Countdown to McDonald

[Al Norris]

I've seen mention (on some other boards), that there are 2 or 3 cases that have yet to be decided. So I got curious and wandered over to the Supreme Courts Website and looked up a few things.

The Following cases (listed in order of oral arguments) have yet to be decided:

08-964 - Bilski v. Kappos - Definition of modern inventions eligible for patents
08-861 - Free Enterprise Fund and Beckstead and Watts, LLP v. Public Company Accounting Oversight Board - Constitutionality of Sarbanes-Oxley Act’s creation of accounting review board
08-876 - Black v. United States - Application of “honest services” fraud law to private conduct
08-1196 - Weyhrauch v. United States - Proof needed in state official’s “honest services” fraud trial
08-1214 - Granite Rock Company v. International Brotherhood of Teamsters - Federal court’s jurisdiction to determine collective bargaining agreement formation
08-1394 - Skilling v. United States - Constitutionality and scope of "honest services" fraud law; also, effect of pre-trial publicity
08-1521 - McDonald v. City of Chicago - Incorporation of Second Amendment against the states
09-198 - Magwood v. Patterson - Successive habeas claims
08-1191 - Morrison v. National Australia Bank - Lawsuits for market fraud by foreign investors
08-1371 - Christian Legal Society v. Martinez - Right of religious student group to benefits at public college without sacrificing beliefs
09-559 - Doe v. Reed - Right of ballot measure petition-signers to have their identities kept confidential

So it appears that there are 11 decisions (including McDonald) that could be handed down in the next few days.

A quick glance at the Courts calendar, shows that this Thursday (24 June) is a conference call. This is where the Justices will look at several petitions for certiorari. It has also been the habit of the Court to issue decisions in cases, on conference days.

The next day that we will want to look at, would be Monday the 28th of June. That is the last non-conference day of the Court. Mondays are the traditional day that decisions are announced.

The last day of this Court session is Tuesday the 29th. If McDonald has not been announced by Wednesday, the 30th, then don't expect it to be announced until sometime after the First Monday of October (the traditional start of the next Court year).

Now, for those not really following such things, there is one other case that (in many circles) may be as important as (if not more than) McDonald. That case is the first case listed: Bilski v. Kappos

To understand why this case may overshadow the gun case, you would have to know something about patents and patent law, as it is currently regulated by the U.S. Patent and Trademark Office, and how and why certain computer programs are patented and not merely copyrighted. Extremely big and important issue.

I want to note this, just in case we don't see a lot of writes-ups (in the newsies) after the release of the McDonald decision.

[lilguy]

The same group of nine that found a right to abortion in our Constitution can also take our gun rights, even thought it STATES they can not. It's an inherent
danger in our system that keeps me up at night.

[Musketeer]

We have a flawed and messy system. We also have what I beleive is the best system around. Every system will have flaws but I will take ours over every other one that is in operation. The biggest danger to a system is it's own people. Through our votes we could do away with every Constitutional principal. All the more reason to be educated and vocal.

I have confidence the decsion will be to affirm the right as being binding on the states. I look forward to the wording.

[DogoDon]

Yep, we're awaiting the Bilski decision with bated breath (I'm a patent attorney). But from a personal standpoint I'm much more interested in McDonald.

DD

[lilguy]

Yea both my bro in laws are lawyers. One sues other professionals the other keeps casinos out of court.They both tell me they believe the 2nd is an individual right open to some controls, like the others. So we have our fingers crossed.

[wally626]

The Supreme Court issued seven decisions this morning. Unfortunately, none of them are the Second Amendment incorporation case we've all been waiting for, McDonald v. City of Chicago or the First Amendment religion and schools case Christian Legal Society v. Martinez (Hastings) Those will be issued Monday at 10AM Eastern, and all signs point to Alito writing McDonald so warm up the skull.

The above from http://ace.mu.nu/ I do not know if this is just rumor or based on good information. Monday appears to be the day. The software patent case is also a big one. Outlawing software patents would put a lot of lawyers out of work, and might drop the price of consumer electronics a few cents each.

[BGutzman]

Im never in a rush to get the weekend over, this weekend is different... Tick tock, cross fingers, hope, hope, hope......

[Jim March]

This thread came out pretty well:

http://www.calguns.net/calgunforum/s...d.php?t=315322

We're now pretty sure it's going to be Alito who writes McDonald. So I went back over the orals and Alito's input...and what I get is the unmistakeable feel that Alito is pro-PorI.

A four page thread follows from there.

If you don't know what "PorI" means, start with my post at #34.

[mack59]

Jim, read the thread, and you do an excellent job of spinning a victory for P&I, though I still believe it is really a long shot. As a poster noted, on some prominent legal blogs they are pointing to Roberts as the author in McDonald. I like your optimism, and we will only really know on Monday. The only thing I disagree with is your statement that only if they go with P&I will McDonald be a huge case. While it is true that such a decision would make McDonald one of the biggest cases in the history of the court - I still think that actual incorporation of the 2nd - even under due process is a huge step and a huge case by itself.

Personally I will be overjoyed if incorporation wins the day by whatever means and even more overjoyed if the justices identify a standard of strict scrutiny - though I think it is highly unlikely they will even identify any specific standard of scrutiny.

In the end I think Scalia and Roberts will rule the day with due process. The USSC, is pre-occupied with outcomes - especially it seems this court - that they will rule in a minimalist way in the end - that none the less supports incorporation.

However, if you are right on this - then I submit that you have internet bragging rights on this in perpetuity and the heck with all those legal experts on those law blogs. I do hope you are right.

I must admit I feel like an old school boy waiting for this decision - I never thought I would live to see Heller - let alone McDonald. If McDonald wins then Gura is a made man for the rest of his life and he will deserve it. Also regardless of the outcome I want to publically thank Mr. McDonald for his service - I had the honor to meet him and he is a truly humble, decent, and honorable man.

[zeezee]

Chicago mayor won’t “roll over” if gun ban lifted.
Written by Tactical-Life.com. Author Archive »

If the U.S. Supreme Court strikes down Chicago’s handgun ban, the city will likely do what Washington, D.C., did when its own ban was overturned two years ago: Put in place all sorts of restrictions to make it tougher to buy guns and easier for police to know who has them.
Prospective gun owners in D.C. now are required to take training courses that include spending one hour on a firing range and several hours in a classroom learning about gun safety. They also must pass a 20 question test based on D.C.’s firearm laws.
Chicago Mayor Richard Daley says he’s encouraged by what he sees in D.C. and vows not go down without a fight.
“We’re not going to roll over,” Daley told The Associated Press.
While he and city officials would not say specifically what plans they have in mind if the Supreme Court rules against the city next week, observers say that a ruling favorable to Chicago gun rights supporters will lead to a new round of legislation — and lawsuits.
“Just like they did in Washington, D.C., the city of Chicago is going to try to make it as difficult and discouraging as humanly possible to keep people from having guns in their homes for personal protection,” said Dave Workman, spokesman for the Bellevue, Washington-based Second Amendment Foundation.
Since the ban was lifted in D.C., just over 800 guns have been registered in city. The relatively low total comes as the district passed the slew of new requirements that also include being fingerprinted and taking ballistic tests, which could help police track bullets back to specific guns if needed.
“The Supreme Court tore down the wall, and D.C. built up 95 percent of it again,” said Richard Gardiner, who is suing the district over the new laws on behalf of Dick Heller, the plaintiff in the original case.
Daley is one of the nation’s most vocal gun control advocates, and has a reputation for wielding his power. And he has a reason to stay tough: while the city’s murder rate has dropped in recent years, but it is still one of the highest in the country.
Washington, D.C.’s police chief, Cathy Lanier, said the city has “yet to have a case where someone was about to be the victim of a crime where someone pulled a handgun and saved themselves.” However, that isn’t the case in Chicago, and many say that could provide the motivation for more people to purchase guns if a ban is lifted.
Source: Don Babwin and Jessica Gresko for AP News.

So, what I' reading here is that even IF the supreme court rules in favor of the 2nd Amendment the corrupt politicians have no intent on allow it's citizens the Rights granted us by God and confirmed in the UNITED STATES CONSTITUTION! Sad, but what is even sadder is to hear people on gun forums arguing for a Constitutional PERMIT to carry in all 50 states. /snip/. Worse yet, WE THE PEOPLE have allowed our elected representatives to screw us by restricting OUR GOD GIVEN RIGHT TO PROTECT OURSELVES! Guns are tools, tools used to defend not only ourselves but our country./snip/

This is a strong hint for folks - if all you have to contribute is a rant, that post will be deleted or edited. We don't insult each other. Also, if one continues to rant - you are not going to continue on this forum. There are other outlets for rants.

[Webleymkv]

I don't know if it will factor into the decision as to when the decision is rendered, but apparently Monday is Justice Stevens last day before retirement. Considering the importance of McDonald, I'd like to think that Stevens would want to be present when the decision is handed down.

[RDak]

All I know is I am so excited I can barely contain myself.

[Brian Pfleuger]

It will be wonderful if this goes out way but I have to say that I don't understand the "excitement".

Assuming we win, one way or the other, it's not going to change ANYTHING for most of us and for the few that it will make a difference, it will still be YEARS before there are significant changes. Probably, several more trips to the high court.

If this comes down on Monday it's not like the people of Chicago will be able to buy guns on Tuesday...


Or even this year, or probably next. I wouldn't be surprised if nothing of substance changes within the DECADE.

[Gary L. Griffiths]

I wouldn't be surprised if nothing of substance changes within the DECADE.

I think you're being a little too pessimistic, Peetza. True, the change will be as minute as possible, a la DC, but the implications for the rest of the country are just stunning. After all, a favorable McDonald ruling will only allow Chicago residents specifically to have handguns firearms in their residences, but the big picture is that it applies the 2nd Amendment to the states.

Illinois & Wisconsin prohibitions on any form of carry -- gone at the first challenge. "May Issue" laws -- on very shaky grounds. Concealed weapons prohibition or licensing -- may well be ruled Unconstitutional by some courts. Assault weapon bans? Forgeddaboutdit! Open door to challenge the '86 machine gun ban, and even the '34 Nat'l Firearms Act (look for the licensing to continue, the $200 tax to evaporate).

You're right in that it won't happen overnight, but laws will be changed and lower courts will begin upholding 2nd Amendment challenges literally next month. And remember, it took us a long time to get to this point, it will take quite awhile to get us back.

[geetarman]

Gary,

Good response.

Geetarman

[Brian Pfleuger]

I think you're being a little too pessimistic, Peetza....
remember, it took us a long time to get to this point, it will take quite awhile to get us back.

That's exactly my point. Sure, it's great, but the changes will be glacier slow. Sure, lower courts will incorporate the ruling "immediately", which means that it will only take a MONTHS to get another case back to a lower court that matters, and a couple YEARS more to get it back to the SC.... and 6 months waiting for them to decide.... only to throw another bone back to the lower courts.

I highly doubt that "may issue" is going anywhere, any time soon. In fact, I would bet that the court will leave plenty enough wiggle room that "shall issue vs "may issue" will not be settled until it gets all the way back to the SC... which will take years.

Personally, I think that even if this was the BEST possible outcome from our perspective, it will still not make even close to the impact that many, or most, of us seem to think that it will.

In reality, I suspect it will be more like an "80/20" sort of win for us in terms of what we'd really want them to say, and that missing 20% will make the whole thing meaningless in the short term for 99% of gun owners and will mean little more than another trip back to the High Court for the other 1%.

[Xfire68]

IL. is only one "Good" mayor and governor change away from CCW! Believe it or not there are a number of pro gun legislators in IL government but, the ones that sign or in many cases VETO bills are the ones that need to go in order to see any real change in this State!

[mack59]

One must look at the long run - it could mean the world to our children or their children. In the closer long term it will mean as Gary posted that a lot of state laws will be open to challenge. Also, not every case after McDonald will need to go to the Supreme Court - what is happening is that a right is recognized, that right is applied to the states, then the courts begin to define a level of scrutiny and how that applies to the RKBA - the whole process builds up a body of law that the courts then begin to rely on to apply the RKBA more rapidly at lower levels - i.e. - DC has draconian rules for handgun ownership - that is being litigated right now - once that happens - say DC's rules are overturned a step before reaching the USSC - DC appeals its loss - but the USSC denies cert - essentially sending the meassage that they are okay with the ruling against DC's restrictions - then suit is brought in another federal court against Chicago and its newly passed restrictions - that federal court looks at Heller, McDonald, and also looks at the results of the DC circuit overturning similar laws and at the USSC deciding not to hear that case and they may well decide to overturn Chicago's restrictions right then and there. Chicago may appeal but they find no sympathetic ear. Now say California or the city of LA passes laws similar to DC and Chicago's and lets say that the federal district out there holds that the laws are constitutional, then on appeal the USSC overturns the decision and affirms the lower federal courts over the DC and Chicago cases in order to address the conflict between the circuits. Thus as the case law develops over time the USSC will be less and less part of the equation and over time even the lower courts will become less involved as attorney generals, legislatures, and city mayors begin to get a clear definition of the right and therefore begin to abide by the bounds of the RKBA. Right now the boundary is fuzzy - and yes it will take time to flesh it out - but if the RKBA means anything at all it will provide significant protection of the RKBA through the courts, especially as that body of law is developed that defines the right.

[Brian Pfleuger]

...look at the long run...laws will be open to challenge...then the courts begin...the whole process builds up...the courts then begin to rely on...that is being litigated - once that happens... they may well decide...Chicago may appeal...

All that is exactly my point. Is McDonald going to be a positive step? Assuming we are even close on the projected outcome, yes, absolutely... but it's little more than a step. I'm glad, but far from excited. It's like winning a battle on day 15 of a 10 year war. Good, but far from the end to be celebrated.

[Al Norris]

Peetza? Do you know what today is?

Today is the Second Anniversary of Heller (new national holiday for gunowners, natch)! Do you truly understand the significance of this?

In simple terms: From Heller, a decision that finally decided the individual right v. collective right theories, to a decision incorporating the second amendment as against the States, it has taken 2 years and 2 days.

That, my friend, is nothing short of the judicial system moving at light-speed!!!

Now add to this, that Heller, take 2, has been decided (summary judgement against Heller) and will shortly be before the D.C. Circuit. A win there (and nobody but the judge in that case, can call what was decided, intermediate scrutiny) will most likely not be granted cert. The onerous registration laws in D.C. will fall and the case becomes citable precedent.

Palmer, is awaiting a decision on its MSJ, which is now blatantly obvious, that judge is awaiting McDonald before issuing an opinion. That decision will mean that D.C. must allow CCW permits, at the very least. D.C. will also have to allow armed travel through D.C. That too will most likely be appealed to the D.C. Circuit (the D.C. government just won't learn), which will most likely uphold the district courts decision. Another case to become citable precedent.

... and no, the SCOTUS will not likely grant cert (to the D.C. government), and will let the circuit decision stand.

Both of the above cases will be finalized within a year. Possibly before the 3rd anniversary of Heller.

Then there are the 4 cases in CA that are awaiting the McDonald decision: Nordyke; Pena; Sykes and Peruta.

And ringing in at the last moment, Peterson v. LaCabe, a CO case that looks very, very good.

Taken together, these cases will set some pretty high standards before the 4th Heller anniversary rolls around.

All of this, if McDonald is incorporated via Substantial Due Process of the 14th amendment. Peetza? This is light-speed for the Courts.

If by some chance McDonald is decided via the PorI clause of the 14th, then all bets are off. Things will be happening at Warp 2+! Count on it.

[Brian Pfleuger]

I hope you're right. The status quo is the quintessential immovable object in the legal world.

I do understand that these cases will be citable precedent, but it's not like the "enemy" is just going to surrender. Virtually every local and state law will have to be fought until the courts will no longer hear it before anything changes on the ground.

[Gary L. Griffiths]

The status quo is the quintessential immovable object in the legal world.

You're pretty much correct in this assessment, but Heller and McDonald will be the status quo. Appellate courts hate to be overruled, and will tend to rule even more conservatively than the Supremes might be inclined to, just to be on the safe side. There will be exceptions, of course, like in DC, but the CA Supreme Court has already deferred ruling in a couple of cases so as not to be overturned if SCOTUS rules in favor of McDonald.

Also, as has been noted elsewhere, the tide has turned on gun control, and that affects legislatures, and even courts, whether or not it's supposed to.

Times are a changein'.

[Musketeer]

Peetzakiller, I know how you feel. I also live in NY, Long Island to be more specific. This ruling will not win the war and the fight will go on. To liken this to WWII this is not VJ day. Heller and macdonald though are Midway. Our side has come back, has momentum and is no moving forward instead of just trying to fend off attacks.

[mack59]

Having been involved with this issue actively for two decades I am filled with incredible emotion over this event. So many individuals and organizations have worked so hard to see this day. It is a watershed to feed the river of freedom - so many scholars on the second amendment and history- so many political activists pushing first concealed carry laws and now open carry, so many standing up to say we want our RKBA back.

Honestly if you asked me ten years ago - I would not have dreamed that I would live to see the day the second amendment and the RKBA was recognized as an individual right.

No this is not the end, there will never be an end - the price of freedom is eternal vigilance. But with a ruling recognizing an individual right in McDonald that applies to the states - it will be a huge victory.

Tomorrow with a win, I will say thanks to God and I will go shooting, and I will look at my children and know that for the first time they live in a nation that has finally legally recognized the their individual RKBA.

[kraigwy]

I give up:

Can some one tell me, in dumb old grunt terms what "PorI" means?