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Monday, June 28, 2010

Incorporated, BY GOD

Joy to the gunnies, their rights have come,
Let banners mourn and moan!
Let e'ry range give training!

Etc. And if you think a lot of people won't be walking around singing praises of the Supreme Court for McDonald v Chicago, you're outa trigger-touch.

Opinion here in pdf, but you may have trouble downloading it until the first rush subsides. The SC incorporated the Second. Alito, Roberts, Scalia, Kennedy and Thomas. (Thomas incorporates under the Fourteenth privileges and immunities.)

Those interested in civil rights should read this opinion; the shameful Cruikshank comes up.

The decision incorporates under Due Process following Heller:
Self-defense is a basic right, recognized by many legal systems from ancient times to the present day,15 and in Heller, we held that individual self-defense is “the central component” of the Second Amendment right. 554 U. S., at ___ (slip op., at 26); see also id., at ___ (slip op., at56) (stating that the “inherent right of self-defense has been central to the Second Amendment right”). Explaining that “the need for defense of self, family, and property is most acute” in the home, ibid., we found that this right applies to handguns because they are “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” id., at ___ (slip op., at 57) (someinternal quotation marks omitted); see also id., at ___ (slip op., at 56) (noting that handguns are “overwhelmingly chosen by American society for [the] lawful purpose” ofself-defense); id., at ___ (slip op., at 57) (“[T]he American people have considered the handgun to be the quintessen-tial self-defense weapon”). Thus, we concluded, citizens must be permitted “to use [handguns] for the core lawful purpose of self-defense.” Id., at ___ (slip op., at 58).
As in Heller, of course there are reasonable limitations. But it is no longer legal in Chicago to prohibit every citizen except those very few (and politically connected or wealthy) to have a firearm in their home for self-defense. I wonder how much a gun permit cost in Chicago. Probably about 30% of a senator's seat.

Many will never see it, but this is one of the most important civil rights cases in our generation. Widespread gun bans date back to the era of racial unrest in many states.

Today we have finally grown up. It is not Obama's presidency that will make the next MLK day the true marker of our nation's emergence from the sin and stain of racism, but this decision. Today the US stands with the Warsaw uprising and with the marchers in the streets of Tehran protesting a fixed election.

A government which fears the average law-abiding citizen is either a sick government or a government of a sick state, and we are not that yet.

Update: Yes, yeeee, Yeees, YEEEEEEESSSSSS! It's an orgasmatron of a ruling. Someone finally told the truth, and in an SC ruling for heaven's sakes.

Thomas HAS to have provided a lot of this: UPDATE: ALL of this is from his concurrence - he says the right to keep and bear is guaranteed by the Fourteenth. Thomas concurrence begins on page 67 of the linked pdf. God bless him.
Chief Justice Henry Lumpkin’s decision for the GeorgiaSupreme Court in Nunn v. State, 1 Ga. 243 (1846), illus-trates this view. In assessing state power to regulatefirearm possession, Lumpkin wrote that he was “awarethat it has been decided, that [the Second Amendment],like other amendments adopted at the same time, is a restriction upon the government of the United States, anddoes not extend to the individual States.” Id., at 250. But he still considered the right to keep and bear arms as “anunalienable right, which lies at the bottom of every free government,” and thus found the States bound to honor it.
and
Certain abolitionist leaders adhered to this view as well. Lysander Spooner championed the popular aboli-tionist argument that slavery was inconsistent with con-stitutional principles, citing as evidence the fact that itdeprived black Americans of the “natural right of all men‘to keep and bear arms’ for their personal defence,” whichhe believed the Constitution “prohibit[ed] both Congressand the State governments from infringing.” L. Spooner,The Unconstitutionality of Slavery 98 (1860).
and
These beliefs, combined with the fact that most state constitutions recognized many, if not all, of the individual rights enumerated in the Bill of Rights, madethe need for federal enforcement of constitutional liberties against the States an afterthought. See ante, at 29 (opin-ion of the Court) (noting that, “[i]n 1868, 22 of the 37States in the Union had state constitutional provisionsexplicitly protecting the right to keep and bear arms”). That changed with the national conflict over slavery.
and
In the contentious years leading up to the Civil War, those who sought to retain the institution of slavery foundthat to do so, it was necessary to eliminate more and moreof the basic liberties of slaves, free blacks, and white abolitionists. Congressman Tobias Plants explained that slaveholders “could not hold [slaves] safely where dissentwas permitted,” so they decided that “all dissent must besuppressed by the strong hand of power.” 39th Cong. Globe 1013. The measures they used were ruthless, re-pressed virtually every right recognized in the Constitu-tion, and demonstrated that preventing only discrimina-tory state firearms restrictions would have been a hollow assurance for liberty. Public reaction indicates that the American people understood this point.
and
The fear generated by these and other rebellions ledSouthern legislatures to take particularly vicious aim at the rights of free blacks and slaves to speak or to keep and bear arms for their defense. Teaching slaves to read (eventhe Bible) was a criminal offense punished severely insome States. See K. Stampp, The Peculiar Institution:Slavery in the Ante-bellum South 208, 211 (1956).
and
Many legislatures amended their laws prohibitingslaves from carrying firearms18 to apply the prohibition to free blacks as well.
and
Mob violence in many Northern cities presented dangers as well. Cottrol & Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration, 80 Geo. L. J. 309, 340 (1991) (hereinafter Cottrol) (recounting a July 1834 mob attack against “churches, homes, and businesses of white abolitionists and blacks” in New York that in-volved “upwards of twenty thousand people and required the intervention of the militia to suppress”); ibid. (notingan uprising in Boston nine years later in which a confron-tation between a group of white sailors and four blacks led “a mob of several hundred whites” to “attac[k] and se-verely beat every black they could find”).
and
As the Court explains, this fear led to “systematic efforts” in the “old Confederacy” to disarm the more than180,000 freedmen who had served in the Union Army, aswell as other free blacks. See ante, at 23. Some States formally prohibited blacks from possessing firearms.
and
The pub-licly circulated Report of the Joint Committee on Recon-struction extensively detailed these abuses, see ante, at 23–24 (collecting examples), and statements by citizensindicate that they looked to the Committee to provide afederal solution to this problem, see, e.g., 39th Cong. Globe337 (remarks of Rep. Sumner) (introducing “a memorial from the colored citizens of the State of South Carolina” asking for, inter alia, “constitutional protection in keeping arms, in holding public assemblies, and in complete libertyof speech and of the press”)
and
The problem abolitionists sought to remedy was that, under Dred Scott, blacks were not entitled to the privileges andimmunities of citizens under the Federal Constitution and that, in many States, whatever inalienable rights statelaw recognized did not apply to blacks. See, e.g., Cooper v. Savannah, 4 Ga. 68, 72 (1848) (deciding, just two yearsafter Chief Justice Lumpkin’s opinion in Nunn recognizingthe right to keep and bear arms, see supra, at 39, that “[f]ree persons of color have never been recognized here as citizens; they are not entitled to bear arms”).
and
As Frederick Douglass explained before §1’s adoption, “the Legislatures of the South can take from himthe right to keep and bear arms, as they can—they would not allow a negro to walk with a cane where I came from,they would not allow five of them to assemble together.”In What New Skin Will the Old Snake Come Forth? An Address Delivered in New York, New York, May 10, 1865,reprinted in 4 The Frederick Douglass Papers 79, 83–84 (J. Blassingame & J. McKivigan eds., 1991) (footnote omitted). “Notwithstanding the provision in the Constitu-tion of the United States, that the right to keep and bear arms shall not be abridged,” Douglass explained that “the black man has never had the right either to keep or beararms.” Id., at 84. Absent a constitutional amendment to enforce that right against the States, he insisted that “the work of the Abolitionists [wa]s not finished.” Ibid.
Clarence Darrow lives. Gun control was always about "those people". Always.

Video with McDonald before the decision. As he says, the work is not yet done.


Final thought: Free Enterprise Fund v Public Company Accounting Board might turn out to be important in health care reform, because a bunch of new boards with extraordinary powers were set up in that legislation. The decision turned on the infringement of the Executive's powers in this case. Here is a link to the whole thing on Scotuswiki.

The attempt in the health care law is basically to make the boards independent of Congress, and I wonder if Free Enterprise won't suggest some legal problems for that part of the legislation.

Comments:
I loved one particular sign in the video (at 3:47).

Legalize the Constitution
 
Mark - that's about it. And anyone with ANY knowledge about US history, which isn't by any means always pretty, has to realize that black people have had a peculiarly hard problem in getting their constitutional rights legalized.

But I am still in awe that someone on the court actually sat down and wrote the truth about this particular piece of history.
 
MOM,

In the age of the Patriot Act, it is the single most hopeful thing I've read in a long, long time.

Those who desire to give up freedom in order to gain security will not have, nor do they deserve, either one. - Benjamin Franklin
 
Mark - on a lighter note, do you remember the Kelo decision? The SC decided that it was the legislature's right to decide the definition of public use. Pelosi ignored that and made some crack about not being able to contravene the SC, which was "almost like God".

Well, I'm waiting to read Pelosi's reaction, which I'm guessing will not have any references to deities incorporated, just as the recent FEC case did not elicit respectful comments.
 
MOM,

On a lighter note?!

About the only thing getting lighter is me... as I throw up! ;)

Kelo v. City of New London

The governmental taking of property from one private owner to give to another in furtherance of economic development constitutes a permissible "public use" under the Fifth Amendment. Supreme Court of Connecticut affirmed.

Vomit!

Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. - Sandra Day O'Connor

...something has gone seriously awry with this Court's interpretation of the Constitution. - Clarence Thomas
 
I don't know if Kelo is the absolute worst Supreme Court decision that hasn't led to war, but it has to be on every patriotic American's top 5. It makes me fume and foam to the point I can't even type coherent thoughts.
 
Allan - yeah, and given the boom/bust sequence, it just keeps getting uglier by the year.

"Your property is only yours if someone richer than you doesn't want it" is hardly the founding fathers' conception.
 
I have never been a fan of Thomas,but after this decision I thank god he is on the court. I live in California which allowed to open carry of loaded firearms for many years. That changed when the Black Panthers showed up at the Alameda county courthouse. I have pointed out to many a "liberal" that their opposition to the 2nd amendment was both racist and hypocritical..." You just don't understand,Tom,violence doesn't solve any problems" has been the usual response...and pointing out THAT fallacy did not seem to work. Cognitive dissonance is not amenable to reason.
 
Really, all of this shouldn't have been necessary. Incorporation should not be an issue. The First Amendment says Congress shall make no law. The Second is far broader; it says simply the right to keep and bear arms shall not be abridged. Not by Congress. Not by the state legislature. Not by the county, or the town council. SHALL NOT BE ABRIDGED. What part didn't you understand?
 
I'm working my way through the decision. I notice that in footnotes Thomas and Scalia have called out Stevens in a fashion as near to b-----slapping as one Supreme will do to another. And every word was well-deserved.
 
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