Chicago Gun Case Incorporation Lawsuit

[KyJim]

It's been too long since I read any Orwell but the terms doublethink and doublespeak certainly sum it up.

[Tom Servo]

It's been too long since I read any Orwell but the terms doublethink and doublespeak certainly sum it up.

Oceana has always been at war with Europa.

Think about the scenario, though: Chicago needs a lawyer to argue their case before the Supreme Court. It's a weak case, built on fallacious readings of precedent, and any lawyer taking it is going to be up against the Guy Who Won Heller.

Not the most enticing job offer, is it? I don't imagine many folks were fighting over it. So, Chicago (like DC in 2008) had to settle for whoever was willing to utter those two magical words: "why not?"

I'm willing to guess that Feldman probably didn't believe too strongly in Chicago's case, and as such, he wasn't as prepared as he should have been. Poor guy got eaten alive.

While I'm still digesting it all, perhaps this will explain Breyer's stance:

[wally626]

Just finished reading the transcript. It is pretty clear why the court wanted the NRA Lawyer, Clement, it looks like Due Process is it. None of the Justices seemed to want to use the privileges and immunities clause although Gura plugged it as much as he could even in rebuttal. Neither Gura or Feldman seemed to get much respect from the Justices, but certainly Feldman got hammered a lot more. Clement had a few longer monologues whereas Gura and Feldman got cut off lot.

[Tennessee Gentleman]

After some more reading and study it seemed to me that the court does not want to go the P&I route as it would open a sort of Pandora's box for future decisions. Since courts tend to like narrow interpretations and thereby give maximum leeway to future cases I see now why the NRA wanted in. Gura is a libertarian and might have been looking at more issues than just gun rights. Man, I am glad I am not Mr. Feldman. Wow! Did they ever beat him up! By the end of the transcript I couldn't figure out what his position was.

[alan]

Sort of an aside, possibly off point, but I think interesting, some might agree, some won't.

Chicago's Mayor, as I recall mouthed something to the effect that The Second Amendment Would Be Different In Chicago, or It Would Have a Different Meaning.

Going along that line of "thinking", might it be that Freedom of Religion, Freedom of Speech, also the subject of constitutional guarantees might be exercised or allowed in parts of the country, but as for Chicago, special circumstances would be the rule of the day? After all, the administration there would hardly be expected to allow remarks/speech held "insulting to itself", would it?

[Tom Servo]

By the end of the transcript I couldn't figure out what his position was.

I don't think he knew, either. Poor guy.

JUSTICE SCALIA: Is that what you are asserting here, that the States have to allow firearms?
MR. FELDMAN: No.
JUSTICE SCALIA: Is that –
MR. FELDMAN: I — I didn't think I was.
JUSTICE SCALIA: I didn't think so, either, so why did your last argument make any sense?

JUSTICE SCALIA: See, the right to keep and bear arms is right there, it's right there in the Bill of Rights. Where do you find the right to self-defense?

MR. FELDMAN: Well, I -

JUSTICE SCALIA: You — you want us to impose that one on the States but not — not the explicit guarantee of the right to keep and bear arms. That seems very strange.

CHIEF JUSTICE ROBERTS: I'm trying to get you to take a position on whether or not you want us to not only pick and choose among which amendments are part of our abstract notion of ordered liberty, or if you want us also to take amendments that might be in and refine them and shave them off a little bit and say well, this part of the amendment is in, and this part isn't.

MR. FELDMAN: No, that's not the argument that we are making.

CHIEF JUSTICE ROBERTS: Okay. So your argument is all in or all out.

MR. FELDMAN: The argument we're making - yes.

CHIEF JUSTICE ROBERTS: Okay.

[RDak]

Read the transcript and agree with what everyone here is saying.

I'm kind of an emotional guy when it comes to the 2nd Amendment and am about as happy as I can get right now.

Incorporation is in but we'll have to wait and see the level of scrutiny set by the Court.

Do you guys think the Court will set the level of scrutiny?

(To me, I think they will because they kept talking about "how much of the 2nd Amendment to incorporate".)

[BillCA]

I have to admit, whatever you think of the justices, you can't say they aren't well prepared and informed.

Feldman had to have left the court feeling like he was whipsawed, flayed and hung out to dry.

I think my favorite exchange with Feldman was this one...

JUSTICE SCALIA: Mr. Feldman, let me take your argument at -- at its face value. Let's assume that the only reason it is there and the only purpose it serves is the militia purpose. Isn't that militia purpose just as much defeated by allowing the States to take away the militia's arms as it would be by allowing the Federal Government to take away the militia's arms?
MR. FELDMAN: Yes, but I -- that -
JUSTICE SCALIA: Then so -
MR. FELDMAN: But that -
JUSTICE SCALIA: -- even if you assume that the whole thing turns around the militia prologue, that prologue is just as -- just as important with respect to the State's depriving the people of arms.
MR. FELDMAN: But I don't think the argument -- the primary argument that is being made today, that this is implicit in the concept of ordered liberty or sufficiently fundamental or whichever other formulas -
JUSTICE SCALIA: You are switching horses now.
MR. FELDMAN: No, I'm not.

Feldman was put into the position of trying to argue the non-enumerated right to self-defense is a right guaranteed by the constitution while arguing that the explicit right of the people to keep and bear arms was not. This is like saying you have a right to earn money, but not be able to buy anything.

The P&I argument appeared to be a dead horse right out of the gate. Gura took a beating over bringing it up and the justices were obviously looking for what Gura thought the implications would be.

Paraphrasing some of the dialog here....

CHIEF JUSTICE ROBERTS: Of course, this argument is contrary to the Slaughter-House cases, which have been the law for 140 years. It might be simpler, but it's a big -- it's a heavy burden for you to carry to suggest that we ought to overrule that decision.
:
SOTAMAYOR: What is it that has been caused by it that we have to remedy... in which ways has ordered liberty been badly affected?
:
GINSBURG: But just tell us the dimensions of what it is. I mean, we have the eight amendments, so I know you say that's included. Keep and bear arms would be included even absent the Second Amendment. What unenumerated rights would we be declaring privileges and immunities under your conception of it?
:
SCALIA: Mr. Gura, do you think it is at all easier to bring the Second Amendment under the Privileges and Immunities Clause than it is to bring it under our established law of substantive due process? [Gura begins to respond...] I'm not talking about whether the Slaughter-House Cases were right or wrong. I'm saying, assuming we give, you know, the Privileges and Immunities Clause your definition, does that make it any easier to get the Second Amendment adopted with respect to the States?
MR. GURA: Justice Scalia, I suppose the answer to that would be no, because -

It appeared to me that the Justices were well aware that the P&I clause could open Pandora's box with respect to defining what is...or is not... included. The right to health care? The right to a share in your company's profit? The right of gay couples to adopt children?

Had Gura focused on a list of what he thought would be included he might have circumvented some of the drubbing he got from the court. But I think the court had already decided not to go down that route... The real question was whether they could incorporate via Due Process. And I suspect the dissenting opinion(s) will focus on the Due Process arguments.

[RDak]

Yes Bill, I assume the Justices are worried that if P&I is granted, the court dockets throughout the USA will be overwhelmed with suits and litigation.

That is the real world, not the "perfect" world.

ETA: I want to hear more from you guys on how the level of scrutiny will go.

Please give your opinions if you have the time and/or inclination to make a prediction.

I'll say "heightened" intermediate scrutiny. Why? Just a guess.

[Bartholomew Roberts]

You know, I can see the point the Justices were trying to make with regard to unenumerated rights and I agree that Gura did not assuage their concerns in that regard.

Still the questions asking him to name the unenumerated rights - isn't that an impossibility by definition?

e·nu·mer·ate (-nm-rt, -ny-)
tr.v. e·nu·mer·at·ed, e·nu·mer·at·ing, e·nu·mer·ates
1. To count off or name one by one; list: A spokesperson enumerated the strikers' demands.
2. To determine the number of; count.

I would think that the very term "unenumerated" would explain that it is not possible to determine the number of these rights. Of course, I can also understand why the Court is going to balk when they ask "What unenumerated rights are we recognizing by P&I?" and the answer is "Well, basically it is an unknown number of as yet unstated rights; but it includes the right to bear arms."

[Tennessee Gentleman]

Originally Posted by RDak

I want to hear more from you guys on how the level of scrutiny will go.

Well my vote is that will not be strict scrutiny or rational basis so somewhere inbetween. I read somewhere that the SCOTUS is trying to get away from those other two levels as they are too deterministic by design.

[Tom Servo]

Judging from the Justices' comments, my guess is that that they didn't feel that this case was the one to challenge the validity of Slaughterhouse. None of them said that it was good law; they just seemed reluctant to take on the workload involved.

It has been a busy term, and this case comes near the end. Having to overturn a significant precedent and manage the implications may have seemed too daunting. While I disagree, they seem to think that a) this matter needs to be settled, and b) Due Process is the most efficient way to do so.

However, if that's the case, why did they choose to hear McDonald and not NRA v. Chicago? Maybe there's something they're not letting on. The orals don't tell us everything.

I'll say "heightened" intermediate scrutiny. Why? Just a guess.

I think you're right. U.S. v. Skoien came up with a model that they may find workable.

[Musketeer]

It should be strict scrutiny but I would wager the level of scrutiny is completely absent when the decision comes down. Complete bans will fall and the level will have to be established through another case(s).

[BillCA]

Originally Posted by RDak

ETA: I want to hear more from you guys on how the level of scrutiny will go.

A) SCOTUS doesn't specify the scrutiny.
Here's what I think will happen. One of the pending cases - Nordyke, Palmer or Hodgkins will be up before an appellate court and they will question the level of scrutiny they're supposed to apply. The Federal court will likely invoke strict scrutiny because that is typically what is used to decide cases involving "fundamental rights". If they are wrong, SCOTUS can overturn them on appeal.

B) SCOTUS Specifies scrutiny - something less than strict
The scope of the right is almost completely undefined. If SCOTUS has an interest in shaping, limiting or expanding the right, they may say that some other form of scrutiny is to be used, other than strict. That gives lower courts the chance to settle the "easy" challenges and leaves SCOTUS free to pick and choose the serious ones.

C) SCOTUS specifies strict scrutiny
I'd be surprised (but very pleased) if they specified strict scrutiny. If they feel that strict scrutiny will allow lower courts to properly decide most cases and reduce their workload, they'll go this way.

One thing about a less-than-strict scrutiny that might be a win-win for our side... if cases are decided in our favor based on an "intermediate" scrutiny we win. If the Brady-ites appeal to SCOTUS, they risk having The Court define strict scrutiny as proper (and harder for them to win). If we lose with "intermediate" scrutiny then we can appeal to SCOTUS to argue strict scrutiny is proper for a fundamental right. In either case, we are miles ahead of where we stand today.

[Bartholomew Roberts]

My predictions:

Thomas - Second applies to Chicago via P&I clause, Chicago ban fails scrutiny
Roberts, Alito, Scalia, Kennedy - Second applies to Chicago via due process, Chicago ban fails scrutiny
Ginsburg - Second applies to Chicago via due process, Chicago ban meets scrutiny
Stevens, Breyer, Sotomayor - Only "core" militia right of the Second applies to Chicago through due process, the individual self-defense right described in Heller is not incorporated

As much I as would like to see more guidance on scrutiny, I am afraid we would not be very happy if they got too into specifics with this case. After all, the core issue of whether Chicago can ban is still likely to be a 5-4 split, so I am guessing more vague pronouncements on scrutiny in order to give the lower and state courts latitude to develop precedent on specific issues. However, I think we'll see the majority reaffirm that this is a fundamental, enumerated right and deserving of such protections as other fundamental, enumerated rights and that the Chicago ban doesn't cut it.

The big questions I have are:

1. Which laws will California be accomodating enough to fightall the way to SCOTUS for us?

2. It seems the minority from Heller thinks they can swing one of the majority Justices with an incorporation-lite approach. I wonder who that "swing" Justice is and how he feels about firearms in general, because a lot of opinions are about to be written with him in mind.

[maestro pistolero]

I would be pleased if the court at least said that bearing a functional weapon has got to be somehow accommodated by the states for any not-prohibited person, in some way that isn't surmountable or unnecessarily burdensome.

I am really interested to see what happens in NY, where out-of-staters have no path whatsoever to even possess a handgun. (state permit is required but not issued to non-residents) Prohibiting mere possession, even in a locked container doesn't satisfy any standard of scrutiny, as it is a effective ban for a certain group of people, i.e. anyone not from NY.

[publius42]

Breyer's view of guns:

Now, think of this, too: That when you have
the First Amendment, or some of the other amendments,
there is always a big area where it's free speech versus
a whole lot of things, but not often free speech versus
life. When it's free speech versus life, we very often
decide in favor of life. Here every case will be on one
side guns, on the other side human life.

Guns are never used to actually save lives, huh? Makes you wonder what he thinks of armed police and armed soldiers, let alone armed citizens not employed by the government.

[Tom Servo]

Guns are never used to actually save lives, huh? Makes you wonder what he thinks of armed police and armed soldiers, let alone armed citizens not employed by the government.

Hence Scalia's quip about Miranda rights.

Bart, do you think they can actually incorporate a "militia-only" right and split Heller that way? Not that I wouldn't put it past them to try...

I'm not so sure Sotomayor's not for Due Process, however. It's hard to tell tone of voice from the transcript, but her questions to Feldman seemed more like criticism than clarification:

Would you be happy if we incorporated it and said, reasonable regulation is part of the incorporation? And how do we do that?

Likewise, her reservations to overturning Slaughterhouse aren't really any different than Scalia or Roberts. At this point, she's an unknown quantity, but I wouldn't count her out yet.

[Bartholomew Roberts]

Bart, do you think they can actually incorporate a "militia-only" right and split Heller that way? Not that I wouldn't put it past them to try...

I don't think that approach will win a majority; but it was clear that Breyer and Stevens were both floating versions of that idea at orals. If they are doing that, then it seems they must think they might be able to lure one of the Heller majority away while holding on to all of the dissenters.

For that reason, I put Sotomayor in with Stevens and Breyer. I still hold out some hope for Ginsburg; although maybe I am being overoptimistic there. I think she realizes that incorporation-lite would be an ugly way to do it when she can just incorporate and lower the level of scrutiny (which I don't think she would mind doing for the federal law either).

Frankly before orals, I thought it might be 9-0 or 8-1 for incorporation given the case. I figured the dissent would rollover on that issue and concentrate on setting the bar for scrutiny so low that an overweight snail could make it over. Looking at the oral arguments though, it looks like at least Stevens and Breyer think that you can incorporate only those parts of fundamental rights that you feel comfortable with.

Originally Posted by J. Breyer

Here every case will be on one side guns, on the other side human life.

:barf: Yes, I bet if we go back through Justice Breyer's decisions we won't find one case of him placing a Constitutional principle he respects ahead of human life.

[Al Norris]

Having read most of the blogs, then comparing those statements with the actual text of the oral arguments, I find that people are reading into the orals what they fear. Consider the following remark by Lyle Denniston (scotusblog):

In the first comment from the bench after Gura had barely opened, Chief Justice John G. Roberts, Jr., noted that the Court had essentially scuttled that argument with its ruling in the SlaughterHouse Cases in 1873.

That was published shortly after the orals. The media and bloggers took that statement up, and ran with it. Even after the transcript was published, no one actually referred to the actual text, without looking through the Denniston filter:

Originally Posted by C. J. Roberts

Of course, this argument is contrary to the Slaughter-House cases, which have been the law for 140 years. It might be simpler, but it's a big -- it's a heavy burden for you to carry to suggest that we ought to overrule that decision.

Now the above does not exactly say what Denniston has implied - That the P or I incorporation is a dead issue. If we are to believe that the P or I clause is a dead end, as regards incorporation, then we have to call C.J. Roberts a liar and a fraud:

Originally Posted by C.J. Roberts

Likewise, if adherence to a precedent actually impedes the stable and orderly adjudication of future cases, its stare decisis effect is also diminished. This can happen in a number of circumstances, such as when the precedent’s validity is so hotly contested that it cannot reliably function as a basis for decision in future cases, when its rationale threatens to upend our settled jurisprudence in related areas of law, and when the precedent’s underlying reasoning has become so discredited that the Court cannot keep the precedent alive without jury-rigging new and different justifications to shore up the original mistake.

The quote above is from Roberts separate concurrence in Citizens United. In fact, his entire concurrence, in that case, was to fully justify when and where stare decisis should not hold.

I suggest that the Court does not operate in a vacuum. The Justices do not say one thing in one case and contradict themselves in the next case (yes, these two cases are not back-to-back. Yet the timing of the release of the Citizens United decision, and this cases orals is, I believe, no coincidence). Either the Chief Justice is a fraud, or he has very clearly laid the groundwork for a decision in McDonald.

Many have commented upon Justice Scalias opening remarks to Gura. I suggest that this was well prepared snark. Those of us that watch/read the Court, are well acquainted with his (dry) sense of humor. This too has been passed over by most in the media and blogsphere.

What I'm suggesting is that we all stop and re-read the orals, without the Fear, Uncertainty and Doubt that seems to be all consuming with even the most ardent supporters of McDonald. This doesn't mean those others are wrong. But perhaps you may reach a slightly different opinion, without going through the filters of those others.

[Japle]

Assuming that the Court finds for incorporation, the devil will definitly be in the details. How the Court defines certain items will determine how much firearms freedom we end up with. I expect that this will take a few more Supreme Court cases and several (maybe 10-15) years to shake out.

Let's look at some possible definitions.

"Keep" - This almost has to mean the same as "own" and/or "possess". The majority opinion in Heller said as much. Not much wiggle room there.

"Bear" - This almost has to mean the same as "carry". Once again, there's not much you can do to screw up "bear".
The fun will start when they define legal carry methods. The Court might state that concealed carry may be regulated, but open carry may not. It'll be very hard for them (I hope) to find that carrying a gun, one way or the other, while you go about your daily business isn't a fundamental protected right under the 2nd Amendment.
Here's an analogy:
Under the 1st Amendment, you have to get a license to run a radio or TV station, but you can climb up on a plastic milk crate on any public street corner and have your say. I expect the Court to find that it's OK to charge a fee and require a license to carry a concealed weapon, but that it's not permitted to do the same for open carry. There has to be a "milk crate" equivilant for the "bear" part of the 2nd Amendment.

"Arms" - There's gonna be some argument over this one. In the Heller oral arguments and decision, the Court made it pretty plain that it considered "arms" to mean any firearms "in common use". That would include virtually all shotguns, revolvers, single-shot and bolt action rifles and semi-auto pistols and rifles including those with "high capacity" magazines.
The anti-gun groups can be expected to fight this tooth and nail. They'll scream loud and long about "semi-automatic assualt weapons". Of course, a "semi-automatic assault weapon" is like a "four-wheel-drive Prius". No Prius is FWD and no semi-auto rifle is an assault weapon. Assault weapons are full auto or select-fire. You can convert a semi-auto to full auto (it's a Federal felony) and you could probably convert a Prius to FWD. When you got finished, the car wouldn't be a Prius any more and the assault weapon wouldn't be a legal semi-auto any more. Brady Campaign take note.

IMHO, the best we can hope for is that the Court eventually rules:
1. That states my not regulate the possession and carry of arms "in common use" by law-abiding citizens, except that,
2. States may regulate concealed carry.
3. Since "arms" includes long guns, open carry may not be regulated.
4. Sales of arms, ammo, reloading equipment and components may not be regulated or unduly taxed.
5. Nothing should stop states from regulating possession of arms by criminals or crazy people.

As I said, this will take a decade or more, although I expect to see major changes in the next few years.
Lots of lawsuits.
Lots of drama.
It'll be fun to watch.

[Hardcase]

Through the first half of James Feldman's argument, I got the impression that he thought that the Second Amendment should not be incorporated against the states because it was "different" from all the other enumerated rights. Well...that was after his attempt at arguing statistics.

Then, somehow, the argument shifted from its differentness to something that seemed to go along the lines of "Chicago isn't a state and no state has banned guns, so there's no reason to incorporate the Second Amendment against the states."

Then things really got muddy as all of the justices, even those in opposition to Heller ate him up. Then there was this Orwellian concept that some rights are more equal than others.

On the other hand, both Alan Gura and Paul Clement seemed to argue the "in for a penny, in for a pound" philosophy of incorporation, to wit: since practically all of the Bill of Rights has been held to apply against the states, why should the Second Amendment be an exception? In fact, I believe that Mr. Gura suggested that the whole Bill of Rights ought to apply to the states, not just those parts that had been previously incorporated.

I always enjoy reading Supreme Court transcripts. The justices, regardless of my opinion of their opinions, strike me as absolutely brilliant inquisitors. Clearly, if you don't have all of your ducks in a row as an attorney, you're going to get utterly hammered. I'm glad that I don't live anywhere near Washington, DC, but if I did, I think that I'd spend as much time as I could listening to oral arguments at the court.

BTW, I believe that McDonald is going to win this appeal. What I'm not sure is just how much of the Second Amendment right will be incorporated against the states. I suspect that it will be fairly limited. My gut feeling is that banning an entire class of firearm (as in handgun, rifle, shotgun) will be struck down, but stringent controls regarding carrying them outside of the home will be left alone.

[green-grizzly]

I think it will be a 5-4 opinion again. Ginsburg asked some fairly piercing questions in the last oral agument, as did both her and Sotamayor in this case, but the liberals will just not give an inch on the RKBA when the chips are down. In the end, they will join the doublespeaking nonsense opinions put out by Stevens and Breyer. The libs want a heavily divided court so that they can claim that Heller is weak precedent and overturn it at some point in the future. They have no intellectual integrity.

I doubt we will get any ruling on the level of scrutiny required. The Chicago law is basically the same as was present in Heller. Like Heller, the only issue is whether the government can ban handguns in the home. If it protects anything, it protects that. The 5 conservative judges did not seem at all interested in holding that some lesser level of protection should apply against the states. Clement was very good on this issue against Stevens. Even Chicago agreed that it was all in or all out, but I don't see it as a big issue for the court as the law is so draconian and outside the mainstream.

I agree with Japle above that this process will take a long time. I think that makes a lot of sense. As state gun laws have liberalized in most of the states over time, it has not all happened at once. Changes are made incrementally, and when each change does not produce the promised blood in the streets, people are comfortable with more changes. Fifteen years ago I could not carry a concealed weapon in my state. Now with a permit I can carry a gun to a bar, on a college campus and in a grade school. Those changes occurred incrementally. The problem is states that never get to start down that slippery slope because their gun laws are stuck in the 70s; hopefully the federal courts will give them a shove.

[KyJim]

Ultimately, I think the Court will incorporate the 2A on due process grounds with Thomas possibly concurring through the P&I Clause. I don't think they'll say a thing about the level of scrutiny and will parrot a lot of the language of Heller on what firearms in "common useage." The question upon which the Court granted review dealt only with incorporation, not the level of scrutiny.

[Webleymkv]

My gut instinct on this is that 2A will be incorporated through due process. Roberts and Scalia both seemed rather uncomfortable with P&I, and I don't really see Thomas siding with the liberal Justices over it. I do have some hope for Sotamayor as she seemed at least willing to consider both sides, but given her record I'm not going to hold my breath.

With regards to the issue of carry, I kind of doubt that the court will say much one way or the other. The current court seems to prefer to stick very strictly to the issue at hand, and carry be it concealed or open was not part of the issue with Heller nor is it with McDonald. I kind of get the feeling that the court views carry as an issue best handled at the state level and in many ways I agree with that.

Besides, I think the issue may be a moot point before long anyway as I think there will be some sort of legal carry in Illinois and Wisconsin within the next ten years without SCOTUS involvement. Having grown up in central Illinois, I can tell you that the attitude towards carry in the central and southern parts of the state is very different than that in the northern parts. What I can see happening is Illinois becoming a "may issue" state like California or New York. I can see Chicago and other liberal districts putting up enough of a fight to kill "shall issue" but I can see them letting "may issue" get through as that would allow them to continue their draconian ways within their own districts without such great risk of leaving them vunerable for another lawsuit.