The Constitution of the United States, 2nd Amendment:
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.
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Monday, April 23, 2012
Mcdonald vs Chicago Gun Case
Interesting view by Judge Alito on our 2nd Amendment Right.
Justice Alito's Opinion
Justice Alito wrote the majority opinion and was joined, for the most part, by Chief Justice Roberts and Justices Kennedy, Scalia, and Thomas. Justices Thomas and Scalia wrote separate concurring opinions.
Justice Alito framed the case as an issue of due process incorporation, i.e., whether the 2nd Amendment is incorporated in and applies to states through the 14th Amendment's Due Process Clause (slip op., p. 10). The 14th Amendment states in part that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law.” The first clause is generally referred to as the “privileges and immunities” clause; the latter, the “due process” clause. Over the past century, the Supreme Court has interpreted the Due Process Clause to “selectively incorporate various rights.” Incorporation of certain Bill of Rights provisions into the 14th Amendment's due process guarantee, make these rights enforceable against the states and not just the federal government.
After reviewing various tests and standards that the Court has used in the past to apply the Bill of Rights' protections to the states through incorporation, Alito concluded that the appropriate test is whether “a particular Bill of Rights guarantee is fundamental to our scheme of ordered liberty. . . [and] deeply rooted in the country's history and tradition” (ibid, p. 19).
Drawing largely on the historical record and the fact that the majority of states include the right to bear arms in their constitutions, Alito determined that “self defense” is a fundamental right and central component of the 2nd Amendment, and the right to own a handgun is part of this basic right to self-defense. Alito draws on Heller for much of the support behind his reasoning (ibid, pp. 21-26). According to him:
Self-defense is a basic right, recognized by many legal systems from ancient times to the present day and in Heller, we held that individual self-defense is the “central component” of the Second Amendment right. . . . [and that] this right applies to handguns because they are 'the most preferred firearm in the nation to 'keep' and use for protection of one's home and family'. . . Heller makes it clear that this right is 'deeply rooted in this Nation's history and tradition'. . . . It cannot be doubted that the right to bear arms was regarded as a substantive guarantee, not a prohibition that could be ignored so long as the States legislated in an evenhanded manner (ibid, pp. 19-20 and 33).
- Posted using BlogPress from my iPad 2
Justice Alito's Opinion
Justice Alito wrote the majority opinion and was joined, for the most part, by Chief Justice Roberts and Justices Kennedy, Scalia, and Thomas. Justices Thomas and Scalia wrote separate concurring opinions.
Justice Alito framed the case as an issue of due process incorporation, i.e., whether the 2nd Amendment is incorporated in and applies to states through the 14th Amendment's Due Process Clause (slip op., p. 10). The 14th Amendment states in part that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law.” The first clause is generally referred to as the “privileges and immunities” clause; the latter, the “due process” clause. Over the past century, the Supreme Court has interpreted the Due Process Clause to “selectively incorporate various rights.” Incorporation of certain Bill of Rights provisions into the 14th Amendment's due process guarantee, make these rights enforceable against the states and not just the federal government.
After reviewing various tests and standards that the Court has used in the past to apply the Bill of Rights' protections to the states through incorporation, Alito concluded that the appropriate test is whether “a particular Bill of Rights guarantee is fundamental to our scheme of ordered liberty. . . [and] deeply rooted in the country's history and tradition” (ibid, p. 19).
Drawing largely on the historical record and the fact that the majority of states include the right to bear arms in their constitutions, Alito determined that “self defense” is a fundamental right and central component of the 2nd Amendment, and the right to own a handgun is part of this basic right to self-defense. Alito draws on Heller for much of the support behind his reasoning (ibid, pp. 21-26). According to him:
Self-defense is a basic right, recognized by many legal systems from ancient times to the present day and in Heller, we held that individual self-defense is the “central component” of the Second Amendment right. . . . [and that] this right applies to handguns because they are 'the most preferred firearm in the nation to 'keep' and use for protection of one's home and family'. . . Heller makes it clear that this right is 'deeply rooted in this Nation's history and tradition'. . . . It cannot be doubted that the right to bear arms was regarded as a substantive guarantee, not a prohibition that could be ignored so long as the States legislated in an evenhanded manner (ibid, pp. 19-20 and 33).
- Posted using BlogPress from my iPad 2
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