02 July 2010

Second Amendment Chaos!

A good American Spirit blog could not be considered righteous this week if it did not do some commenting on the McDonald vs. City of Chicago case. While it was stupendous to hear that the right is affirmed as an individual right, it is quite disturbing to see the tepid transitional period that is currently ensuing. Far too many questions are remaining, and far too many court cases will be needed to define the scope of the newly incorporated right.

I refrained from commenting in a gleeful manner on Monday because as I watched the SCOTUSblog.com's live coverage, I saw the words “reversed and remanded.” My initial reaction was that the Supremes decided to take a knee for three downs and then punt on the issue. In the limited time I've read the legal opinions on the case, that initial excitement/disappointment had changed into a slowly evolving hope. I will admit that I have not had the time to do a full reading of the 214 page opinion. Once I'm done reading 1984, I'll print a copy and have at it.

Looking at the reaction from the blogisphere / forums / media, it left me confused. As usual, both sides of the issue are doing what they do best, spinning. NRA’s Executive VP stated it was a good day and to look out for more lawsuits. The Brady Campaign rightfully stated that it was a good day and to look out for more lawsuits.

Confused: Did I just read that right? Two opposite sides, and a broken record sound bite? Mayor Bloomberg has said he agrees with the court? Have I suddenly entered Seinfeld’s bizarro world?

Unlike the fast moving, reactionary forum world, I wanted to take some time and really dig into the consequences of this ruling and here are the top five.

1) Just how far will this ruling go, especially with it being remanded back to a liberal court
2) Non-free states such as Maryland, what are the consequences of the ruling with specific regards to wearing, carrying, and transporting arms
3) How much will the anti's focus on the "in the home" portions of Heller and McDonald
4) What is the impact of the Substantive Due Process Ruling vs. the Privileges and Immunities clause of the 14th Amendment.
5) Did we really win anything more than a continued struggle in the halls of slanted justice?

Addressing these points in order:

1) We have already seen that Chicago will try to be as restrictive as possible, even to the point that it might make exercise of the right feeble but for only those privileged enough to be able to afford the requisite fees associated with training requirements, permits, and liability insurance. Of course, we know that every gangbanger inside Mayor Daley's city will surely be rushing to their nearest State Farm agent to get a million dollar liability insurance policy in case one of their stray bullets happens to hit Mr. McDonald.

2) Non-free states still have an uphill battle, but at least two good cases are on our side now with more in the pipeline. Specific to Maryland and their discretionary permitting process for concealed / open carry, several State Legislature Delegates have already asked for opinions on the ruling from the Attorney General. It will be interesting to see just what the AG reads into the rulings, and if the newly guaranteed right forces the state to recognize self defense all by it's lonesome, without any stipulations as an acceptable "need" for a permit.

3) Point 2 focuses on the meaning of the second amendment with regards to the plurality's opinion and codifying the primary purpose of "self-defense" in a historical context. Now, obviously, gun rights advocates will sit there and say that absolutely this is the case, but there is a lot of reference to the "in the home" text of the court's opinion. It is unfortunate that such language was chosen, but the legal talking heads say it does leave wiggle room for further court cases. Remember, your rights don't stop the second you walk out your door, but they do stop when they infringe upon the rights of another. That said, all areas in between are fair game.

4) Substantive Due Process and Privileges and Immunities are two legal arguments that have been battled on over the last hundred and forty years. In simple terms, SDP implies levels of tests to enumerated rights depending upon their incorporation or lack thereof. Strict scrutiny is what we were looking for in this case, and is the highest standard to prevent the government from regulating our rights far more than they should. The problem with the SCOTUS ruling is that a scrutiny test wasn't specifically spelled out in this ruling as it was remanded back to the liberal circuit court.

P&I test, which Justice Thomas wrote a 60 page opinion on goes further into the individual rights, enumerated and non-enumerated. Plain and simple, if the Constitution is silent on it, it means that the power is retained by the states and individuals as per the Tenth Amendment. If this opinion had been Justice Thomas' P&I ruling, we would have seen a shake up of civil rights far more than just guns, and quite frankly, any ruling that protects civil and individual liberty is exactly what this blog is about.

5) Finally, did we really win? Yes and no. It is unfortunate that this case was a mere 5-4 victory. We still have a war to wage against 80 years of activist judges looking to codify new meanings into a simple language that is the Constitution. Further still, states like mine, whom did not have a 2A protection in their Constitution will have to grapple with the consequences of lawsuits and other challenges to bring the state inline with the US Constitution.

State can be more free than the Federal Government's ruling, but they now can't be more restrictive than the Second Amendment. So, just how restrictive is the Second Amendment and how many "common sense" laws will remain in effect? That is the $64,000 question that remains to be answered.

As gun rights activists say, "In Gura We Trust."

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