Seventh Circuit Ruling Reveals Anti-Approach to Incorporation

[Bartholomew Roberts]

http://www.ca7.uscourts.gov/tmp/O01FG6VB.pdf

"One function of the Second Amendment is to prevent the national government from interfering with state militias. It does this be creating individual rights, Heller holds, but those rights may take a different shape when asserted against a state than against the national government. Suppose Wisconsin were to decide that private ownership of long guns, but not handguns, would best serve the public interest in an effective militia; it is not clear that such a decision would be antithetical to a decision made in 1868. (The 14th Amendment was ratified in 1868 making that rather than 1793 the important year for deciding what rules must be applied to states.)"

I think that one paragraph pretty much sums up the best argument the antis will be able to make regarding incorporation of the Second Amendment. They first adopt the dissenting view that the individual right is subordinate to the militia, they then argue that states should be granted special deference on this basis (and there are some lovely paragraphs on the glories of federalism in the opinion - it is my fervent hope that they still have the same bite in them when it isn't guns being discussed). Finally when they look at the historical context for interpretation, they will try to use 1868 (Southern states writing restrictive gun laws to disarm newly freed blacks) instead of 1793.

All in all, I don't think it is a winning argument; but you are witnessing the retooling of the old collective rights argument for the antis "There is an individual right but it is only there to allow a state militia so the states can do whatever they want."

Additional insightful commentary from the Volokh Conspiracy here:
http://volokh.com/archives/archive_2009_05_31-2009_06_06.shtml#1243963229

[maestro pistolero]

The link has changed. See here (http://www.ca7.uscourts.gov/tmp/O01FG7RP.pdf)

[Tom Servo]

Correct link is now here (pdf file) (http://www.ca7.uscourts.gov/fdocs/docs.fwx?submit=showbr&shofile=08-4241_002.pdf).

Frankly, this whole decision looks like something of a cop-out to me. Easterbrook makes it quite obvious that he knows it's headed for the Supreme Court. Notice that his argument follows the Cruikshank/Presser/Miller axis, claiming that the privileges & immunities clause doesn't incorporate the 2nd.

Of course it doesn't. The due process clause does, as it has with all other incorporated rights. That was the crux of Nordyke.

Easterbrook's a sharp guy. There's a reason he chose to ignore the due process clause. Notice that there's absolutely no mention of it.

The 7th Circuit knows this is a losing battle, and so they're passing the hot potato along as quickly as possible.

Funny side-note: they cite from Maloney and choose the 2nd Circuit's reasoning over Nordyke. If this ends up in front of Sotomayor, how does that work?

[maestro pistolero]

Federalism is an
older and more deeply rooted tradition than is a right to
carry any particular kind of weapon

More fundamental and deeply rooted than the right to protect one's own life and the life of his loved ones? That right predates civilization itself, Judge Easterbrook. How a government can acknowledge a right to self defense, but then deny the means to effect it, is beyond my ability to comprehend.

A bit of a side note: My automatic yahoo 2nd amendment news search that went eerily silent when the 9th incorporated, has flooded my inbox with notices that the appeals court upheld the gun ban in Chicago. It seems they were listening all along. Hmmm. :rolleyes:

[Glenn E. Meyer]

Here's a summary from Bloomberg:

http://www.bloomberg.com/apps/news?pid=20601087&sid=awIn1M4tWxi8&refer=worldwide#

The basic point is that Heller won't automatically be seen as wiping out nasty gun laws in the bastions of antisentiment - esp. in the big cities in anti areas. Unless the SCOTUS does make it applicable - expect such fights everywhere.

[hogdogs]

So will a single ruling ever deem all the excessive gun control bans as unlawful?
Or will it always require a city by city challenge?
Brent

[Al Norris]

Listening to the orals (again) after reading the decision, the outcome was predetermined.

Judge Easterbrook, writes correctly, that the P&I clause argument is foreclosed. He completely ignores the Due Process clause arguments for the "glories of federalism," again ignoring the reasons behind the adoption of the 14th amendment. Namely, the abuse, by the States, of its own citizens.

What actually scared me was the assumption, by Easterbrook, that self-defense itself could be made unlawful, and in the minds of the panel, withstand a constitutional challenge.
Suppose a state were to decide that people cornered in their homes must surrender rather than fight back — in other words, that burglars should be deterred by the criminal law rather than self help. That decision would imply that no one is entitled to keep a handgun at home for self-defense, because self-defense would itself be a crime, and Heller concluded that the second amendment protects only the interests of law-abiding citizens.
The tortured and twisted use of Scalias reasoning to come to the conclusion that any Governmental body, within the U.S., could pervert the right of self-preservation into an unlawful act, just boggles my mind.

To discuss something like this in an open forum, as a private citizen, is one thing. For a sitting panel of Circuit Judges to state this in an opinion, even if in dicta, is unconscionable.

The logical expansion of this reasoning is staggering. I am livid. Outraged, is a word that does not come close to expressing my thoughts.

[hogdogs]

Al, Be sure to cut the nails into little bites and chew the glass 32 times per bite to be sure it doesn't get stuck when you swallow...
Tell us how you really feel... http://i7.photobucket.com/albums/y267/hogdogs/winking0071.gif
WAIT... Don't do that... You'd have to ban yerself after...
http://i7.photobucket.com/albums/y267/hogdogs/happy0194.gif
Brent

[pnac]

Who'da thunk it?

Wait... didn't GOA say this would happen after Heller?

[Bartholomew Roberts]

GOA said that incorporation of the Second Amendment would get shot down in the Seventh Circuit Court of Appeals on a three-judge opinion after Heller? If so, you'll have to point me towards the Press Release because that is impressive prognostication. Otherwise you'll have to elaborate on the "this" GOA said would happen.

In any case, I don't think it was a shock to anyone that had been remotely following Heller that more court cases would be necessary to establish the extent of the protected right.

[maestro pistolero]

Originally Posted by Judge Easterbrook
Suppose a state were to decide that people cornered in their homes must surrender rather than fight back — in other words, that burglars should be deterred by the criminal law rather than self help. That decision would imply that no one is entitled to keep a handgun at home for self-defense, because self-defense would itself be a crime, and Heller concluded that the second amendment protects only the interests of law-abiding citizens.

Frightening indeed. I can't wait for Scalia, and the rest to tear into that outrageous notion. I think there must be something in the ventilation system in Easterbrook's chambers. How can a judge who makes such a point of emphasizing deeply rooted legal traditions ignore self defense, perhaps the oldest and most fundamental tradition?

[hogdogs]

How can a judge who makes such a point of emphasizing deeply rooted legal traditions ignore self defense, perhaps the oldest and most fundamental tradition?
EASY!!! Now we no longer need the right to self defense since we have federal, state, county and even city police going every where we go and hangin out drinking my coffee in the morning and un-aged corn liquor at night! Who needs guns and self defense with all the paid professional peace officers?
Brent

[Chris2121]

I still worry about Kennedy on the SCOTUS, though. He's a wild card, in my eyes. Maybe the only reason he went along with Heller was simply because it only applied to D.C.?

I think we're all hoping SCOTUS takes up an incorporation case, but we also can't forget that if it should go the other way, state and local legislators will be pretty much unleashed when it comes to absurd restrictions.

[Al Norris]

When I got home from work, sitting in my in box was an NRA-ILA aert telling me that the NRA has filed for certiorari to the Supreme Court. The petition is here (http://volokh.com/files/nrapetition.pdf) (thanks to Prof. Volokh).

On Alan Guras website (http://www.chicagoguncase.com/), he says he will be filing for cert, shortly.

I don't think it was a shock to anyone that had been remotely following Heller that more court cases would be necessary to establish the extent of the protected right.
No, it's not surprising that more litigation would be needed after Heller. In the instant case, the panel rather telegraphed the outcome during orals.

When I saw your post, yesterday, I knew, in general, what it was going to say. There are not many cases decided at the appeals level, barely a week after orals.

I also note that Alan Gura is much more subdues about Eastbrooks dicta:
The dicta suggesting that the right to self-defense may be abrogated by statute, and that the exercise of fundamental individual rights can be curtailed at the state level as a nod to federalism, is particularly troubling.
Troubling. Indeed!

[Bartholomew Roberts]

Also troubling is the fact that Posner, a well-recognized conservative judge, signed on to the opinion. Though Posner is a conservative more in the traditional sense of the word, one who dislikes change, which would make his position more understandable.

However, between this opinion and his recent comments on the failure of free-market capitalism and the need for more regulation of same, I am wondering if Posner hasn't slipped a memory chip somewhere or is angling for a position as Justice. He would be a good political choice for an Obama administration looking to replace a conservative Justice. He won't incorporate Heller and has signalled he is OK with New Deal Pt. II; but has been cited approvingly by conservatives so many times in the past that they would have a hard time saying no to him.

Having said that, I don't worry about Kennedy. I thought his comments during Heller were even stronger than Scalia's. I think with the current make up of the court, we see another 5-4 squeaker on incorporation.

Edited to add: Actually, it would be more like 5-3 I think, since I imagine Sotomayor will be confirmed by then and I hope she would recuse herself.

[Al Norris]

I discussed my views of Posner, briefly, in this post (http://thefiringline.com/forums/showpost.php?p=3143521&postcount=5) from last November.

In part of what Judge Posner wrote in the referenced article, he says of Scalia's interpretative method, "Scalia's entire analysis rests on this interpretive method [original textual meaning], which denies the legitimacy of flexible interpretation designed to adapt the Constitution (so far as the text permits) to current conditions."

I would argue that such "flexibility" strips all meaning from the constitution, if one were to examine it in the light of todays word meanings. Since the English language is in flux (it changes over time), then the meaning of the constitution will also change and precedent cannot stand. Especially in light of changed meanings.

For all the supposed conservative views that Posner claims, here he is claiming the "Living Constitution" method of examination.

When one reads the decision, written by Judge Easterbrook, and contrasts the following from Posner's article, one might wonder who has plagiarized whom.
The text of the amendment, whether viewed alone or in light of the concerns that actuated its adoption, creates no right to the private possession of guns for hunting or other sport, or for the defense of person or property. It is doubtful that the amendment could even be thought to require that members of state militias be allowed to keep weapons in their homes, since that would reduce the militias' effectiveness. Suppose part of a state's militia was engaged in combat and needed additional weaponry. Would the militia's commander have to collect the weapons from the homes of militiamen who had not been mobilized, as opposed to obtaining them from a storage facility? Since the purpose of the Second Amendment, judging from its language and background, was to assure the effectiveness of state militias, an interpretation that undermined their effectiveness by preventing states from making efficient arrangements for the storage and distribution of military weapons would not make sense.
The bottom line being that not all of those on the right are our friends. Similarly, not all on the left are our enemies.

[Chris2121]

Assuming that SCOTUS takes the Chicago case and Sotomayor is confirmed, she would have to recuse herself. If Kennedy should turn to the dark side, what would happen in a 4-4 split?

[Bartholomew Roberts]

Sotomayor would only have to recuse herself if Maloney was combined with Chicago.

As for a 4-4 tie, in that case the decision of the lower court is upheld; but the case has no precedential value. It is effectively the same as if SCOTUS had denied cert. From a practical standpoint we would be hosed though because Sotomayor wouldn't have to recuse herself on the next case and we would lose 5-4. Likely the makeup of the Court isn't going to improve in the next 4 years and another case would almost surely make it to the Court before then.

[Jim March]

Sotomayor ONLY has to recuse herself (based on tradition alone, not law!) from hearing the version of this case coming out the 2nd circuit (the nunchucks case), not this one from the 7th or Nordyke from the 9th if it should get that far (unlikely).

So the whole thing is up to Kennedy!

(And on a 4/4 split, we lose - or rather, whatever came out of the lower court stands.)

[Al Norris]

For those following the Chicago gun-ban case, Alan Gura filed his cert petition on Tuesday, June, 09. You can download it here (http://www.chicagoguncase.com/wp-content/uploads/2009/06/mcdonald_cert_petition1.pdf).

After reading both the NRA's cert petition and Alan Gura's cert petition, I highly favor the latter.

It is concise and to the point. It does not wander from its main thrust, that the Second Amendment is incorporated under the 14th's Due Process Clause; that the 7th circuit failed to follow the Supreme Courts suggestion (in Heller) that the lower courts perform the analysis on questions of fundamental rights; that this case presents a clear and immediate opportunity for the Court to instruct the lower courts; that this case also provides the correct vehicle to revisit the Slaughterhouse Cases and overturn the gutting of the P&I clause of the 14th amendment.

There are some clear gems of thinking included in the cert. Such as:
In a remarkable passage, the court below suggested that the right of self-defense is a mere construct of positive law that, if rescinded, can obviate the Second Amendment right to keep and bear arms. In other words, the Second Amendment secures a right that can be revoked by mere legislation. The court below thus suggested that the right of self-defense could be legislatively modified to deprive people of the Second Amendment right to possess a handgun.
Gura then goes on to describe how this flies in the face of the Courts decision in Heller and other decisions of the Supreme Court. Even to referencing the near-sacred Roe v Wade line of cases.

Brilliant line of reasoning!

[Bartholomew Roberts]

Thanks for sharing the link to the cert petition. I've read a lot of legal briefs and that is quite possibly one of the best briefs I have ever seen.

Gura's logic is relentless and inescapable for anybody who even makes a pretense of intellectual honesty.

I also like the way he framed the question. Instead of making this just an issue of whether the Courts should incorporate the Second Amendment under the Due Process Clause of the 14th Amendment, Gura turns it into an argument that the lower courts were bound by existing Supreme Court precedent to apply the due process incorporation test and refused to do so.

If nothing else, that brief is going to make hypocrisy on the Court abundantly clear for later generations.

Another plus of the brief is that Gura pretty clearly lays out where he is going from here for the next four Second Amendment cases. He has clearly given a lot of thought to this and is pursuing it in an extremely methodical manner.

[BillCA]

When one reads the decision, written by Judge Easterbrook, and contrasts the following from Posner's article, one might wonder who has plagiarized whom.

One has to wonder if either judge is appropriately qualified for the bench and/or has incompetent assistance. I'm not legal scholar or historian, but I can find plenty to argue over his statements.


The text of the amendment, whether viewed alone or in light of the concerns that actuated its adoption, creates no right to the private possession of guns for hunting or other sport, or for the defense of person or property. It is doubtful that the amendment could even be thought to require that members of state militias be allowed to keep weapons in their homes, since that would reduce the militias' effectiveness. Suppose part of a state's militia was engaged in combat and needed additional weaponry. Would the militia's commander have to collect the weapons from the homes of militiamen who had not been mobilized, as opposed to obtaining them from a storage facility? Since the purpose of the Second Amendment, judging from its language and background, was to assure the effectiveness of state militias, an interpretation that undermined their effectiveness by preventing states from making efficient arrangements for the storage and distribution of military weapons would not make sense.

Obviously Posner has forgotten that the Militia Act of 1792 specified that the arms of the militia were privately owned arms and not government purchased. The relevant portion of the act specifies...

That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints ...

The act does not authorize Congress to spend one thin dime on arming the militia or equipping the members with their weapons and accoutrement. So to answer Posner's question, if the militia required additional weaponry, the officer(s) would have to go door-to-door or ride to the nearest military fort to acquire them.

It probably makes no sense to a modern day judge living in a metropolitan city with burdensome taxes, a professionally hired and administered police force, plumbing, sewage, electricity, even cable-tv, plus some of the most corrupt bureaucrats money can buy. But it is what it is... because at one time people in this country were free.

[Tom Servo]

Hadn't known this:
The Fourteenth Amendment’s Senate sponsor,
Senator Jacob Howard, explained the Privileges or Immunities Clause’s incorporating scope:
To these privileges and immunities, whatever they may be – for they are not and cannot be fully defined in their entire extent and precise nature – to these should be added the personal rights guarantied and secured by the first eight amendments of the Constitution; such as the freedom of speech, (...) and the right to keep and to bear arms. . . . The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees.

[maestro pistolero]

We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.

Scalia, writing for the majority in DC vs Heller.


Gives me the warm and fuzzies. :)

[RDak]

Me too maestro.

Scalia, and the majority, also stated handguns are in common use and fall under the umbrella of the 2nd Amendment. That gave me warm fuzzies also! :D

When I read that "common use" discussion, I simply fell off of my chair. That discussion severely limits what restrictions the government can place on firearms ownership IMHO.

How that conclusion on common use could be "reversed" in an incorporation case has me stumped, (i.e., unless the Justice was never for the private ownership of firearms in the first place or one of the basic holdings in Heller is to be "disregarded").

DC attempted to argue the very point Robert discussed in the OP. And the SCOTUS soundly rejected it based on the common use argument.

[Bartholomew Roberts]

I would love to see the Senate ask Sotomayor about Easterbrook and Posner's novel theories on the outlawing of self-defense. That should make for some entertaining TV.

[Al Norris]

Gura's case has been docketed: 08-1521

Title: Otis McDonald, et al., Petitioners v. City of Chicago, Illinois
Docketed: June 11, 2009
Lower Ct: United States Court of Appeals for the Seventh Circuit
Case Nos.: (08-4241, 08-4243, 08-4244)
Decision Date: June 2, 2009

~~Date~~ ~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
Jun 9 2009 Petition for a writ of certiorari filed. (Response due July 13, 2009)



This is Alan Gura's case. The NRA's case for cert (08-4241, 08-4243) is separate from Gura's cert (08-4244).

For those that don't follow the "niceties" of this sort of thing, Supreme Court Rule 12.4 allows for the original and separate plaintiffs to file independent certs.

So the NRA petition was docketed as case #08-1497 on June 3, 2009. (response due on July 6, 2009).

The Court Clerk has included all 3 original cases in both certs, probably for sake of brevity and inclusion as one surviving case. I would like to hope that the NRA would agree to subsume their claim into Gura's claim. The NRA's cert is very weak, on its face.

Please note, I'm not disparaging the NRA here. I'm merely observing that they are continuing in their practice of throwing everything they can think of, against the wall, in the hopes that something will stick. It is an all too common practice in law.

Compare just the questions being presented by the two certs. First the NRA's question:
Whether the right of the people to keep and bear arms guaranteed by the Second Amendment to the United States Constitution is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home.
Now the question, as presented by Gura:
Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment’s Privileges or Immunities or Due Process Clauses.

When you want the Court to define a very narrow view, which question, above, would you rather want the Court to answer? Look back at the history of the Heller certs for your answer.

As to whether or not the Court will grant certiorari, remember that it only requires 4 Justices to agree to take the case for cert to be granted.

Bart? Have you heard when the hearings are to be held?

[Bartholomew Roberts]

I haven't heard about a hearing; but I imagine the Supreme Court will grant cert on this. There is already a circuit split on the issue and the Court knew this was going to happen when they upheld an individual right in Heller. I imagine most of them have already given some thought to the issue of incorporation.

I also agree with the critique of the NRA's approach vs. Gura. Gura is very clean and precise in his legal writing and he keeps the issue very tightly focused on where he wants it to go. It is clear Gura has paid attention to Brown vs. Board of Education and other civil rights cases in laying the groundwork for this case.

The NRA does quality work; but they are going strictly for the win. They seem to be less concerned about creating precedent that might interfere with future cases and more concerned with winning this one by whatever argument they can make stick.

Should be an interesting case... I think Halbrook is 3-0 in front of the Supreme Court on gun cases; but Gura certainly impresses me.

[maestro pistolero]

Is there no way SCOTUS could fast-track this case in the current term?

[Al Norris]

No. The current term is over. The last argument was heard on April 29th.

If cert is granted, I suspect much the same time frame as what we saw with Heller.

What would be good, is for the P&I clause to be reinstated (overturning the Slaughterhouse cases). This would please Justice Thomas and sway Justice Scalia. Although that would be a big hurdle to overcome, at the same time, it would be a great win for individual rights in general.

[Glenn E. Meyer]

http://www.nytimes.com/2009/06/17/us/17guns.html

NY Times had a report on the issue. So it's moving up in public consciousness. The article seems to be positive for incorporation.

[RDak]

I'd rather have Gura's question answered Al.

[maestro pistolero]

Whether the right of the people to keep and bear arms guaranteed by the Second Amendment to the United States Constitution is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home.
I understand the strategy in Heller of limiting the scope of the prayer for relief to the home. But what in the world is the NRA doing carrying that language forward into a much broader case? There are even judges (the Mehl/Gorski panel, for example) who are misreading the scope of the Heller case to be a limitation on the right itself, a misunderstanding which Gorski failed to clarify and that therefore went unchallenged.

Or could it be that the various plaintiffs are coordinating a range of requests to give the SCOTUS multiple opportunities to incorporate? I suppose incorporation is incorporation, but it would be very disappointing to come away with a limited ruling because of a meek prayer for relief.

[Tom Servo]

I understand the strategy in Heller of limiting the scope of the prayer for relief to the home. But what in the world is the NRA doing carrying that language forward into a much broader case? (...) I suppose incorporation is incorporation, but it would be very disappointing to come away with a limited ruling because of a meek prayer for relief.
That's the way it works. Many people cried foul that Gura didn't pursue rights to carry, the reversal of the NFA, and any number of other infringements. What those folks didn't realize is that the question at hand was a narrow one: does the 2nd Amendment protect an individual right to keep and bear arms?

Had Gura attached a laundry list of issues outside the central question, the case may very not have been heard at all. The Court has a limited amount of time and a full itinerary, which is why we have the whole Certiorari process in the first place. Petitions are expected to be kept concise, focused and convincing.

In the present, the question is, "should the 2nd Amendment be incorporated through the 14th?" We need to keep it simple and convincing, and I trust Gura to do so.

We're reversing 140 years of infringements, and none of this is going to happen overnight. In fact, I'm still amazed how far we've come in one year. Other questions, such as the validity of weapon-specific bans and concealed carry as a right will have to be addressed in their own specific cases, in due time.

We're still laying the groundwork with Heller and McDonald, and we have to think in terms of years (or perhaps decades) as we move forward.

[maestro pistolero]

In the present, the question is, "should the 2nd Amendment be incorporated through the 14th?" We need to keep it simple and convincing, and I trust Gura to do so.


So do I. I understand all that. Gura's question is the big one, it's perfect, and it is without the NRA's qualifier of "in the home'.

The issue of the individual right having already been settled in Heller, what purpose does the NRA's narrowing of the question serve, with respect to incorporation?

[Tom Servo]

So do I. I understand all that. Gura's question is the big one, it's perfect, and it is without the NRA's qualifier of "in the home'.
Sorry...too much coffee on an empty stomach made me a bit jumpy.

Not sure about the NRA's qualifier. It's likely someone in the ILA thought that narrowing the question that far would help with the argument.

Still, I prefer Gura's approach. He's calling for the final nail in the coffin regarding the Slaughterhouse cases, and it's about time. A ruling in our favor along those lines has the potential to affect a lot of future jurisprudence, and not just regarding gun rights.

As it is, it appears it's Gura's case going to SCOTUS, and given his prior track record, I'm very encouraged. I can't remember the original source, but Akhil Amar seems fairly confident of a win on this.

[maestro pistolero]

but Akhil Amar seems fairly confident of a win on this.

Me too. I'm not a betting man, but I would take some high odds on this one.

If the court does equivocate, since that's what judges do sometimes, where would it be? It's hard to imagine with the issues and lines so clearly drawn. Incorporation seems imminent, but will their ruling offer any guidance on so-called reasonable restrictions or will it allow the lower court to fumble around for another term or two?

It would be amazing if they came out and preemptively struck roster schemes, discretionary carry (OC, CC, or both), and BS AWBs. Rather than complicate things any further, putting those known issues to bed in the near term would save a lot of time and money for both sides. A lot of folks would be shocked on both sides of the fence but at least we could get on with pulling the country out of it's economic ditch free of one distraction.

[Bartholomew Roberts]

If the Court incorporates, I imagine they will stay relatively focused on that issue and give only general guidance (if any) on other issues. I think they will let the Circuit Courts do the hard work of hashing out the boundaries of the right.

I think that if you apply Cardozo's test for incorporation of a right through due process of the 14th Amendment, then there is no way that the Second is not incorporated. It passes that test so clearly it is unassailable:

""[The Due Process Clause of the Fourteenth Amendment protects those rights which are] of the very essence of a scheme of ordered liberty. To abolish them is ... to violate a 'principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental"

You'll note that even the lower court judges that ruled against incorporation didn't want to make the argument that it doesn't pass Cardozo's test (and that test is the foundation of all selective incorporation cases). Instead they just ruled that Presser applied and avoided the question entirely.

Having said that, the concept of selective incorporation isn't popular with the conservative wing of the Court either. I can definitely believe that some of the Justices who voted in Heller will be nervous about the consequences of selective incorporation (and especially eliminating the P&I ruling from Slaughterhouse) in this case.

[legaleagle_45]

Did not see a link to Alan's actual pet for cert... Here it is:

http://www.chicagoguncase.com/wp-content/uploads/2009/06/mcdonald_cert_petition1.pdf


EDIT: The NRA's brief for cert was listed at post #14. Alan Gura's brief was listed in post #20. Antipitas

[legaleagle_45]

EDIT: The NRA's brief for cert was listed at post #14. Alan Gura's brief was listed in post #20. Antipitas

I guess that is why I am merely a juinor member...
:D

[Al Norris]

To recap what's going on at the moment.

There were two cases that comprised what is being called, NRA v. Chicago.

The first case was filed immediately that Heller was decided by Alan Gura, for Otis McDonald, et al.

The second case was filed two days later by the NRA.

The cases were combined at the District Court and summary judgment to dismiss was granted. The cases were appealed to the 7th Circuit where, on June 2, 2009, the Circuit declined to incorporate and held for the District Court.

The NRA filed its petition for certiorari on June 4th and Gura filed his on June 11th. On June 25th, an order extending time to file a response was entered for Chicago. Response is due on Aug. 5th.

There are currently 7 amici curiae briefs filed for the petitioners, arguing for a grant of cert, for which I have links.

Briefs filed on behalf of both litigants:

Brief amicus curiae of Arms Keepers (http://www.chicagoguncase.com/wp-content/uploads/2009/07/armskeepersbriefsupportingcert.pdf).
Brief amicus curiae of California (http://www.chicagoguncase.com/wp-content/uploads/2009/07/california_cert_stage.pdf) (AG Jerry Brown).
Brief amici curiae of Texas (http://www.chicagoguncase.com/wp-content/uploads/2009/07/texas_states_cert_stage.pdf), et al (33 States).
Brief amici curiae of Institute for Justice, and Cato Institute (http://www.chicagoguncase.com/wp-content/uploads/2009/07/ij_cato_cert_stage.pdf).
Brief amicus curiae of Gun Owners of America and Gun Owners Foundation (http://www.chicagoguncase.com/wp-content/uploads/2009/07/gof_goa_cert_stage.pdf).

Briefs filed on behalf of the NRA:

Brief amicus curiae of American Civil Rights Union (http://www.theacru.org/NRAvChicago.pdf).

Briefs filed on behalf of McDonald:

The Brief amicus curiae of Constitutional Accountability Center (http://www.chicagoguncase.com/wp-content/uploads/2009/07/cac_cert_stage.pdf) (Law Professors).

Note: There are 2 other cert stage briefs, that I could not find links to. One is a brief (I assume) for the NRA by the National Shooting Sports Foundation and the other is a brief by State Firearm Associations (again, I presume for the NRA). Should anyone find the links, I would appreciate it, by dropping a note in this thread.


A third case, which was decided by the 2nd Circuit on Jan. 28, 2009 was filed by James Maloney on June 29th (extension of time to file granted by Justice Ginsburg).

All three cases (McDonald and the NRA cases are asking separate questions) are being petitioned for incorporation of the 2nd amendment, against the States, on Due process and/or the P&I clause of the 14th amendment.

The cases in Chicago present the Court with a ban on unregistered handguns and rifles, somewhat similar to that of D.C. It goes further in the nature of the bans. Should a citizens fail to re-register their firearm(s) (an annual requirement), then said firearm may never again be allowed to be registered. No handguns are allowed to be registered after a certain date (like the D.C. prohibition). Certain exceptions are made in the law for those moving into the city, but registration must take place before possession is allowed. All Firearms must be registered prior to possession, no exceptions.

In addition to the above, Illinois law states that all firearms owners must complete and be issued a Firearms Owners IDentification certificate (FOID), prior to possessing any firearm. This also must be renewed each year. Each and every firearm owned, must be listed on your FOID. Possession of a firearms other than what is listed is a felony.

The Federal Civilian Marksmanship Program (CMP) allows qualified US citizens to purchase certain surplus military firearms (M1 Garands; M1 Carbines) for participation in marksmanship programs. Here the Federal government will ship the qualified firearm directly to the owner. However, Chicago law says the firearm must be registered before taking possession. Can not be lawfully done, as you simply will not know the serial number of the rifle before it is shipped. Thus making you an instant felon. Added to this, because you took possession, before registration, assuming you immediately transported the long-gun out of Chicago's environs, you will never be allowed to register that rifle. Catch-22.

Despite all of this, Chicago remains a haven for guns. Unlawfully possessed by the gangs roaming the streets, against which the citizens have no protection.

While the former two cases are direct "gun" cases, Maloney differs in that the object was a prohibited, but less than lethal defensive weapon, "discovered" in his home, after a less than credible search by the police. No firearms, or other weapons charges were ever brought to trail, so the search incident to the discovery was never addressed. A plea bargain for misdemeanor disorderly conduct was entered.

There is much about Maloney that never came to light, in the press, and has subsequently colored many peoples opinions (for or against).

Maloney is interesting because, if not addressed by the Supreme Court, then the States can prohibit its citizens from possessing less than lethal defensive weapons, while maintaining the right to keep lethal weapons for home defense. This alone, severely limits any lawful response a citizen may make in any defensive situation, while in his own home, to that of a solely lethal response.

Then we have the 9th Circuit (Nordyke v King) who, as of this moment, has incorporated, but maintained the county law precluding firearms from county property (the panel determined that the county fairgrounds were a "sensitive place," per dicta in Heller).

Of all the arguments for incorporation (regardless of the "other" issues involved), the cert brief by Alan Gura is by far the best argument to grant the petition. It is, in short, simply stunning in clarity and brilliant in its logic. Should you wish to read it, you may find it here (http://www.chicagoguncase.com/wp-content/uploads/2009/06/mcdonald_cert_petition1.pdf).

There is a clear difference between the NRA petition and the McDonald petition. Once again, the NRA is tossing a plate of spaghetti against the wall, to see what sticks (not a real criticism, as many attorneys do this), whereas McDonald gives due deference to the Court in its selective incorporation methods, but is primarily concerned with the Slaughterhouse Cases and how the P&I clause has been interpreted (or not). Gura is calling for the Court to revisit that decision and makes a compelling case. IMO.

What is clear to this "reporter," is that there is a split in the circuits and the need for some direction from the Supreme Court is at hand. Sooner, rather than later.

[Al Norris]

Copied from another post I made, and to update this, the major thread on the 7th Circuit-McDonald case for cert.

Chicago's Brief in opposition to Cert is here (http://www.chicagoguncase.com/wp-content/uploads/2009/08/chicago_bio.pdf).

Expect Amici for Chicago within the next 7 to 20 days. Gurra will have 20 days to file a response.
To get the gist of what opposition the City of Chicago has, one need only look at the Questions presented:
QUESTIONS PRESENTED
1. Whether the Court should consider claims that the Second Amendment right to keep and bear arms in common use, including handguns, is a fundamental liberty interest applicable against state and local governments by the selective incorporation doctrine of the Due Process Clause of the Fourteenth Amendment.

2. Whether the Court should refuse to revisit its repeated holdings that the Privileges or Immunities Clause of the Fourteenth Amendment does not incorporate Bill of Rights provisions to apply against state and local governments.
The first question is asking the Court whether or not the RKBA is in fact a fundamental right (hinted at in Heller's dicta, but not part of the actual holding), applicable against the State via the Due Process clause of the 14th.

The second question asks that the Court not revisit Slaughterhouse and the Privileges or Immunities clause.

In answering the first question, Chicago asserts:
In our view, while Heller examined the meaning and intent of the Second Amendment in the founding era, that limited focus is not appropriate on the very different question whether Second Amendment rights are fundamental and therefore incorporated into the Due Process Clause. Thus, the precise Second Amendment right recognized in Heller—the right to a handgun as a weapon in common use—is not incorporated merely because it is protected under the Second Amendment.
With that logic, we can now do away with any incorporated right. After all, just because its a "recognized" right, doesn't mean the States have to allow it.

Then, Chicago uses the following argument:
If there is a due process right to arms for self-defense, it is preserved with arms suitable for that purpose, and does not extend to any particular weapon merely because it is in common use. Moreover, the ordinances at issue here preserve any liberty interest that might exist under the Due Process Clause to some type of firearms for self-defense in the home, for they allow residents to possess long guns, such as rifles and shotguns, for self-defense in the home.
Excuse me, but wasn't that exact argument (from D.C.) a losing argument? Why does Chicago think it will win for them, when the Court chastised D.C. for that same reasoning? It boggles the mind.

But wait! There's more!!
The right recognized in Heller to keep and bear arms in common use is not implicit in the concept of ordered liberty. To begin, this is shown by the very purpose of codifying the Second Amendment. While the Second Amendment conferred an individual right, as against the federal government, to keep and bear weapons in common use, it stands in sharp contrast to other individual liberties in the Bill of Rights because the purpose of the common-use rule was to protect, not individual personal liberties, but the militia-related need for militiamen to possess and be familiar with weapons necessary for their militia service, a purpose that Heller recognized as the very reason for the right’s codification, as well as determinative of its scope (see 128 S. Ct. at 2801, 2815-16).
Yup!

They've raised the militia clause from the dead.

After rambling on a bit about how carrying or even possesing firearms has an inherent danger to the public-at-large, thus marking a distinct difference between other rights, Chicago goes on to say:
Thus, in urban environments, where handgun abuse is so rampant, the protection of a right to handguns simply because they are in common use undermines, rather than guarantees, ordered liberty. It is, instead, the very governmental power to protect residents that is critical to the concept of ordered liberty, since enforcing handgun control laws can make an enormous difference in curbing firearms violence.
While it may be a governmental power to protect residents, but only in a general manner, all governments have gone out of their way to disclaim any liability whatsoever to actually protect any individual or group of individuals. A governmental agency has no duty to protect an individual.

At this point, I'm laughing to hard to actually concentrate on the rest of Chicago's response.

You really should read the response and see for yourself. Their argument parallels that of D.C. in many ways.

[maestro pistolero]

. . since enforcing handgun control laws can make an enormous difference in curbing firearms violence.

As in where? Chicago, Washington DC? Finishing a paragraph with a wholly unsubstantiated, blatantly false, and unprovable argument is, well, stupid.

We couldn't pay these guys to sabotage their case any more effectively. If they win anything, I'm calling a party foul.

By the way, just because the Second clause of 2A now stands on it's own, per Heller, I don't think we've seen the last of the 1st clause. As soon as the Feds start turning up the heat on Montana's insolence, I wouldn't put it past Montana to start issuing or authorizing nearly any kind of small arms for their entire citizenry under the 1st clause. Then let them try to argue against collective AND individual rights before the court!

[Composer_1777]

It defends state rights, but decreases our protection from the states while protecting the states from the National Government. Very well played, now we can get gang B**** by both.

[publius42]

It's hard to believe they're going to run the "long guns are enough" and "2A is only for the militia" arguments by again, but should be fun to watch.

[maestro pistolero]

It's hard to believe they're going to run the "long guns are enough" and "2A is only for the militia" arguments by again, but should be fun to watch.

I know, but what else can they try? They really have nothing. Their only chance is a sympathetic, activist majority that would contrive their way around the obvious.

[Tom Servo]

A few quick notes reading over this.

First off, they pounced very quickly on the fact that Nordyke is being reheard and that, in the meantime, it is not precedent. Therefore, there is no split among the Circuit courts.

They seem to be trying their best to preclude incorporation under Privileges or Immunities. Their strategy seems to be to force the issue to be decided by the Due Process clause.

Why? Because they're trying to prove that keeping and bearing arms is not a "natural" right, and therefore not subject to incorporation, I guess. They appear to be trying to push us into a corner, forcing us to prove that self-defense itself is a natural right.

Limiting the argument to Due Process also skips the whole mess of revisiting Slaughterhouse, as Gura wants to do. If the Court reconsiders precedent (including Cruikshank, which they shockingly call "good law" on page 6), then the implications of this case could be larger than simply 2nd Amendment incorporation.

I'm not sure they've read Heller, as they make this claim on page 9:
If there is a due process right to arms for self-defense, it is preserved with arms suitable for that purpose, and does not extend to any particular weapon merely because it is in common use. (...) the ordinances at issue (...) allow residents to possess long guns, such as rifles and shotguns, for self-defense in the home.

and later,

Laws that do not make self-defense in the home impossible are valid, and the ordinances challneged here, which allow possession of rifles and shotguns, do not make self-defense in the home with firearms impossible. (pp. 15-16)

Didn't this exact approach fail for Dellinger last year?

Then they go on to argue against incorporation because,
unlike other enumerated rights (...) the right to keep and bear arms carries an inherent risk of danger to the liberty and interests of others. (p. 11)

The "utility" argument doesn't hold water, and no amount of "research" from the VPC is going to help it.

They make a rather tortured argument that Hurtado backs up their argument, but Hurtado was concerned with the concept of a grand jury, which is a different matter. A grand jury is a parlaimentary procedure; self defense is a natural right. Apples ≠ oranges.

[raimius]

Some of these arguments almost seem like they are trying to anger the justices that signed the majority opinion in Heller. How could they think these arguments will work, when the ruling from Heller DIRECTLY contradicts them?

What is the definition of insanity? Trying the same thing and expecting different results...probably not going to work, even with 1 member of SCOTUS changing.

[maestro pistolero]

Then they go on to argue against incorporation because,
Quote:
unlike other enumerated rights (...) the right to keep and bear arms carries an inherent risk of danger to the liberty and interests of others. (p. 11)

Exactly. The Heller court categorically ruled out an interest balancing approach to this right:

Scalia:
We know of no other enumerated constitutional right
whose core protection has been subjected to a freestanding
“interest-balancing” approach. The very enumeration of
the right takes out of the hands of government—even the
Third Branch of Government—the power to decide on a
case-by-case basis whether the right is really worth insist-
ing upon. A constitutional guarantee subject to future
judges’ assessments of its usefulness is no constitutional
guarantee at all. Constitutional rights are enshrined with
the scope they were understood to have when the people
adopted them, whether or not future legislatures or (yes)
even future judges think that scope too broad. We would
not apply an “interest-balancing” approach to the prohibi-
tion of a peaceful neo-Nazi march through Skokie. See
National Socialist Party of America v. Skokie, 432 U. S. 43
(1977) (per curiam). The First Amendment contains the
freedom-of-speech guarantee that the people ratified,
which included exceptions for obscenity, libel, and disclo-
sure of state secrets, but not for the expression of ex-
tremely unpopular and wrong-headed views. The Second
Amendment is no different. Like the First, it is the very
product of an interest-balancing by the people—which
JUSTICE BREYER would now conduct for them anew. And
whatever else it leaves to future evaluation, it surely
elevates above all other interests the right of law-abiding,
responsible citizens to use arms in defense of hearth and
home.

[BillCA]

<sarcasm>

Notice
Be It Known to All Citizens
of the Kingdom of Daley and
Especially Chicagoland:

By Official Decree - owing to the unbridled, uncouth and rampant abuses of certain rights dispensed to the plebeian citizens of our domain, we hereby declare possession of the following items forbidden unless permission is granted as a permit and a fee is paid.

Possession of any automated printing device.
The purchase of more than twenty (20) sheets of paper per month.
The possession of an ink bottle holding more than 10 oz of ink
The possession of more than 20 books without a library permit.
Possessing a "marker pen" with a tip wider than 1/4 inches

In addition, new regulations are hereby enacted regarding the privileges and immunities of the plebeian citizenry, which are an affront to the governmental powers to protect our citizens and maintain our ordered liberty.
Due to the seditious nature of words and documents, police may now read, at will, any documents a citizen carries on about his person.
To further investigations, citizens must, at all times, provide a true, accurate amd complete account of events in question, in which they are involved, to authorities when demanded to do so, under penalty of contempt.
Attorneys appointed by the court for citizens, being paid from public funds, may not claim communications with his client are privileged.
As terrorists and criminals broadly use them to commit crimes, any communications, in any form, across or through a public utility or any service which receives any public funds are not private or confidential in nature.

I so declare
/s/
His Highly Honorable and Flatuent Highness King Richard of Daley and all of Chicagoland
</sarcasm>

[Bartholomew Roberts]

Didn't this exact approach fail for Dellinger last year?

Does the Chicago ordinance allow them to be stored assembled? If so, then that is one distinction between D.C. and Chicago and could be an important one to their argument.

Having said that, it looks like most of the Chicago brief is basically "Heller was wrongly decided." I can't imagine that is going to be very helpful when the same five Justices who decided Heller read it - especially given that they are using the same arguments that were unpersuasive in Heller.

[Tom Servo]

Does the Chicago ordinance allow them to be stored assembled? If so, then that is one distinction between D.C. and Chicago and could be an important one to their argument.
Yes, but it's a small difference. Overall, as Pistolero mentioned, the tack they're taking with "interest bearing" arguments is what failed.

[Poseidon28]

My legal question:
First conflict of law, 9th and 7th circuits, on the Incorporation of the 2 Amendment, against the states. How often are such issues brought before the Supreme Court?
In other words, what's the process to grant cert? How many judges, and which ones, approve bringing something up for cert?

[Al Norris]

It requires that 4 Justices agree to hear a case in order to grant Cert.

The most often used route to get to the Supreme Court (SCOTUS), is to have a Circuit split. That is, one or more Circuit Courts disagree in the interpretation of a law or other legal issue. The SCOTUS will generally take such an appeal to remedy the differences, so as to make the law/issue one of uniformity throughout the nation.

Currently, because the 9th Circuit will decide the Nordyke case en banc, there is no split in the Circuits.

How this will affect certiorari, is anyone's guess.

[Poseidon28]

...

[Al Norris]

Since we are at the cert stage before the Supreme Court, direct all comments here (http://thefiringline.com/forums/showthread.php?t=373086).

This one is closed.