Tuesday, April 20, 2010

How to Write the Decision in McDonald v Chicago in 1 Page (no footnotes)



Early in March the Supreme Court heard oral argument in the case of McDonald v Chicago, a case pitting one Otis McDonald, a black resident of The Windy City against the city fathers (sic).  Otis wants a handgun so that he can protect himself, his family, and his property from the drug dealers who frequent his part of town, the poor part.  The city fathers (sic) are opposed to letting the peasants have arms for their defense.  You just never know what a peasant might do with such things.

Alan Gura of Heller v DC fame is lead attorney for the plaintiff and has written a brilliant brief arguing that the Second Amendment should be 'incorporated' against states, counties, and municipalities via the Privileges or Immunities clause of the 14th amendment.  If it isn't already plain, let me make it so:  I think Gura is 100% correct on this issue and his strategy.  There is a problem, however.  For SCOTUS to incorporate via 'P or I' will overturn the 1873 Slaughterhouse decision.  'Overturning prior decisions' is something the Supreme Court prefers to avoid if at all possible.  Slaughterhouse, most modern Constitutional scholars agree, was decided incorrectly by an obviously biased court and represents 'bad precedent' at its worst.  A moral SCOTUS would have burned that decision to the ground decades ago, which tells you something about how long it's been since we had a moral SCOTUS...

Well, heck, if they don't want to overturn Slaughterhouse, I can help them out.  Herewith, the McDonald v Chicago decision in under one sheet of legal paper -- without reference to Slaughterhouse (footnotes omitted):

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Plaintiff McDonald wishes to keep and bear a firearm within the city limits of Chicago for a lawful purpose but fears prosecution under the laws of the City of Chicago based on municipal firearms regulations.  Defendant City of Chicago pleads that the city has a 'substantial public safety interest' in minimizing the number of firearms within the city limits.

This court notes the wording of the Second Amendment to the Constitution of The United States of America which reads as follows (some punctuation eliminated for clarity):  "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."

The court further notes that said Constitution is a limited grant of authority from the people to the federal government and that, together with its amendments, is the Law Of The Land.

The court further notes that the term  "well-regulated"  meant (at the time of its adoption)  "operating as intended"  and retains that same meaning in perpetuity, and that the term  "militia"  refers to the whole body of the people acting on the basis of that original authority which has been lent (not surrendered) to the federal government.  All of this has been thoroughly covered in Heller and there is no need to plow that field again.

The remainder of the text of the Second Amendment to the Constitution declares that the (pre-existing and naturally-occurring)  "right of the people to keep and bear arms"  shall not be infringed.  Unlike the First Amendment which declares that  "Congress shall make no law...",  the Second Amendment's requirement is much stricter:  "shall not be infringed"  certainly by the federal government, but this appears not to be limited strictly to any particular level of government.  Presumably the power of the federal government may be used, perhaps is to be used, to ensure that this right is not infringed anywhere.

We therefore confidently assert that the federal government may not infringe the (pre-existing naturally-occurring)  "right of the people to keep and bear arms"  as by such devices as the  National Firearms Act of 1934  (which imposes significant fees, arbitrary waiting periods and registration of otherwise-useful firearms and other weapons)  and the Gun Control Act of 1968  (which prohibits unlicensed interstate commerce in firearms, ammunition and other weapons),  and we strike these as unconstitutional  in their entirety.

The court further asserts that a (pre-existing naturally-occurring)  "right of the people to keep and bear arms"  may not be infringed by States in violation of the Second Amendment to that Constitution which is  "the Law Of The Land".  As a consequence we strike existing and future schemes at the state-level to restrict, prohibit, tax, and register the acquisition and possession of firearms, ammunition and other weapons by  'the people'  in their entirety.

Consequently, it should be clear that similar restrictions and prohibitions at the  county, parish, and municipal levels  as well as at all lower levels such as school districts and water districts (to name a few)  are equally impermissable and we strike them  in their entirety.

So ordered.

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Now, that's what a proper Supreme Court decision from a moral SCOTUS looks like.  Note the clear absence of any trace of equivocation.


2 comments:

  1. YES AND WE AGREE WITH THE WRITER AS STATED, BUT WE ALL ARE WELL AWARE THAT MEMBERS OF SCOTUS AS ALWAYS WILL INSERT THEIR OWN PERSONAL AGENDA'S IN WHATEVER DECISION IS RENDERED. AS STATED
    'THE LAW IA CLEAR' TO ANY HONEST PERSON.

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  2. "Courts repugnant to the Constitution are Null and Void."
    - Echo of Marbury vs Madison, Chief Justice John Marshall, SCOTUS, 1803

    ReplyDelete