The most dangerous right, by Dennis A. Henigan (Brady Center to Prevent Gun Violence)

Frpm http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202444545808 :

The most dangerous right

OPINION Dennis A. Henigan March 1, 2010

In its second landmark Second Amendment case in two years, the U.S. Supreme Court, in McDonald v. City of Chicago, considers whether the new right to possess guns in the home, declared in its 2008 ruling in District of Columbia v. Heller, is incorporated as a restraint against state and local law through the 14th Amendment. As intriguing as the incorporation issue is as a matter of constitutional law, the ultimate significance of McDonald to ordinary Americans may turn on a different issue, not formally posed by the case but difficult to avoid as the Court considers the reach of the Heller right. The "hidden" issue in McDonald is this: To what extent is the right to keep and bear arms different in nature from the other guarantees in the Bill of Rights? In terms of the incorporation issue, particularly under a due process clause analysis, the issue is whether the Second Amendment is as "fundamental," or as "implicit in the concept of ordered liberty," as other rights previously held incorporated under that test. But even if the Court decides that the Heller right meets the test for incorporation, other critical issues also will turn on whether the Second Amendment is properly analogous to other provisions of the Bill of Rights. For the future of gun control laws, the most important of these issues may be whether courts should closely scrutinize the considered judgments of state and local legislative bodies on gun control (similar to the standard of review in certain First Amendment cases) or whether they should be highly deferential to those judgments.

There is at least one respect in which the new right to have guns is vastly different than other rights. A wealth of empirical evidence shows that the exercise of the right to possess guns increases the risk of harm to individuals exercising the right, to their families and to the community at large. However the Court decides the incorporation question, its discussion of Second Amendment issues in McDonald and its future Second Amendment jurisprudence must recognize that the Second Amendment is, indisputably, the most dangerous right. Although the Heller right is to possess a gun in the home for self-defense, there is, unfortunately, no way to guarantee that guns will be used only for that salutary purpose. In fact, the research shows that, for every time a gun in the home is used in a self-defense shooting, there are four unintentional shootings (often involving young children), seven criminal assaults (often involving domestic disputes) and 11 completed or attempted suicides.... As one study concluded, "an increase in gun prevalence causes an intensification of criminal violence „ a shift toward greater lethality, and hence greater harm to the community." Indeed, states with the highest levels of gun ownership have 60% higher homicide rates than states with the lowest levels of gun ownership. The more Americans decide to exercise the Heller right, the more deadly violence becomes. ...

It is unclear whether the high court will declare the Second Amendment right as "fundamental" as the other rights that have been applied to the states. But even if it does, it should confront the hard reality that this "fundamental" right is also the most dangerous right of all.

Dennis Henigan is vice president for law and policy at the Brady Center to Prevent Gun Violence, which filed briefs amicus curiae in the Heller and McDonald cases. He also is the author of Lethal Logic: Exploding the Myths that Paralyze American Gun Policy (Potomac Books 2009)."

.. rather than the view taken in the text of their amicus brief in McDonald.

In other news..
http://www.scotusblog.com/2010/03/analysis-2d-amendment-extension-likely/

and is trying to limit it by pointing out the hard cold statistics of homicide and other violent deaths and maimings that go along with the spurious "Defensive Gun Use" statistics right-wing extremists used to justify DC vs Heller two years ago. Maybe one of the ultra-right justices' clerks will listen and hold their bosses back from eliminating all sensible regulation of guns by states and localities.

The Court has been illegitimately tilted to the extreme right ever since by a 5-4 vote in 2000 the USSC STOLE the Presidency for a reliably rightwing moron named Dubya. Two of the five Justices in the Majority failed their duty to recuse themselves from Bush v. Gore, because they had tipped their hand that they wanted to retire under a Republican president. Then they arbitrarily halted Presidential vote counting to prevent "irreparable harm" to the Republican candidate, because he was "ahead"! (See below.)

Dubya then added Roberts in 2005 and Alito in 2006. Dubya replaced Sandra Day O'Connor, who had been relatively moderate, in the middle of the Court, with Alito, who's at the extreme right of the court along with Roberts. Both lied profusely to the Senate that they would respect longstanding precedents (see my next post). The impending "gun rights" decision going far beyond 14th amendment protection is just the latest outrage from a USSC tipped so far to the right it has become an international legal laughingstock. At thier worst, the illegitimate USSC in McDonald v Chicago could overturn the 1873 Slaughterhouse Cases, and put all other state and local health and safety and other regulations in jeopardy, along with gun regulation.

From http://en.wikipedia.org/wiki/Bush_v._Gore :

"There has also been analysis of whether or not several Justices had a conflict of interest that should have forced them to recuse themselves from the decision. ... on several occasions, William Rehnquist had expressed interest in retiring under a Republican administration....

At an election night party, Sandra Day O'Connor became upset when the media initially announced that Gore had won Florida, her husband explaining that they would have to wait another four years before retiring to Arizona."

How many criminals are set free to kill again because of the fourth amendment? The exclusionary rule?

How many times in the wake of a crime do we hear one of the following-

"John was questioned in relation to a similar crime in 1992, but police did not arrest him.."
"John confessed to a similar crime in 1995, but because of a technicality, he was never arrested."
"John was arrested in 1997 for blah, but was never charged."
"John was arrested in 1991 for blah, but the case was dismissed due to procedural errors."

Since when has a right's impact on public safety been a reason to limit it?

anomaly from a tainted Court--namely, the DC v Heller parody of a USSC decision.

Thankfully, the Rehnquist-O'Connor selected President Dubya only got two chances to replace Justices. Eventually, though it may take a decade or two because Alito and Roberts are so young, future appointments may un-tilt the Court and allow the abominations since the 2006 appoiintment of Alito to be overturned and sensible interpretations of the Constitution to be restored.

Why is that 'the people' in the second amendment is somehow collective, but in the fourth and fifth means an individual?

*eta: and you didn't actually answer my question, did you...

From http://www.washingtonpost.com/wp-dyn/content/article/2006/07/28/AR2006072801489_pf.html :

"Roberts and Alito Misled Us

By Edward M. Kennedy Sunday, July 30, 2006

... Bork's extreme views led to the unanimous confirmation of the more moderate Anthony M. Kennedy. The Senate's constitutional role has helped keep the court in the mainstream of legal thought. But the careful, bipartisan process of years past -- like so many checks and balances rooted in our Constitution -- has been badly broken by the current Bush administration. The result has been the confirmation of two justices, John G. Roberts Jr. and Samuel A. Alito Jr., whose voting record on the court reflects not the neutral, modest judicial philosophy they promised the Judiciary Committee, but an activist's embrace of the administration's political and ideological agenda.

Now that the votes are in from their first term, we can see plainly the agenda that Roberts and Alito sought to conceal from the committee. Our new justices consistently voted to erode civil liberties, decrease the rights of minorities and limit environmental protections. At the same time, they voted to expand the power of the president, reduce restrictions on abusive police tactics and approve federal intrusion into issues traditionally governed by state law.

The confirmation process became broken because the Bush administration learned the wrong lesson from the failed Bork nomination and decided it could still nominate extremists as long as their views were hidden. To that end, it insisted that the Senate confine its inquiry largely to its nominees' personal qualities. The administration's tactics succeeded in turning the confirmation hearings for Roberts and Alito into a sham. Many Republican senators used their time to praise, rather than probe, the nominees. Coached by the administration, the nominees declined to answer critical questions. When pressed on issues such as civil rights and executive power, Roberts and Alito responded with earnest assurances that they would not bring an ideological agenda to the bench.

After confirmation, we saw an entirely different Roberts and Alito -- both partisans ready and willing to tilt the court away from the mainstream. They voted together in 91 percent of all cases and 88 percent of non-unanimous cases -- more than any other two justices. A few examples ... If their first term is any indication, their agenda will be exactly what many of us feared -- and nothing like the judicial modesty they promised during their hearings. At a time when great legal issues are being decided by the slimmest of margins, we cannot afford to learn nominees' views only after they have obtained lifetime tenure on our highest court. ..."