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Supreme Court hears 2nd Amendment case for the first time in 100 years

As the Supreme Court sifts through the Second Amendment case, McDonald vs. Chicago, anxious gun owners look to take on state and federal gun laws across the country. The decision made by the Highest Court will unsnap gun-ownership laws; and possibly prompt additional cases in addition to the more than 15 federal and state gun cases currently filed across the country.

The McDonald case was filed by the Second Amendment Foundation (SAF) and the Illinois State Rifle Association (ILSFA) and Dave Workman of the SAF explained even though the National Rifle Association (NRA) was able to argue their position before the Supreme Court it has never been their case.

The plaintiff’s lost 10 minutes of the precious 30 minutes of oral arguments before the Supreme Court. Workman sees a victory on the horizon for gun rights, but like all experts, he sees the High Court deciding the Second Amendment case using a pathway through the 14th Amendment.
No matter how the victory is obtained, gun owners in all states will enviably be the winner with the prediction decision of the McDonald case.

This case now rests in the hands of the Justices. The McDonald case is aiming to disarm a 27-year-old Chicago law banning handguns, requiring owners to pay an annual taxation of firearms, and interfering with the right of law-abiding individuals to keep guns for self-defense.

It’s worth pointing out in the landmark case of District of Columbia vs. Heller, the Supreme Court said that the Second Amendment guarantees an individual right to keep and bear arms. However, as that case concerned only the actions of the District of Columbia government, a federal entity. As a result the Supreme Court did not rule that the right applied to states and local governments. As time unfolds so may the interpretations and almost the entire Bill of Rights, which could be been applied to state and local governments through the 14th Amendment.

“The freedoms we enjoy as Americans are secured to us against violation by all levels of government,” said Alan Gura, of Gura & Possessky. “State and local politicians should be on notice: the Second Amendment is a normal part of the Bill of Rights, and it is coming to your town.”

Some gun history

Looking back to pre-Civil War U.S.A. the courts said that the Bill of Rights had only powers and it allowed the states to impose more restrictions on their constituents.

However during the backlash of the Reconstruction period, the Supreme Court saw the 14th Amendment as a narrow way to slow the “privileges or immunities’ clause. As it turned out the Supreme Court didn’t think the states had any Second Amendment powers.

Once the twentieth century unfolded the court shifted and thought fundamental liberties should be protected from the infringement by the 14th Amendment’s Due Process clause.

Looking back, a number of constitutional lawyers think the court erred with their decision in 1873. Looking forward, attorney Alan Gura for the plaintiff hopes the Justices resurrect the privilege and or immunity clause from the cemetery allowing McDonald a win and therefore extending his right to own a handgun for self-protection to all American citizens in every state.

In other Second Amendment cases, Attorney Rachel M. Baird represents two Connecticut residents, M. Peter Kuck and James F. Goldberg, in two federal complaints filed in 2007 claiming that the fourteen to twenty-two month wait for hearings on state carry permit denials and revocations violates the Second and 14th Amendments. A case involving both Kuck and Goldberg is currently awaiting a decision from the Second Circuit Court of Appeals, which heard oral arguments on September 17, 2009.

The 2008 Heller decision and the forthcoming McDonald decision will impact claims such as those brought by Kuck and Goldberg that address the lawful parameters of state government’s day-to-day regulation of the right to bear arms. For individuals such as Kuck and Goldberg, incorporation will be only the first step toward establishing what process they are due from the government where the right to bare arms is concerned.”

In October of 2009, attorney Paul Neuharth in San Diego filed a Federal gun case against the San Diego Sheriff’s Department. The case involves Edward Peruta being denied a state permit to carry a concealed weapon based on current residency and good cause grounds.

Peruta points to the demographics of San Diego and his other home in Connecticut. “In the state of Connecticut 156,000 residents have the right to carry a gun, compare that statistic to San Diego (which is similar in size to Connecticut) where the right to carry a loaded gun is somewhere around the 4,500 number – very low,” he explains.

Why the need for a gun? “My self defense and my profession,” he simply states.

Detractors of gun rights claim and discuss the possible Parade of Horribles could disclose the Supreme Court ruling and play out this way; tougher laws emerge and pretty soon there are no federal gun restrictions and those on the state level are legally dubious. Pretty soon, this fear goes, everyone is packing everywhere.

However, the opposite is the fear for gun activists. If the Justices were to find a way to uphold and thus strengthen D.C.’s ban. This prompts gun control advocates to push for similar ordinances and legislation across the nation. Pretty soon, every jurisdiction could be prompted to prohibit the possession of firearms in the home.

A tough decision indeed lies ahead for the Justices

Workman points to a Chicago Tribune article that compared the Windy City’s murder rate skyrocketed upward to 41 percent once the harsh ban was put in place that compared with an 18 percent rise in the entire United States

“The bottom line is that Americans always have had a constitutional right to possess guns, and local and state governments should be much more limited than they have in the past in the limitations they can place on those rights,” according to the Clarksville Leaf Chronicle.

According to Workman, The New York Times editorial staff has never seen a gun law that it didn’t like.

In a recent story the NY Times featured a “Learning Network” exercise in which it asked for the reaction to open carry in coffee shops. “Students ages 13 and older were invited to weigh in and many of them took off the gloves.” If the Times thinks it has trouble with older generation “gun nuts,” the next generation now coming up to bat is going to give them 24/7/365 heartburn, Workman says. “Many of the responses were not only well-thought-out, but also rather diplomatic. They responded and signed their responses with a first name only.”

According to Miles, “Keeping and bearing arms is a right protected from ANY governmental infringement by the 2 Amendment to the Constitution. That means that it is not the government’s job to regulate, limit, decide, poll, express an opinion, prohibit, ban, register, forfeit, destroy, convict, kill, approve anything involving arms when it applies to the People, including whether I open carry or carry concealed; whether I carry of not.”

Either way you look at gun rights, the rules will change by the end of June. As a result it is most likely the courts can expect a flood of cases. It won’t matter if Americans want the right to carry or not, lawyers across the country will make a good living taking the Supreme Court decision apart.

Part three next

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What part of the Second Amendment don’t you understand?

Supreme Court has taken up a Second Amendment case, the outcome will surely create changes in the way Americans are allowed to acquire firearms, what rules will be in play and what role cities and states will have in the right to own a gun.

In part the Second Amendment reads; 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.

Not only was this right given to all citizens of the U.S. for self-defense, but also the founding fathers wanted its citizenry to never fear their government.

The case currently before the High Court, McDonald verses Chicago, will take on the issue that states can regulate the ownership of handguns. McDonald a retired military man was stripped of his rights to own a handgun because Chicago passed stringent gun ownership rules. He is fighting back.

“It’s a basic question,” says the plaintiff Otis McDonald. “If these 12-13-year-olds can walk up and down the street with guns, I should be able to own one. I’ve paid my taxes and I have worked all my life. I have been open to governments and I’ve served my country in the Army. Why is it I can’t own a hand gun to protect my home?”

Many say this case has been a controversial issue the Supreme Court has not wanted to open for more than 200 years, but the pendulum of change is swinging in America.

The stakes are high and anyway you look at it the rules in the second Amendment will change.

Think of it as building a house. First you have to dig a hole, this is what the Heller case did when it ruled; “The Court recognized in the Heller case that the Second Amendment protects an individual right of a U.S. citizen in a federal enclave, so it is no stretch that a U.S. citizen would enjoy that same right anywhere in the United States,” according to Gun Owners of America who follow gun rights cases.

This case set up the pouring of the cement phase or foundation phase that now resides in the Supreme Court’s hands known as the McDonald case. All that is left is the architectural design or what the house will look like. The Court will first determine if the rights exist and then they will set up the regulations gun owners and states must abide by.

Activists behind McDonald explain that the reason they are pushing the Supreme Court to overrule another case called Slaughter-House has nothing to do with guns. Instead, these activists want to advance a libertarian agenda, in which federal judges could sit in judgment of state and local laws involving labor, employment, business regulations and other economic issues having nothing to do with guns.

Currently the Constitution is silent on these matters and Court members could be ruling in the favor of activists who want the courts to start declaring constitutional rights against such things, therefore giving federal judges the power to strike down laws of this sort that the judges don’t agree with.

While most agree the make up of the court assures at least a 5-4 ruling in favor of McDonald, Clayton Cramer, an expert in gun laws says this issue will come down to the 14th Amendment.

The dilemma with this approach is it could endanger gun rights. Most attorneys agree the narrower your focus when arguing a case, the Justices are more likely to rule in your favor. The consensus with the McDonald case is to keep the focus on the gun ownership issue.

Groups like the National Rifle Association will argue this is about the right to keep and bear arms “This is quite a lot to swallow under the best of circumstances. In a situation such as this, where the narrowest argument you can make is still a broad one with serious ramifications, pushing a much larger agenda than necessary starts to run the risk that the Court will choke on the whole thing.”

For this reason, the NRA is working hard to keep the focus of this case where it belongs, on gun rights. Whether the Second Amendment gives 300 million Americans a right against state or local laws that ban guns is a monumentally important issue for personal liberty, and so the NRA’s argument presents, only that issue before the justices.

Their argument stresses that the Court should apply (or “incorporate”) the Second Amendment to the states through the 14th Amendment Due Process Clause. Although this approach is beset with problems from a conservative legal perspective, it’s nonetheless how the Court has always tackled these issues and so it becomes the safest route for extending gun rights to the states.

Yet the Constitutional Accountability Center, a liberal advocacy group with ties to members of the Obama administration, is urging the justices to strike down the Illinois gun bans. The center says the case allows the court to correct a poor constitutional interpretation from the late 19th century and that establishing a federal right to self-defense could open the door to progressive readings of individual rights in future cases.

The attorney arguing McDonald’s case is Alan Gura, a conservative, and he is aiming to have the Supreme Court strike down the Illinois gun ban. He also says that a victory in gun cases could pave the way for future rulings that will bolster property rights and limit government power.

“This case will restore those (gun rights) to all with certain caveats,” Gura said in a Fox News interview. “The Bill of Rights protects an individual rights in this country.”

Paul Helmke, President of the Brady Center to Prevent Gun Violence, observed the oral argument in the case of McDonald v. City of Chicago. He said, “In the two years since the Heller decision, courts throughout the country have rejected the arguments of gun criminals and the gun lobby that the Second Amendment enshrines their ‘any gun, anywhere, any time’ agenda.”

“The arguments seemed to indicate a consensus around the Court’s strong language in the Heller decision that reasonable restrictions on gun ownership are ‘presumptively lawful,” Helmke said. “The Supreme Court should maintain the limitations it set out in the Heller decision and defer to the judgments of our elected officials in protecting the public from gun violence.”

Taking the McDonald case one step further is Denis Henigan of the Brady Center. “I think there is broad legislative authority to reduce the risk from the right to own a gun and we hope the Court gives similar assurances in this case.”

Gura fired back and said, “The Supreme Court is a court of law, not a social science experiment and under the laws and the right in our Constitution is the right to keep and bear arms.”

An ardent supporter on the bench is Justice Scalia who wrote the majority opinion that invalidated Washington D.C.’s handgun ban, however he went a step further an stated that the Second Amendment, “if properly understood, there is no limitation upon arms control by the states.”

Justice Scalia wrote a book in 1997 titled, “A Matter of Interpretation,” where he viewed “the Second Amendment as a guarantee that the federal government would not interfere with the right of the people to keep and bear arms.”

Now the McDonald case before the court sees the city of Chicago and their claims contrary to the Second Amendment and that it does limit arms control by the states.

Gun Owners of America argues that the U.S. Supreme Court should recognize a robust individual right to keep and bear arms that prohibits states and their subdivisions from infringing on that right. GOA urges the Court to guarantee citizens the right to keep and bear arms as a “privilege or immunity” of national citizenship under the Privileges and Immunities (P&I) clause of the 14th Amendment.

GOA also urged the Court to avoid reliance on the 14th Amendment’s Due Process Clause and its so-called Incorporation Doctrine. The Incorporation Doctrine was invented by judges manipulating the Due Process clause, but P&I is based on the actual words of the Constitution.

The Court has already recognized in the Heller case that the Second Amendment protects an individual right of a U.S. citizen in a federal enclave, so it is no stretch that a U.S. citizen would enjoy that same right anywhere in the United States. P&I will protect the rights of citizens who constitute the government – the same persons called “the people” in the Second Amendment, GOA contends.

Moreover, P&I would not be subject to erosion over time as justices on the court change, as has proven true with Due Process incorporation. There is little risk that the Supreme Court would later use the P&I clause to create new constitutional rights, such as for health or housing. If the McDonald decision relies on the Due Process clause, the result could be a weakening of the right to keep and bear arms as well as the invention of new rights – something that has already been done using that clause.

The NRA is also actively involved in the Supreme Court case and was allowed to present their argument for 10 of the 30 minutes to the Justices.

“As a party to the case, NRA argued before the U.S. Supreme Court today that the Second Amendment protects the fundamental, individual right to keep and bear arms no matter in which city or state one resides. We are optimistic the Court will hold that the Second Amendment applies to state and local governments through the Fourteenth Amendment and that handgun bans, like those in the City of Chicago and the Village of Oak Park, are unconstitutional under any standard of judicial review,” said Wayne LaPierre and Chris Cox of the NRA.

“This view is shared by a bipartisan group of 309 members of Congress from both chambers, 38 state attorneys general and the majority of the American people. We look forward to the decision by the Court later this Term.”

Just as history proves the United States is an ever-evolving country and through political parties the justice system moves like a pendulum. The economic upheaval has caused many to get back to basics. It appears that the pendulum is swinging from the left to the right.

One thing is certain in uncertain times Americans want the right to protect themselves. The McDonald case is 200 years in the making and the decision facing the Supreme Court is the fact that it is either a federal government right or a state’s right to apply the right to own a gun.

The rules de jour often embedded in our leaders are based on personal political beliefs rather than the personal individual needs of citizens.

There is now doubt America faces a different “wild west” scenario, but there is also no doubt the founding fathers made is very clear – Americans have the right to keep and bear arms.

This is part one in a series.

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