Does McDonald Confer a Fundamental Right to Arms?

The opinion by Justice Alito seems to suggest that the right to arms is fundamental, but does that fundamental designation mean that the standard of review in gun rights cases will be strict scrutiny? I put the question to a lawyer, and the response: " Normally, that would (and should) imply strict scrutiny, but actually deciding that will require further decisions by the courts."

I had sought clarification because if in fact the court had conferred fundamental right status on gun rights, that should have been the central theme of many subsequent commentaries, and that has not been the case.

As stated above, strict scrutiny is the standard of review when courts have to address a fundamental right. Under strict scrutiny, the government has to show that a restriction on a fundamental right is narrowly tailored to meet a compelling state interest. From what I have read and heard, that is a very substantial burden for the government, and it mostly loses.

When it comes to guns, I have a feeling that for many judges, the right to arms is dangerous, and therefore, a lower form of strict scrutiny may evolve for gun cases. I think one can find seeds of this danger in the dissents of Breyer and Stevens.

McDonald v. Chicago

Breyer's dissent

Stevens' dissent

Benson v. Chicago

You may read the brief, Brett Benson v. Chicago, here.
After reading the brief, it is difficult to see how any judge will be able to uphold most or all the Chicago restrictions. But then again, four justices on the Supreme Court failed to see how the precedent, Heller, could be extended to cover all citizens.

Seventh Circuit on Handgun Registration

The case, Justice v. Town of Cicero, was decided on August 14, 2009, relies on the idea that the Second Amendment does not apply to the states. No surprise there, because since Heller, the Seventh and Second Circuits have found the same.

"Thus, even if we are wrong about incorporation, the Cicero ordinance which leaves law-abiding citizens free to possess guns, appears to be consistent with Heller."

Incorporation is the doctrine that The Bill of Rights also applies to the states. Whether the Second Amendment applies to the states is not settled.

Senate Vote On Thune Amendment

On July 22, 2009, the US Senate voted on the Thune Amendment. The amendment would allow those who hold concealed weapon permits in their home states to carry a concealed weapon in all of the 48 states that issue concealed weapons permit. Since Senator Schumer (D) of New York lodged a filibuster, 60 votes were required for the amendment to prevail. The vote was 58 in favor of the amendment and 39 against.

Thirty-eight Republicans along with twenty Democrats voted "yes". Two Republicans, Lugar of Indiana and Voinovich of Ohio voted "no".

Senators Voting "yes"

Alexander (R-TN)
Barrasso (R-WY)
Baucus (D-MT)
Bayh (D-IN)
Begich (D-AK)
Bennet (D-CO)
Bennett (R-UT)
Bond (R-MO)
Brownback (R-KS)
Bunning (R-KY)
Burr (R-NC)
Casey (D-PA)
Chambliss (R-GA)
Coburn (R-OK)
Cochran (R-MS)
Collins (R-ME)
Conrad (D-ND)
Corker (R-TN)
Cornyn (R-TX)
Crapo (R-ID)
DeMint (R-SC)
Dorgan (D-ND)
Ensign (R-NV)
Enzi (R-WY)
Feingold (D-WI)
Graham (R-SC)
Grassley (R-IA)
Gregg (R-NH)
Hagan (D-NC)
Hatch (R-UT)
Hutchison (R-TX)
Inhofe (R-OK)
Isakson (R-GA)
Johanns (R-NE)
Johnson (D-SD)
Kyl (R-AZ)
Landrieu (D-LA)
Lincoln (D-AR)
Martinez (R-FL)
McCain (R-AZ)
McConnell (R-KY)
Murkowski (R-AK)
Nelson (D-NE)
Pryor (D-AR)
Reid (D-NV)
Risch (R-ID)
Roberts (R-KS)
Sessions (R-AL)
Shelby (R-AL)
Snowe (R-ME)
Tester (D-MT)
Thune (R-SD)
Udall (D-CO)
Udall (D-NM)
Vitter (R-LA)
Warner (D-VA)
Webb (D-VA)
Wicker (R-MS)

Senators Voting "no"

Akaka (D-HI)
Bingaman (D-NM)
Boxer (D-CA)
Brown (D-OH)
Burris (D-IL)
Cantwell (D-WA)
Cardin (D-MD)
Carper (D-DE)
Dodd (D-CT)
Durbin (D-IL)
Feinstein (D-CA)
Franken (D-MN)
Gillibrand (D-NY)
Harkin (D-IA)
Inouye (D-HI)
Kaufman (D-DE)
Kerry (D-MA)
Klobuchar (D-MN)
Kohl (D-WI)
Lautenberg (D-NJ)
Leahy (D-VT)
Levin (D-MI)
Lieberman (ID-CT)
Lugar (R-IN)
McCaskill (D-MO)
Menendez (D-NJ)
Merkley (D-OR)
Murray (D-WA)
Nelson (D-FL)
Reed (D-RI)
Rockefeller (D-WV)
Sanders (I-VT)
Schumer (D-NY)
Shaheen (D-NH)
Specter (D-PA)
Stabenow (D-MI)
Voinovich (R-OH)
Whitehouse (D-RI)
Wyden (D-OR)

Senators Not Voting

Byrd (D-WV)
Kennedy (D-MA)
Mikulski (D-MD)

Sotomayor On The Second Amendment

Why are people harassing judge Sotomayor on gun rights? In Maloney v. Cuomo (Second Circuit) in a per curiam opinion, the Circuit held that the Second Amendment is only a limitation on the federal government, meaning, states are not bound by the Second Amendment. The holding is reasonable, given that the Supreme Court has never ruled that the Second Amendment applies to the states.

The Heller decision of June 2008 only held that in DC, a federal entity, the Second Amendment protects an individual right to arms.

In NRA v. Chicago, the Seventh Circuit shared the view of Second Circuit. The Ninth Circuit, in Nordyke v. Alameda County, took a view opposite to that of the Second and Seventh circuits.

Gallup Poll on Gun Control

You may look at the poll results here.

Income and Taxes

Getting Richer, Paying More

Chart Data

	% all US income earned by top 1% of households	% all federal taxes paid by top 1% households
1980	7.7 %	14.2 %
1985	10.6 %	14.8 %
1990	11 %	16.2 %
1995	10.3 %	20.1 %
2000	15.5 %	25.5 %
2005	15.6 %	27.6 %

The presidential campaign has sparked debate about whether the rich are paying a fair share of taxes. Above, from a study by the Congressional Budget Office, is the percent of total after-tax income earned and percent of all federal taxes paid by the top 1% of U.S. households. The study includes taxes directly paid by individuals, such as income and payroll taxes (including taxes on dividends and capital gains), as well as estimates of the share of other taxes, such as corporate taxes, borne by each income group based on data on dividends and capital gains on income tax returns. Latest data is from 2005.