Oh, the arcanity! McDonald v. Chicago is exercise in pointless posturing.
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Clicking into the definition of “infringed”, we find that exceptions are made for, say, people wanting to own weapons of mass destruction for self-protection.
Fine. We get that. Nobody is asking for WMD.
Let’s rewind. The facts of the case are that a 72 year old man wants a gun in his home in Chicago to protect himself from marauding gang-bangers. Chicago’s restrictions on handgun ownership take away his ability to own a handgun and therefore protect himself when, say, a thug is at his doorstep and the po-po are 15 minutes away.
I don’t know about you, but I think that seems to be a reasonable request, given that the Bill of Rights has so clearly spelled it out for us. (Well, that is if you can read, which doesn’t seem to have been a subject well taught at the Ivy League institutions these justices have come from.)
Said 72 year old man (check that, he’s old, not liable to go on a shooting spree, and on schedule to die of natural causes anyways) is denied that right to keep (that means they’re HIS) and bear (that means he can CARRY and USE them if he needs to) arms by laws the city of Chicago had no business making under the Constitution that protects all citizens from rights infringement by any government.
To be perfectly clear, the natural law (upon which the Constitution is based and which is what is being described as “Unalienable” by our Founding Fathers) that says an animal or human being by natural law has a right and should be expected to protect its domestic abode “by nature” proscribes infringement of said right. Period.
Yet, we see this kind of sophistry:
JUSTICE STEVENS: Mr. Gura, can I ask you the same question Justice Ginsburg asked about, what if there were no Second Amendment? You say the right would still be protected under the Privileges and Immunities Clause. What about, would it also be protected under substantive due process if there were no Second Amendment?MR. GURA: It would be, Your Honor. The fact -JUSTICE STEVENS: Because of the — the importance of the right to protect — would that apply to the entire scope of the Second Amendment or just the
JUSTICE STEVENS: Mr. Gura, can I ask you the same question Justice Ginsburg asked about, what if there were no Second Amendment? You say the right would still be protected under the Privileges and Immunities Clause. What about, would it also be protected under substantive due process if there were no Second Amendment?
MR. GURA: It would be, Your Honor. The fact -
JUSTICE STEVENS: Because of the — the importance of the right to protect — would that apply to the entire scope of the Second Amendment or just the right to keep the gun, a homeowner’s right to keep a gun for self-protection against intruders into the home, under the — without the Second Amendment, just the Liberty Clause.
MR. GURA: The Second Amendment is not so limited and neither is the right to arms, even outside the -
JUSTICE STEVENS: I’m assuming we don’t have a Second Amendment for purposes of the substantive due process analysis. I’m asking you what is the scope of the right to own a gun that is protected by the Liberty Clause of the Fourteenth Amendment? Is it just the right to have it at — at home, or is the right to parade around the streets with guns?
MR. GURA: An unenumerated right to arms in the absence of the Second Amendment would be, perhaps -probably identical to that secured by the Second Amendment, because the Second Amendment codified the understanding of that right that people have historically had in the country. So there would not be a difference between the right to arms if it were a part of the Second Amendment or -
CHIEF JUSTICE ROBERTS: I thought your — in that context, is your position that the rights that are incorporated as essential to the concept of ordered liberty, do they bring all of our decisions with them? When you say the First Amendment is covered, does that mean New York Times v. Sullivan is incorporated as well? Or is it only some lesser version of the incorporated right?
MR. GURA: With respect to the substantive due process argument that we are making?
CHIEF JUSTICE ROBERTS: Yes.
MR. GURA: We are not challenging — we are not the party that is before the Court that is challenging anything that has gone on before in terms of substantive due process. We believe that those cases were by and large decided appropriately, and if the Court wishes to reconsider any of them for some reason, it — that has really nothing to do with -
Okay, stop. Let’s unpack this. The court is being asked to decide whether Mr. McDonald, a citizen of the United States with no criminal background (at least not that’s being brought up as part of this case, probably due to double jeopardy) can have a gun in his home. Now we’re talking about New York Times v. Sullivan?
And, overall, the case, if won, will effectively overturn The Slaughter-House Cases, which is somehow a cause for great concern among among those not supporting Mr. McDonald’s right to protect himself. The Slaughter-House Cases were about relocating New Orleans slaughter houses downstream of the city’s drinking water to prevent cholera.
Yeah, you read that right. If you’re scratching your head right now in confusion as to what preventing New Orleans cholera outbreaks between 1832 and 1869 has to do with Mr. McDonald protecting his property and person from gang-banging Chicago gangstas, that’s a totally appropriate response.
The transcript goes on for pages and pages of this non-substantive, legalistic blathering that is, to be perfectly frank, outrageous. No longer is the substance of the case being argued, but its fringes.
Not to mention the fact that every time Mr. Gura attempts to make his argument or clarify a point, he is interrupted by one of the Supremes (methinks that title needs changing to introduce a little humility back into the bar). LET THE MAN SPEAK! Let there be courtesy in covering the sides of the argument without interruption or misdirection into other topics that have nothing to do with the core right being argued before the court.
In all reality, however, we shouldn’t even be witnessing this case. It shouldn’t even be argued at all. The Constitution is clear as written. A man has a right to protect himself in his own abode and his person in public and his freedom when at war.
Give the man his gun and close the case. There. That wasn’t so hard, now was it?
- Will McDonald Case, After All, Be Much Ado About (Relatively) Little? (blogs.wsj.com)
- Supreme Court Remains Divided Over Gun Control (nytimes.com)
- Reckoning with the Ghost of Jim Williams: The Supreme Court and the Burdens of History (oup.com)
- SCOTUS Hears Argument On Major Second Amendment Case (dailykos.com)
- Supreme Court to scrutinize state, local gun laws (seattletimes.nwsource.com)
- Scalia is Originalist… Except When He’s Not (mydd.com)
- The Path Not Taken: Will the Supreme Court Apply the 2nd Amendment to the States? (windsofchange.net)
- Guns and the States (online.wsj.com)
- McDonald v. Chicago: Stakeholders to Discuss Upcoming Supreme Court Handgun Case (eon.businesswire.com)
- Doug Kendall: Don’t Trash the Constitution, Justice Scalia (huffingtonpost.com)
- Feeling Safer Already (talkingpointsmemo.com)
- Liberals for gun rights? (tech.bl0x.info)
- High court today weighs reach of Second Amendment (seattletimes.nwsource.com)
- Seattle P-I, AJC Offer Slightly Loaded Headlines on AP Gun Case Story (newsbusters.org)
- Miles J. Zaremski: If Gun Ownership is a Right Than What Is Health Care, Chopped Liver? (huffingtonpost.com)
- How about “NOT MENTIONED IN THE CONSTITUTION”. Does that work for you? Works for me. (And it’s “then“, conditional clause, not “than“, comparative clause.)
- McDonald v. Chicago: Mayor Richard M. Daley, Chicago Counsel, Stakeholders to Discuss Upcoming Supreme Court Handgun Case (eon.businesswire.com)
- FantasySCOTUS: McDonald v. Chicago (Chicago Handgun Ban Case) (abovethelaw.com)
- So Where’s Your Originalism Now, Justice Scalia? (blogs.wsj.com)
- Chicago Case Attorney, Plaintiffs Available for Interviews Following March 2 Supreme Court Oral Arguments (eon.businesswire.com)