Chicago To Continue to Ignore the Constitution

Good.  Looks like another opportunity for some case law. 

Chicago Police will continue to enforce the city’s handgun ban and firearm registration laws while lawyers fight the pro-gun lobby in federal court.

The National Rifle Association and the Illinois State Rifle Association filed federal lawsuits to shoot down Chicago’s gun laws after the U.S. Supreme Court voided the District of Columbia’s handgun ban last month.

City Corporation Counsel Mara Georges told a City Council committee Thursday that she’s prepared to fight those lawsuits all the way to the Supreme Court.

“Chicago’s gun ordinance was not invalidated by the . . . decision. Three prior Supreme Court decisions have found that the Second Amendment does not apply to states and municipalities,” Georges said. “The decision did not change that case law.”

Georges said she’s confident that the U.S. District Court will dismiss the gun lobby lawsuit challenging Chicago’s existing laws.

Consider the utter absurdity of the statement that I bolded.  Replace “Second Amendment” with any other amendment and the statement is lunacy.  Can you imagine if the cops walked into my house without a warrant and without my permission and just said, “oh, the Fourth Amendment?  It doesn’t apply to West Bend.” Or if Wisconsin decided to forbid women from voting under the reasoning that the Nineteenth Amendment doesn’t apply here.  It’s ridiculous, which is why Chicago is going to spend a lot of money of lawyers to lose their case. 

Hat tip Of Arms and the Law via Dad29.

1. I’m sure you know, of course, that our founding fathers never intended for the Bill of Rights to apply to local governments.  So that statement that you find so absurd is actually one that was true during the first 80 years of our country (or so).  The Bill of Rights was only intended to constrain the power of the federal government.

   It wasn’t until after the passage of the 14th Amendment that the courts began to pursue a more activist view of the constitution, moving to incorporate the various provisions as a check against the power of local units of government.

   Of course, that’s not where we are anymore, and so I suspect you will be correct.  Heller was a great test case in that it involved only the role of the federal government.  The court didn’t have any sort of cop-out that it could invoke.  Of course, the courts haven’t yet truly incorporated the Second Amendment, and so I’m sure that’s what will end up happening in 3-5 years, should the ideological makeup of the court not change.  SCOTUS will decide that states and local governments cannot usurp the Second Amendment, and likely decide that reasonable restrictions are allowable.  And then we’ll spend the next 20 lifetimes deciding what reasonable restrictions are.

   Posted by Recess Supervisor on July 27, 2008 at 1706 hrs




2. Sorry Recess Supervisor, but as I’m sure you know, the constitution is the highest law in the land, and nowhere does it say in the second amendment applies only to Federal action. Indeed, the only amendment that actually specifies an application indicative of federal-only coverage is the first.

   Are you really going to argue that the following applies only to Federal agents (who did not exist at the time, as the FBI was not formed until 1908)?
   

   The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

   Who would be seizing them? Congressmen?

   Indeed, the seventh amendment seems to actively disagree with your viewpoint:
   

   In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.

   It is specifying the rules for courts and using Federal courts as a check on those.

   While I understand that the struggle for power between the Federal government and the States existed, and both sides vied for advantage during our nation’s formative years, to argue that amendments to the Constitution of the United States are applicable only to the Federal government and its actions is rather illogical.

   Posted by k2aggie07 on July 27, 2008 at 1918 hrs




3. I’m simply telling you what was originally intended by those who wrote the document.  I know it’s easy to take our prevailing view of the document and assume that said view was the one that was always held, but that simply isn’t the case.

   That’s why Section 1 of the 14th Amendment reads in part that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States...” If yours was widely accepted as the interpretation of the document in the mid-1800’s, this language would’ve been wholly unnecessary, because nothing would’ve needed clarifying.  The language was driven in large part by concerns on the part of Congress that some states would simply contravene the 13th Amendment with their own laws.  And why would they do that?  Because they had in the past, as there was nothing that said that they couldn’t.

   There’s also stacks of case law that deal with this issue of incorporation - how the courts gradually came to view the rights assigned in the constitution as being unalterable by state law.

   Personally, I have no problem with the concept of incorporation, so we’re basically in agreement on the end result.

   Posted by Recess Supervisor on July 27, 2008 at 1949 hrs




4. Also, the first two rulings on the matter might be worth your time.  In Barron v. Baltimore, the Supreme Court held in 1833 that the bill of rights were restrictions on the federal government and only the federal government.  This ruling was then upheld in U.S. v. Cruikshank in 1875.

   Posted by Recess Supervisor on July 27, 2008 at 1955 hrs




5. Recess,

   Unfortunately I think the 14th amendment basically transformed the Bill of Rights from National-only to all-levels-of-government as a result of the Southern states not adering to the spirit of laws passed allowing blacks citizenship and the right to vote. So while you may be right in a historical context, I’m not sure it’s relevant now.

   Posted by on July 27, 2008 at 1959 hrs




6. I don’t disagree that it’s the direction things are heading, but the Second Amendment is still technically unincorporated - which is what the attorney for the City of Chicago is referring to.  The three cases she’s referring to are three cases in which the SCOTUS has refused to incorporate it.

   Now, the last case in that trio was decided in 1894, and I don’t doubt that should a case be brought against one of the states or a local unit of government, the odds are good that the court will incorporate it.  But for now, she’s got an argument - at least an historical argument, and one that is legally valid.  Until the courts rule otherwise, prior case law establishes the legitimacy of her position.

   If one is going to argue the meaning of the constitution, one should at least acquire some base familiarity with the historical context of the document and the case law that has established the court’s interpretation of it.  Too many people around here, however, just love to pound square pegs into round holes.

   Posted by Recess Supervisor on July 27, 2008 at 2154 hrs




7. RS is correct.  At this time, the 2A is NOT “incorporated” as are most other Amendments.  In fact, Heller avoided the issue only b/c DC is a “Federal jurisdiction” rather than a State.

   And Scalia did NOT grab for incorporation in his decision.

   RS is also correct that the Chicago suit will likely result in incorporation of the 2A to the several States.

   Posted by dad29 on July 28, 2008 at 0705 hrs




8. Thank goodness that the honorable US Supreme Court justices aren’t activists like those pesky Wisconsin Supreme Court justices, otherwise we’d have to worry about uprooting three binding US Supreme Court opinions on point.  Yeah...right.  Something tells me stare decisis is about to take a serious hit.  Let the revisionist backtracking and glad-handing begin.  Who’d have thought that originalism (i.e., The Word given by Scalia according to some of you) apparently isn’t bound by itself.

   Posted by on July 28, 2008 at 1615 hrs




9. The Incorportation thing may be soon (2 years) as Heller has filed a second lawsuit against DC.

   From the Heller suit:

   40. The Act amended D.C. Code § 7-2502.03 to add: “(d) The Chief shall require any
   registered pistol to be submitted for a ballistics identification procedure and shall establish a fee for
   such procedure.” No limit is placed upon the amount of the fee.
   41. The above requires payment of a fee, the amount of which is left to the boundless discretion of the Chief of Police, in order to register, and hence lawfully to possess a pistol. Predicating the right lawfully to possess a pistol as guaranteed by the Second Amendment on the payment of any fee, and moreso an undefined fee with no limit according to the arbitrary will of the Chief, infringes on the right of the people, including plaintiffs herein, to keep and bear arms.

   Posted by John Washburn on July 28, 2008 at 1803 hrs





10. Incorporation of the 2nd amendment was the DESIGN goal of the 14th amendment.  The 14th amendments was designed to prevent “black Codes” like Chicago wants to perpetuate.

    Here is a short history on the 14th amendment and its roots to prevent Klansmen from disarming blacks uppity enough to arm themselves with revolves, pistols, rifles, and/or Gatling guns.

    Plessy v Ferguson gutted of the equal protection clause of the 14th amendment and Brown v Board of Education was needed to reverse the Court’s error.

    United States v. Cruikshank gutted the “privileges and immunities” clause of the 14th amendment and it will take another case to reverse the Court’s error of Cruikshank and the reaffirmation of that error in Presser.

    I have trouble seeing Justice Thomas reaffirming the blatant error that is Cruikshank especially since the incorporation doctrine has been introduced in 20th century.

    Posted by John Washburn on July 28, 2008 at 2234 hrs




11. Heller II would be a terrible test case because DC is a federal entity - the only powers that DC’s “local” government has are the powers devolved to it by the Home Rule Act in 1973.  What you want here in a test case is a dispute involving a state or municipal government.

    A second case by Heller only serves to try and establish the bounds of reasonableness set forth in the majority opinion.  Which is fine, of course.  But it would do nothing to establish incorporation.

    Posted by Recess Supervisor on July 29, 2008 at 0014 hrs




12. RS, you said:
    

    I’m simply telling you what was originally intended by those who wrote the document.

    I would argue instead that the framers of the constitution intended that it be applicable to all government at all levels, because the wording of the original document drives towards it. As I pointed out, if the original intent was applicable only to the federal government, whole sections of the bill of rights make no sense in historical context. They are checks on government powers that at the time didn’t exist on the federal level.

    Just because states usurped and evaded the constitution further requiring additional amendments to “nail down” the specificity of the law does not change in the intent of the authors. Loopholes in laws do not invalidate the spirit of said laws—illogical judicial decisions to reaffirm the applicability (so called “incorporation") one painful syllable at a time notwithstanding.

    Posted by k2aggie07 on July 29, 2008 at 1234 hrs




13. RS,

    Just to clarify—I do see your point and I understand that the interpretation of the constitution as it exists now is not the same as it always was. However, to refer to the opinions of the authors is not the same thing as to cite case law. One is the opinion of Jame Madison and his contemporaries, while the latter is the opinion of whatever justices happened to have the bench at the time of the decision—particularly the opinion of James Marshall in the first thirty years of our nation’s existence.

    To Marshall the constitution was something to be interpreted as he saw fit...to twist and shape into any form he pleased, to paraphrase Jefferson.

    Posted by k2aggie07 on July 29, 2008 at 1254 hrs