The Supremes and the NRA
I agree entirely with Aaron Wolf both on the constitutional argument but also on the deeper political question of the centralization of power. The problem is that we are all tempted to use the court when it suits our purpose, and in this case if I lived in Chicago I'd probably be happy with this victory of Washington over the people who live in the country. To see what people think, I am allowing writebacks on this.
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While doing some research on the decision, I scanned the Illinois Constitution and saw that I see that the right to bear and keep arms is listed in its Bill of Rights. Was a lawsuit ever attempted in the state courts? Or did the various parties decide to make this a Federal case from the very beginning?
Yes, Mr. Chan, great question. I'd like to see if anyone can answer that one.
As for the points Dr. Fleming and Mr. Wolf are making, I am in complete theoretical agreement, however is there room for a rear guard action that may conflict at root with the longer term goal even if it produces a better symptom?
We may in fact be going in one nasty direction with no hope for the "counterrevolutionary" judicial activism we'd need to steer ourselves towards health. If that is the case, then should we be willing to settle for fighting the less-good fight?
Until recently, I should have answered unequivocally no, but these days I am not sure, But are you thinking really of a rear-guard action or a guerilla campaign? If Mr. McCabe is right in his assessment, and on the whole I think he is, then all that would be left is illegal resistance, which would be futile in the long run. And, in the long run--no matter what the immediate benefits are--increasing the power of the feds, even for a good cause, does grave harm.
Incorporating the 2nd will likely result in liberals pushing the 'militia only' reading to continue to attempt to ban guns. The NYT editorial on the decision was beating that drum. It makes me wonder, if we are to read 'A well regulated militia...' so strictly, should we also read 'Congress shall make no law...' equally strictly?
The problem with a 'federalism' dissent in this case is that a) it would be from the right (as in Gonzalez v. Raich) and would have thereby turned the 5-4 decision into a 4-5 decision without having any real effect.
The main thing I wanted to get across was Mark Winchell's statement that "hoping for the appointment of 'conservative' judges is not enough." Not enough, that is, if what you aim to do is dismantle Leviathan. I'm not unhappy that there will be more guns in the hands of law-abiding people. But I do find it laugh-out-loud funny that the "conservative justices" essentially say that federalism is dead and that original intent is out the window. At Chronicles we've known that for some time. What's the point of carrying around a Heritage Foundation pocket Constitution?
A victory for the NRA, a failure for localism and states rights. All in all a net negative, I'd say (I do not live in Chi-town).
Article XII of the Illinois State Constitution states:
“ARTICLE XII
MILITIA
SECTION 1. MEMBERSHIP
The State militia consists of all able-bodied persons
residing in the State except those exempted by law.
(Source: Illinois Constitution.)
SECTION 3. ORGANIZATION, EQUIPMENT AND DISCIPLINE
The General Assembly shall provide by law for the
organization, equipment and discipline of the militia in
conformity with the laws governing the armed forces of the
United States.
(Source: Illinois Constitution.)
SECTION 4. COMMANDER-IN-CHIEF AND OFFICERS
(a) The Governor is commander-in-chief of the organized
militia, except when they are in the service of the United
States. He may call them out to enforce the laws, suppress
insurrection or repel invasion.
(b) The Governor shall commission militia officers who
shall hold their commissions for such time as may be provided
by law.
(Source: Illinois Constitution.)
SECTION 5. PRIVILEGE FROM ARREST
Except in cases of treason, felony or breach of peace,
persons going to, returning from or on militia duty are
privileged from arrest.
(Source: Illinois Constitution.)”
It would seem that Section 1 would allow for gun bans if they were imposed by law. There is an unorganized militia, which is the one established by Section 1. But there are also organized militia units, which are mostly now constituted by various re-enactment groups. A friend of mine belongs to one of these, which is an artillery unit that predates the Late Unpleasantness. He has shown me his membership card.
When Pat Buchanan was campaigning in the South and West, I remember a person asking him if this "right to bear arms" was only limited to small arms such as handguns and long guns. He responded that he didn't necessarily think so, but if it got to the point where a man needed a trailer hitch and a truck to move it around, he probably ought to get it registered with the local state.
"Was a lawsuit ever attempted in the state courts? Or did the various parties decide to make this a Federal case from the very beginning?"
Alex Jones thinks its all part of one big conspiracy (of course!) to federalize all gun laws, and I think I agree with him. Right now the standards are different per state, but we may be in store for a one-size-fits-all system.
Overall, not good.
The question about Illinois state constitution regarding the right to keep and bear arms is a good one. The Vermont constitution of 1793, based partly on the U.S. Constitution and Bill of Rights, guarantees "That the people have a right to bear arms for the defence of themselves and the State — and as standing armies in time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to and governed by the civil power." The result of a case against restrictive gun laws in the Vermont Supreme Court is that it is legal for residents and nonresidents to carry firearms in Vermont openly or concealed unless you are doing so to commit a crime. No permit is required. (Alaska has adopted a similar approach to gun laws.) Here is more information on Vermont gun laws. This is liberalism that you can believe in.
http://www.atg.state.vt.us/issues/gun-laws.php
Alaska (my home state!) actually has a better situation: they issue Concealed permits so you can carry in other states. Within Alaska's borders, they dont require one. The permits are basically just a courtesy, although they arent recognized by every state.
Regarding the "militia only" reading, the two recent U.S. Supreme Court cases (Chicago and Washington, DC) have ruled that there is an individual right to keep and bear arms, not restricted by the militia clause.
http://www.nytimes.com/2010/06/29/us/29scotus.html
Note that the right is not granted by the Constitution, it is a pre-existing right protected by the Constitution.
You are correct, Daniel. We have very restrictive gun laws in Maryland and it is impossible for the ordinary resident to get a concealed-carry permit. Maryland does not recognize permits issued by other states.
I'd be skeptical of anything Pat Buchanan says about firearms. His repeated comment about releasing the safety catch on his revolver indicates that he doesn't know much about them. The arms referred to in the Second Amendment are the individual arms commonly used by an infantryman, not crew-served weapons.
I agree that applying the Constitution to the states is a bad idea. On the other hand, who is going to protect us from oppresive state governments? The tyranny of the majority is just as effective at the state level as it is at the federal level.>
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I believe that Russel Kirk said that he carried a loaded pistol in his pocket when he ventured into certain sections of Detroit. Any rational person would do the same if it was necessary to go into dangerous areas. I know that I would, regardless of any gun control laws.
Yes, I agree Mr Van Sant. I used to live on Andrews Air Force Base in Maryland, which was wonderful, but even in the late 80s early 90s outside in regular Maryland seemed like it had become a pretty leftist place.
Years ago, at a joint TRI/Heartland Institute joint conference, one of the speakers was a VP of the NRA. In the questions session following the gentleman's talk, I raised the question of what arms are envisioned by the Second Amendment. He replied that these would be the arms of those usual for a militia. Tom Fleming replied, correctly in my view, that the Second Amendment was designed to afford the people defense against tyrannical acts by the general government. Hence, the weaponry needed was that to deal with a the weaponry available to the tyrannical government, even, he suggested nuclear weapons, since the tyrants would possess these.
The real issue as some have remarked involves the intent of the Constitution. Clearly, that instrument applies only to enactments
by the general government, not necessarily to the states. Gun laws are most certainly under state police powers and the U.S. Supreme Court has no constitutional authority to rule against the Chicago law. As I had noted to the Republican candidate in the 8th District of Illinois, who cheered the decision on the basis of the Second Amendment, one may abhor the Court's reasoning in the matter, but applaud the result.
Be interesting to have Dr. Presser weigh in on this. His piece some months ago in Chronicles on "stripping" suggest he would
think the Court has the authority.
I cannot argue forcefully against those who see harm in this ruling. However, the Warren courts were an obscenity built on an a foundation of absurdity. I don't mind a little shade in the mean time.
My only fear would be that this would lead us more quickly to a fascist state. Perhaps. But if things don't turn bonkers and instead stay muddled, I think we need to find new places to draw lines as well as fight on different levels in parallel. And if things do turn bonkers, I guess I'd rather own a gun.
American "liberals" have gotten to the point of the center of the country. It is American "conservatives" who have not seemed to adjust well and umbrella together a fractured majority in the right ways.
[P.S. Dear Editors, I like the addition of the new bursts on the page, such as the ones sparking this thread, even if most of them go without comment.]
The doctrine of incorporation has long been settled. The fight was made in the 50's and 60's and lost. Time to move on. The only significant right left that hadn't been incorporated was the one ordinary Americans (i.e., those who don't regularly get caught up in the justice system and who aren't pornographers) might actually care about -- the right to bear arms. If I'm not mistaken, the conservative justices (except perhaps Thomas) have publicly stated that incorporation is settled law; therefore, they wouldn't have any reluctance to use it. The decision is a victory for conservatives.
By Mr. Oliver's reasoning, we should also move on from other old-right positions, such as opposition to abortion, to the erosion of states rights, to unfunded federal mandates, and to judicial tyranny. From this point of view, all that counts are small tactical victories that expand the control of the federal judiciary over local communities. It is one thing to argue that on balance and practically speaking the middle classes of Chicago are better off in being able to arm themselves legally, but quite another to celebrate as "conservative" what is really a victory for big government and the usurped power of the Supreme Court.
I don't see why we can't have big goals and small goals. Yes, we can recognize that the doctrine of incorporation was a backdoor way of usurping state's rights and deplore it. But, we can also recognize that this fight is essentially lost and we must now do what we can to advance what is important to us within the system in which we live. I'll take a series of small victories in my lifetime over fighting for one big victory that we all know will never happen. I believe I read Dr Fleming write somewhere that the conservatives should have noted their qualms with incorporation, invoked stare decisis and applied the 2nd Amendment to the states. This, I think, is the appropriate approach (and may have been the approach of the conservatives -- haven't read the opinion).
What system is this a victory for? The system based on the cancerous growth of the national government at the expense of every other authority, including the authority of the household. It is one thing to say that on balance Chicagoans are better off, quite another to delude oneself about the direction the Court is taking us. If I lived in Chicago, I would be happy. Since I do not I am indifferent. A victory? Perhaps of the type that King Pyrrhus gained over the Romans, when he remarked that one more such victory and he would be ruined.
Even if one thought of the decision as a "victory," it isn't the sort of victory that one "fought for." The only way anyone could see this as the culmination of "conservative" efforts is by thinking of it as a victory of George W. Bush, who appointed Roberts and Alito. So setting a goal of getting more access to guns meant voting for 43 to accomplish it years later, and that by the most un-conservative of means.
Very few of those who favor fewer gun restrictions at any level (local, state, federal) are plotting a grand strategy, executing it, and watching it succeed or fail. We are really just observing what those in power are doing.
When I would dare to mention something about rights to my daddy, he would remind me that what we have come to call rights is but the cool shade cast by the sturdy tree of obligation in tandem with the burning sun of authority. Cut down the tree, he warned, and the shade is gone, leaving one naked to the burning sun.
I have an obligation to defend, with deadly force if necessary, my home and hearth, my kith and kin, my blood and earth, from intruders, be they common criminals, so-called agents of the state acting as criminals (matter of debate) or an invading alien army. This is not some abstraction. I share it with wolves, mere-cats and bees, who instinctively fulfill this obligation to the death.
The second amendment, at least on paper, which had proved indeed to be something least, merely prohibits the general government, created by the states in convention assembled at the ratifying conventions, not to be confused with the drafting convention, from interfering with or subsuming this obligation, i.e. do not abuse subsidiarity.
The Bill of Rights does not pertain to the states, the unconstitutional 14th amendment and the various evil interpretations thereof, including the most recent opinions of so-called conservative justices as to its being finished law, not withstanding.
The obligation to bear arms can indeed be infringed on if there is no protective clause in state constitutions. Of course, such clauses are meaningless if there are not real men to ensure that they are upheld, as we have seen with the 2nd amendment of the Bill of Rights.
Far too many of my conservative friends understand this court decision to be a victory. It is the utter opposite of a victory. Once the Hobbesian state has subsumed something, it does not give it back. The "right" to bear arms now rests solely with the creature, i.e. the general government, and no longer with the creators, i.e. the states and the people of the respective states. What the Leviathan owns it can change. One will not have to wait long for the whims of a simply majority of the nine divines to shift, and we will be called forth to give our guns over to the hopper and the furnace.
Let me try to take a different approach -- if the state of California were to pass a law tomorrow that banned "hate" speech defined broadly enough to capture any criticism of immigration from a cultural perspective and the Supreme Court struck the law down based on the First Amendment, would we not hail this as a victory? Or would we spend more time complaining that the Supreme Court has applied the First Amendment against the states (which, absent incorporation, it clearly is not intended to be)? Would the distinction be that the First Amendment has already been incorporated and that with respect to the Second Amendment, the Court has broadened the reach of incorporation?
We are already living in the ruins of the Constitution. If the doctrine of incorporation were still in doubt and it had been extended to the Second Amendment, I would deplore the decision. Unfortunately, it is not been seriously contested in 50 years and if it is going to be used to incorporate every right dear to liberals, we might as well be content to allow it to incorporate the one right dear to conservatives.
The bottom line seems to be that we're damned if we do, and we're damned if we don't. . .except that if the individual states are protected from federal imposition of positions on issues like gun control and abortion, we may ultimately have more freedom. Before the Washington, DC and Chicago cases, very few law abiding citizens were completely prevented by law from owning firearms for personal use. In fact, most states now have provisions for allowing their residents to carry firearms in public, either openly or concealed. If you are not satisfied with the gun laws in your own state, you can always move to another state with gun laws more to your liking. On the other hand, if the laws are uniform throughout the country due to enforcement of incorporation, you are stuck with whatever the feds decide is good for you.
Mayor Dayley responds.
Mayor Dayley is only one of the many fools who believe that restricting legal gun ownership is by some miracle going to prevent or reduce illegal gun use. Unfortunately, criminals do not seem to be well-represented among those fools. It is a form of insanity and apparently there is no cure for it.
On this general topic, one is reminded of an oft-displayed bumper sticker of not so long ago that read: "when guns are outlawed, only outlaws will have gun." To some friends whose automobiles sported this slogan, to my mind, amazingly ironic display of disdain for gun ownership, I would remark, to their incomprehension, that that was precisely the problem.
For Robert M. Peters. Your comments are exactly on target. Though, do consider Dr. Presser's piece in Chronicles several issues back on the issue of "stripping." I had always entertained the idea that if the stars were aligned and a majority in Congress understood the Constitution, the Supremes could be tamed by cutting off jurisdiction after decisions by inferior courts. Congress, until the Fourteenth Amendment expansion via the incorporation doctrine, starting in the 20's, had plenary authority over the appellate process. Dr. Presser's article argues that the Fourteenth Amendment trumps that authority. Alas, I fear he is correct!
PCR reveals the true agenda in this piece from last year:
http://www.chroniclesmagazine.org/index.php/2009/07/01/gun-control-what-is-the-agenda/
Just a few thoughts:
1. The doctrine of "incorporation" is best understood after having imbibed great quantities of Jim Beam and smoked some really powerful weed. In other words, it makes little sense to anyone in a sober condition. The only thing I could figure out in law school is that it is a way for the Supreme Court to arbitrarily and through the "back door" chip away at federalism. That it has done with a vengeance.
2. I, too, am glad that gun owners will not have their guns banned by Chicago or other cities. On the other hand, as has been pointed out, many if not most states (including my own state of Ohio) have some kind of "right to bear arms" provisions in their constitutions. Perhaps the Chicago ban would have been found unconstitutional under Illinois law anyway, and the feds could have been kept out of the question altogether.
3. I don't think we should accept the proposition that something is "settled" and move on. If a practice is morally wrong or a bad court decision or poor legislation we should continue to work for its reversal, regardless of how long it has been in place. I am willing to accept small victories as they come, but this court decision was not a victory for "traditional" conservatives. We should hammer away at the incorporation doctrine. It also wouldn't hurt to enlighten people about the questionable "adoption" of the fourteenth amendment, in the name of which much judicial nonsense has been brought about.
I think the difficulty this ruling displays is not just "should we take what we can get" (most agree this is not a pure victory), but moreso, should the people of Chicago be able to decide what is right for them there?
So let's say that the 14th amendment were moot and this ruling were at the state level. Are the people of Chicago more adjoined to each other by virtue of Chicago, Illinois or our country/Constitution? Even if this challenge had been at the state level, the state would be just as capable of the kinds of power overreaches as is the SCOTUS, and so where would the victory be in that?
I suppose it is harder to corrupt the more local you get, but that depends upon the character of the people in that location. I was just listening to some Hot Rod recorded conversations on the radio on the way to work this morning, and he's as corrupt as any national guy.
The point of sorting this out isn't to be "right" about gun rights or forming perfect laws or even being in compliance with tradition but to be least damaging to people of various places. If the power game is being played at the federal level now, then don't we need to play as well at least to provide cover for more local, guerrilla action? It seems like a problem with tiers. Whether or not it is worth fighting over and struggling with, I guess that depends upon if it is possible to undo things by translating symptom fixes into solutions or if this will only go in one direction.
Even if this challenge had been at the state level, the state would be just as capable of the kinds of power overreaches as is the SCOTUS, and so where would the victory be in that?
Do you mean that the state of Illinois (or more specifically, its Supreme Court) would be overreaching by finding Chicago's gun law to be constitutional? Or unconstitional?
I think that's what I'm getting at. You and others have brought up the significance of this being a federal rather than a state ruling. And I agreed, most of us are very wary of incorporation at the federal level.
But then I started wondering where the state law would begin to lose its power? Chicago as a city has a much stronger gravity to Chicagans than does the state of Illinois, so then wouldn't that kind of state ruling be just as inappropriate or removed(in a pure sense) as the federal one?
Mr. McCabe, I am supporter of localism, but I think it can only go so far here in the United States, where states are supposed to be sovereign, and not counties or cities in those states. It seems to me that those who live in Chicago are nonetheless citizens of Illinois, and as citizens of Illinois they cannot deprive their fellow-citizens living in Chicago of the right to own and bear arms. (Perhaps handguns could be banned in a way without violating the Illinois Constitution.) They could attempt to amend the Constitution?
It is as Aaron D. Wolf says: "We are really just observing what those in power are doing." Conservatives can take no comfort in the decrees of a shifty and shifting group of five
uber-lawyers, whose minds were formed in that most secular and government-oriented milieu, law school. All the ruling has done here in Chicago is provoke the rage of the violent and unstable mayor Daley, who has now vowed not to let handgun owners STEP OUTSIDE THEIR HOUSES with their guns!
Meanwhile, as one powerful faction battles another to enforce its vision of America on us, an armed white Chicago police officer is disarmed - in the police station parking lot - by a black career criminal with 21 arrests under his belt, and killed with his own gun. This is because cops, like everybody else now, have been bludgeoned into accepting blacks' thuggishness as unavoidable and understandable - indeed, excusable. Instead of sweeping the streets of anyone engaged in lewd or disorderly conduct as was done in former times, the law-abiding are commanded to stay indoors while the lewd and disorderly are allowed access everywhere, up to and including police parking lots. Sam Francis's Anarcho-Tyranny cannot be demonstrated in starker terms.
While the fallen officer is being gushed over for his community service, it goes unnoticed by the carefree and clueless white residents of Chicago's lakefront and bohemian neighborhoods - the same people who have blithely turned Daley into mayor-for-life - that the facility where the murder took place, once a regular police station, now houses Targeted Response and Gang Enforcement units, i. e., large bureaucracies within the police department dedicated to chronic crime and serial outbreaks of crime, otherwise known as crime waves. While a law-abiding citizen who displays a handgun will be branded with a felony arrest - a career-ending event for most people, real career criminals, and the mere savages who commit crimes simply because it feels good, are given special treatment, to negotiate and camouflage the problem rather than eradicate it.
As for myself and my reaction to the SCOTUS ruling, this Chicagoan, while following the Israeli example regarding statements on whether or not they have nukes - I neither confirm nor deny my possession of firearms - long ago imbibed the wisdom of my late cousin, a WW 2 veteran and retired Chicago cop. (Lord! How I miss that man!) Whenever I asked him what he advised, now that it was illegal to own a handgun in the city, he would answer with a question: "would you rather be judged by 12 or carried by 6?"
If the editors permit: http://www.crimefilenews.com/ for a cop's-eye view.
"This is because cops, like everybody else now, have been bludgeoned into accepting blacks’ thuggishness as unavoidable and understandable – indeed, excusable."
To make the fatal import of this facet of pc enforcement a little clearer, suppose a realistic police self-protection policy were to be enacted: in neighborhoods with high rates of violent crime, require officers to stand guard, weapons drawn, in all situations where they might be exposed to attack. How long would it be before the howls of outrage by blacks and liberal whites compelled the police to use the same aggressive tactic in neighborhoods where the worst thing that is likely to happen to an officer is getting poked by his car door? What the police are forbidden publicly to acknowledge, that blacks routinely attack police, especially white police, while whites rarely do, is what has cost this officer his life.