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Old January 29, 2009, 07:25 PM   #1
tube_ee
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Chicago appeal brief filed...

you can read it here.

And you should.

It's good dope.

With this and Nordyke, we're gonna get incorporation this term. That leaves only strict scrutiny, and our gun rights are as protected as our rights to speak and read. Which is as much as we could hope for, and far, far more than we thought we'd ever have, just two short years ago.

We're winning.

--Shannon
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Old January 29, 2009, 09:03 PM   #2
maestro pistolero
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I listened to the Nordyke arguments, a week or so ago, and I heard nothing so compelling as what Mr. Gura submits here. I think this will be our incorporation.

Long live Alan Gura.
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Old January 29, 2009, 09:28 PM   #3
tube_ee
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Bear in mind that

in appellate cases, the written briefs constitute the bulk of the argument. So what you heard at orals was limited to whatever the judges didn't understand in the written filings, or wanted more clarification on, or wanted to trip up counsel.

It's the written briefs that have most of the meat.

--Shannon
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Old January 30, 2009, 01:01 AM   #4
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I see where Gura's case and the NRA case have been consolidated. I'm glad to see that the NRA had sense enough to let Alan Gura write the brief.
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Old January 30, 2009, 02:22 AM   #5
Al Norris
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OK. I just finished reading the appellants' brief.

Textually, it says nothing different than what Gura said in his original briefs in Chicago and his amicus brief in Nordyke.

Perceptually, is a different matter. This time around the arguments were forcefull and did not stray from the point at all. WHile giving credit to the NRA, where credit was due, he still seperates the McDonald arguments as being the better argument. And, he does it rather forcefully.

Sooner or later, the courts, either at the Circuit level or the SCOTUS itself, is going to have to take another look at the Slaughterhouse cases. Gura makes that argument and gives the Circuit a way to do it. I doubt they will take the bait. Unlike the 9th Circuit, which seems not to really care if their decisions are overturned, the 7th Circuit cares a lot.

The brief is compelling as well as impressive for its use of strong and forceful language. To use a phrase, it takes no prisoners.
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Old January 30, 2009, 09:48 AM   #6
Bartholomew Roberts
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Everybody knows Slaughterhouse is questionable law. I think the Justices have known it for awhile but didn't address it because selective incorporation allowed for a slower integration process that wouldn't provoke mass disobedience during the civil rights era.

Now that practically all of the Bill of Rights has been incorporated, there isn't much value in the Slaughterhouse ruling anymore. I think Gura is holding out that chance to make history by overturning Slaughterhouse in order to get more votes.
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Old January 31, 2009, 08:29 PM   #7
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I have had the brief sitting in an open tab for a couple days I think after Antipitas description I need to make some popcorn and read it.
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Old January 31, 2009, 11:46 PM   #8
Al Norris
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If there is one single case that stands out as an example of bad jurisprudence, Slaughterhouse is that case.

While there may be some confusion today over the phrase, "privileges and immunities," there was no confusion then. This was nothing more than a case where the Court refused to accept an amendment that changed the nature of federalism.

Regardless, I think you're right Bart. Gura is looking for that touchstone case that rights a grievous wrong.
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Old February 1, 2009, 10:43 AM   #9
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Quote:
at the Slaughterhouse cases.
You guys are smoking the funky pipe too much. Not gonna happen.
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Old February 1, 2009, 01:15 PM   #10
maestro pistolero
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Quote:
Not gonna happen.
Care to share any wisdom with us as to why not?
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Old February 1, 2009, 03:34 PM   #11
Al Norris
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Quote:
Originally Posted by nemoaz
Quote:
Originally Posted by Al
Sooner or later, the courts, either at the Circuit level or the SCOTUS itself, is going to have to take another look at the Slaughterhouse cases.
You guys are smoking the funky pipe too much. Not gonna happen.
I also would like the benefit of your insight.
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Old February 1, 2009, 03:58 PM   #12
gc70
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Quote:
This was nothing more than a case where the Court refused to accept an amendment that changed the nature of federalism.
Al nailed it. The 14th Amendment fundamentally changed the nature of federalism. IMHO, SCOTUS was perceptive enough to realize that the country was not ready to accept such sweeping changes changes at one time.

Quote:
Everybody knows Slaughterhouse is questionable law. I think the Justices have known it for awhile but didn't address it because selective incorporation allowed for a slower integration process that wouldn't provoke mass disobedience during the civil rights era.
Slaugherhouse was a barrier to the 14th Amendment's changes taking place more quickly than they could be accepted by the populace. First, SCOTUS erected the barrier to Privileges or Immunities changes, then provided the Due Process route to slowly get around the barrier.

While it would arguably be better to go back and right the Slaughterhouse wrongs, the courts have largely arrived at the same destination through selective Due Process incorporation. Selective incorporation is a well-worn path that SCOTUS will be loath to abandon for the potential unanticipated consequences of overturning Slaughterhouse.
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Old February 1, 2009, 07:38 PM   #13
maestro pistolero
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". . . potential unanticipated consequences of overturning Slaughterhouse"

What might some of the unanticipated consequences be? Even if it meant wholesale incorporation of the bill of rights, how would that be a bad thing?
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Old February 1, 2009, 08:55 PM   #14
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What might some of the unanticipated consequences be?
If I (or the courts) knew the consequences, they would not be unanticipated. Wholesale incorporation of the Bill of Rights would be a reasonably anticipated consequence. Other aspects of the federal behemoth that might smother the indivuality of states lie in the realm of unanticipated consequences.
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