Libertarians Respond to McDonald v. Chicago

Clark Neilly, Institute for Justice: "Today's outcome is a tremendous victory for liberty, and we are pleased that it hinges on Justice Thomas's compelling account of the history and purpose of the 14th Amendment, including the central role of the Privileges or Immunities Clause."

Ilya Shapiro, Cato Institute: "Thomas's clarion call for a libertarian originalism provides a step on which to build in future."

Josh Blackman, Harlan Institute: "For the first time in the history of the Supreme Court, a Justice found that an essential liberty is protected by the Privileges or Immunities Clause."

Timothy Sandefur, Pacific Legal Foundation: "While some parts of the decision are disappointing, the bottom line is that the state of Illinois may not legally disarm law-abiding citizens. They have a constitutional right to defend themselves from criminals who never have obeyed anti-gun laws themselves."

Glenn Reynolds, Instapundit.com: "I'd like to note that a lot of 'respectable' commentators were, just a few years ago, calling the individual-rights theory of the Second Amendment absurd, ridiculous, and something that only (probably paid) shills for the NRA would espouse."

David Rittgers at National Review: "The McDonald decision is a harbinger for the end of gun prohibition as an idea. The simple, undeniable truth is that gun control does not work."

Randy Barnett at SCOTUSblog: "Neither Justice Alito for the plurality, nor Justices Stevens or Breyer in dissent, even attempted to impeach Justice Thomas' analysis, which now stands uncontradicted in the Supreme Court Reports."

My preliminary take on Justice Stevens' dissent is here.

Comments

[Richard M. Daley]

Ow! My Balls!

[Dave Weigel]

Those ratfuckers are going to get a lot of people killed.

[DADIODADDY]

YOU FIRST?

[John]

Sorry for the threadjack. But check out this letter to Dear Prudence in Slate last week. Note the "since we are in Canada" we can't sue part. Boy doesn't single payer sound great?

"Dear Prudie,
My dad, who was employed and fully engaged with life, had a stroke last summer and now requires 24-hour care. Thankfully, his mental facilities and speech were not affected. Two months ago, my mother died very unexpectedly. After reviewing her medical records, my siblings and I discovered that her physician ignored test results and treated her for an illness she did not have. If she had received proper care, my mother would be alive today. This being Canada, we don't intend to sue, although we do expect an apology from the doctor and the hospital. We have yet to share this devastating news with my father, even though some friends and relatives know. Two siblings want to tell my dad, and two don't. I just think he has a right to know what happened to Mom, no matter how difficult it is to hear, and I would hate for someone other than his children to inadvertently spill the beans. But my older brother and sister think he has suffered enough, and knowing won't bring her back. The last thing we want is a big family fight. What to do?"

[What you do is]

collect your check for the insurance lobby and STFU because your game is old and boring

[John]

Is this liberal troll day?

[sage]

I think it's Dan T. He's having a cat because now everyone, everywhere is going to be armed to the teeth, with guns that kill.

[John]

I seem to really get under his skin. He reserves his special sockpuppet handles specifically to go after me.

[Dan Tee]

That's narcissism straight up.

[Warty]

I get them sometimes, too. Are we gay together now or something?

[John's special liberal]

John, don't be such a fucking idiot. Why the fuck would a Canadian write to An American columnist for advice on family shit?

[Insurance lobby]

Shhh

[John]

I guess we will always share a bond.

[Did you just propose to Warty?]

Fuck, I have the perfect dress for the wedding 😉

[joe]

Ridiculous, Chicago has violence problems, and now they cannot keep their citizens safe by keeping guns out of criminal hands. Chicago will be the wild west now.

[Episiarch]

You know, if someone was a good enough spoofer to actually spoof joe, that would be pretty impressive. But you'd have to be a spoofing genius to pull that off.

Also, I hope Daley is having a coronary right now.

[John]

You could probably do it. But you would have to spend hours reading archives of Joe's old posts. And doing that would likely drive you insane before you ever got good enough to spoof him.

[prolefeed]

The insanity would help in the spoofing process.

[Not My Real Name]

Not every commentator here is aware of the joe p. boyle psychodrama.

[not joe]

Pulled it off once and got joe really pissed 😉

[joe]

Many many moons ago I used Joe because my name is Joe. joe was quick to let everyone know that I was a different Joe. Sometime you have to defend your good name.

[Paul Davis]

Joe was a God dam genius. Made me really think about why I believed what I believed and not be intellectually lazy because it was just team L.

[juris imprudent]

Byrd is dead and Stevens has retired. Daley dying too is too much to hope for.

[John]

I guess that is why Chicago with its gun laws has such a higher murder rate that cities like Houston that don't have gun bans. You might want to rethink a few of your superstitions there.

[joe]

No, gone free zones are safe zones.

[Seamus]

Exactly, and why states like Texas which have lax or no gun control laws have much higher crime rates than states like Chihuahua that have strict gun control laws.

[Chinny Chin Chin]

Chihuahua?

Is that near Rhode Island?

[Gray Ghost]

That would be the Chihuahua with a homicide rate 10X that of the USA. http://en.wikipedia.org/wiki/Crime_in_Mexico (Sorry for using wiki. If there are better stats, please use them) Scroll down to the helpful chart listing Mexican homicide rates.

Try again. Hey, maybe they're all using kitchen knives or baseball bats to do their killing.

[John]

I think he was being sarcastic.

[Gray Ghost]

My sarcasm detector has taken a few hits lately. Just got done reading a post at another board asking for a poll on peoples' impressions of Obama's performance, both before he got elected and at the present time. The posters are ostensibly smart, college educated and then some, people. Great resources on a variety of topics.

Anyways, over 60% of the 250 responses thought Obama'd be great before the election and they still think he's great now. I read plenty of comments like: "he's the best president of my lifetime", "his only problem is that he isn't spending enough", "he fixed the economy in his first six months," etc... And no, they weren't kidding.

I just didn't know what to say. I mean I'd have a better chance of finding some common ground if they posted in Sanskrit. I read a bit of Sci-Fi (thanks all for the Stross, Reynolds, and Banks recs) and from that you'd think I'd appreciate the idea of "people that think just as well as you, but differently", but wow, I can't begin to visualize a worldview where Obama's been one of the best presidents ever. Good thing I don't have to, but the whole experience certainly threw me for a loop.

From this, I think a surprising number of people, if not a majority, still think Obama's doing a great job. On the flip side, if November turns out to be the bloodletting I think it well, their reaction should be very interesting. A 1994 level asskicking should---barely---give the Republicans back the House. Whether they'll remember any small government roots is another question entirely.

For McDonald, like Heller, it's surprising that such a mild opinion could only get a 5-4 decision. I mean, so the ban's struck down and the 2nd is found to be an individual right. That's good, baby steps and all that, but practically speaking, nothing prevents IL or Chicago from making it a procedural nightmare to own a handgun.

[Seamus]

I think I was too.

[Gray Ghost]

It would be unfair to not list Texas's murder rate (as listed here: http://www.txdps.state.tx.us/d.....008CIT.pdf) It's 5.6 per 100,000. From the wiki link, the homicide rate in Chihuahua is 42.1 per 100,000.

Now "murders" may not equal "homicides", but I don't think the death rate in Chihuahua is exactly restful. Except for the dead.

[Warty]

That fucking idiot joe was neutral about guns, I think. Or, more likely, he realized that no one supported gun control anymore, and wanted to seem cool.

[John]

I believe he was.

[ChicagoTom]

As someone who leans quite a bit to the left, I never understood the anti-gun crowd, nor did I ever agree with the "collective" right argument. It struck me as nothing other than posturing by inner-city politicians who needed to try and address the violence in their communities and act like they were doing something. As if gun-toting criminals were getting their guns from local gun shops after presenting their up to date FOID cards.

The only way gun control might work would be if the 2nd didn't exist, and our history was different than it was.

It's hard to think that a country that started with an armed revolution would somehow voluntarily disarm.

And you can't try and put the genie back in the bottle after the fact. It would be one thing if guns were never allowed in the first place, but that gun bans occurred later in our nations history just aren't going to be effective.

[John]

You are right about it being inner city politicians. It is really hard to do something about crime. But easy to pass a gun ban that everyone ignores.

[Michael Ejercito]

You are right about it being inner city politicians. It is really hard to do something about crime. But easy to pass a gun ban that everyone ignores.

The problem in the inner city is a lack of morality.

[Pro Libertate]

CT,

Are you actually in the city limits? Should we all chip in and buy you a now-legal firearm? Something scary and deterring?

[Paul]

With a bayonet lug.

[Enough About Palin]

I live in Minneapolis (an conceal carry city) and after an incident Saturday evening, I have decided to finally break down and buy a hand gun.

Any suggestions as to what model would offer the best protection against racist gangbangers?

[capitol l]

You should find a local indoor range and see if they offer classes.

You can learn firearm safety, and also try out many models. Finding a gun that you are comfortable with is more important than raw firepower. Knowing proper technique, and firearm maintenance is important as well.

Don't listen to ignorant fuckers who'll tell you to get a .44 mag, or a .50 desert eagle. Try many guns out and find what works for you.

[capitol l]

I just looked up Minnesota's conceal and carry permit law, and you'll need to have training certification anyways.

[Paul]

x2, you don't need (nor want) a hand cannon for on-street self defense. As one friend said of a .25 caliber, "I wouldn't want to be in front of it when it went off".

There are very few attackers that are going to keep coming when hit with even relatively small caliber rounds.

More importantly, there are very few attackers that are going to challenge you if they even see the firearm.*

*This of course requires discipline on your part, and a good sense of proper use and when to avoid the conflict altogether. Ie, flashing your firearm to a passing car full of gangbangers yelling insults at you isn't going to be a very wise move, and could result in you getting sprayed with indiscriminate gunfire when they circle the block.

[Brett L]

RE: Paul & the .25 caliber:

Just make sure they don't beat you to death while you wait for them to bleed out.

[Episiarch]

Ah, another "I wouldn't leave the house without a .357 mag" person.

Tell you what. I'll shoot you with a .22 short, and you tell me how it feels.

[bubba]

lol, there's a whole rainbow of flavors between .22 and .357.

My personal opinion is that the .38+P is the smallest caliber that reliably meets the FBI ballistics standards. You can get a S&W 5 shot revolver for about $450. Taurus makes a 6 shot version you can get for less than $400.

One notch down is a .380 Automatic with 7 or so rounds. Flatter form factor for easier concealment in some circumstances. I can't imagine why anyone would bother carrying something smaller than that. Those things are already tiny.

But for a little more mass, you can get a lot more bang in a 9mm.

I find snub noses really easy to carry in a front pocket. Lightweight, easy to grab. But others prefer the .380.

For belt carry get a single stack 9mm or .40 or .45. If you're of more substantial girth, put a full size pistol on your belt.

[prolefeed]

Shoot him multiple times with a .22, the last time through the forehead as he's lying defenseless on the ground, and he won't be able to tell you how it feels.

At close range, it doesn't really matter what gun you're toting, it will stop them.

[bigdaddytee]

Well, yes it does matter. The difference is that a 22 can kill, but it wont reliably stop an attacker. See Mas Ayoob, many officers and private citizens have been murdered by attackers they have already killed. Humans struck by handgun fire may stop, run away, drop dead,or continue the attack, possibly killing you in the process. Please don't be naive about this.

[Enough About Palin]

Oh I understand that. But I was walking one of my dogs and a car slowed down in a threatening way (as some here know I've done a lot of work with inner-city gang kids so I don't scare easily). I and my dog made a bee-line for home It made me realize that without a gun for last choice insurance, my dog and I were sitting ducks. And yes, there is a gun range about a mile from my house. It's pretty big and offers classes.

http://billsgs.com/

[Enough About Palin]

That was @ Paul|6.28.10 @ 4:20PM|#

[That Chick from Ohio]

The hubby & I recently acquired Ruger SR9-Cs for concealed carry. If you can go larger/more powerful for CC, I also like my S&W 99 in .40.

[Jordan]

Can't go wrong with a 9mm Glock, or 12 gauge pump shotgun if you want something to leave around the house.

[That Chick from Ohio]

The hubby & I recently acquired Ruger SR9-Cs for concealed carry. If you can go larger/more powerful for CC, I also like my S&W 99 in .40.

[Warty]

I just got my girlfriend a little Ruger LCR .38Spl. Very, very nice little wheelgun. 13 ounces and very handy.

[Episiarch]

You're calling Mr. Slave your girlfriend now?

[Warty]

The revolver is named Lemmiwinks, of course.

[RATFUCKER]

It's fucking plastic.A Smith 642/638/637only weighs 2 ozs more and costs the same.

[Pablo]

It's hard to beat a Glock 19 9mm if you are willing to learn how a semiauto works and keep it reasonably clean and lubricated. If you've got small hands a Kahr K9 is a better choice. I would say that if you're not willing to regularly clean and practice with your gun then get a revolver, but if that's the case then you really should not own a gun anyway.

Good luck!

[RATFUCKER]

Glocks unsafe even in the hands of professionals

seriously they aren't bad as long as you keep your damn finger off the trigger until you are ready to shoot.Glocks run dirty and dry too, not that you should be doing that.

[RATFUCKER]

S@W J-frame .38 sp revolver.Unless you are going to drill and practice all the time that is the best,most reliable CC gun you can get. Good for home defense until you can get to your shotgun.Even if you become a firearms enthusiast you'll still want one. Very good piece to have for home defense if a less practiced family member has to use it.

[rustedangel]

As other people have mentioned, it is a good idea to go to a range and try a variety of models out to see which ones you feel most comfortable with. Most ranges will allow you to pay a flat amount fee to rent any gun they have, though you will pay a bit extra for ammunition if you are switching between calibers. Given how personal a handgun is, it is worth it to spend some extra money and time to make sure you get one that you like, feel comfortable with, and shoot well.

Time behind the trigger is also pretty important. A lot of people who have never shot before can have a hard time hitting a 2' by 2' target at 20 feet. In a self defense situation with your adrenaline running you should expect your range accuracy to be cut at least in half. So, I would highly advise getting a handgun that is comfortable for you, going to safety classes, and spending some quality time on the range!

[The Bearded Hobbit]

First of all, I'm with whoever said you don't need a hand-cannon. My example? None other than James Bond, 007. For the first of his books he used a Baretta .25. Yup, Mr. Licence to Kill used a girly gun. However, that got him into trouble so gun for the remainder of the novels was a .32, the famous Walther PPK.

Second, these lightweight guns in any decent caliber are going to *hurt* when you shoot them. Some mass in the weapon absorbs the impact to your hand. My Taurus .38 ultralight is uncomfortable to shoot but my .357 Ruger is a joy.

Last, when comes time to actually pick out a gun (after you have looked over the various calibers) go to a gun show and start picking up handguns. All of them. Find one that feels good in your hand (Sig 228 in 9mm was my choice) and shoot it often.

... Hobbit

[Anonymous Crank]

Take a class from Joel Rosenberg. He can help with the law, and some carry options:

http://ellegon.com/courses/

[mediageek]

He was from the "I think it's ok if you want to own a hunting rifle" school of gun ownership.

[Paul]

He was from the "I think it's ok if you want to own a hunting rifle" school of gun ownership.

AKA all firearms should server a "valid sporting purpose" school of 2nd amendment rights.

[Isaac Bartram]

joe would always agree that any kind of total ban on gun ownership (handgun or ling gun) were completely wrong.

Where the disputes started was on the issue of "reasonable restrictions".

He also had an annoying tendency to defend any Blue Team gun banner, even when said Blue Teamer was doing something that joe had conceded was wrong elsewhere.

And like a lot of liberals he just didn't seem to know much about guns or to be aware of exactly how regulated and controlled the gun market already is.

But, of course, as in all things joe was so shit wrong on so many things that after a while no one paid any attention to him when he did make sense, or was willing to discuss something with an open mind.

[?]

David Rittgers at National Review: "The McDonald decision is a harbinger for the end of gun prohibition as an idea.

Nice try, David. It's the "end" of gun prohibition until the Supreme Court tilts to the left, as it surely will. The prohibitionists will never surrender.

[Pro Libertate]

If they do that, then the next time the right controls the Court, it'll ignore stare decisis, too.

[MJ]

Precedent is only for conservative justices to follow, because they will overturn all the good precedents, therefore they must be required to worship stare decisis. Liberal jurists only go after the bad precedents, so it's great when they ignore "settled law".

It's easy to understand, once you know how everthing is defined.

[juris imprudent]

You know that sounds like a cheap caricature, but it really is dead-on.

[Enough About Palin]

Tweet of the Day: Roger Ebert: "At Least 29 Shot In Chicago Over The Weekend." It's the fault of our damn unconstitutional gun laws.

[The Gobbler]

"The prohibitionists will never surrender."

Then we'll just have to shoot them.

[?]

Speaking of shooting them, is anyone watching the "coverage" of the Elena Kagan hearings? It consists of a split screen: cable-news pundits on one side, arguing their political biases, and on the other side, Kagan herself, audio muted, looking fat and uncomfortable. Thanks, cable news!

[Former Kagan Intern]

SHE FORCED ME TO LOOK AT GIRLFRIENDS MAGAZINE!!!

http://www.girlfriendsmag.com/

[Elena Kagan]

I should not be denied a seat on the Supreme Court simply because I look like the illicit love-spawn of Dick Morris and Jon Lovitz.

[Concerned Citizen]

No Ms. Kagan, you should be denied the seat because you will not be grilled as exhaustively as you should, and you even argued for the that very thing! If you had any, I mean any, iota of principle and integrity, you would stand up and demand to be questioned as at least as thoroughly as Robert Bork was. You aren't any more qualified than Harriet Myers, yet you will be softballed through this charade of a process of "vetting", a laughable term devoid of any meaning in both this administration and politics in general.

I smell the whiff of entitlement from you.

[Walter Dellinger]

This is one of the most consequential days at the Supreme Court in a long time, and we will have much to write about. But first, I want to raise a pressing question about McDonald v. Chicago. Is the precedential force of today's ruling?holding that the right to keep and bear arms is judicially enforceable against state and local governments?significantly weakened by the absence of a majority of the court on any one theory? Only four justices (Chief Justice Roberts and Justices Scalia, Kennedy, and Alito) agree that the Due Process Clause of the Fourteenth Amendment "incorporates" the Second Amendment and makes it applicable to state and local governments. Only Justice Thomas believes that the Privileges and Immunities Clause of the Fourteenth Amendment provides gun rights against the states. Together they make a majority to reverse in this particular case. But is this result entitled to stare decisis effect? Should subsequent justices consider it binding? Or is it a negative precedent in the sense that the five justices reject Alito's due process theory and eight justices reject Thomas's Privileges and Immunities approach? (Is "rejection" a fair characterization?) Would a subsequent justice be justified in saying that because there is no majority position on either constitutional approach, there is no ruling in this case entitled to future deference?

[Walter]

Is the precedential force of today's ruling?holding that the right to keep and bear arms is judicially enforceable against state and local governments?significantly weakened by the absence of a majority of the court on any one theory? Only four justices (Chief Justice Roberts and Justices Scalia, Kennedy, and Alito) agree that the Due Process Clause of the Fourteenth Amendment "incorporates" the Second Amendment and makes it applicable to state and local governments. Only Justice Thomas believes that the Privileges and Immunities Clause of the Fourteenth Amendment provides gun rights against the states. Together they make a majority to reverse in this particular case. But is this result entitled to stare decisis effect? Should subsequent justices consider it binding? Or is it a negative precedent in the sense that the five justices reject Alito's due process theory and eight justices reject Thomas's Privileges and Immunities approach? (Is "rejection" a fair characterization?) Would a subsequent justice be justified in saying that because there is no majority position on either constitutional approach, there is no ruling in this case entitled to future deference?

[Almanian]

"...commentators were...calling the individual-rights theory of the Second Amendment...something that only (probably paid) shills for the NRA would espouse

Team Blue: AHA! I KNEW Thomas was just a shill for teh Evul Corporashuns!

[Seamus]

Glenn Reynolds, Instapundit.com: "I'd like to note that a lot of 'respectable' commentators were, just a few years ago, calling the individual-rights theory of the Second Amendment absurd, ridiculous, and something that only (probably paid) shills for the NRA would espouse."

Isn't it obvious? A majority of the sitting justices are (probably paid) shills for the NRA.

[mediageek]

Over at DailyKOS, there are at least a handful of posts claiming exactly this.

[PokingPumasWithSpoons]

Pathetic when a SCOTUS judge for 34 years doesn't know 'what the militia is' ... it is the people. I think George Mason defined it to a questioner in the 1880's. Why Steven's doesn't know or understand this original FACT is an outrage.

[domoarrigato]

They are liberals and in power - words mean what they want them to mean, whether you know it yet or not.

[Seamus]

Uh, if you're talking about George Mason the author of the Virginia Declaration of Rights, I suspect you meant the 1780s.

[capitol l]

Just finished reading Thomas's opinion.

Very interesting.

He goes into great detail to demonstrate the public perception of the 14th at the time of its ratification. Also, great pains are made to equivocate the phrase "privileges and immunities" with freedoms, or rights. He makes a strong case that the 14th restricts the individual states from abridging all of our enumerated rights.

Easy read, if you are interested here is the link.

Final sentence:

I agree with the Court that the Second Amendment is fully applicable to the States. I do so because the right to keep and bear arms is guaranteed by the Fourteenth Amendment as a privilege of American citizenship.

very simple.

[No Name Guy]

The sad thing was that this decision was 5-4.

Any simpleton with a basic understanding of history and the English language knows the 2nd is an individual right.

[Paul]

The second amendment stands apart from the amendments that surround it.

Shit that'll never get old. It's almost as good as "Obama's being presidential" whenever he breaks a campaign promise.

[Paul]

I guess that the Bill of Rights then becomes the Bill of Rights and One Special Amendment.

[Dan T.]

Is not!

[Paul]

Stevens as Moses:

I present to you the Ten *clank*... the Nine Amendments!

[Zeb]

9? I don't see 9 or 10 come into play much.

[Paul]

Conservatives: I present to you the 6 amendments!

Liberals: Which six?

[Enough About Palin]

Great Orators of History

"Hitler knows that he will have to break us in this Island or lose the war. If we can stand up to him, all Europe may be free and the life of the world may move forward into broad, sunlit uplands. But if we fail, then the whole world, including the United States, including all that we have known and cared for, will sink into the abyss of a new Dark Age made more sinister, and perhaps more protracted, by the lights of perverted science. Let us therefore brace ourselves to our duties, and so bear ourselves that if the British Empire and its Commonwealth last for a thousand years, men will still say, 'This was their finest hour.' "--Winston Churchill on Germany, June 18, 1940

"I don't have a crystal ball. I think that right now the debate surrounding Afghanistan is presented as either we get up and leave immediately because there's no chance at a positive outcome, or we stay basically indefinitely and do quote unquote whatever it takes for as long as it takes."--Barack Obama on Afghanistan, June 27, 2010

[Fluffy]

If you would devote as many national resources to that shithole Afghanistan as you would to defending the United States from armed conquest by a genocidal maniac, you are a fucking idiot.

[Mainer]

I think the point was that Obama's legendary oratorical skills are anything but.

[The Angry Optimist]

Well, then the point is vapid. I am sure there are plenty of "uhhhs" and "ohhs" and waffling in Winston Churchill's oratorical history. Not that I think the two even compare, but seriously, cherry-picking quotes?

[Enough About Palin]

^^This^^

[Steve Nash Equilibrium]

England could've used some of that inspiration yesterday.

[Brett L]

If David James defended the goal the way he defended his goaltending, they wouldn't have lost.

[Oz]

I've been on Huffpo all day - the comments are priceless. The winner so far, "may the souls of the slain children haunt them forever."

[bigbigslacker]

You sick bastard!

[Brett L]

That was the premise of a short story by someone. Damnation. A little help from the English majors here?

[Neu Mejican]

Not a bad decision. It threads the "rights with reasonable restrictions" needle fairly carefully. Wonder if it will have an effect on the ACLU position.

[Michael Ejercito]

Not a bad decision. It threads the "rights with reasonable restrictions" needle fairly carefully. Wonder if it will have an effect on the ACLU position.

What restrictions are reasonable?

[Neu Mejican]

Oh, I don't know...perhaps: requiring registration and a background check; no weapons of mass destruction;

Probably a whole range of things in between.

[?????]

thank u