View Full Version : anti gun brief in chicago case

May 4, 2009, 09:17 AM
their legal theory seems to be that handguns are not the most commonly used firearm for self defesne, and the long gun best suited for SD (the AR) can be regulated out of existence.

It says 7 states have AW bans. I could only think of 4.


Great quote from the brief.

If popularity of a weapon is the standard, the assault-weapon bans presently in place in seven states now may be vulnerable to constitutional challenge because, following the election and inauguration of President Obama, assault weapons apparently were purchased in other states en masse in fear of a federal ban.

It would be quite fitting if the fear of an AWB made black rifles into a protected expression of the 2A.

May 4, 2009, 09:19 AM

May 4, 2009, 12:16 PM
In reading through that breif, the author(s) seem to associate a lot of precedent law and decisions which were based on the "manner of carrying arms" as in "concealed weapons". Some local and state governments created statutes to help eliminate the carrying of concealed weapons which were commonly used by criminals. For the most part, even the founders declared the carrying of concealed weapons to be "immoral" as it was indicative of criminal intent and the element of surprise necessary for such intent. But that didn't preclude law abiding citizens from carrying weapons, which may very well have been concealable, out in the open. Certainly it was never argued by the founders that the criminal carrying of pistols, concealed, should in any way preclude law abiding citizens from possessing pistols on their own property and in their houses.

I think the claims made by the author(s) are stretching the intents of some of these laws in order to make it appear that it has been "common" practice to ban several types of firearms in order to maintain public safety. I'm not sure that's the case, outside of California, New York, Chicago, Washington D.C., and a few other states or localities. Besides, as these folks say the USSC made mistakes, who's to say it wasn't the lower courts who made the mistakes when ruling that certain bans on firearms was "constitutional". That's what this whole process is about. The USSC and the other courts must get to a consistent position on whether the 2nd Amendment offers wide protection of the individual right, and for which types of arms, or if it is merely a warning that government entities shouldn't be too "unreasonable" when they decide to ban certain types of firearms.

I guess we'll see if this attempt gains them any ground. I'm skeptical that it will. They are basically telling the USSC that they made grave mistakes in Heller. While people have done that in the past, has it ever caused a reversal? I'm not sure. Maybe it has.

May 4, 2009, 05:13 PM
I don't know what the author is doing getting into the carrying of guns...somebody might point out that Illinois is the last state where there is no legal way for the people to bear arms whatsoever.

Bartholomew Roberts
May 4, 2009, 05:20 PM
More on that case here:

Gura's reply to the City's brief was supposed to be filed May 1. I can't wait to see that.

By the way, oral arguments in front of the Seventh Circuit for McDonald (the Chicago case) are scheduled for May 26, 2009.

May 4, 2009, 06:22 PM
What a marvelous brief. I would imagine SCOTUS Justices would really enjoy reading the brief and discovering how uninformed, misguided, wrong, or simply stupid they were in the Heller decision. Maybe I have not been reading enough Circuit Court documents, but I was not aware that it was fashionable to base a position on systematically attacking the wisdom of a SCOTUS decision.

Al Norris
May 4, 2009, 07:36 PM
For those of you that want to read (or simply like to read) the lineup, so far: The initial appeals brief is here (http://www.chicagoguncase.com/wp-content/uploads/2009/01/).

Amici for McDonald is here (http://www.chicagoguncase.com/wp-content/uploads/2009/02/).

Here you will find:

Amicus brief by the Congress Of Racial Equality (CORE).
Amicus Brief by the International Law Enforcement Educators and Trainers Association (ILEETA), and others.
Amicus brief by the Institute For Justice.
Amicus brief by Constitutional Professors.
Amicus brief of 69 State Legistors from Illinois, Indiana, and Wisconsin (written by Prof. Nelson Lund).
Short opening brief and appendix by the NRA.
Appellees brief (Chicago's brief in opposition) is here (http://www.chicagoguncase.com/wp-content/uploads/2009/04/).

Gura's reply brief may be at the following location in a day or two (this is based upon the directory structure being used at present):


May 4, 2009, 08:29 PM
What a marvelous brief. I would imagine SCOTUS Justices would really enjoy reading the brief and discovering how uninformed, misguided, wrong, or simply stupid they were in the Heller decision. Maybe I have not been reading enough Circuit Court documents, but I was not aware that it was fashionable to base a position on systematically attacking the wisdom of a SCOTUS decision.

SO happy to see somebody else say this. Legal stuff, the reading of it for the most part usually gives me a giant headache. Lots of wording I don't understand and so on but I try my best to make sense of it all. Made myself a bowl of popcorn (something somebody here said once before reading a brief so thought I would try it) grabbed a beer and read the whole thing from first to last paragraph. I can't think of a single case they referenced that I have any real knowledge or understanding of but what I did notice, or at least to me, was that every case that didn't support Chicago's point of view was decided due to the incompetance of the SCOTUS.... er, more or less.
So is this the way it is done, really?
Speaking in the purely laymen point of view, I think they deserve to be smacked down based on pure arrogance. I also have to say that any statement coming from Chicago's political and legal powers I would not have expected to sound any other way than it did.

Bartholomew Roberts
May 4, 2009, 09:15 PM
Amicus brief by Constitutional Professors.

Did you notice that there was a Constitutional Law professor from Yale Law on that brief? Not Akhil Reed Amar; but Jack M. Balkin...

That surprised me a bit to see a Yale Law Professor on the pro-2A side.

Al Norris
May 4, 2009, 11:53 PM
chibiker, no, it's not normal, nor usual to tell the Court that they are imbeciles when saying you think they were wrong.... Makes me wonder if this wasn't written by Josh Sugarman and Paul Helmke!... Nah, San Francisco's LCAV is every bit as bad.

I was surprised to see Jack Balkins name on this also, Bart.

ilbob, the other States are Connecticut, Maryland and New Jersey.

May 5, 2009, 01:32 AM
As far as a court case, losing is losing, or is it? Is there any benefit to losing your case in a lower level court as opposed to the Supreme Court?

Does anyone see where I'm going with that train of thought?

May 5, 2009, 02:42 AM
I'm a little disappointed they didn't go for summary judgement, but I know that in oral arguments Mr. Gura will rip the opposition to shreds. As to how much that matters if the judges have a predetermined way they want to go with this I don't know...I gather that the 2nd Circuit will flat out ignore any possibility of a pro 2A ruling because they'd rather jump off a skyscraper. Don Kilmer and Gene Hoffman were able to determine from the panel they got for Nordyke that they had the best possible shot at winning so they went for it. Anyone know much about the judges that the 7th has? Is it a good court to be working on this in? I know that Gura is the trump card to play, but is the deck in our favor or at very least fair?

maestro pistolero
May 5, 2009, 04:05 AM
I really don't want to believe the court could dismiss these overwhelming arguments. Not a lawyer, but I read the docs A-Z and it seems very, very compelling. If this doesn't do it, I just can't imagine what would.

It's been such a long time coming, 30 + years I've been watching this issue and just waiting for moments like Heller, and Nordyke.
I've got a lump in my throat contemplating what's at stake here.

May these judges be divinely guided and may the future of our republic be secure for another 350 years.

May 5, 2009, 05:51 AM
This anti-gun brief reads like some of their P.R. crap.

In the opening, they try to portray the right of firearm ownership as subordinate to other absolute rights, such as life, liberty and owning property. The brief argues that their right to life/limb/health outweighs that of your subordinate right to protect yourself, even in self-defense. They torture Locke and Blackstone to indicate that "government" was implemented to restrain the violence of men and to produce order. But they fail to mention that when governments become destructive to the good of the people, they have a right to abolish it and start over.

In the brief they say the English subordinate rights (including the right to arms) were created as barriers to protect and maintain inviolate the[se] three great primary
rights (Life, Liberty, property). They later claim that a state's police powers gives it authority to regulate the kinds of arms, how/when/where they may be used, restrict the carrying of arms, make limits on the type and amount of ammunition one can have, etc. ad nauseum. But if the right to arms is a "barrier" against violating the three main principles, they must think it a flimsy one if the state is free to regulate all manner of restrictions - such as those in D.C.

The brief says that a handgun is not the most prevelant choice for self-defense. This is despite the fact that in over 50% of the police cases where a person defends against an attack, in the home or not, a handgun is the firearm most often used.

They place great emphasis that the SCOTUS majority decision didn't cite any authorities on the "common usage" of handguns. Neither did the dissenting brief cite any supportive authorities claiming otherwise that I recall.

Their brief has a reliance on notoriously anti-gun flawed researchers Philip J. Cook & Jens Ludwig is one. Citing other anti-gun research hacks like Garen Wintemute, Franklin E. Zimring, et al, leaves them open to easy criticism.

Best of all, is that they shoot themselves in the foot several ways.

One claim is that only a "minority" of firearms owners exist (25%) and only 16% of the population owns (eeevil) handguns. They claim 35% of households own any guns at all. Given that in some populous states (MA, NJ, NY, CA, IL) handgun regulations are, at best, burdensome and confusing to the average citizen, these illegal laws reduce the numbers. Besides that, several times government agencies have indicated there is no precise way to measure gun ownership in the U.S.

Then they start discussing "Defensive Gun Use" (DGU) from the 1995 Kleck study. They call the study an infamous DGU survey and discredited yet the only researchers who discredit the study are those who support anti-gun regulations in the first place.[1]

They suggest that the number of DGUs far outweighs the acutal number of crimes committed every year. The claim is that the methodology is flawed and people "telescope" (remember rare incidents outside the time frame). This is a load of Bovine Scatology. I was interviewed by phone for the Kleck survey and they took great pains to pin down in what year an incident occurred or whether there was a real threat (as opposed to, say, a curtain knocking something over in a breeze).

And their argument fails the "sniff test" too. They claim firearms used in 847,000 crimes a year so that a 2.5M DGU number is absurd. But they don't go beyond the actual selected figures. They fail to note:
* 847,000 is only firearms-related crime stats.
* Millions of non-firearms crimes are committed annually.
* The majority of the DGU incidents go unreported.
* DGUs apply even if it was overly aggressive for the crime being committed.

They lament that the .500 S&W can penetrate police vests, but then so can most rifles and several smaller handgun cartridges. This has little bearing on ownership of firearms and handguns being a right under the constitution. Indeed, if police lethality was an issue, it was more so 40 years ago before kevlar vests were produced.

[1] Citing the usual suspects, Wintemute, Cook and Hemenway. It is interesting that the brief claims these authors have "discredited" the Kleck survey's methodology, especially in light of an impartial researcher who had this to say:

Marvin Wolfgang, Director of the Sellin Center for Studies in Criminology and Criminal Law at the University of Pennsylvania, considered by many to be the foremost criminologist in the country, wrote, "I am as strong a gun-control advocate as can be found among the criminologists in this country. If I were Mustapha Mond of Brave New World, I would eliminate all guns from the civilian population and maybe even from the police ... What troubles me is the article by Gary Kleck and Marc Gertz. The reason I am troubled is that they have provided an almost clear cut case of methodologically sound research in support of something I have theoretically opposed for years, namely, the use of a gun in defense against a criminal perpetrator. ...I have to admit my admiration for the care and caution expressed in this article and this research. Can it be true that about two million instances occur each year in which a gun was used as a defensive measure against crime? It is hard to believe. Yet, it is hard to challenge the data collected. We do not have contrary evidence. The National Crime Victim Survey does not directly contravene this latest survey, nor do the Mauser and Hart Studies. ... the methodological soundness of the current Kleck and Gertz study is clear. I cannot further debate it. ... The Kleck and Gertz study impresses me for the caution the authors exercise and the elaborate nuances they examine methodologically. I do not like their conclusions that having a gun can be useful, but I cannot fault their methodology. They have tried earnestly to meet all objections in advance and have done exceedingly well."

May 5, 2009, 07:30 AM
They are going to lose. From the summary of argument:

"...although conferring an individually held right, the scope of the 2nd amendment's protection is circumscribed by its primary purpose of preventing federal disarmament of the militia."

From Heller:

1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.
Pp. 2–53.
(a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause.

If the Supremes know that circumscribing means limiting, Chicago is in trouble right out of the gate.

May 5, 2009, 11:54 AM
I don't know what the author is doing getting into the carrying of guns...somebody might point out that Illinois is the last state where there is no legal way for the people to bear arms whatsoever.
Well, that is not completely true.

Loaded open carry is legal in unincorporated areas, as long as you are not near a school or on public property such as a park.

Its just not real useful, and there are some other caveats that make it problematic.

May 5, 2009, 12:57 PM
Interesting. Thanks for the links guys!