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In the city I live in, Indianapolis, there has been an increase in the number of pit bull attacks. This rise has re-sparked talks of a proposal from our former Mayor to enact a pit bull ban.

The plan would be to give the owners a certain time limit to turn over their dogs for termination. Other options would be a rigorous selection process for ownership of the dogs.

On a local radio program recently the host had on a guest talking about this topic and opened up the lines for callers. One of the callers suggested that a ban on pit bulls would be like banning a gun. The host rebuked the caller saying that guns where protected under the Constitution and pit bulls where not. This however is something I have a problem with. The problem is this, if pit bulls are the property of the dog owner than by enacting a law to ban them would actually be a law banning ownership of private property. Something I think the Constitution does cover. Am I wrong in this conclusion?

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The problem is this, if pit bulls are the property of the dog owner than by enacting a law to ban them would actually be a law banning ownership of private property. Something I think the Constitution does cover. Am I wrong in this conclusion?

The Constitution should protect the individual's right to own property that doesn't pose an objective threat to others. Unfortunately, the long-standing interpretation of the Constitution in the post-New Deal era has severely eroded the protection of property rights in many ways, so I don't think your argument is a slam-dunk under the current legal regime.

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They shouldn't do it, but they do. The city of Aurora, Colorado has a pit bull ban as well.

I've also seen where some insurance companies won't insure your home or rental property if you own certain breeds. Now that is acceptable and that is how it should be done...through private means, not government.

Personally, I believe any dog can be vicious. I have been bitten by a dog (while trying to break up a dog fight between two dogs I owned) and it was not a pleasant experience. At the emergency room, I was told by a nurse that they see far more dog bite injuries related to small dogs than large; however, the large dogs do more damage, obviously, so they are reported more often. (If it bleeds, it leads.) Responsible pet ownership should be a priority for anyone that decides to have pets. Unfortunately, there are a lot of stupid people out there.

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The problem is this, if pit bulls are the property of the dog owner than by enacting a law to ban them would actually be a law banning ownership of private property. Something I think the Constitution does cover. Am I wrong in this conclusion?
Yes, because there is no Constitutional provision prohibiting a ban on some form of property. An example would be a machine gun, also an atom bomb. Other examples include marijuana. Anything except guns can be specifically banned. The legal reasoning behind banning pit bulls is like numerous bans against dangerous objects, specifically that certain things are so dangerous that they are an automatic threat to others. I would suggest applying cool reasoning and fact to overturn this law, except that presupposes that fact and reason is behind the decision in the first place.

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The 10th amendment says the federal government cannot ban any of the things you listed.
The Commerce Clause allows Congress to regulate interstate and international commerce in marijuana, which includes prohibiting it if Congress so elects. One aspect of this power is that it is acceptable to prohibit the thing itself, as a necessary step to regulating interstate commerce in the thing. The Necessary And Proper Clause does give Congress the power to enact a law prohibiting the possession of MJ as necessary to enforcement of a ban on interstate commerce in the stuff. What is missing is an Unnecessary And Improper Clause, which expressly limits the power of Congress to regulate interstate and international commerce in very specific ways (such as "not at all").

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Your understanding of those clauses bears little resemblance to what was intended when the document was written.

Ask yourself why the government had to pass an amendment to outlaw alcohol, if they could just "regulate" its "interstate commerce". By which they mean outlaw everything up to and including personal production for private use.

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Ask yourself why the government had to pass an amendment to outlaw alcohol, if they could just "regulate" its "interstate commerce". By which they mean outlaw everything up to and including personal production for private use.

Why would it be better to pass an ammendment contradicting the intent of the Constitution, than just passing a law with a simple majority, doing the same thing? What kind of argument is that?

I'd say they had to pass an ammendment because it made everyone feel better about it, and it made the decision harder to overthrow in the future. It doesn't make sense to think that it had anything to do with the intent behind the Constitution, since either way that supposed intent would've been contradicted.

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They shouldn't do it, but they do. The city of Aurora, Colorado has a pit bull ban as well.

I've also seen where some insurance companies won't insure your home or rental property if you own certain breeds. Now that is acceptable and that is how it should be done...through private means, not government.

Personally, I believe any dog can be vicious. I have been bitten by a dog (while trying to break up a dog fight between two dogs I owned) and it was not a pleasant experience. At the emergency room, I was told by a nurse that they see far more dog bite injuries related to small dogs than large; however, the large dogs do more damage, obviously, so they are reported more often. (If it bleeds, it leads.) Responsible pet ownership should be a priority for anyone that decides to have pets. Unfortunately, there are a lot of stupid people out there.

I couldn't agree more and yes, it is true MOST insurance companies will not insure your home or landlord property, or even you as a renter if you own a "wild animal" or a dog of a "vicious breed" (pit bulls, namely, but Chows are creeping in as problematic in the insurance world). Likewise, in Colorado, a landlord can legally turn you down as a renter if you own a pit bull, and they cannot be sued for discrimination on this groud (if I were a landlord, I certainly wouldn't want a tenant with a pit bull because if something did happen, I could be held vicariously liable). Some insurance companies will still insure you/ your home (my company included) but only on the condition that you include an endorsement that EXCLUDES coverage for bodily injury caused by your dog (ie, the company will not extend the liability that your insurance comes with to cover injuries caused by your dog). Also, many companies offer an umbrella policy that offers personal liability in million dollar increments (which I highly recommend that all people have- they're stupid cheap for tons of coverage). Some companies exclude you from even being eligible for an umbrella if you have a pit bull; and those that will still let you have an umbrella will, again, make you exclude coverage for injuries that dog causes. Many cities that ban pit bulls will let you keep them if you can prove you have at least $100k in liability to cover injuries they may cause: the catch-22 is, of course, that insurance won't let your liability extend to your dog so there's not a whole lot you can do (unless there are smaller carriers out there that are willing to take on such a risk, but I don't know of any here in the Denver area).

I love that there are these "private" controls out there to discourage people from having pit bulls. I believe people should be able to own a pit bull, but at the same time they must realize that in so doing they must assume liability if that animal injures someone else. I personally would never take the risk; I have a client who is being sued because his pitbull bit a medical student and ended up permanently disabling their hand - thus thwarting their studies to become a surgeon. So not only is he being sued for the injury itself, but he is also being sued for lost future income. Take the annual income of a surgeon, multiply it by at least 25 working years... ouch. The lawyer wouldn't be pursuing it except for the fact the the client himself is a surgical student so he is, in the legal/tort world, considered highly sueablle because of his own large future income. The risk isn't worth it; just buy a gun for goodness sake - there's less liability to assume :D

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The Commerce Clause allows Congress to regulate interstate and international commerce in marijuana, which includes prohibiting it if Congress so elects. One aspect of this power is that it is acceptable to prohibit the thing itself, as a necessary step to regulating interstate commerce in the thing. The Necessary And Proper Clause does give Congress the power to enact a law prohibiting the possession of MJ as necessary to enforcement of a ban on interstate commerce in the stuff. What is missing is an Unnecessary And Improper Clause, which expressly limits the power of Congress to regulate interstate and international commerce in very specific ways (such as "not at all").

Yes, but the Court has held that only things that are in commerce, are an instrumentality of commerce, or which affect commerce can be banned under the commerce power. The 10th Amendment bars federal regulation of anything outside these categories (under the commerce power). That's why SCOTUS struck down the Gun-Free School Zone Act in U.S. v. Lopez. Homegrown MJ can be banned, Gonzalez v. Raich, because it (allegedly) affects interstate commerce in the same way home-grown wheat did in Wickard. I think there's no way to know how the court would come out on a federal pitbull ban, because those two cases were 5-4. There has been a two-justice turnover since these cases, and justices tend to make dubious distinctions in these kinds of cases. I think a State can properly ban pitbulls under the police power. So long as pitbulls are inherently dangerous, they are like an automatic threat to others. Everyone knows they are dangerous; let's not kid ourselves. Sure, most of them are OK, but the same is true of burning leaves in your backyard. Most fires cause no property damage, but they are inherently likely to. Just because a pitbull doesn't attack everyone it meets doesn't mean it's not an inherent danger. I think, however, that under the Takings Clause, the government should absolutely have to compensate pitbull owners for their economic loss.

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The 10th Amendment bars federal regulation of anything outside these categories (under the commerce power).
Right, but to untangle the spaghetti of this thread, there is no constitutional right to a dog (guns are the one protected thing), so it is simply not true that the Constitution gurantees a right to possession of whatever. Without such a protection, a local dog ban would not be subject to strict scrutiny. (The issue here is whether Indianapolis can legally ban certain kinds of dogs: a federal ban, which is not on the table, would face other challenges).
Everyone knows they are dangerous; let's not kid ourselves. Sure, most of them are OK, but the same is true of burning leaves in your backyard. Most fires cause no property damage, but they are inherently likely to. Just because a pitbull doesn't attack everyone it meets doesn't mean it's not an inherent danger.
Tort law provides an appropriate remedy if your fire or your dog goes out of control. And actually, the fact that a pitbull does not attack everyone that it meets and that not all pitbulls attack anyone does demonstrate that they are not an inherent danger. They have a "tendency towards being dangerous", but it is not at all automatic. A loaded gun is even more dangerous, which does not justify banning them as dangerous instruments. It simply imposes on the owner a duty of reasonable care.

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Right, but to untangle the spaghetti of this thread, there is no constitutional right to a dog (guns are the one protected thing), so it is simply not true that the Constitution gurantees a right to possession of whatever. Without such a protection, a local dog ban would not be subject to strict scrutiny. (The issue here is whether Indianapolis can legally ban certain kinds of dogs: a federal ban, which is not on the table, would face other challenges).Tort law provides an appropriate remedy if your fire or your dog goes out of control. And actually, the fact that a pitbull does not attack everyone that it meets and that not all pitbulls attack anyone does demonstrate that they are not an inherent danger. They have a "tendency towards being dangerous", but it is not at all automatic. A loaded gun is even more dangerous, which does not justify banning them as dangerous instruments. It simply imposes on the owner a duty of reasonable care.

But in tort-law speak, "inherently dangerous" really just means "very dangerous." Dynamite, etc. It doesn't mean no one has ever gone near the thing and lived to tell about it. I would argue that a pitbull is more dangerous in itself than a gun is. Part of the identity of a gun is that it is not harmful absent a volitional choice being made by man. Part of the identity of a pitbull is that it can be harmful absent any volitional choice by any man. If the standard is that something has to harm everything it comes near, without exception, in order to be inherently dangerous, we're going to have to narrow the category down to black holes or something. Even then, we have to pick a standard for "near." Even a black hole is no threat to Earth if it's in the Andromeda Galaxy. The context in which we evaluate the danger has to include those circumstances (and no more) under which we normally come into contact with the thing. The context in which we should evaluate the threat from a pitbull would be walking past in in the street, when it's in your own home, or when it's in the neighbor's backyard. This is the normal context in which we interact with dogs. The context in which we normally interact with guns is when a police officer walks or drives by, or when we go to the shooting range or hunting, or cleaning one in our own home. I've been around guns my whole life, and I've never even had one pointed at me (except in Afghanistan).

Like you alluded to, owning a particular breed of dog is almost certainly not a fundamental right under the 14th Amendment, so it would only get rational basis scrutiny. I think the government act of banning a particular breed, if it can show the breed is dangerous, is a proper exercise of the police power in order to protect people from force against them. I think it is analogous to culling wolves. But I still think the government should compensate owners for economic loss. They bought the animals thinking they could keep them, then the government bans them. It should compensate them so they can buy a new dog or just keep the spent money (maybe prorated for the length of the dog's remaining lifespan).

Do you think the government should be able to ban anything as a part of the police power? Need the police power always be purely reactive? If not, under what circumstances can the police act preemptively?

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But in tort-law speak, "inherently dangerous" really just means "very dangerous." Dynamite, etc. It doesn't mean no one has ever gone near the thing and lived to tell about it.
Are you aware of any case where damages were awarded because of a thing being "inherently dangerous", without them going near it and thus suffering damages?

Anyhow, it doesn't matter which is more dangerous, because the dividing line is between actual damages and potential damages. A man should be held responsible for the actual damages that he causes, not the imaginary damages they he might cause.

I think the government act of banning a particular breed, if it can show the breed is dangerous, is a proper exercise of the police power in order to protect people from force against them.
The standards have to be a lot higher than "has a mild propensity to cause damage". Such an outright ban would be appropriate only for things that are "unavoidably dangerous", which does not include pitbulls.
Do you think the government should be able to ban anything as a part of the police power?
Almost never. Possession of nuclear weapons; possession of the "ends all life on earth" virus. The concept "inherently dangerous" is a lousy one under law, because it fails the epistemological puke test (that the concept can be objectively applied, bearing in mind the function of government).
Need the police power always be purely reactive?
I think that is correct.

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"Dangerous" is not an essential characteristic of "pit bulls." Read some of the laws banning them and they point to any number of characteristics by which to identify this supposedly dangerous breed, with the exception of: "dangerous" and "aggressive".

Banning pit bulls, or the number of breeds umbrella'd under the label "pit bulls" is epistemological laziness, as David colorfully points out. If you believe that temperament is bred into a line of dogs, you must believe that it can be bred out. Which means that temperament is not inherent in a breed. At most, the government might ban breeding of a line which has shown aggression in individuals not trained to that trait, but banning the entire breed for that supposed trait can only lead (once the ban has failed to diminish attacks, as it did in the Netherlands) to banning other breeds, then possibly whole swaths of breeds of certain sizes, until all we have left are yapping papillons and chihuahuas. (To their credit, the Dutchies didn't move on to other breeds, but instead lifted the ban on pits)

The pit bull's reputation works both ways, and it is a favorite, by virtue of its status as a fighting dog, among those who own dogs to project power. That means they are raised, in inordinate percentages, either trained for aggression and strength, or neglected and unsocialized as guard dogs, and are therefore far more likely to be involved in attacks against humans. This is at least a contributing factor to the perception of this breed as inherently dangerous.

If pits are banned, these types of owners will simply move on to another breed. I get a lot of questions and comments from passing gang bangers about my very intimidating (but totally love-sponging) black Great Dane, and have noted individuals of a certain social persuasion jump over the sea wall to avoid passing too closely to him. If pits are banned, can we expect to see this thread again if five years, debating whether Danes should be banned?

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Dangerous is definitely not an "essential" trait of pits...my neighbors' annoyingly loud but stupefyingly friendly dogs are a good example. I'm sure they could be aggressive if they saw my neighbor or her young son being attacked, but other than that their primary concern is how to get as much love and attention as they can, as well as be able to investigate the next "shiny".

Frankly the best thing that could happen to the pit bull line (which as I understand it is not even a true breed) is for it to lose its "dangerous" reputation so that people would no longer want to use them in that way, and then they would be outbred with more docile breeds if aggression continued to be a problem. Any badly-bred animal can be dangerous or just an unhealthy liability to its owner. Every cat I've ever owned has been crossbred "alley cats" and they always live past fifteen years or so.

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So assuming pitbulls aren't inherently dangerous (I'm not really willing to cede this, but let's assume it for the sake of argument), would it be a better solution for the government to just up the penalties on those who train dogs to be dangerous when those dogs then attack someone (not in defense of the owner)? Maybe make the penalties the same (or close to) what they would be if the owner had committed the act himself?

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So assuming pitbulls aren't inherently dangerous (I'm not really willing to cede this, but let's assume it for the sake of argument), would it be a better solution for the government to just up the penalties on those who train dogs to be dangerous when those dogs then attack someone (not in defense of the owner)?
I don't see why anyone other than the owner has a responsibility for the results of an attack. Training a dog to attack is a legitimate business, and it is the dog owner, not the trainer, who bears responsibility for an escaped pitbull. If there is serious negligence by the trainer (e.g. the trainer trained the dog to kill, not immobilize) then the owner has a cause of action against the trainer. But at any rate, this would be applicable to dogs trained to attack, and not generically applicable to all dogs of a particular breed.

You have to justify involving the government in this; we have civil suits which provide appropriate remedies, and minimal government involvement.

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I don't see why anyone other than the owner has a responsibility for the results of an attack. Training a dog to attack is a legitimate business, and it is the dog owner, not the trainer, who bears responsibility for an escaped pitbull. If there is serious negligence by the trainer (e.g. the trainer trained the dog to kill, not immobilize) then the owner has a cause of action against the trainer. But at any rate, this would be applicable to dogs trained to attack, and not generically applicable to all dogs of a particular breed.

You have to justify involving the government in this; we have civil suits which provide appropriate remedies, and minimal government involvement.

I don't think a third-party trainer should generally be held negligent if not involved in the incident. I don't think training it to kill is negligent per se, unless you train it to attack everyone it sees. In that case, the trainer has actually made it inherently dangerous. There are legitimate reasons to use a dog to kill, just like a gun. But if the owner knows it will go for the throat as opposed to the arm, he should be guilty of murder (or attempted murder), instead of just assault, if he sics the dog without justification or in order to stop an assault where he doesn't legitimately fear for his life.

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Frankly the best thing that could happen to the pit bull line (which as I understand it is not even a true breed) is for it to lose its "dangerous" reputation

I agree, but it'll never happen as long as they are commonly used in fighting, unless, of course, we flood the airwaves with Lil Rascal reruns...

1275z.jpg

The American Pit Bull Terrier is a true breed, but the term "Pit Bull" has been extended to include several related breeds that look like the Pit Bull.

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I don't think a third-party trainer should generally be held negligent if not involved in the incident.
Derogation of privity wasn't my intent. I meant that if the trainer trained the dog to kill everything when the owner hired him to immobilize on command, the trainer is in breach and owes the owner damages. Negligence was the wrong word.

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The American common law has long imposed strict liability on the owner of a domestic animal for injuries caused by the animal. E.g., Sandy v. Bushey, 128 A. 513 (Me. 1925) (concerning horses). Accord Restatement of Torts § 509(1). By "strict liability," we mean that no matter how careful the owner was, or how many precautions he took, if his dog injures someone, he is in breach of his duty of care. If the injured plaintiff proves that the dog 1) caused the injuries and 2) was the property of the defendant, plaintiff prevails. (In Sandy, plaintiff also needed to prove that the animal's disposition was known to its owner, but this is still required in only a small handful of states.) See John L. Diamond, et al., UNDERSTANDING TORTS, 2d ed., § 16.02(B) (Lexis 2000).

As for federal constitutional issues re dog bans, David is pretty much on the ball here. Amend X gives states power to do anything not prohibited them by the Constitution, and municipalities get their authority from the state. Nothing in the U.S. Constitution prohibits the states from banning particular kinds of property.

Amend. II is not an exception to that last statement. Amend. II (along with all the amendments of the Bill of Rights) applies to Congress, not the states. The Bill of Rights amendments only became effective against state governments by their "incorporation" into Amend. XIV's Due Process clause. (Unfortunately not through the Privileges and Immunities Clause, which would really have been a jurisprudentially sounder way to go, in my and many others' opinions.) Amend II has never been officially incorporated under modern incorporation doctrine, and the pre-modern cases (e.g., U.S. v. Cruikshank, 92 U.S. 542 (1875)) have held that Amend. II is not incorporated and therefore does not apply against the states. Heller, remember, was against the District of Columbia, which is not a state and plays by slightly different constitutional rules than states.

(I note that the 9th Circuit recently held that Amend. II is incorporated, but we all are familiar with the 9th Circuit's certiorari track record, and I am not interested in placing any money on the affirmation of that decision. More likely than not, the current court will deny cert in order to avoid having to address the issue, in which case Amend. II will be incorporated and effective against the states of the 9th Circuit, but not the rest of the country. Oh what fun.)

Regardless, Amend. II, even if it were effective against the states, says squat about dogs. I think it is probably better to stick to the common law approach providing strict liability for actual injuries rather than to simply outlaw the dogs altogether, but the constitution doesn't forbid it.

~Q

Edit: A citation broke BBcode. Fixed it.

Edited by Qwertz

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The American common law has long imposed strict liability on the owner of a domestic animal for injuries caused by the animal. E.g., Sandy v. Bushey, 128 A. 513 (Me. 1925) (concerning horses). Accord Restatement of Torts § 509(1). By "strict liability," we mean that no matter how careful the owner was, or how many precautions he took, if his dog injures someone, he is in breach of his duty of care. If the injured plaintiff proves that the dog 1) caused the injuries and 2) was the property of the defendant, plaintiff prevails. (In Sandy, plaintiff also needed to prove that the animal's disposition was known to its owner, but this is still required in only a small handful of states.) See John L. Diamond, et al., UNDERSTANDING TORTS, 2d ed., § 16.02(:D (Lexis 2000).

As for federal constitutional issues re dog bans, David is pretty much on the ball here. Amend X gives states power to do anything not prohibited them by the Constitution, and municipalities get their authority from the state. Nothing in the U.S. Constitution prohibits the states from banning particular kinds of property.

Amend. II is not an exception to that last statement. Amend. II (along with all the amendments of the Bill of Rights) applies to Congress, not the states. The Bill of Rights amendments only became effective against state governments by their "incorporation" into Amend. XIV's Due Process clause. (Unfortunately not through the Privileges and Immunities Clause, which would really have been a jurisprudentially sounder way to go, in my and many others' opinions.) Amend II has never been officially incorporated under modern incorporation doctrine, and the pre-modern cases (e.g., U.S. v. Cruikshank, 92 U.S. 542 (1875)) have held that Amend. II is not incorporated and therefore does not apply against the states. Heller, remember, was against the District of Columbia, which is not a state and plays by slightly different constitutional rules than states.

(I note that the 9th Circuit recently held that Amend. II is incorporated, but we all are familiar with the 9th Circuit's certiorari track record, and I am not interested in placing any money on the affirmation of that decision. More likely than not, the current court will deny cert in order to avoid having to address the issue, in which case Amend. II will be incorporated and effective against the states of the 9th Circuit, but not the rest of the country. Oh what fun.)

Regardless, Amend. II, even if it were effective against the states, says squat about dogs. I think it is probably better to stick to the common law approach providing strict liability for actual injuries rather than to simply outlaw the dogs altogether, but the constitution doesn't forbid it.

~Q

Edit: A citation broke BBcode. Fixed it.

I mainly agree with your analysis above. Actually, Amend II does now apply to the States, at least within the Ninth Circuit. Nordyke v. King (9th Cir. 2009): http://volokh.com/posts/1240247034.shtml. Of course, the incorporation is arguably dicta, because the city won anyway, so incorporation wasn't absolutely necessary to the holding except as a "even assuming" kind of reasoning. SCOTUS reverses the Ninth Circuit 60% of the time because so many of their opinions are crazy. That says nothing of the value of any individual opinion. The reasoning used in Nordyke is constitutionally airtight based on SCOTUS' incorporation jurisprudence. If SCOTUS took it and said "no incorporation," it would be the first time in the incorporation era that SCOTUS has ever held that a right from the Bill of Rights applies against the federal government but not against the states.

The Seventh Circuit is also possibly going to incorporate it in McDonald v. City of Chicago. www.chicagoguncase.com. The lawyer in the Chicago case is mainly arguing DPC, of course, but he has preserved the Privileges and Immunities incorporation issue for plenary argument in SCOTUS. Cruikshank is simply bad law because it's pre-incorporation era. It's no better than defending segregation by arguing Plessy.

The Tenth Amendment isn't actually a source of power, it's a recognition of a limit on federal power. Anything not granted to the U.S. is reserved to the states (if the people have ceded that power to a given state) or to the people (if they have not--this part of the Tenth Amendment is like a reiteration of the Ninth Amendment in my opinion). Owning a particular breed is almost certainly not a fundamental right under the due process clause, so a federal court isn't going to stop a city from banning them. This would have to be fought on state constitutional grounds, or better yet, it should be fought politically in state legislatures or city councils. They should crack down harder on dog fighting and abuse.

I think we all agree a city can constitutionally do this. I think we disagree on whether pitbulls are dangerous enough to justify this based on Objectivist ethics.

Let me ask this: should people be able to own bears? What if they were for a trial period, and the bears turned out to be dangerous, causing several unjustified deaths in the first few months? Would it be a proper use of the police power to ban bears? If yes, then I think we're just arguing about facts (how dangerous are pitbulls). If no, then I think our argument is deeper. We agree it is moral for a man to kill a wolf that he thinks is a threat to him, yes? Why does the right diminish if the wolf becomes a pet? In other words, it seems there is a conflict between a property right and a right of preemptive self defense. Should everyone just carry 44 magnums in case a pitbull charges him? Does self-defense always have to be reactive. Dr. Peikoff seems to indicate it can be preemptive (war on terror).

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