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Okla-homey
6/28/2010, 01:01 PM
SCOTUS issued its opinion in McDonald v. Chicago today. The opinion includes the court's view that the right to keep and bear arms is a fundamental right of all Americans and that the Second Amendment applies to states and municipalities to bar their attempts to enforce silly and/or arbitrary gun bans on otherwise law-abiding folks.

Me likey.:D

Put another way, "states rights," as applied to the Second Amendment, drew a resounding "****-off sheep dip" from the Court

Frozen Sooner
6/28/2010, 01:05 PM
Yep. Two big Con Law decisions today, actually. Cristian Legal Society v. Martinez is a pretty major refinement of limited public forum doctrine. They did some good work.

soonerboomer93
6/28/2010, 01:15 PM
The article I read on those cases seems to indicate that the SC had previously ruled that the guarantees in the Bill of Rights applied to Federal, State and Local laws.

Leroy Lizard
6/28/2010, 01:23 PM
The appeal was filed by a community activist in Chicago who sought a handgun for protection from gangs. Otis McDonald told CNN outside his South Side home that he wants a handgun to protect himself and his family from the violence in his neighborhood. "That's all I want, is just a fighting chance," he said. "Give me the opportunity to at least make somebody think about something before they come in my house on me."

http://www.cnn.com/2010/CRIME/06/28/us.scotus.handgun.ban/index.html?hpt=T1

I can't believe the nerve of some people, taking measures to protect themselves.

Frozen Sooner
6/28/2010, 01:24 PM
The article I read on those cases seems to indicate that the SC had previously ruled that the guarantees in the Bill of Rights applied to Federal, State and Local laws.

Nope. Some of them, not all of them. Justice Black had argued that the entire BoR was applicable to the states through the Due Process clause of the 14th, but the majority disagreed with him and the Court has taken a case-by-case approach.

If you want a look at what's applicable to the states and what's not, google "selective incorporation." Or I have a spreadsheet I made for Con Law I can e-mail you.

Okla-homey
6/28/2010, 01:43 PM
Yep. Two big Con Law decisions today, actually. Cristian Legal Society v. Martinez is a pretty major refinement of limited public forum doctrine. They did some good work.

As a dues paying member of CLS, I was disappointed in that decision. I haven't read it yet. Fortunately the student chapter of the organization at Tulsa receives funds from the administration as other student orgs do, and is unaffected by this decision because TU isn't public.

Frozen Sooner
6/28/2010, 01:48 PM
As a dues paying member of CLS, I was disappointed in that decision. I haven't read it yet. Fortunately the student chapter of the organization at Tulsa receives funds from the administration as other student orgs do, and is unaffected by this decision because TU isn't public.

As a student-fees paying member of a public university community, I was happy with it. ;)

OhU1
6/28/2010, 01:55 PM
Yep. Two big Con Law decisions today, actually. Cristian Legal Society v. Martinez is a pretty major refinement of limited public forum doctrine. They did some good work.

I'll be interested to read the Martinez case. I wrote a Law Review article on the traditional public forum involving the 1992 case International Society for Krishna Consciousness v. Lee, 505 U.S. 672 (1992). In that case the Court held 5-4 that public airports are not traditional public forums. (The Hare Krisnas lost the right to solicit folks at the airport free from regulation).

Okla-homey
6/28/2010, 01:57 PM
As a student-fees paying member of a public university community, I was happy with it. ;)

I kinda felt it might go the other way, given existing precedent for public accommodation of faith based orgs. I reckon the thing that licked us was the fact you must profess belief in Christ as your personal Savior as a condition of membership in the organization. Not to attend meetings, but to be a card-carrying member. If you could be a CLS member regardless of your personal beliefs, I think they would have been okay. That said, I'm proud of CLS for sticking to its guns on the fundamental tenet of the organization.

I suspect the Court would be okay with rooms set-aside in public buildings for Muslim prayers as long as said prayers did not bar access to non-Muslims during prayer time. Which of course is an absurd distinction, but that's the way these things are justified sometimes.

BTW, do they have a student CLS chapter at UA Law?

Frozen Sooner
6/28/2010, 02:11 PM
Yeah, I think you're right. Haven't had a chance to read the opinion yet (in typical Ginsburg fashion, it's 85 pages long) but barring non-Christians from membership was probably the determinative factor. CLS made the argument that non-Christians could then take over the group and either change the bylaws or elect people in such a way that would violate their principles, but I don't think the Court gave that argument must credence.

Frozen Sooner
6/28/2010, 02:12 PM
I'll be interested to read the Martinez case. I wrote a Law Review article on the traditional public forum involving the 1992 case International Society for Krishna Consciousness v. Lee, 505 U.S. 672 (1992). In that case the Court held 5-4 that public airports are not traditional public forums. (The Hare Krisnas lost the right to solicit folks at the airport free from regulation).

I'd be interested to read the article. Is it on SSRN or any other database?

Gah. I need to start researching my note...

TexasLidig8r
6/28/2010, 02:18 PM
SCOTUS issued its opinion in McDonald v. Chicago today. The opinion includes the court's view that the right to keep and bear arms is a fundamental right of all Americans and that the Second Amendment applies to states and municipalities to bar their attempts to enforce silly and/or arbitrary gun bans on otherwise law-abiding folks.

Me likey.:D

Put another way, "states rights," as applied to the Second Amendment, drew a resounding "****-off sheep dip" from the Court

hmmm.. I haven't read the opinion yet, but in interpreting the Second Amendment which states:

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

"A well regulated Militia, being necessary to the security of a free State," is a "prefatory clause," the remainder of the amendment is the "operative clause."

I would be very surprised if SCOTUS did not interpret the 2nd Amendment as a whole and held the prefatory clause did not limit the operative clause and that the intent of the framers was not to protect militias per se, but instead, the prefatory clause is in fact an absolute clause, stands by itself, is not and does not modify the operative clause and as a result, the 2nd Amendment consequently, addresses two constitutional rights... (1). the right to have a well regulated militia and (2). an individual's now, absolute right to bear arms.

hmm.. on the other hand, not being a constitutional law attorney, I could not know what the hell I'm talking about. :confused:

edit.. well crapola.. apparently all they did was extend the Heller decision from 2 years ago to state and local laws and did not address how legislative bodies can reconcile gun control laws with 2nd Amendment concerns. They left that for another day.

OhU1
6/28/2010, 02:26 PM
I'd be interested to read the article. Is it on SSRN or any other database?

Gah. I need to start researching my note...

Here's the article's name and cite - "First Amendment Public Forum Analysis: International Society For Krishna Consciousness, Inc. v. Lee: Is the Public Forum a Closed Category?" 46 Okla. L. Rev. 155 (1993).

If you need my name to find the article PM me.

One of my "fond" memories writing this note was having the power go out and losing two pages of freshly written material. Have fun with your note. ;)

Okla-homey
6/28/2010, 02:43 PM
edit.. well crapola.. apparently all they did was extend the Heller decision from 2 years ago to state and local laws and did not address how legislative bodies can reconcile gun control laws with 2nd Amendment concerns. They left that for another day.

Virtually guarenteeing both NRA and the Brady Center have sufficient grist to litigate virtually indefinitely. Which, not insignificantly will be sufficient impetus for both orgs to solicit donations, and receive same, through the end of this century.:D

Okla-homey
6/28/2010, 02:54 PM
hmmm.. I haven't read the opinion yet, but in interpreting the Second Amendment which states:

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

"A well regulated Militia, being necessary to the security of a free State," is a "prefatory clause," the remainder of the amendment is the "operative clause."

I would be very surprised if SCOTUS did not interpret the 2nd Amendment as a whole and held the prefatory clause did not limit the operative clause and that the intent of the framers was not to protect militias per se, but instead, the prefatory clause is in fact an absolute clause, stands by itself, is not and does not modify the operative clause and as a result, the 2nd Amendment consequently, addresses two constitutional rights... (1). the right to have a well regulated militia and (2). an individual's now, absolute right to bear arms.

hmm.. on the other hand, not being a constitutional law attorney, I could not know what the hell I'm talking about. :confused:

edit.. well crapola.. apparently all they did was extend the Heller decision from 2 years ago to state and local laws and did not address how legislative bodies can reconcile gun control laws with 2nd Amendment concerns. They left that for another day.

PS: there's a lot of stuff in the opinion about ex-Rebs in the former Confederate states' disarming of newly emancipated blacks in order to continue their subjugation in the post-war South, and why the incorporation of the Second Amendment under the Fourteenth Amendment is particularly apt.

GrapevineSooner
6/28/2010, 03:01 PM
hmmm.. I haven't read the opinion yet, but in interpreting the Second Amendment which states:

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

"A well regulated Militia, being necessary to the security of a free State," is a "prefatory clause," the remainder of the amendment is the "operative clause."

I would be very surprised if SCOTUS did not interpret the 2nd Amendment as a whole and held the prefatory clause did not limit the operative clause and that the intent of the framers was not to protect militias per se, but instead, the prefatory clause is in fact an absolute clause, stands by itself, is not and does not modify the operative clause and as a result, the 2nd Amendment consequently, addresses two constitutional rights... (1). the right to have a well regulated militia and (2). an individual's now, absolute right to bear arms.

hmm.. on the other hand, not being a constitutional law attorney, I could not know what the hell I'm talking about. :confused:

edit.. well crapola.. apparently all they did was extend the Heller decision from 2 years ago to state and local laws and did not address how legislative bodies can reconcile gun control laws with 2nd Amendment concerns. They left that for another day.

Or as a lawyer from another blog I read on a daily basis said, they just guaranteed job protections for constitutional law attorneys. :)

Leroy Lizard
6/28/2010, 04:43 PM
I would be very surprised if SCOTUS did not interpret the 2nd Amendment as a whole and held the prefatory clause did not limit the operative clause and that the intent of the framers was not to protect militias per se, but instead, the prefatory clause is in fact an absolute clause, stands by itself, is not and does not modify the operative clause and as a result, the 2nd Amendment consequently, addresses two constitutional rights... (1). the right to have a well regulated militia and (2). an individual's now, absolute right to bear arms.

Gun control is a popular move by those that want absolute power and a general disarming of the population is a hint that bad times are comin'. I think the Founding Fathers' real concern was that a tyrannical government would disarm the public, removing the population's ability to form a well-organized militia to fight the tyranny. So I read the 2nd Amendment as: In order to be able to form well-organized militias, the public has a right to keep and bear arms.

I can't see any other way of reading this amendment.

But SCOTUS didn't ask for my opinion. :)

delhalew
6/28/2010, 06:17 PM
I'll have to be sure to read the opinion when I get the chance. I'll bet Bloomburg is in a bad mood today. That punk *** Brady as well.

SicEmBaylor
6/28/2010, 08:06 PM
Nope. Some of them, not all of them. Justice Black had argued that the entire BoR was applicable to the states through the Due Process clause of the 14th, but the majority disagreed with him and the Court has taken a case-by-case approach.

If you want a look at what's applicable to the states and what's not, google "selective incorporation." Or I have a spreadsheet I made for Con Law I can e-mail you.

This is why the 14th Amendment ought to be repealed. NONE of the BoR should apply to the states.

If Chicago, NYC, etc. want to restrict the right to own a firearm then that ought to be an issue between themselves, their state legislature, and its citizens.

TUSooner
6/28/2010, 08:31 PM
PS: there's a lot of stuff in the opinion about ex-Rebs in the former Confederate states' disarming of newly emancipated blacks in order to continue their subjugation in the post-war South, and why the incorporation of the Second Amendment under the Fourteenth Amendment is particularly apt.

I've got a friend who is just about as liberal as you can get on most things, but he's a 2nd Am supporter because of the Deacons for Defense. He's white, btw, and a staunch anti-racist.

GKeeper316
6/28/2010, 11:28 PM
Gun control is a popular move by those that want absolute power and a general disarming of the population is a hint that bad times are comin'. I think the Founding Fathers' real concern was that a tyrannical government would disarm the public, removing the population's ability to form a well-organized militia to fight the tyranny. So I read the 2nd Amendment as: In order to be able to form well-organized militias, the public has a right to keep and bear arms.

I can't see any other way of reading this amendment.

But SCOTUS didn't ask for my opinion. :)

historical context has to win out, here.

when the guys got together and wrote the constitution, folks were still carrying muskets and the cannon was just about the pinnacle of military technology. keeping this in mind, the framers intent was to always insure that the people had the power to overthrow a government should the need arise.

now if the government had become tyrranical during those days, what we would have had (much akin to the civil war) was guys with muskets lined up against each other and blah blah blah... both sides relatively equal in firepower.

but now, military technology has evolved to the point where we use depleted uranium armor on our tanks and have built verticle take off and landing jet fighters capable of supersonic speeds.

call me a screaming liberal hippy, but i sure as **** dont want any backwoods redneck driving around an abrams tank or firing off artillery into washington dc just because he has a beef with the guy who was fairly and legally elected.

Frozen Sooner
6/28/2010, 11:38 PM
Homey's made some pretty good comments on that in the past, GK. There's consistently been a distinction between "arms" and crew-served weapons.

tommieharris91
6/28/2010, 11:39 PM
Homey's made some pretty good comments on that in the past, GK. There's consistently been a distinction between "arms" and crew-served weapons.

Awwww... I was hoping Leroid would show back up here so that this thread could get all sorts of dumb.

GKeeper316
6/28/2010, 11:47 PM
Homey's made some pretty good comments on that in the past, GK. There's consistently been a distinction between "arms" and crew-served weapons.

fair enough...

but how do the strict constitutionalists make the distiction?

what i mean is, how do they reconcile the fact that in order to have a chance at overthrowing a tyrannical government, the general populace has to have the ability to arm itself at least as well as the government?

Leroy Lizard
6/28/2010, 11:49 PM
historical context has to win out, here.

when the guys got together and wrote the constitution, folks were still carrying muskets and the cannon was just about the pinnacle of military technology. keeping this in mind, the framers intent was to always insure that the people had the power to overthrow a government should the need arise.

now if the government had become tyrranical during those days, what we would have had (much akin to the civil war) was guys with muskets lined up against each other and blah blah blah... both sides relatively equal in firepower.


If the U.S. population ever rose up in unison (which is unlikely, naturally), its firepower would be very difficult to handle for any standing army. We're talking 200 million firearms going up against a military that probably would not be high in morale. (It's one thing to be oooh rah! when fighting Iraqis, quite another to shoot fellow Americans.)

And "historical context winning out" is just a cheap way of disregarding the wishes of our Founding Fathers. Don't like the First Amendment? Eh, it was written in the eighteenth century before the Internet, so we don't have to pay attention to it.

Leroy Lizard
6/28/2010, 11:50 PM
fair enough...

but how do the strict constitutionalists make the distiction?

what i mean is, how do they reconcile the fact that in order to have a chance at overthrowing a tyrannical government, the general populace has to have the ability to arm itself at least as well as the government?

False premise. You don't have to arm yourself as well as the government. You just have to be more numerous and a bit nastier.

GKeeper316
6/28/2010, 11:52 PM
False premise. You don't have to arm yourself as well as the government. You just have to be more numerous and a bit nastier.

not according to the 2nd amendment...

Leroy Lizard
6/28/2010, 11:56 PM
not according to the 2nd amendment...

Not sure what you mean by that

Frozen Sooner
6/28/2010, 11:57 PM
fair enough...

but how do the strict constitutionalists make the distiction?


Probably by recognizing that it wasn't legal even in 1789 to own a cannon.

Frozen Sooner
6/29/2010, 12:11 AM
Oh, yeah, and Varat just came out with a new edition last year, so instead of a new edition Westlaw will probably publish a $50 supplement you have to buy with your $135 textbook.

SicEmBaylor
6/29/2010, 12:13 AM
Probably by recognizing that it wasn't legal even in 1789 to own a cannon.

Really? That actually surprises me a little bit.

Harry Beanbag
6/29/2010, 12:21 AM
Probably by recognizing that it wasn't legal even in 1789 to own a cannon.

I have it on good authority you could purchase one at pre-statehood California gun shows.

MR2-Sooner86
6/29/2010, 12:21 AM
You liberals kill me sometimes.


but now, military technology has evolved to the point where we use depleted uranium armor on our tanks and have built verticle take off and landing jet fighters capable of supersonic speeds.

Guns purchased legally in the United States this year could outfit two armies – and not just any armies, the armies of China and India, according to new government reports cited by a website for sport-shooting enthusiasts. (http://www.wnd.com/index.php?fa=PAGE.view&pageId=96677)

Why do people use guerrilla warfare? It works. We have superior military technology to the rag heads in Afghanistan and Iraq yet they're giving us trouble. Anybody remember the cluster**** Vietnam was? How did the Soviet Union do in Afghanistan? How about Africa? Is it holding up real well?

Also, look at the population versus our active military. Lets not forget a good number of them are overseas. You're looking at numbers of close to 100 civilians per army personnel. Not to mention you have groups springing up called Oath Keepers (http://oath-keepers.blogspot.com/2009/03/oath-keepers-declaration-of-orders-we.html) of former and current police and military people.


call me a screaming liberal hippy, but i sure as **** dont want any backwoods redneck driving around an abrams tank or firing off artillery into washington dc just because he has a beef with the guy who was fairly and legally elected.

Yup, just like those colonials didn't want those poor farmers with pitchforks taking on the British regulars :rolleyes:

You screaming hippy liberal use your head.

GKeeper316
6/29/2010, 12:51 AM
Yup, just like those colonials didn't want those poor farmers with pitchforks taking on the British regulars :rolleyes:

You screaming hippy liberal use your head.

there's i huge difference between a pitchfork, or even a musket, and, say a fully functional ah-1 cobra attack helicopter. i saw a thing on 60 minutes or 20/20 a few years ago about a guy who had gone around to different military surplus auctions and had managed to put together a fully functional ah-1. he was a chopper pilot in vietnam and used the cobra to fly around his ranch and shoot coyotes that bothered his cows.

honestly, thats how i think it should be. o what a fun world we would live in if everyone had one of those, right?

SicEmBaylor
6/29/2010, 01:01 AM
I don't believe in any kind of limitation on personal firearms or weapons. If someone wants to build a nuke in their basement that's fine by me unless they use it.

SicEmBaylor
6/29/2010, 01:03 AM
I've never heard of the Oath Keepers, but I like what I read.

Leroy Lizard
6/29/2010, 01:15 AM
there's i huge difference between a pitchfork, or even a musket, and, say a fully functional ah-1 cobra attack helicopter. i saw a thing on 60 minutes or 20/20 a few years ago about a guy who had gone around to different military surplus auctions and had managed to put together a fully functional ah-1. he was a chopper pilot in vietnam and used the cobra to fly around his ranch and shoot coyotes that bothered his cows.

honestly, thats how i think it should be. o what a fun world we would live in if everyone had one of those, right?

Interesting story. Not sure what bearing it has on this discussion.

GKeeper316
6/29/2010, 01:21 AM
Interesting story. Not sure what bearing it has on this discussion.

what constitutes "arms"

im of the opinion that "shall not be infringed" means we should all get to fly around ah-1 cobra attack helicopters.

SicEmBaylor
6/29/2010, 01:22 AM
what constitutes "arms"

im of the opinion that "shall not be infringed" means we should all get to fly around ah-1 cobra attack helicopters.

We should. If you can afford one and if you can fly one.

Leroy Lizard
6/29/2010, 01:47 AM
what constitutes "arms"

im of the opinion that "shall not be infringed" means we should all get to fly around ah-1 cobra attack helicopters.

By the same token free speech means we should be able to libel and slander to our heart's content. And threats should be okay, too, right? After all, it's speech.

GKeeper316
6/29/2010, 02:25 AM
By the same token free speech means we should be able to libel and slander to our heart's content. And threats should be okay, too, right? After all, it's speech.

sure, as long as i can use my ah-1 cobra attack helicopter to get back at you for slandering me.

Leroy Lizard
6/29/2010, 02:34 AM
sure, as long as i can use my ah-1 cobra attack helicopter to get back at you for slandering me.

You couldn't even afford the ammunition.

GKeeper316
6/29/2010, 02:37 AM
You couldn't even afford the ammunition.

not the point...

Leroy Lizard
6/29/2010, 02:42 AM
You lost the point when you dragged ye olde "arms means nuclear weapons" angle into the discussion. Libs always try to pull that one... until one uses the same logic on their beloved First Amendment.

GKeeper316
6/29/2010, 03:14 AM
You lost the point when you dragged ye olde "arms means nuclear weapons" angle into the discussion. Libs always try to pull that one... until one uses the same logic on their beloved First Amendment.

and you conservatives think you can have freedom and safety at the same time.

Frozen Sooner
6/29/2010, 07:23 AM
I don't believe in any kind of limitation on personal firearms or weapons. If someone wants to build a nuke in their basement that's fine by me unless they use it.

Something to remember is that just because the Court had declared a right to be fundamental doesn't mean it's inviolable. All "fundamental" means is that any time a law burdens that right, it's subject to strict scrutiny: there must be an identified compelling state interest that cannot be served in any way that would be more narrowly tailored to not burden the right.

I have a feeling that a ban on the personal ownership of nuclear arms passes strict scrutiny fairly easily.

Similarly bans on (even willing) human sacrifice or defamatory speech pass constitutional muster.

TexasLidig8r
6/29/2010, 08:22 AM
At the end of the day, all constitutional "rights" are subject to the whims of the party in power and the evolving demands of society.

Yell "fire" in a crowded theater, which incites a stampede and people get injured, your protestations of "it's First Amendment" right will be laughed out of court and you will be convicted.

Want to pray in a public school? Tough. You claim you have a First Amendment right to... courts say.. "yeah... we don't interpret the 1st Amendment that way.

Try to take a sidearm on an airplane and claim it's your "Second Amendment" right... you not only don't get past security, you get arrested as well.

Police road blocks to attempt to detect drunk drivers? You refuse to roll down your window claiming you have a 4th Amendment right against unreasonable searches and seizures... tough.. away to the hoosgow you go.

Want a jury trial in a civil case. If you don't comply with the pretrial scheduling order and demand it by the cut off date, your protestations of "I have a 7th Amendment right!) will fall on deaf ears.

Our constitutional rights are whatever the then serving SCOTUS says it is.

Frozen Sooner
6/29/2010, 08:28 AM
Want to pray in a public school? Tough. You claim you have a First Amendment right to... courts say.. "yeah... we don't interpret the 1st Amendment that way.

C'mon, man, you know that's not an accurate statement of the law.

Okla-homey
6/29/2010, 11:18 AM
Want to pray in a public school? Tough. You claim you have a First Amendment right to... courts say.. "yeah... we don't interpret the 1st Amendment that way.

Our constitutional rights are whatever the then serving SCOTUS says it is.

BS. The only way to effectively eliminate prayer in public schools is by eliminating tests and exams. Well that, and insuring no hawt girls are in class that incite young males to invoke divine assistance in attempts to garner their favors.