Chicago Gun Case Incorporation Lawsuit

[Al Norris]

freonr22, what Bubbles posted was nothing more than the post by David Kopel over at the Volokh Conspiracy.

If Bubbles had done this here, it would have been deleted as a drive-by post. That said, it makes your post also a drive-by post. I'm gonna leave it up, on this one occasion, only because it reinforces exactly what a drive-by is: That is, a post that contains a link or copy & pasted material with no real comments by the person placing the post.

Please everyone, remember this in the future: If you post a link or any cut-n-pasted material, you must give some opinion or discussion about the link or material.

[Tom Servo]

That said, it makes your post also a drive-by post.

So, it's a drive-by of a drive-by.

The debate on the Volokh site is worth delving into, though. Orin Kerr doesn't believe we'll get a majority on PorI, but I find his betting criteria to be a bit glib. Regarding Roberts and Alito, he remarks that he "[doesn’t] think they’re revolutionaries, and the brief calls for a revolution."

The main problem with his arguments is that the Court had an easy out. If they wanted to stick with a narrow path to incorporation, they could have taken the NRA case, which argues for selective incorporation.

The fact that they took McDonald means they're interesting in revisiting the PorI clause, which means taking a hard look at Slaughterhouse. Gura's brief does an wonderful job of proving the deficiencies of the case.

One concern I'm seeing across the board is, "just how broad would such a ruling be, and where will the Court place boundaries?"

David Bernstein points out:

So, by deciding McDonald on P or I grounds, the conservatives can (1) help ensure the survival of the individual right to bear arms, and ground it in a much less controversial historical context, while leaving more room for federal than for state regulation of firearms; (2) start the process of transferring liberty jurisprudence from the D.P. Clause to the P or I Clause, which should help undermine Roe v. Wade and other rights with no historical basis as of 1868; and (3) allow some room for the Court to engage in serious review of a very narrow category of abusive economic regulations, along the lines of the cases brought by the Institute for Justice (requiring hairbraiders to take a two-year cosmetology course, creating a government-imposed cartel in funeral caskets, etc.)

[freonr22]

Antipitas, I see your point and apologize, I am/was trying to check out the developments of this case on Calguns, thr.org/and us and here and share the info across the sites for the users. I will structure it better in the future, the only point was to share the info, and I see your point.

[Al Norris]

No prob, freon. We are intentionally more strict than many (most?) other sites. The phrase, "take the high road" which became the name of our sister-site, was coined here, first. We continuously raise the bar here. One of the general goals is: More Signal, Less Noise.

Oh, I have been reading the various threads over at the Conspiracy. Kind of instructive to note the various takes. Also instructive that they have a dopple-ganger in J. Aldridge.

[htjyang]

The dirty little secret about the constitution is that with rare exceptions such as constitutional amendments, it is whatever a majority on the Supreme Court say it is. That's why even if PoI is revived, the ballgame is the same: Win 5 votes. It's just that the arguments are different. Even without PoI, liberal justices have been using substantive due process to invent new rights. I really don't see how things can be any worse. On the other hand, reviving PoI helps discredit substantive due process. Furthermore, if conservatives get to define it, that will restrict any potential abuse by lower courts.

In the mean time, the exciting debate continues. Prof. David Bernstein recommends a way to control PoI which is remarkably similar to my own suggestion. At the other end of the libertarian scale, Prof. Randy Barnett (the man who argued Gonzalez v. Raich) went all out in defense of PoI.

I also finished the Rutherford Institute brief and I took away 3 points:

i. One of the points is the same as something I mentioned earlier: It will be very odd if the Court allows the incorporation of other rights but not the right to keep and bear arms.

ii. The brief cited Chicago crime statistics to repudiate the idea that the city's gun control has anything to do with lowering crime.

iii. In order to prevent the Court from assuming that the institute is full of gun nuts who are against any and all regulations, they offered up storage regulations and background checks as what they regard as reasonable. This concession is wise. If the Court concludes that a party before it is a bunch of lunatics, then the case is over.

[RDak]

It does appear that Gura is attempting to put the BOR's into the P&I clause and incorporate them against the States.

IIRC, he mentions that the first eight amendments to the BOR's especially fall under the P&I clause (i.e., when I read his brief).

Very interesting stuff IMHO.

Is it revolutionary. Yes, considering Slaughterhouse has been on the books for so long. But not revolutionary as to fundamental rights IMHO. It was Slaughterhouse that was revolutionary IMHO. But all this boils down to what the framers and writers of the subsequent amendments felt they were doing. Coupled with a review of what has transpired since then as to incorporation.

In the end the SCOTUS will "tell" us the answer.

Once again Al, thanks for the recent link you found by Upham. More reading!!

[RDak]

One of the points is the same as something I mentioned earlier: It will be very odd if the Court allows the incorporation of other rights but not the right to keep and bear arms.

ii. The brief cited Chicago crime statistics to repudiate the idea that the city's gun control has anything to do with lowering crime.

Very good points htjyang IMHO.

Chicago imposed their anti-gun statute to reduce crime. That was its purpose. It has failed, as it did in DC, and this very substantial fact was mentioned in the Heller case. I believe this is an important aspect in the McDonald case also.

Why refuse incorporation of a settled fundamental right when the purpose for eliminating that fundamental right has been an abysmal failure?

You can't. And that is why I feel we will win this case hands down. It may only be by a 5-4 margin but so be it.

ETA: I do believe Hugh's overall opinion on this is valid and, therefore, believe the SCOTUS might make a strong point that this ONLY applies to the 2nd Amendment.

[maestro pistolero]

It has failed, as it did in DC, and this very substantial fact was mentioned in the Heller case.

Convenient for our side, true, but if rational basis is off the table, it shouldn't matter. It may, however, soothe the occupants of the rational basis closet.

[Hugh Damright]

In my searches for legal arguments on the original Privileges and Immunities clause (Art IV sec 2), I stumbled upon a very good article ... by David Upham.

An interesting read ... his take on the scope of the P&I is informative ... his take on the scope of the related federal powers seems radical to me.

The way he seems to construe it, the original intent (Article IV, Section 2) is to have national privileges and immunities which a State cannot deny to citizens of other States, but can deny to its own citizens. I'm finding it difficult to believe that the States made such a compact.

Again it seems to be the case that a view of Article IV, Section 2 provides the foundation for a view of the 14th Amendment ... if we see the original intent as federal protection of P&I but only if a person traveled interstate ... then we might be inclined to see the 14th as extending this federal protection of P&I to citizens in their own State.

[Al Norris]

Hugh, are you saying the David Upham's take on the P&I clause is radical? Or, are you saying that Justice Washington's definition/explanation of the P&I clause was radical?

Since the "note" was on the totality of the Corfield decision and what it (the P&I clause) meant to the founders (of which Washington was one); since it built upon the jurisprudence of prior cases; since it was the foundation for citizenship in Dred Scott, how was it radical?

[Al Norris]

The second amicus brief, by the New Mexico Paragon Foundation, is in. Find it here.

This brief is simple and to the point. It argues that the 2A is incorporated within the 14th amendments Due Process Clause as a fundamental right.

Of the 9 pages of their argument, they do take a shot at the 7th Circuit for assuming that Federalism protects the right of the States to interfere with a fundamental right:

III. RELIANCE ON FEDERALISM TO VALIDATE LOCAL HANDGUN BANS IS MISPLACED.

Federalism is central to this Republic and dearly important to amicus curiae. However, federalism is a shield for States against the federal government, not a sword for States against fundamental, individual rights. States cannot sacrifice those rights on the altar of federalism.

The argument that federalism validates local ordinances banning handguns is spurious in light of Heller. Heller made clear that the right to keep and bear arms is an individual right, not a collective, State right. As such, federalism does not come into play.

[Tennessee Gentleman]

Al,
Good post. Educated me on the legal usage of federalism in this case. I was nonplused about it before as I couldn't understand what Alexander Hamilton had to do with incorporation.

I do find it laughable when antis use "states rights" to make their arguments but won't support state gun laws like those TN passed saying guns made and sold in TN are free from government regulation.

[maestro pistolero]

Nice, tight little brief. Unfortunate misspelling in the summary of the argument, though. Jeez, have a few people read it before hitting PRINT.

The court of appeals’ judgment should be re-
versed because the Second Amendment embodies a
pre-existing, fundamental right to keep and bears
arms.

[Bartholomew Roberts]

Haven't been able to read the Paragon brief yet; but I wasn't blown away by the Rutherford brief. I thought they spent too much time on the persuasion aspect and too little on the law.

Having said that, I really like the quoted part of the Paragon brief. That is about as succinct and concise an explanation of both the opposing argument and the reason why it is false as I have seen.

[Al Norris]

I agree about the Rutherford brief, Bart. Then there is this little "gem."

Brief from the Heartland Institute is up, here.

Best summarized by:

Petitioners have no right to possess handguns to defend themselves, and police have no legal or constitutional duty to rescue citizens from violence.

The Chicago handgun ban has been completely ineffective in reducing handgun murders. Therefore, it does not advance the public interest, and it ought to be found unconstitutional by this Court.

The Heartland Institute does not specify under which means the Court reverses the 7th Circuit, only that crime control via handgun bans are not just ineffective, but a dismal failure.

[publius42]

Nov 12 on chicagoguncase.com:

Also today we received word that the Brady Center will be filing a brief… in support of neither party. That would have to be filed by the deadline for our amici, which is November 23.

Should be interesting.

[Hugh Damright]

Hugh, are you saying the David Upham's take on the P&I clause is radical? Or, are you saying that Justice Washington's definition/explanation of the P&I clause was radical?

Since the "note" was on the totality of the Corfield decision and what it (the P&I clause) meant to the founders (of which Washington was one); since it built upon the jurisprudence of prior cases; since it was the foundation for citizenship in Dred Scott, how was it radical?

Upham's take on the scope of federal powers created by the P&I clause seems radical to me. It is not clear to me that he is "at one" with the Founders, the jurisprudence of prior cases, the foundation for citizenship in Dred Scott, or even Justice Washington's definition/explanation of the P&I clause.

As summarized on page 28, there were several conflicting precedents to Corfield, but I think we need only concern ourselves with two ... "Courts in four states had affirmed, or at least suggested, that the clause protected certain absolute rights of citizenship" ... while "In three other states and one federal circuit, the strictly antidiscrimination reading was affirmed". This antidiscriminatory reading was asserted by Joseph Story in his Commentaries on the Constitution:

"It is plain and simple in its language; and its object is not easily to be mistaken ...It is obvious, that, if the citizens of each State were to be deemed aliens to each other, they could not take, or hold real estate, or other privileges, except as other aliens. The intention of this clause [Article IV, Section 2] was to confer on them, if one may so say, a general citizenship; and to communicate all the privileges and immunities, which the citizens of the same state would be entitled to under the like circumstances."

In contrast, I think of Bingham's view, that Article IV, Section 2 means that a State cannot violate anyone's P&I ... I consider Bingham's view to be radical, but at least he recognized that there was no federal power to do what he imagined.

Upham goes further and construes Article IV, Section 2 to be a delegation of a federal power to define "privileges and immunities" and a power to protect them, but only when a citizen is in a State other than his own.

Let's put it this way ... in my view, if Virginia banned handguns it would not violate Article IV, Section 2 ... in Bingham's view if Virginia banned handguns it might violate Article IV, Section 2 but it would provide no federal power to intervene ... and in Upham's view, if Virginia banned handguns then Article IV, Section 2 might mean that citizens from other States would be above that law and could carry handguns in Virginia while Virginians could not. I don't think that is what Virginia, nor the Founders, had in mind. And it occurs to me that when the US tried to exercise a judicial power over matters between a citizen of one State and another State, the States gave us the 11th Amendment saying the US judicial power shall not be construed so broadly. I don't see how they intended a system where citizens from other States can come into their State and take them to federal court and come out above their State laws which their own citizens are bound by.

In Dred Scott, Taney seems to have an antidiscrimatory reading in mind ... he talks about the right to enter any state and go where they please, but then he adds "unless they committed some violation for which a white man would be punished" .. he talks about the liberty of speech, and then adds "upon all subjects upon which its own citizens might speak". It kind of seems to me like he is saying what I'm saying, that the intent is to prevent discrimination with regard to the P&I. But then he talks about the right to carry arms everywhere we go, without a qualifier that he means to the same extent as other citizens in that State.

In Coryell, Washington seems to have more of an "inalienable rights" view, but it is not clear to me what federal powers he actually envisioned ... the case regarded discrimination against someone from another State. If Virginia banned handguns, would Justice Washington have ruled that to be a violation of Article IV, Section 2? Would he have ruled that Virginia can ban handguns but citizens of other States can still carry handguns in Virginia? Does that seem radical to anyone but me?

federalism is a shield for States against the federal government, not a sword for States against fundamental, individual rights.

The way I understand it, a federal system is a compact between sovereign States. If the States' compact does not delegate federal jurisdiction over our very rights, our fundamental individual rights, then there is no such federal jurisdiction. It's not as if federalism means that the federal government has undelegated jurisdiction over fundamental, individual rights. The US Government was created for no such purpose. As Federalist 45 explained:

"The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.

The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State."

[publius42]

Hugh, you were right before the rest of the amendments were incorporated.

That won't be undone. Nor will homegrown wheat for personal use ever be a local or state matter. Reality.

Given that reality, let's use incorporation and the 2nd to mess with the gungrabbers, OK?

[Hugh Damright]

Hugh, you were right before the rest of the amendments were incorporated.

I think that's what we're talking about now, Article IV, Section 2 ... the original intent. I said that I found Upham's take on it to be radical. He said that the article in question:

"served as a kind of bill of rights, at least for out-of-state citizens. These citizens were positively entitled to certain absolute rights, notwithstanding state laws to the contrary; they had a right to exemptions from laws imposed by a state on its own citizens."

And also we are questioning what federalism is, saying that it doesn't mean that States can infringe our rights ... so I'm pointing out that federalism does not mean that the central government must have undelegated "liberty jurisprudence" ... Federalist #45 seems to say that in our intended federal system "liberty jurisprudence" remains with each State ... so are we to say that such a system isn't federalism?

If we have a false view of the original intent and federalism, then I don't see how we can arrive at a true view of the 14th Amendment. Or maybe truth isn't important, and it's all a question of how we can construe things to our desired end. But I'm not an activist, so I don't lean that way.

[Al Norris]

While constructing a reasonable reply to Hugh, I noticed that the Brief of the Appellants from the Ninth Circuit Incorporation Case of Nordyke v. King, Madison Society, and Golden State Second Amendment Council in Support of Reversal is now up.

Hugh, I'll submit my reply later this evening or tomorrow morning.

[Tom Servo]

Two interesting things pop up in my first reading of the Nordyke appellant brief.

The first is the argument that examinations of the 2A should trigger the same strict scrutiny afforded to other fundamental rights. The Justices in the Nordyke case admitted as much. This coincides nicely with this week's 7th Circuit decision, which is bound to come under consideration.

The second is this:

An opinion in the McDonald case that incorporates the Second Amendment against the states, but which also includes a holding that all laws regulating the “right to keep and bear arms” must be uniform within
each state serves the following functions: (1) Since firearms are ubiquitous, exercising the right to possess firearms should not conflict with the right of intrastate travel11; (2) law-abiding firearm owners need only acquaint themselves with federal and state laws, instead of being held criminally accountable in every town, city, county, and parish they travel through within their state while exercising a fundamental right; and (3) instead of the municipal codes of tens of thousands of cities and counties being subjected to challenges under the Second Amendment, a constitutionally recognized, baseline preemption of “the right to keep and bear arms” that funnels down those challenges to the bodies of law of 50 states plus one federal body of law, strangles the majority of potential lawsuits in their crib

The argument is that we should have a unified, consistent standard of review that would not be subject to local or regional interpretations.

[RDak]

Convenient for our side, true, but if rational basis is off the table, it shouldn't matter. It may, however, soothe the occupants of the rational basis closet.

Maestro, I'm not clear on what you are saying because the 7th Circuit remanded the case back to the lower court to apply intermediate scrutiny for people wanting to own a firearm for hunting purposes. (It would have been strict scrutiny for someone owning a firearm for self defense purposes as you know.)

That places the burden of proof on the government and it must be shown that there is some substantial societal benefit for the prohibition(s).

If the crime reduction statute of the government has not succeeded than intermediate scrutiny, as per the 7th Circuit, would result in the government's failure to show substantial societal benefit wouldn't it?

Wouldn't the SCOTUS also conclude intermediate and strict scrutiny place the burden of proof upon the government?

And, most importantly, we have to hope the SCOTUS goes for strict or intermediate scrutiny, otherwise the government doesn't have to prove their scheme to prohibit firearms ownership had any benefit. (I don't see where rational basis scrutiny is off the table with the SCOTUS.)

Look at it in reverse, if the gun prohibitions of Chicago and DC were very successful in reducing crime, I'd bet we would have a MUCH more difficult road to travel in showing those statutes were unconstitutional.

[Al Norris]

Originally Posted by Hugh

In Coryell, Washington seems to have more of an "inalienable rights" view, but it is not clear to me what federal powers he actually envisioned ...

Hugh, that "inalienable rights" view was in fact the Lockean natural rights view that the founders held.

The antidiscriminatorian view is what supplanted the natural rights view. Since we are talking about original public meaning here, we must necessarily look to the natural rights view and discard the (developing) antidiscriminatory jurisprudence.

Again, we are discussing the rights of citizenship as opposed to the rights of aliens. Another Lockean concept that has been held as valid in English Common Law, both before and after the revolution.

Under Art. IV § 2, "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." This was a contracted version of what was said under Article IV of the Articles of Confederation, "The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall have free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions as the inhabitants thereof respectively, provided that such restrictions shall not extend so far as to prevent the removal of property imported into any State, to any other State, of which the owner is an inhabitant; provided also that no imposition, duties or restriction shall be laid by any State, on the property of the United States, or either of them."

All this to say that there was an assumed natural citizenship, to which all free men of the colonies held certain inalienable rights in common, that the States could not deny.

The prevailing fear, was that as independent States, that they would begin to treat each other as aliens, and not as the "friends and neighbors" that they had been under English rule. Yes, the Independent States were sovereign under the Confederation, but they were all still one people.

From David Uphams "Notes," pg. 28:

As has been shown, when the case of Corfield v. Coryell came before Justice Washington’s circuit court, several conflicting precedents as to the meaning of the Privileges and Immunities Clause were available. Courts in four states had affirmed, or at least suggested, that the clause protected certain absolute rights of citizenship—including the right to acquire, hold, and convey real property, and the freedom from discriminatory economic regulation and taxation—but not the political rights of citizenship.126 In addition, two of these state courts had noted that the clause also secured the right to security in person and property, both by the government and from the government.127 Courts in two states affirmed that the clause was designed to restrict the federal government.128 In three other states and one federal circuit, the strictly antidiscrimination reading was affirmed.129

• 126. These states include Delaware, Maryland, Massachusetts, and Virginia. See Douglass’ Adm’r v. Stevens, 2 Del. Cas. 489, 502 (Del. 1819); Campbell v. Morris, 3 H. & McH. 535, 553–54 (Md. 1797); Ainslie v. Martin, 9 Mass. (8 Tyng) 454, 460 (1813); Murray v. M’Carty, 16 Va. (2 Munf.) 393, 398 (1811). For more discussion of these decisions, see supra subparts IV(A), IV(D).
• 127. Maryland and Delaware. See supra notes 77–89, 114–23 and accompanying text.
• 128. Delaware and Tennessee. See supra notes 94–95, 114–19 and accompanying text.
• 129. New York, Kentucky, North Carolina, and the D.C. Circuit. See supra subpart IV(C).

So while the preceeding courts held to slightly different views, the majority however held to the inalienable rights theory. This then, sets the atmosphere for Justice Washington in Corfield.

A careful read of Corfield v. Coryell, one sees that Justice Washington defined a 2 part test on just what composes the privileges and immunities of this national citizenship:

[/quote]We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign.[/quote]

(1) They belong, of right (and not merely indulgence) to the citizens of all free governments.

(2) They have been enjoyed by the citizens of the several states since independence.

Any of the rights listed within the Federal Bill of Rights that pass those two criteria are of their nature, a privilege and/or immunity as recognized by Art. IV § 2.

As to whatever powers the Federal Government may have had in respect to Art. IV § 2, it was precluded a mere ten years later by Barron. In that case, the Court looked at the Constitution and correctly surmised that nowhere was the central government given a power to enforce the federal rights upon the States, therefore, such rights were entirely federal in nature, and did not apply to the States.

Even so, Dred Scott still recognized those rights of citizenship to include everything that Corfield laid out, and also many of the rights enumerated in the Bill of rights. Dred Scott called these rights, privileges and immunities, several times.

What the Congress was left with, at that time, was that while the privileges and immunities of Art. IV § 2 and the Bill of Rights stated the rights of an assumed federal citizenship that the States were to acknowledge, the central government had no mandate of power to enforce those rights upon the States (Barron).

The purpose (should I say goal?) of the 14th amendment was twofold: First, to overturn Barron v. Baltimore. It achieves this by declaring a national citizenship; That US Citizens have certain privileges or Immunities that the States could not interfere with; Second, to give to the Congress a power they did not until then, have: The power to enforce these rights upon the States.

[Hugh Damright]

the preceeding courts held to slightly different views, the majority however held to the inalienable rights theory.

The assertion that four States affirmed (or at least suggested) that the clause protected certain absolute rights of citizenship, while three States and one federal circuit gave it a strictly antidiscriminatory reading, seems to indicate that the antidiscriminatory reading was the greatest precedent and the only federal precedent.

the central government had no mandate of power to enforce those rights upon the States

Upham said there was such a power, but it only extended to out-of-state citizens. I don't know if you agree or disagree with his assertion that Article IV, Section 2:

"served as a kind of bill of rights, at least for out-of-state citizens. These citizens were positively entitled to certain absolute rights, notwithstanding state laws to the contrary; they had a right to exemptions from laws imposed by a state on its own citizens."

[maestro pistolero]

Maestro, I'm not clear on what you are saying because the 7th Circuit remanded the case back to the lower court to apply intermediate scrutiny for people wanting to own a firearm for hunting purposes. (It would have been strict scrutiny for someone owning a firearm for self defense purposes as you know.)

I think we are mostly agreeing here. Whatever the 7th did regarding intermediate scrutiny is not as significant as the Heller case's dismissal of the use of an interest-balancing approach to weighing a fundamental right.

I'm just saying the fact that their gun ban didn't work for the purpose for which it was ostensibly created, may have a softening effect on those justices who haven't fully cleansed themselves of the notion of using less-than strict scrutiny.

By the way, the Cato brief is in