Thoughts on McDonald v Chicago

[TwoAsoapbox]

Like many threads on here Im sure this has already been explored but after searching I couldn't really find anything addressing my question. Post some links if you know of any.

"McDonald v. Chicago, 561 U.S. 3025, 130 S.Ct. 3020 (2010), was a landmark decision of the Supreme Court of the United States that determined whether the Second Amendment applies to the individual states. The Court held that the right of an individual to "keep and bear arms" protected by the Second Amendment is incorporated by the Due Process Clause of the Fourteenth Amendment and applies to the states. The decision cleared up the uncertainty left in the wake of District of Columbia v. Heller as to the scope of gun rights in regard to the states." (Copied from Wikipedi)

My question is this: Why arent our ridiculous anti-gun state laws dropping off the books left and right? They are clearly infringing on our 2A rights and very few other states have laws like ours, at least the biggies like the AWB, and the approved handgun list. Isnt CA in violation of the Supreme Courts ruling with these laws?

Thanks

[yellowfin]

Because the lower courts are playing Simon Says.

[Bhobbs]

It's because the case only answered a specific question. Whether or not we have a right to keep arms for self defense.

[Librarian]

My question is this: Why arent our ridiculous anti-gun state laws dropping off the books left and right? They are clearly infringing on our 2A rights and very few other states have laws like ours, at least the biggies like the AWB, and the approved handgun list. Isnt CA in violation of the Supreme Courts ruling with these laws?

Thanks

Mechanically, it's because laws are not voided until explicitly challenged.

Because of McDonald, Chicago changed; the arguments are being made in other courts about other laws in other places.

And I agree, some lower courts are dragging their feet.

[TwoAsoapbox]

So lets challenge every state gun law in all 50 states that are different from federal law. To me, any anti-gun law that a state imposes or has imposed should be a violation of the Supreme Courts ruling.

In Nevada, its legal to buy an AR-15 off the shelf at Cabelas, purchase 30 round magazines to go with it and then walk out of the store with your purchase after a simple electronic background check. Five miles away in CA you would have just violated at least three laws and would be arrested on multiple felony charges. How is this possible?

So each specific law needs to be challenged individually in order to repeal that law? Our system is so screwed up...

[Gray Peterson]

Like many threads on here Im sure this has already been explored but after searching I couldn't really find anything addressing my question. Post some links if you know of any.

"McDonald v. Chicago, 561 U.S. 3025, 130 S.Ct. 3020 (2010), was a landmark decision of the Supreme Court of the United States that determined whether the Second Amendment applies to the individual states. The Court held that the right of an individual to "keep and bear arms" protected by the Second Amendment is incorporated by the Due Process Clause of the Fourteenth Amendment and applies to the states. The decision cleared up the uncertainty left in the wake of District of Columbia v. Heller as to the scope of gun rights in regard to the states." (Copied from Wikipedi)

My question is this: Why arent our ridiculous anti-gun state laws dropping off the books left and right? They are clearly infringing on our 2A rights and very few other states have laws like ours, at least the biggies like the AWB, and the approved handgun list. Isnt CA in violation of the Supreme Courts ruling with these laws?

Thanks

Because the lower courts are playing Simon Says.

For the same reason Missouri ex rel Gaines v. Canada didn't immediately make segregation illegal 16 years before Brown did. Mr. Houston, Mr. Marshall, and Mr. Moore knew the consequences of mis-stepping and asking for too much early in the process of getting Plessy overturned would mean they would be treated to harsh laws targeting race for the rest of their lives...

[yellowfin]

Not only do they have to be challenged individually, but in a specific sequence, otherwise the process ratchets itself in reverse.

[Gray Peterson]

So lets challenge every state gun law in all 50 states that are different from federal law. To me, any anti-gun law that a state imposes or has imposed should be a violation of the Supreme Courts ruling.

In Nevada, its legal to buy an AR-15 off the shelf at Cabelas, purchase 30 round magazines to go with it and then walk out of the store with your purchase after a simple electronic background check. Five miles away in CA you would have just violated at least three laws and would be arrested on multiple felony charges. How is this possible?

So each specific law needs to be challenged individually in order to repeal that law? Our system is so screwed up...

Read this:

The Road to Brown

Heller/McDonald is not our Brown

[Gray Peterson]

Not only do they have to be challenged individually, but in a specific sequence, otherwise the process ratchets itself in reverse.

If you want the same ability to get a 2A related TRO law about to take effect in California on a gun law in the future, similar to the Brown v. EMA case where the EMA was able to get injunction against the start of enforcement, then we need to do it in sequence or else we screw ourselves over...

[TwoAsoapbox]

For the same reason Missouri ex rel Gaines v. Canada didn't immediately make segregation illegal 16 years before Brown did. Mr. Houston, Mr. Marshall, and Mr. Moore knew the consequences of mis-stepping and asking for too much early in the process of getting Plessy overturned would mean they would be treated to harsh laws targeting race for the rest of their lives...

Thanks for the post, Im not sure I understand though. It seems simple to me. California (and all states) should not have any state laws that infringe upon a fundamental constitutional right. Thats what the Supreme Court determined correct? That the 2A is a fundamental right?

When you say "in sequence" what do you mean exactly?

[GaryV]

Thanks for the post, Im not sure I understand though. It seems simple to me. California (and all states) should not have any state laws that infringe upon a fundamental constitutional right. Thats what the Supreme Court determined correct? That the 2A is a fundamental right?

When you say "in sequence" what do you mean exactly?

Not exactly, What they ruled is that the 2nd Amendment applies to the states. But what the 2nd Amendment allows and doesn't allow in the way of restrictions has not yet been defined. Unfortunately, it's not just as simple as "shall not be infringed". Like all rights, the RKBA isn't considered absolute by the courts. Certain limits are considered to be acceptable. And unfortunately neither Heller nor McDonald did very much at all to define what limits on it are permissible. Until that happens, all laws not identical to those overturned in Heller and McDonald are presumed to be acceptable limitations on the RKBA until the courts rule otherwise. So, each law needs to be challenged individually to determine if it is within the "acceptable limits", according to the courts.

As for sequencing, you don't want to try to force the courts to give you too much too soon. If you were to go in today and try to sue to get the NFA ruled unconstitutional, you'd lose. The concept of allowing private citizens to freely purchase and own full-auto firearms, with no registration or other limits, is simply too radical an idea for the courts to agree to it. Just read Heller to see how they shied away from that subject in that case. What you would end up doing is setting a court precedent that would be hard to overcome, and you would start having the courts pushing limits onto us instead of lifting them off of us.

What you want to do instead is start with the obvious low hanging fruit - the laws that are clearly unreasonable, even to people who don't like guns, when they have to think about them in terms of Heller and McDonald. Not allowing ex-pats to buy guns, because they are not residents of a particular state, for example; or "may issue" LTC practices that are rife with cronyism and corruption. These are laws that any reasonable court can't really uphold, even though they will try very hard to do so. Eventually though their BS just becomes too unstable and collapses, and we make progress. And then we have new legal rulings, giving support to new legal arguments, that give us a better chance of overturning laws that are a little less unreasonable in the eyes of the courts, and so on and so on, until we have them backed into enough of a corner that they simply can't justify keeping laws like the GCA or the NFA, because we've gotten them to agree to an interpretation of "acceptable limits" on the RKBA that is as close to "shall not be infringed" as we can get it.

[Gray Peterson]

Thanks for the post, Im not sure I understand though. It seems simple to me. California (and all states) should not have any state laws that infringe upon a fundamental constitutional right. Thats what the Supreme Court determined correct? That the 2A is a fundamental right?

When you say "in sequence" what do you mean exactly?

Please read The Road to Brown. It involved overturning Plessy v. Ferguson and one man's quest to overturn it, and he got a lot of help in doing so.

I urge you to read the ENTIRE thing so you can understand what is going on here. The really important part, which I will copy here:

Houston proposed a two-stage attack on segregation and the Plessy decision. Rather than challenge the "separate but equal" principle directly, Houston would first file precedent cases demanding that black schools be made absolutely equal to white schools. Only then would he attack the principle of separateness itself.

MCNEIL: Charles Houston and other black lawyers did understand that you have to look at the entire system of the United States and particularly the way in which the judicial system functioned. And it functioned in relationship to precedent. It functioned in relationship to judicial restraint. There would not be an immediate decision on the part of a Supreme Court Justice to overturn precedent, to rule that something was unconstitutional unless some groundwork had been laid.

HON. JUANITA KIDD STOUT: He devised a strategy. First of all, when he attacked the "separate but equal" theory his real thought behind it was that "All right, if you want it separate but equal, I will make it so expensive for it to be separate that you will have to abandon your separateness." And so that was the reason he started demanding equalization of salaries for teachers, equal facilities in the schools and all of that.

NARRATOR: The week after his appointment as Special Counsel to the NAACP, Houston picked up a movie camera and headed for the back roads of South Carolina to document the inequalities between black and white education.

Within three months of becoming Special Counsel, Houston had made a film, got a strategy approved, and filed his first case - against the University of Maryland Law School. Jim Crow was being taken to court.

That first lawsuit was Murray v. University of Maryland Law School.

[Gray Peterson]

GaryV explained the Houston method as applied to our current circumstances.

[TwoAsoapbox]

Very informative GaryV, you deffinitely helped clear up a couple of my questions.

So what about the "handgun list" here in CA? Thats pretty low hanging fruit if you ask me. Not to mention it impedes commerce. Do you know how many people would go out and buy an XDM or a Judge or the new Ruger 1911 (thats what I want) etc. tomorrow if there wasnt this ridiculous law on the books.

I understand when you say, "Until that happens, all laws not identical to those overturned in Heller and McDonald are presumed to be acceptable limitations on the RKBA until the courts rule otherwise." So heres another question: Why arent any of these high profile cases happening in CA? For example why hasnt the CA handgun list gone all the way to the Supreme Court yet?

CA should be the tip of the spear when it comes to the fight against gun control, however it feels like we have been left on the back burner. I have written a letter to the NRA recently venting these same frustrations. Does anyone else feel this way?

[TwoAsoapbox]

Please read The Road to Brown. It involved overturning Plessy v. Ferguson and one man's quest to overturn it, and he got a lot of help in doing so.

I urge you to read the ENTIRE thing so you can understand what is going on here. The really important part, which I will copy here:

Will do. I really appreciate your input, its borderline over my head though. I guess Im just frustrated and looking at this in an overly simplistic manner.