Lawyer Gal's Blog

A Young Lawyer's Perspective

Since it’s too hot to do anything else, lets talk about guns.

Here in Ohio, it is 93 degrees and the ac at my office is not denting the heat!  For some reason, the heat makes my mental acuity lethargic, so the best blog idea I could amount is guns.

For those that are not enthralled by Supreme Court action, then you may not have heard that the almighty Court rendered a really rare Second Amendment decision this session.

Newbie Samual Alito authored a majority opinion in McDonald v. City of Chicago.  Specifically, the gun law in question came from Chicago, a city that had a long-standing handgun ban dating back to 1983.  The Court told a lower court to reevaluate the law, stating that states and cities must respect the Second Amendment.  Although the Court didn’t flat-out strike the law as unconstitutional, the effect is to invalidate outright gun bans across the nation.  According to the opinion, law-abiding citizens have to a right to act on the belief that

“their safety and the safety of other law-abiding members of the community

would be enhanced by the possession of handguns in the home.”

The Court was far from clear, which Stephen Breyer saw as a problem in his dissent.  The decision did not specify the constitutional limits on gun laws.  A few key issues that could be litigated include:

-Bans on people under the age of 21 buying or owning guns;

-One-gun-a-month purchase limits in California, Maryland, New Jersey and Virginia;

-Georgia’s ban on carrying guns into churches;

-Bans on guns in bars

Another issue that could potentially alter gun jurisprudence is the make-up of the Court.  The decision was the most narrow possible at 5-4.  If one conservative justice is replaced by a liberal one, the Court’s stance could change drastically.

For many politicians, guns are symbolic connection to their constituency.  Here are a few photos of politicians touting their Americanism. I say, as usual, Arnold does it best.

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July 6, 2010 - Posted by | Your legal rights

8 Comments »

  1. So what exactly did this decide? Did it just say that the Second Amendment applies to the states and that they couldn’t ban ownership of guns kept in the home? Won’t this lead to a slew of other cases as each individual scenario will have to be litigated in the Federal Courts? Leave it to the Supremes to kick the can down the road.

    And what kind of office building can’t keep you cool in the summertime? How about a blog about landlord-tenant issues. Something about “quiet enjoyment” of the premises?

    Comment by Ed Lake | July 6, 2010 | Reply

  2. As you point out, it would be nice to get a little more direction from the court in cases like this. My problem is that I can see the validity of both sides of the constitutional argument, and both sides of the “citizens owning guns make society more/less safe” argument. What are your personal thoughts on the issue?

    Comment by Justice Bird | July 7, 2010 | Reply

    • To me, it’s not really a matter of guns making society more or less safe. I am pro-gun simply because the government should not be involved in citizens’ lives as much as it is. The criminal justice system is the remedy for people that use guns in a way that harms others. This is the core of the libertarian ideal: as long as my actions as a gun owner don’t adversely affect others, who cares? Once it does, then government can react.

      Comment by lawyergal | July 7, 2010 | Reply

      • I agree with you in theory, and actually do really like your libertarian perspective. However, I think that knowing how some people can act (irresponsibly at best, criminally at worst) makes me think a bit more pragmatically about the situation. I agree that on the macro level, government reacts to the offender’s actions, but it’s little consolation to me what the government does to the offender if I’ve been shot and can never be made whole again. Again, I agree with you; I just enjoyed the discussion. Thanks for your thoughts!

        Comment by Justice Bird | July 7, 2010

  3. Astonished that this second amendment right was so split by the justices. One judge away..one and the decision goes the other way.

    What’s even more astonishing is the City of Chicago’s response to this decision. The mayor could not get to the city council fast enough to write more unenforceable gun regulations.

    Chicago now limits one operational handgun in your home. You cannot take it outside on your property, on your porch, or in your garage or backyard. You have to take a class on it’s operation at a gun range, however gun ranges are banned in the city and you have to register your gun with the local police department.

    Absolutely none of this is going to have any effect on the 70 or so shootings over the last Weekend or the 80 shootings the Weekend before that.

    These criminals outright ignored the complete gun bun and we are suppose to believe that they will now comply with these new regulations? Oh Please!

    Needless the say another case has been filed against these new regulations already.

    The mayor is wasting tax revenue generating supreme court challenges while the State and the city are in Budget crisis mode. Illinois budget problems are worse than California’s We could be using that money to put more police on the street and address the real issues instead of this tax revenue generating non-sense but no. It seems more like an ego thing now.

    Anyways, we can only hope that the people in our city will vote for change come Nov. This is ridicules.

    Thanks for blogging on this issue!

    Comment by sjr | July 7, 2010 | Reply

  4. Ok, lawyergal, riddle me this: how does this amendment NOT tie gun ownership to there being an active militia? The phrasing and history (and I admit this is not about precedent but about intent) seem to suggest that it’s not saying anything about individual rights, per se. I’ve never understood this. Being of a historical bent I don’t give a rat’s ass about whether anyone’s a libertarian, liberal, or what — it just seems a simple matter of grammar to me.

    Comment by WorstProfEver | July 10, 2010 | Reply

    • While one common interpretation is that the right is a collective one (to be exercised by the militias and not individuals) , this is not the only reasonable one.

      The wording of the text is, as many argue, a form of grouping ambiguity. As such, it is hardly surprising that arguments can be given for the right to bear arms to be taken as an individual right.

      In regards to the militia part, that can be seen as being put forth as the justification of the right. However, this need not be taken as limiting the right to only members of the militias acting as members (and not as individuals). After all, it is important to distinguish what justifies a right from the limits or scope of that right.

      As such, while the need for a militia is what was used to justify the right at the time, this does not entail that the right only applies to militia members as militia members.

      As an aside, it seems slightly odd that the founders would see a need to state that the people have a collective right to have an armed military. But, as one might say, stranger things have happened.

      Comment by Michael LaBossiere | July 12, 2010 | Reply

      • Personally, I disagree that there’s any ambiguity in the original grammar. The commas are a red herring that people have exploited, but the “being” is the real bitch; the whole phrase is classicizing– admittedly a bit vague, and archaic for us now, but pretty clear. If only the framers had gone with “given that” or “because” or something…

        Anyway, even with comma issues the original right is clearly contingent on the militia in some manner — otherwise you’ve got to ignore the entire first half of the amendment. And historically, the original amendment there to establish state militias, under the ultimate control of the POTUS, as parallels to the national army. I believe the reason they needed to declare this is beause the King had been putting regulations on it.

        Now of course, asking what the framers intended is a narrow interpretation. It’s fine if people want to extend it, but they need to admit as much. It just bugs me that people keep parroting the phrase “individual right to bear arms” as something that’s enshrined in the Constitution when that’s absolutely not what it says — it’s like people who run around quoting the Bible when they haven’t bothered to think about the vagaries of translation.

        I should also admit that I’m a translator at heart — so obviously I find it offensive when people don’t pay attention to documents that people have spent a lot of time to word carefully and clearly.

        Comment by WorstProfEver | July 14, 2010


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