Stick to My Guns

Monday, June 28, 2010

McDonald v Chicago was decided 5 to 4, with justices Roberts, Alito, Scalia, Thomas, and Kennedy finding in the affirmative. Alito led the affirmative opinion, with Thomas concurring.

From SCOTUSblog:

In sum, McDonald v. City of Chicago is important because: 1) it incorporates the Second Amendment right of individual gun ownership into the Fourteenth Amendment so that right will apply against the states; 2) it will lead to a slew of legal challenges to other state and municipal firearms regulations; 3) it confines judicially enforceable constitutional rights to only those rights that are deeply rooted in history and tradition; and 4) it rejects for now efforts to reinvigorate the Privileges or Immunities Clause but Justice Thomas’ concurrence holds open the possibility that that might yet happen in some future case.
I get 1 and 2; we have talked about these a lot on this blog and I embrace them (to varying degrees). 3, however, freaks me out.
I am hoping I am missing nuanced way to read this statement and interpret it correctly. But my non-legally educated brain says "wait the fuck a minute...the only rights that count are those somehow subjectively determined as "deeply rooted" in history and tradition?? That spells trouble for, say, minorities. Or kids. Or non-conservative viewpoints.

And the #4? I don't get it. I see what the Privileges or Immunities Clause is (No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States), but I guess I was unaware that this was un-invigorated at one point.

Anyway...1 and 2 is good and I figured. 3 seems horrific. And 4 I don't get.



steves 9:21 PM  

I am not sure how 3 will be interpreted, but it is probably not any different than what has been used for a while...the idea that "fundamental" rights are the ones deserving of protection. Minorities and kids would probably fare ok, but gays not so well. I can understand that they don't want courts just pulling rights out of thin air, but I can understand your concern.

At one point in time, the P & I Clause was seen as a way of enforcing federal rights on states. A series of cases known as the Slaughterhouse Cases put an end to that. What we have today is substantive due process, via the 14th Amendment as a method. More to come.

Post a Comment


Potential Drunks

Search This Blog

  © Blogger template On The Road by 2009

Back to TOP