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March 11, 2010

To Arm or Disarm Part 3

Farrell Keough

Yesterday we discussed the Respondent’s (the lawyer supporting the Chicago position) current 2nd Amendment case before the Supreme Court of the United States – McDonald v. City of Chicago.


Now let’s take some time to look at the Petitioner’s arguments.  While two lawyers spoke on behalf of the Petitioner, (Alan Gura, Esq., and Paul D. Clement, Esq.) this review will focus primarily on Mr. Gura’s statements.


It was well known by the Supreme Court that Mr. Gura would attempt to incorporate the 14th Amendment into his argument that the 2nd Amendment must apply to all states. As noted by Chief Justice John Roberts:


“Of course, this argument is contrary to the Slaughter-House cases, which have been the law for 140 years. It might be simpler, but it’s big – it's a heavy burden for you to carry to suggest that we ought to overrule that decision.”


Mr. Gura noted that just because something has been in effect for a good deal of time, if it is wrong, it should be remedied. There is merit to this argument, but it is not as simple as would seem on its face.


Justice Sonia Sotomayor noted that overturning the Slaughter-House Cases would have far more reaching consequences. While many in the media focus upon the possible effects on issues such as gay marriage and abortion, Justice Sotomayor noted that states do not require grand juries or civil trial juries “in certain money cases.” She also noted that “they [states] have relied on regulating the use of firearms based on us, the Court, not incorporating the Privileges and Immunities Clause in the way that you [Mr. Gura] identify it.”


Justice Scalia hit on the main thrust of this “innovative” approach to arguing this case.


“I'm saying, assuming we give, you know, the Privileges and Immunities Clause your definition, does that make it any easier to get the Second Amendment adopted with respect to the States? […] Then if the answer is no, why are you asking us to overrule 150, 140 years of prior law, when – when you can reach your result under substantive due – I mean, you know, unless you are bucking for a – a place on some law school faculty – […] What you argue is the darling of the professoriate, for sure, but it's also contrary to 140 years of our jurisprudence. Why do you want to undertake that burden instead of just arguing substantive due process, which as much as I think it's wrong, I have – even I have acquiesced in it?”


Mr. Gura argued that use of the 14th Amendment is not a “free-flowing license” for “judges to announce unremunerated rights.”


Many more back and forth arguments were made as to how legislatures would “use” this new interpretation of the Bill of Rights and how it might bind them from making laws specific to their constituency. Recognizing that the Supreme Court generally relies on the incorporation doctrine of applying various Bill of Rights directly to states, while leaving others at the State’s discretion, he noted:


“And I would think that it's going to be difficult enough to develop the Second Amendment jurisprudence that you wouldn't want to make it more difficult by having to develop a Federal Second Amendment jurisprudence and then some sort of shadow version of that jurisprudence for the States. […] And I think if you apply that jurisprudence, the case really is very straightforward. In fact, I think if you compare the First Amendment and the Fourth Amendment to the Second Amendment, they have the same textual guarantee to the people, they trace their origins to preexisting rightsback to the English Bill of Rights, back to even earlier constitutional history.”


The justices continued to question and speak to “scope.” This approach of integrating the 14th Amendment into a justification for the 2nd Amendment not only limits the authority of states to determine their own legal systems, but would substantially increase the costs to states as they would need to provide for jury trials on offenses which now limit that capacity.


This was a very compelling argument and one which is amazingly timely when we consider the many Tea Parties looking to embrace our Constitution on issues of congressional legislation. Having thought on this issue for some time now, I would suggest leaving the issue separate from the 14th Amendment and allowing each state to determine its own regulations with respect to gun ownership.


The decision by Chicago to not allow law-abiding citizens to own a handgun for their own protection is beyond seriously flawed and falls into the realm allowing murders to occur by those criminals who do not follow the law and carry such weapons. The right to self-defense is a natural law and should not be restrained. As the Supreme Court noted, the use of flawed statistics to justify laws does not make the legislation correct.


But, to have the Supreme Court create such a sweeping decision which will not only restrict states, but, in essence, place them further under the rule of the federal thumb will not be a step forward, but a step backward. We are a Republic, a Compact of States under a Constitution which limits our federal government – if this ruling places the Supreme Court in a position to determine how our state government should work, there would no longer be a need for individual states as one authority would rule all.


We desire less government on all levels. If the 14th Amendment is incorporated into this decision, it will increase the federal control over our state’s and thereby over each of us individually.


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