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Thursday, July 1, 2010

More on McDonald vs Chicago

The attorney hired by VSSA and the other state associations to write our amicus brief supporting McDonald, has provided some analysis of the ruling. Here are some of the high points that he shared.
  • It is a strong opinion in our favor.
  • An unequivocal opinion that the Second Amendment right to keep and bear arms is incorporated as against the States. (Remember that this was the only question presented to the Supreme Court in this case.)
  • Vigorous reinforcement of the principle that individual self-defense is the central component of the Second Amendment right.
  • A holding that the Second Amendment right is "fully applicable to the States." Both the opponents at oral argument and the dissenters appeared to favor applying only a watered-down version of the Second Amendment right to the states. Instead, the Court reaffirmed that the Second Amendment right should be applied equally to both the States and the federal government.
  • The Court recognized that the Second Amendment right may be even more important to women than to men. We raised this issue on pages 17-19 of our brief, where we noted that it would be no more proper to effectively limit the fundamental right to self defense to young males with above-average strength and skills than it would be to effectively limit the right to vote to those who could timely complete a grueling obstacle course.
  • The dissenters appear to have lost their stomach for trumpeting the merits of Cruikshank and Presser. We devoted pages 4-9 of our brief to discussing the distasteful legacy of those early anti-rights cases. As you may recall, Justice Stevens extolled the virtues of those opinions at length in his dissent in Heller, and each of the other dissenters joined in that opinion. This time, Justice Stevens mentioned Cruikshank and Presser only in a single footnote. Further, he attempted to distance himself from those opinions (while still proclaiming that they "correctly resolved" the incorporation issue). Additionally, none of the other dissenters joined in his opinion this time around and they made no mention of either Cruikshank or Presser in their separate dissent.
  • None of the dissenters were able to rebut our discussion (on pages 14-16 of our brief) of previous Supreme Court cases affirming the right to self-defense, including the right to use a deadly weapon in self-defense. We cited four such cases in our brief, in addition to Heller. The dissenters never even acknowledged those cases, much less tried to explain them away. Plausible deniability on this subject is no longer viable.
  • All in all, this is a tremendous victory and vindication of fundamental rights for the citizens of the United States of America.

Addendum - Some opponents of the right to keep and bear arms may make doomsday proclamations regarding this opinion. Two excerpts from the Court's opinion may be useful in response.

First, the Court reaffirmed that the right to keep and bear arms is not "a right to keep and carry any weapon whatsoever, in any manner whatsoever, and for whatever purpose."

Second, the Court also reiterated that its holding does not cast doubt on such longstanding regulatory measures as "prohibitions on the possession of firearms by felons and the mentally ill, laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

There is a sobering point reinforced by comments Second Amendment Scholar Dave Kopel has made, both on and in this podcast talking about the ruling. That concern is that the minority opinion continued to express a strong view that Heller was wrongly decided. With that mindset being so ingrained in the four justice minority, we have to be very concerned about the real possibility a second Obama term could mean one of the justices in the majority that is over the age of 70 could retire and Obama would be able to reshape the court and open an opportunity that Heller could be overturned. Monday's victory was not the end of the war, but just the end of the beginning. Expect more court cases in the very near future.

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