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Old August 22, 2009, 10:49 AM   #1
Al Norris
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Chicago Gun Case Incorporation Lawsuit

Because the Chicago Incorporation case is now waiting upon a decision for certiorari by the Supreme Court; because we have a couple of different threads on this, from the 7th Circuit decision; because the information is in different threads, this thread is to be used as the main thread for further discussion.

So then, 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.

The NRA petition for cert is here.

Gura's petition for cert is here.

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.
Brief amicus curiae of California (AG Jerry Brown).
Brief amici curiae of Texas, et al (33 States).
Brief amici curiae of Institute for Justice, and Cato Institute.
Brief amicus curiae of Gun Owners of America and Gun Owners Foundation.

Briefs filed on behalf of the NRA:

Brief amicus curiae of American Civil Rights Union.

Briefs filed on behalf of McDonald:

The Brief amicus curiae of Constitutional Accountability Center (Law Professors).

Chicago's Reply brief in opposition to cert is here.

The NRA reply brief is here.

Gura's reply brief is here.

Over at SCOTUSblog, Lyle Denniston has reported that the first conference of the new Term will be held on Sept.29. Included in the electronic docket will be two gun cases: NRA v. Chicago (08-1497) and McDonald v. Chicago (08-1521).

We could know as soon as the next day (Wed. Sept. 30) if either or both cases will be heard. Generally however, such announcements are given the following Monday (which happens to be the start of the 2009 Term).

The new Term starts the first Monday of Oct. - Oct. 5.

Note: A tip of the Hat to Bubbles, over at THR.us for reporting the SCOTUSblog info.
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Old August 22, 2009, 11:31 AM   #2
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California's brief is hilariously cynical and completely unresearched and unsupported.
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Old August 22, 2009, 11:45 AM   #3
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Quote:
California's brief is hilariously cynical and completely unresearched and unsupported.
What makes you say that?

WildcuriousAlaska TM
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Old August 24, 2009, 09:20 AM   #4
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I read the CA brief and I didn't see anything wrong with it typographically or ideologically considering this is CA.

They want to get a dead bang ruling so they can see which laws they are going to get to keep. There is no interest in CA in throwing any laws out.
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Old August 24, 2009, 10:49 AM   #5
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Focusing on the differences between the NRA petition for Cert. and the California petition for Cert.; I'd characterize the NRA petition as a document which takes the effort in its 40 pages to be persuasive beyond the issue of granting certiorari. The NRA petition is advocating in this document its position on why the 2nd Amendment should be incorporated. On the other hand, the CA petition does the bare minimum to have the case granted certiorari to resolve the split in opinion of the appeals courts.

The Ninth circuit has ruled in favor of incorporation based on the 2nd Amendment being a fundamental right; and the Second and Seventh circuits have ruled that the 2nd Amendment is not incorporated.

http://www.uscourts.gov/images/Circu...tlined-rs2.gif
The link is to a map which shows which states are in which Circuits.
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Old August 24, 2009, 01:25 PM   #6
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Actually, the 9th Circuit is going to re-hear the Nordyke case en banc (before the entire circuit), and has rescinded the decision by the panel.

There is no technical split at this moment.
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Old August 24, 2009, 07:35 PM   #7
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The California brief sums up the position of California in a document that (for once) is brief and concise. The CA brief was written before the 9th Circuit decided on an en banc hearing of Nordyke.

California asks that SCOTUS grant cert, that SCOTUS find that the RKBA is incorporated against the states and that SCOTUS provide some scope of the right so that states can understand was constitutes "reasonable regulation".

From California's perspective, since the state constitution lacks an analog to the 2A right, the state is (theoretically) able to ban the possession of any and all firearms. Unless the RKBA applies to the states through incorporation, that is.

California is asking SCOTUS to incorporate to provide a uniform right to all U.S. citizens (thank you AG Brown!). But it is also telling SCOTUS to define some limitations of what the states can or cannot do. They also want The Court to establish if strict scrutiny is the proper standard of review (or some other level).

Quote:
In affirming that the Second Amendment guarantees an individual right to keep and bear arms, the Court in Heller noted that its ruling permitted reasonable regulation of firearms.
:
But the Court declined to elaborate on the extent of the government’s authority to regulate firearms or to establish a standard of review applicable to asserted Second-Amendment infringements.
If The Court can articulate some broad language to define some of the limits to state regulatory powers and/or define what kinds of regulations the states may use, it will save a lot of time, grief and expensive litigation.

The difficult part would be for The Court to come up with a workable "scope" of the right without having to reverse itself in the future.
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Old September 29, 2009, 11:14 PM   #8
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Just a couple of notes, in case anyone is still interested...

On Thurs. Sept. 24th, the 9th Circuit in an en banc hearing, heard the Nordyke case. Before the end of the day, the Circuit vacated the submission of the case and punted to the Supreme Court, to grant cert in one or more of the 2A certs before it.

Today (09-29-2009), NRA v. Chicago, McDonald v. Chicago and Maloney v. Rice were scheduled to be discussed in Conference. If the Heller case is any indication, we may know by Friday if cert is granted in one or more of these cases.

Currently, the Court calendar is filled through Dec. Therefore, if cert is granted, The Incorporation case may be heard as soon as Feb. 2010. Note: My understanding is that there are currently 8 other cases that have been granted cert, but have not been docketed. That pretty much ties up January.
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Old September 30, 2009, 09:21 AM   #9
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The Supreme Court has granted the McDonald petition.

So, once more unto the breach....
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Old September 30, 2009, 10:30 AM   #10
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http://www.scotusblog.com/wp/

Taking on a major new constitutional dispute over gun rights, the Supreme Court agreed on Wednesday to decide whether to apply the Second Amendment to state, county and city government laws.

The Court had three cases from which to choose on the Second Amendment issue — two cases involving a Chicago gun ban, and one case on a New York ban on a martial-arts weapon. It chose one of the Chicago cases — McDonald v. Chicago (08-1521) — a case brought to it by Alan Gura, the Alexandria, VA. lawyer who won the 2008 decision for the first time recognizing a constitutional right to have a gun for personal use, at least in self-defense in the home (District of Columbia v. Heller). A second appeal on the Chicago dispute had been filed by the National Rifle Association (NRA v. Chicago, 08-1497). Presumably, the Court will hold onto that case until it decides McDonald; the same is likely for the New York case, Maloney v. Rice (08-1592) — a case in which Justice Sonia Sotomayor had participated when she was a judge on the Second Circuit Court.
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Old September 30, 2009, 02:04 PM   #11
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I put this in ZeSpec's duplicate thread so I'll post it here. Too lazy to merge and busy:

Quote:
Yep, I think they are going to use the 'reasonable aspect' of Heller to make the case that some environs are special cases - like the big Urban areas full of 'nasty' people. But this would probably skirt the issue of racial discrimination. The 'nasty' areas that want to ban handguns have high proportions of minorities.

It will be supported by bogus or biased research reports. Here's the latest:

http://www.uphs.upenn.edu/news/News_...ession-safety/

I haven't had time to read the original but it seems to miss major points and the methodology while perhaps OK for cancer, may not be useful in determining deterrence effects, etc. I think Kleck, etc. will have some telling counters. Kleck had a recent article in a special issue of the American Behavioral Scientist about the fallout of Columbine demonstrating the the gun control suggestion after Columbine are just feel good pallatives with no real effectiveness. BTW, the other experts found that little of the suggestions would do much. The best ones were that you can get females to turn in high school male shooter wannabees.

We will see.
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Old September 30, 2009, 02:13 PM   #12
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This is definitely the best case scenario. It's the simplest question, the best lawyer, the most compelling argument, and the most blatant offender.
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Old September 30, 2009, 02:47 PM   #13
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I see we all have the good news.

I'm waiting to see what the question to be answered will be. I get a 404 Not Found error at the moment. Anybody download that part?

Since cert was not denied in the NRA and Maloney cases, I suspect that the answer to McDonald will reflect on how these cases turn.

Additionally, Nordyke will be decided after the SCOTUS returns a decision in McDonald.
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Old September 30, 2009, 03:50 PM   #14
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I would rather see Sotomayor's anti inclusion decision from NY to force her to recuse herself.
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Old September 30, 2009, 04:20 PM   #15
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Quote:
This is definitely the best case scenario. It's the simplest question, the best lawyer, the most compelling argument, and the most blatant offender.
+1. I'd like to be the first to express a sigh of relief that they didn't decide to hear Maloney v. Rice, which had all sorts of problems, including the potential Sotomayor recusal.
Quote:
I would rather see Sotomayor's anti inclusion decision from NY to force her to recuse herself.
I disagree. There are all sorts of potential problems with the SCOTUS agreeing to hear Maloney v. Rice. One of the smaller ones is the possibility that the court could deadlock 4-4 after Sotomayor recuses herself. OTOH the biggest potential problem is that the SCOTUS could decide that two sticks connected with a chain constitutes fitness equipment rather than "arms", the 2A doesn't apply, and we get nothing.

In the aftermath of D.C. v. Heller, IMHO the SCOTUS review of McDonald should turn out very well for gun rights advocates, even if the diehard RKBA advocates don't get everything they're hoping for. Remember, by replacing Souter, Sotomayor did not tilt the ideological balance of the court, and 8 of the justices who decided Heller are still there.
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Old September 30, 2009, 05:00 PM   #16
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This outcome of this case in the court will be huge. It will either open the door for lawful gun ownership no matter where you reside or will close the door to handgun ownership in many other jurisdictions. This will be a much more important case than the Heller decision.
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Old September 30, 2009, 06:07 PM   #17
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Quote:
OTOH the biggest potential problem is that the SCOTUS could decide that two sticks connected with a chain constitutes fitness equipment rather than "arms", the 2A doesn't apply, and we get nothing.
Interesting side note here: in the Maloney brief, they found evidence that numerous police departments use nuchaku as weapons, and the case raises the issue that "arms" are not necessarily limited to firearms. That said, the Maloney arguments are a little more strident and a little less airtight than McDonald's.

Gura's case argues for incorporation through the Privileges or Immunities clause, rather than Due Process. McDonald essentially demands a rehearing of Cruikshank and Slaughterhouse, and could have wide-reaching implications for any number of state-level ordinances, not just relating to guns.
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Old September 30, 2009, 07:42 PM   #18
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What Question will the Court answer?

From the McDonald petition:

Quote:
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.
From the Chicago petition:

Quote:
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.
Parsing from the above, what does anyone think the court may ask?
Please remember, that the Court need not answer whether or not the Chicago ordinances are valid. If incorporated, that question was answered by Heller.

Barring other information or developments, it appears the court is leaving the question as phrased by Gura's petition.

Over at http://www.chicagoguncase.com Mr. Gura has set the tentative deadlines as follows:
Quote:
Our opening brief is due November 16.

The city’s brief is then due December 16.

Our reply brief is due January 15.

The case is expected to be argued in February, with a decision expected by the end of June, 2010.
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Old September 30, 2009, 10:55 PM   #19
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Likewise, if Palmer v. DC goes all the way to the top, which is depending on how aggressively DC fights it and/or how stupid they are to risk losing, the question as to whether carry rights invalidate local bans or onerous restrictions ala NYC will become simply a matter of whether the 2nd Amendment applies; the right of carry will be permanently reattached as it should be. Put the two together and no city in the country--DC, NYC, LA, San Francisco, Chicago, Baltimore, or Boston--will be able to ban or obstruct its law abiding citizens (and perhaps with some further litigation, anyone else who passes a background check) from being able to carry a firearm for self defense. They may be able to choose to tell them whether they can carry concealed or open, but at least one or the other MUST be legal.
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Old October 1, 2009, 09:34 AM   #20
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How strong is the Palmer case? I really question our strength there. We only won the Heller case by 1 vote. We might have a better chance through reciprocity laws, IMO.

As for the Chicago case, if Gura's question is the one addressed, we have very good chances IMO.
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Old October 1, 2009, 10:19 AM   #21
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Raimius, briefly, Heller was about "keeping" arms and Palmer is about "bearing" arms.

Yellowfin, you brought this up. You want to start a new thread to inform everyone whats going on there?
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Old October 1, 2009, 10:20 AM   #22
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One Palmer thread coming up! Will it be stickied, too?
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Old October 1, 2009, 03:53 PM   #23
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Yes, I realize the Palmer case is centered on bearing arms. My concern is that most people don't care about keeping firearms, but the issue of the "average joe" carrying one still freaks out at large amount of people (sadly). I'm worried the SCOTUS will decide "Keep and Bear" doesn't really mean what it says, considering only 5 judges acknowledged the "keep" part.

Perhaps that view is too simplistic, but it's what I'm sensing in quite a few areas. "Fine to own, but don't carry" would be a terrible thing.
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Old October 1, 2009, 05:40 PM   #24
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I would seem that, having plunged into the historical 2A pool, that the justices would have to begin swimming in it now. There is little question in my mind that since keep means keep, that they will now determine bear to mean bear.

Under what restriction or regulations, who can say? But it is doubtful to me that restrictions whose primary purpose is to dissuade or make the exercise of the right unnecessarily burdensome cannot, and should not, survive any standard of review.
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Old October 2, 2009, 12:34 AM   #25
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At the time of the passage of the Fourteenth Amendment, the states recognized that the Amendment would bestow on Blacks the right to keep and bear arms. The arguments hoisted against the passage of the Fourteenth Amendment had much to do with the right to keep and bear arms for Blacks. States passed Black Codes specifically to address this fact.

If the understanding was that the Fourteenth Amendment would incorporate the right to keep and bear arms at the time of its passage, why would that same fact not apply now? Why would that fact be well understood at the time of the writing of the Amendment and so misunderstood now?

Ref. The Racist Roots of Gun Control, Clayton E. Cramer, (Kan. J.L. & Pub. Pol'y, Winter 1995, at 17)
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