Incorporation
I’ve said before that, post-Heller, I’m glad Fenty is an idiot. I am also thankful that Daley is an idiot too:
“Chicago’s gun ordinance was not invalidated by the . . . decision. Three prior Supreme Court decisions have found that the Second Amendment does not apply to states and municipalities,” Georges said. “The decision did not change that case law.”
Really? Name them.
July 25th, 2008 at 11:16 am
U.S. v Cruikshank, Presser v. Illinois, and I forget what the third one was.
Yup. I’m hoping for an incorporation decision, too. But I want it in the 5th Circuit where the ruling will likely be much stronger.
July 25th, 2008 at 11:16 am
Cruikshank & Presser immediately come to mind. I’m not sure of the 3rd case he’s thinking of. Of course those cases came at a time when the 14th Amendment had just been ratified, there was no such thing as “incorporation,” and previous precedent supported the idea that the BOR didn’t apply against the States (Barron v. Baltimore) They were also clearly racist decisions.
July 25th, 2008 at 12:05 pm
Apparently, not every non-federal jurisdiction agrees with Chicago’s anti-incorporation opininon if we look at the surrounding municipalities, who are repealing their gun bans to avoid expensive fights all the way to the Supreme Court.
Let us be thankful for city attroneys who let their biases blind them to their law school education. Or is it that weak law school graduates become city attorneys?
July 25th, 2008 at 12:06 pm
There is also the Quilici v. Morton Grove case which sustained Morton Grove’s handgun ban. SCOTUS declined to hear the case thus allowing the ban to stand. It is funny though, because Morton Grove has ended the ban because of the Heller decision. Maybe they know something that Daley doesn’t.
July 25th, 2008 at 2:03 pm
Was not Daley who said that it was “City Corporation Counsel Mara Georges told a City Council committee….” Same – Same
July 25th, 2008 at 3:38 pm
If memory serves, Cruikshank was more of a state action case than a non-incorporation case, but Presser cited it as authority for the latter, anyway. However, most of the more recent judicial nullification cases suggest that the lower courts doubt whether Presser is still good law. It makes no sense to rule on whether or not the Second Amendment protects a right to own an “assault” weapon in California if the Second Amendment doesn’t bind California in the first place.
July 25th, 2008 at 3:47 pm
It makes no sense to rule on whether or not the Second Amendment protects a right to own an “assault” weapon in California if the Second Amendment doesn’t bind California in the first place.
True – which is why I always wondered why the 9th Circuit (and all the others) leaned so heavily on their flawed interpretation of Miller rather than the clear precedent of Presser.
And yeah, the third case Daly is probably thinking of is Quilici v. Morton Grove. He thinks a denial of cert. is the same thing as a decision in favor.
July 25th, 2008 at 5:36 pm
They’ve got a lot of pre-incorporation caselaw from the Jim Crow days, but the vast majority of that has been explicitly overruled.
And even worse for Daley, there is ample evidence from the time of the 14th amendment’s ratification that it was intended to protect the right of freed blacks to “keep and carry arms wherever they went.”
I think the 14th amendment is a direct constitutional rebuttal to Scott v Sandford. In Scott v Sandford, the supreme court basically said “blacks can’t be citizens because…” and then listed various rights such as assembly, free speech, RKBA, travel, etc, terming these rights “the privileges and immunities of a citizen of the united states.” The 14th amendment then steps in and says essentially “black people are citizens, as is anyone born here” “everyone gets the same privileges and immunities” “the states cannot interfere with this” “congress may make laws as nececssary to enforce this.”
Numerous commentators at the time the 14th amendment expressed concern about the abridgement of the freedmen’s right to keep and bear arms by southern states and expressed approval when such rights were written into the 14th amendment.
The problem was that after the North won the war, the South proceeded to win the peace and put blacks back into their former position. Groups like the Klan, uncooperative local judges and a pro-slavery, southern vice president taking the office after Lincoln was shot all ensured that there would be a nearly 100 year stalemate on this issue and that the reforms of the Radical Republicans were done for. It wasn’t until the 1920s that the Supreme court even considered that the 14th amendment protected anyone’s rights against state governments and it took decades more for them to actually put the idea into consistent practice.
July 25th, 2008 at 6:56 pm
That’s not quite true. Even Plessy v. Ferguson, the infamous separate but equal case, acknowledged that the 14th Amendment protected *something,* just not much. The 1920s sounds about right for incorporation cases, though.
Trickier was getting the 14th Amendment to reach the federal government even though it applies by its terms only to the states. Good result, questionable jurisprudence.