once the Court had decided in the Heller case two years ago that the federal government could not absolutely ban guns in the District of Columbia, McDonald’s outcome was virtually inevitable.  There were still a few surprising things:

First, the four liberal justices (Stevens, Breyer, Ginsburg, and Sotomayor) dissented from incorporating a key aspect of the bill of rights, even though I presume they would never question that other rights, such as the right against search and seizure or against self-incrimination in court, apply.  It remains stunning that the liberals would engage in this choosing and picking of rights that they favor for incorporation or not against the states (this is something the conservative justices haven’t done). 

Second, Justice Thomas (for whom I clerked), agreed with the majority but wrote a lengthy, brilliant concurrence criticizing the Court’s use of the Due Process Clause as the means to incorporate the bill of rights against the states.  I think he is utterly right — the notion that a clause that speaks about fair process has become the vehicle for applying substantive rights, like the right to free speech or free exercise of religion, makes little sense.  The Framers of the Fourteenth Amendment did want all citizens, white and black, to enjoy the rights of the Bill of Rights against the states, but they expressed that through the Amendment’s declaration: ” No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” 

Third, the future fight will be not over the right to bear arms, but what reasonable restrictions that states and the federal government can place on gun ownership.  The Court, properly, does not answer this question in great detail, and this will be where the states and cities will try their best to undermine McDonald.

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  1. Profile Photo Inactive
    @MelFoil

    And just from a practical standpoint:

    John Lott : When the “Heller” decision was handed down in 2008 striking down Washington, D.C.’s handgun ban and gunlock regulations, Chicago’s Mayor Richard Daley predicted disaster. […] Yet, Armageddon never arrived. Washington’s murder rate has plummeted — falling by 25 percent in 2009 alone. This compares with a national drop of only 7 percent last year. And D.C.’s drop has continued this year. Comparing Washington’s crime rates from January 1 to June 17 of this year to the same period in 2008, shows a 34 percent drop in murder. This drop puts D.C.’s murder rate back to where it was before the 1977 handgun ban. Indeed, the murder rate is as low as was before 1967.

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  2. Profile Photo Member
    @

    Limited (thankfully) by Ricochet’s 200 word limit for posts, allow me say just this: Stevens’ dissent is stunning. That is not a compliment.

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    @DianeEllis

    In response to the court’s decision today, Mayor Daley said

    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.  We are a country of laws not a nation of guns.”

    Classic rhetorical move for politicians to frame situations as an either/or, when in this case (as in so many others), it’s really a both/and scenario.  We are both a country of laws and a nation of guns.  

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  4. Profile Photo Member
    @MarkWilson

    etoiledunord, you know those decreases are part of the Obama Dividend. Crime has decreased despite the increase in guns because people don’t have to worry about paying their mortgages anymore.

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  5. Profile Photo Member
    @MarkWilson

    Correction, the Hope Dividend.

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  6. Profile Photo Podcaster
    @DaveCarter

    Professor, you mentioned likely avenues of attack as the left continues its war on the Second Amendment. These people are simply oblivious to reality, whether it be a Supreme Court reaffirmation of the right to self defense or the empirical case made by the tireless John Port and cited above.

    Question: I heard posited over the weekend that gun control advocates may instead seek to tax firearms much as vehicles are currently taxed, and then through registration (for tax purposes of course) and inevitable tax increases, try to curtail or eliminate gun ownership. Is this a plausible strategy for us to worry about?

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  7. Profile Photo Contributor
    @JamesPoulos
    John Yoo: Justice Thomas (for whom I clerked), agreed with the majority but wrote a lengthy, brilliant concurrence criticizing the Court’s use of the Due Process Clause as the means to incorporate the bill of rights against the states. I think he is utterly right — the notion that a clause that speaks about fair process has become the vehicle for applying substantive rights, like the right to free speech or free exercise of religion, makes little sense. The Framers of the Fourteenth Amendment did want all citizens, white and black, to enjoy the rights of the Bill of Rights against the states, but they expressed that through the Amendment’s declaration: ” No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

    100% cosign, John. Will we never see the end of substantive due process!?

    Josh Blackman, everyone, has a great breakdown of the whole case, and Thomas’s concurrence. Check it out.

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  8. Profile Photo Contributor
    @JohnYoo

    Dave: I think you will see a number of creative efforts by gun control advocates to push back on McDonald. You will see efforts to ban certain types of weapons (such as assault rifles), to limit possession in certain places or at certain times, and to demand registration, education, and other such regulations. I wouldn’t put a tax out of the realm of possibility — taxation is used to try to discourage other activities that the government dislikes, such as cigarettes, gas, and alcohol. Some cities and states tried something similar — suing gun companies for the damages caused by their products. I think you will see every kind of effort to regulate “sin” — including sin taxes — appear with guns.

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  9. Profile Photo Contributor
    @JohnYoo

    James: the case itself shows the problems with “substantive due process.” Because the idea already starts with the intellectual charade that a clause about fair process contains substantive rights, the whole enterprise really has no objective standards. And so it becomes a treasure chest where judges can find in the Constitution whatever rights that they happen to like. What I found striking is that the justices in the dissent are only too eager to find that substantive due process does not include a right to own a gun (despite a textual grant of such a right in the actual text of the Bill of Rights) but at the same time guarantees a robust right to an abortion or to engage in sodomy (where there is no textual grant for such rights in the Constitution). The Privileges and Immunities Clause, as Justice Thomas shows in his concurrence, is the real home for the incorporation of the Bill of Rights against the states, but I’m afraid a majority of the Court is too wedded to the Due Process approach now to change the Court’s ways.

    • #9
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