Chicago Gun Case Incorporation Lawsuit

[wally626]

The extent to which these requirements would be upheld under the Second Amendment is at present unclear. The Court noted that the term “bear” in the Second Amendment “refers to carrying for a particular purpose—confrontation.” Heller, 128 S. Ct. at 2793; see id. at 2818 (citing state decision holding that statute forbidding openly carrying a pistol violated
state Second Amendment analogue). Conditioning the open or concealed carrying of firearms on particular showings of good cause or need could therefore conflict with the Second Amendment. Of course, there may be many places in which a State would conclude that the unlicensed open or concealed carrying of weapons poses no concern. But surely there are others, such as gang-infested areas of major cities, in which such carrying could increase gang- related domination and intimidation and cause the local community to prohibit it. See In the Matter of Atkinson, 291 N.W.2d 396, 400 (Minn. 1980) (“‘such widespread handgun possession in the streets, some- what reminiscent of frontier days, would not be at all in the public interest’”) (citation omitted). Insofar as the Second Amendment would limit the ability of those jurisdictions to do so, incorporation could substantially affect the security of residents and correspondingly decrease—not increase—the zone of “ordered liberty” in which they may exercise their other freedoms.

Interesting passage, if lots of criminal are carrying concealed or open, it is less intimidating to the public to take away the publics right to carry guns???? Outlawing carry is not going to keep the criminals from carrying. Chicago does support that the Courts are likely to rule against may issue states if Chicago lose. I certainly hope so.

[RDak]

Good point Wally.

Al's preliminary summary:

How Many Ways Do I Loathe Thee? Let me count the ways....

Quote:
Originally Posted by Chicago
The Second Amendment precludes an “interest balancing” approach and a ban on weapons in common use. But the States have generally adopted a “reasonable regulation” approach under which even stringent restrictions or outright bans of particular firearms are ordinarily upheld.

Written, no doubt with a straight face, all the while ignoring the Ruling in Heller, which did, in fact, strike down an outright ban.

Quote:
... it [the second amendment] was codified to protect the militia by eliminating the threat that the federal government would take away the arms necessary for militia service. Nothing in the congressional debate over the Amendment suggests any view that a private arms right unconnected to preservation of the militia was thought implicit in the concept of ordered liberty.

Did Chicago forget that this "collective rights" argument is now a dead letter?


Quote:
Petitioners’ argument that an unenumerated constitutional right to self-defense supports incorporation should be rejected.

And here I thought that Heller ruled that self defense was an essential ingredient of the Second Amendment. I must have been reading a different decision!
Oh, this response just keeps on getting better!

Quote:
The ambiguous text of the Clause, which does not mention “rights” at all, would not have alerted the public to this purpose.

Riiiighttt! Let's say this and pray that the Justices don't know that "Privileges and/or Immunities" were a term of art and most people of that time understood it to mean, "rights" in a general fashion.

Please understand that this is merely a summary of the arguments that Chicago will go into detail, later in the brief. With that said, I now hold my nose and quote the last two sentences of that summary.


Quote:
But Congress was concerned with discriminatory measures taken against freedmen, which it addressed by adopting a non-discrimination principle in the Fourteenth Amendment. Indeed, the manner in which firearms were regulated during the period shows public acceptance of state regulation, including outright bans, so long as it was not done in a discriminatory manner.

Does Chicago actually think that the Colfax Massacre was a good thing? That Cruikshank was good law? I shudder at the blatant racism inherent to this line of thinking.

With that, I'm going to stop. I'll let others comment on the brief before I make further remarks.
__________________
Al Norris

I have to calm down before I make any comments Al. You covered it well so far and if I wrote down what I am feeling you would be forced to terminate my account!!

[ReelinRod]

I knew each of the briefs in support of Chicago would offer some facepalm moments; the first random one I clicked didn't disappoint.

The Mayors argue that gun bans facilitate their stop and frisk initiatives because suspected gun possession is the primary probable cause for the stop.

"Firearms regulation plays a central role in enhancing police authority to engage in stop-and-frisk tactics. When applicable law bans the possession or carrying of firearms, a stop and frisk conducted by an officer who reasonably suspects that an individual is illegally carrying a firearm—such as a suspicious bulge in a waistband—is considered constitutionally reasonable. . . .

When applicable law generally permits individuals to carry firearms, however, the Fourth Amendment does not permit a stop-and-frisk even when there is reason to believe that a suspect is armed or dangerous because there is
no indication of a violation of law. . . .

Thus, weapons searches were central to the New York stop-and-frisk strategy. New York’s restrictive gun control laws, in turn, facilitated this strategy; without such restrictive laws, the most important legal basis for stop-and-frisk would have disappeared."

So, the argument is, please don't apply the 2nd to the states because if our gun bans are invalidated our citizens will get to enjoy 4th Amendment protections as well!

Triple Facepalm!

[Bartholomew Roberts]

O, there are more facepalm moments. Check out the "Professional Historians" brief led by Saul Cornell. The first argument is "In the antebellum period the Second Amendment did not prevent state regulation of firearms."

Clever eh? Maybe they should have titled it "Prior to the 14th Amendment, the 14th Amendment did not apply."

They then proceed to show a willlful misunderstanding of the difference between regulations banning the CARRY of dirks, bowie knifes, etc. in public and bans on the POSSESSION of entire classes of weapons. Not to mention the way they glossed over the racist intent and application of the laws they did cite.

They also missed that some of their cited laws don't support their premise - like the one that banned the carry of pistols but specifically exempted any model used by the Army or Navy.

[rwilson452]

I often wonder of any of the clerks of the court follow the goings on here.

[Tom Servo]

It should be mentioned that the United States Conference of Mayors endorses Mayors Against Illegal Guns.

They go so far as to infer that the preamble and operative clause in the 2nd Amendment, whose relation was made clear in Heller, "may have been easy to reconcile in eighteenth-century America, but in contemporary cities, they will often be at odds. (p. 30)"

As a last-ditch strategy, they reiterate an odd argument that Chicago made:

If the eighteenth-century version of the right to bear arms is not sufficiently fundamental to merit incorporation, a more limited right of defense may nevertheless qualify for constitutional protection under the Fourteenth Amendment. Heller concluded that Second Amendment embodied what was widely thought to be a natural right of defense. Given its historical grounding, the right to defend oneself, one’s family, and one’s property may well be one of the unenumerated rights that qualifies for Fourteenth Amendment protection. If so, a complete prohibition on the possession in one’s home of any type of weapon reasonably useful for defense could impose an impermissible burden on this right. Such a right of defense, however, need not go so far as a “right to possess and carry weapons in case of confrontation.” pp. 32-33

Trying to shift the idea of self-defense from the 2nd to the 9th Amendment? Cute. Basically, "we can ban some classes of weapon, so long as there's some option open to the public."

Then there's the Skokie brief, which worries that constituents will grow weary of seeing their government spend tax dollars defending unconstitutional regulations.

Another aspect of amici's experiences should concern the Court. When Evanston and Winnetka repealed their more restrictive laws in 2008, it was not because their citizens or legislators had been persuaded by policy arguments like the ones advanced by petitioners, respondent NRA, and their amici–but rather because they determined that the costs of defending the laws in federal court were too high to have local taxpayers bear. The prospect of resolution through litigation–and the threat of it–against local governments, for legislative actions taken in good faith to advance important public aims, is a further reasonfor rejecting the unprecedented constitutional interpretation petitioners seek the Court to impose. p. 3

If "resolution through litigation" sounds familiar, it's because that is is exactly what Cook County attempted in the late 1990's, when they started suing firearms manufacturers.

And again with this argument:

There is no claim in this case that Chicago or Oak Park actually has deprived plaintiffs of the ability to defend themselves–or do so with arms, though they may not use their first-choice weapon. p. 20

To quote John Belushi, "I hate Illinois Nazis."

[Tom Servo]

Then there's Carolyn McCarthy's brief.

C'mon. We knew it was coming. Try not to laugh.

Her brief was authored in conjunction with Mike Quigley and "53 other members of the United States Congress." This one is simply an attempted rebuttal of the Congressional brief on behalf of petitioners, which had 309 signatures.

I don't really care who the "53 other members" were. I can probably guess.

The congressional brief in our favor argued that state-level firearms restrictions impeded the ability of Congress to call forth militias. McCarthy counters with this:

No state firearm legislation would prevent Congress from again exercising its powers under the war and militia clauses. p. 28

Yes, it would. If a state bars its citizens from owning guns appropriate to use in the militia, how are they supposed to be prepared ("regulated") to use them in a time of crisis?

Incorporation of the Second Amendment is not necessary to ensure that firearms suitable for the national defense are privately owned because the possession of such firearms is already lawful in every state. (…) Even in states without such a constitutional provision, the private ownership of firearms is not prohibited by law. p. 26

This is patently untrue. If we're talking about "firearms suitable for the national defense," we're talking about military rifles, which are banned in several states, including California, Connecticut, and New Jersey, as well as Cook County. She should know: she attempts to reintroduce the federal Assault Weapons ban every year in the legislature.

Furthermore, simply because a state doesn't already ban certain firearms, there is no guarantee that they will not do so in the future. One of the intentions of the 14th Amendment was to prevent constitutional rights from being infringed at the whim of local governments.

[Bartholomew Roberts]

Just skimming the opposition briefs, the big themes I am seeing repeated in each of them are:

1. Carrying firearms in public will cause the Earth to split in half and be swallowed up whole by a giant dragon, therefore we should never even think about it.

2. It is absolutely OK to ban carrying firearms in public

3. We should really ban carrying firearms in public

4. It is still OK to ban entire classes of weapons from mere possession, even if they are the exact same weapons the Court said could not be banned in Heller.

5. If you do this, people will sue us and we don't want to waste taxpayer money like we did when we were suing gun manufacturers or like we did when we gave our campaign contributor's $50,000 to file this half-hearted brief.

6. Numerous minor variations of "You were wrong in Heller."

Given that only #4 addresses the issue in Chicago, it seems to me that most of the briefs are conceding the point that there is a natural right to self-defense and that Chicago's ban is probably contrary to the 2nd Amendment and 14th Amendment.

It seems like the major overall strategy is to lay the groundwork to dispute the next series of litigation on concealed carry laws.

[Al Norris]

In taking notes on the 16 Amici for Chicago, The following caught my attention:

Originally Posted by Bartholomew Roberts

It seems like the major overall strategy is to lay the groundwork to dispute the next series of litigation on concealed carry laws.

You are correct Bart, yet I think that you didn't go far enough.

McDonald is still about the "keeping" of arms. The Court hasn't really said a lot on the "bearing" of arms, yet.

What I'm taking away from all of this is that the opposition understands quite well that they will lose this case. So the groundwork is being prepared not just for concealed carry, but any carry at all.

Our opponents are not dumb. Nor stupid.

We don't really know why the call for en banc in Nordyke. It could be that the Alameda County law will be overturned, when the 9th Circuit comes back into play. Incorporation will stand, on a national level. What remains is the faulty (IMO) argument over keeping the County ordinance. How the SCOTUS decides incorporation may well decide Nordyke.

Two other cases are on hold in California.

Sykes v. McGinness

Lead Attorneys:

Alan Gura
Donald E.J. Kilmer, Jr.

This case challenges the arbitrary denial (may issue) of CCW in CA. With incorporation firmly in the bag; this case being in the trial stage, CCW will have to be "shall issue" and/or full open carry will have to be allowed. Purely for self defense purposes, mind you.

Peña v. Cid

Lead Attorneys:

Alan Gura
Donald E.J. Kilmer, Jr.

This case challenges the CA Safe-Gun list (Handgun Ban Scheme). Should this challenge prevail, the so-called "Safe Gun" list will be history. Again, with incorporation and with Heller, the list will fail. I say Heller because the very gun that the Court said must be allowed to be registered, is not on the CA list.

Granted that these two cases are about CA firearms laws; granted that they will take 1 to 3 years for completion, they will have an impact on firearms laws, nationwide.

Now add to this, another case.

Palmer v. District of Columbia

Alan Gura

This case will test the lawfulness of imposing a permit for carrying (outside the home), and then revoking the mechanism for issuing the permits. There are several other issues that this case will seek to remedy.

It has been strongly hinted that after incorporation, Alan Gura will go after New York City and semi-auto firearms bans (and if some of us have picked up on this, imagine the consternation of the opposition).

No, the opposition is not dumb. They see the writing on the wall.

[Bartholomew Roberts]

Yes, I agree. The more of the opposition briefs I read, the more I feel like the Second Amendment applying against the states is a done deal.

Right now we are really down to two big questions:

1. P&I or Due Process?
2. What standard of scrutiny?

We know rational basis is out the window. So I expect to see an "interest-balancing" intermediate scrutiny proposed by Breyer, Stevens, Ginsburg, and Sotomayor that won't have a hair's worth of difference between rational basis and the proposed test. This won't really be a shocker since Breyer proposed it in Heller and everyone named above but Sotomayor joined that opinion.

So the way I see it, you rank the Justices according to how much you think they favor firearms regulation. Whoever is ranked #5 is going to be the person who determines what the standard of scrutiny is.

[Bartholomew Roberts]

Reason has an interesting piece about another disagreement on litigation strategy between Alan Gura (representing McDonald and SAF) and the NRA (representing other Chicago plaintiffs and so far working with SAF).

http://reason.com/blog/2010/01/06/th...-mcdonald-v-ch

The meat of it is that the NRA is disappointed with the focus on the P&I clause and wants 10 minutes of oral argument to concentrate on the Due Process angle.

Gura had already commented on December 17, 2009 that the State of Texas had filed a motion seeking leave to argue during McDonald (it did the same thing during Heller). At the time, Gura stated that he would not oppose that motion from Texas since it is significant that 38 states support applying the Second Amendment to the states. However he did say at the time that he would not consent to any other motions to argue being filed by our side.

Well, the NRA filed a motion asking the Court for 10 minutes out of Gura's allotted 30 minutes. It is expected that Gura will oppose the motion. The Court will hear the Motion on January 15.

In the big scheme of things, not that big of a deal as the Court usually has its opinions pretty well rounded out by the time oral arguments occur. Definitely nowhere near as severe as the disagreements in the early stages of Parker/Heller; but it does illustrate the difficulty in trying to organize litigation strategy when too many people get involved - and it also shows that there are a lot of different ways to skin the cat and not everyone will agree on the best way.

Personally, I understand the NRA's concern since I am also a bit uneasy at the concentration on P&I. On the other hand though, Gura's work has been absolutely top notch and I hate to take 10 minutes away from him because I know he is going to use it well.

[Tom Servo]

Personally, I understand the NRA's concern since I am also a bit uneasy at the concentration on P&I

There are two factors to consider.

First off, should the Court not decide to reinstate the PorI clause, Gura's case still allows for incorporation through Due Process. The Court has plenty of leeway to do so.

Second, the Court chose this case for a reason. If they didn't want to entertain questions on the validity of Slaughterhouse/Cruikshank, then they could have taken the easy way out with the NRA case.

Instead, they're hearing this one, which means PorI has a chance.

I can understand the NRA's argument that Due Process represents the "straightforward and direct" alternative, but it preserves a very inconsistent and flawed doctrine of incorporation.

This is a big case, with huge potential implications. Gura's going to need all the time he can get to address the concerns of the Justices. I'm certain the question will be asked, "Mr. Gura, you have a perfectly straightforward approach with strong precedent in selective incorporation. Why did you not choose this route for the sake of simplicity?" The answer to that question will be very important.

I'm not sure what Clement hopes to gain by splitting things down the middle.

[publius42]

I'm certain the question will be asked, "Mr. Gura, you have a perfectly straightforward approach with strong precedent in selective incorporation. Why did you not choose this route for the sake of simplicity?" The answer to that question will be very important.

I think the answer is that Gura wants P&I to mean something and wants to do away w/Slaughterhouse and its descendants. Maybe he shouldn't give that answer to the court, at least not directly.

I think P&I provides a way to segregate 2a rights from other rights that have a due process history, for better or worse. Meaning "strict scrutiny" of a privilege or immunity would not be quite the same thing as strict scrutiny of due process.

[gc70]

I think the answer is that Gura wants P&I to mean something and wants to do away w/Slaughterhouse and its descendants.

While Gura is the most visible proponent of P&I, it is beneficial to understand the influence of Robert Levy. Levy authored the Cato briefs for the Petition and Merits stages of McDonald and both briefs focus nearly exclusively on P&I.

[Al Norris]

In his merits brief, Gura does spend a lot of effort in addressing the P or I incorporation question.

The reason(s) for that is fairly simple. In Slaughter-House, the Court literally read meaning of the clause out of the amendment and therefore, out of the Constitution. In the cases that followed, certain precedents were set, using the Slaughter-House reasoning's.

The Court has known all along that the Slaughter-House opinion was wrong. But no one on the Court since that time, has had the intestinal fortitude to right this wrong decision (this is my personal interpretation/opinion and may not be entirely correct). Instead, a work-around has been made (out of the whole cloth, I might add), and the Court has been using 2 other facets of the 14th amendment to get around overturning a bad decision. These are incorporation via the Due Process and the Equal Protection clauses.

We now call this the Doctrine of Selective Incorporation. In arguing for this mode, it is well established how that would work (and even what arguments would work), and the Court certainly knows this.

However, the Court itself asked to be briefed on the P or I clause (the McDonald question) and that is what Alan Gura has done. The Court did not ask for nor select the NRA question.

Because Gura took an active role in seeking to avoid duplication of effort, we see that the majority of the amici briefs do make the Due Process arguments. There was no reason for an extended Due Process argument by Gura in his merits brief, as this was well made by many of the amici.

The cert brief by Gura, and the amicus brief by the Institute of Justice/CATO Institute; the merits brief by Gura, and amicus brief by CATO/Pacific Legal Foundation, were the briefs that stood upon reinvigorating the P or I clause and overturning Slaughter-House and its progeny (Robert Levy wrote both of those amici briefs - It was Robert Levy who funded Heller).

Contrary to what the NRA is now saying, Selective Incorporation has been adequately represented and briefed.

In the motion of opposition, Alan Gura (starting on pg 7) says:

Assuming arguendo this is even relevant, Petitioner's page allocation
was based upon a variety of factors, including:

• a belief that this Court is relatively more familiar with substantive
  due process theories than with the original public meaning and intent
  of the Fourteenth Amendment;
• the fact that this Court's decision in District of Columbia v.
  Heller, 128 S. Ct. 2783 (2008), recently examined in detail the
  factors inherent in the selective incorporation argument;
• the fact that in Heller, all nine members of this Court approached
  the issue primarily by examining the original public meaning and intent
  of those who framed and ratified the relevant constitutional text; and
• advance knowledge of the NRA and amicus briefs, and the
  desire to avoid extensive duplication of arguments already
  familiar to the Court.

This last point warrants some discussion. Petitioners worked
closely with the amici in seeking to avoid duplication of effort, hosting a
coordination conference attended by several NRA attorneys and
attorneys for NRA-funded amici. NRA counsel expressed their intent to
reduce duplication in the briefing, and discussed the briefing efforts with
Petitioners, with whom they eventually exchanged drafts. Petitioners
also received advance copies of many amicus briefs.

Petitioners correctly anticipated that the familiar due process
issues would be overwhelmingly covered in other briefs, and therefore
perceived no value in belaboring the same points in briefing beyond their
own merely comprehensive treatment of the issue. Were the NRA
motion granted, parties in future cases would be well-advised not to
coordinate briefing with amici, as efforts to reduce duplication could
produce motions to divide argument time based on claims that the
parties did not devote "enough" pages to an issue.

A copy of Gura's motion in opposition of the NRA taking argument time can be found on the SCOTUSBlog website, here. Read it for yourself.

You can find the NRA-ILA's statement about this motion for time, here.

What the NRA doesn't explain, is why they selected Paul Clement as their spokesperson for their motion for time. Remember, that Clement was the Solicitor General for the US in Heller and argued against strict scrutiny. It was Clement that first brought up machine guns (in orals) in order to undermine Heller!

I have serious reservations about the motivation of the NRA in McDonald. Not the least of which is "cross-contamination."

[Tom Servo]

Remember, that Clement was the Solicitor General for the US in Heller and argued against strict scrutiny. It was Clement that first brought up machine guns (in orals) in order to undermine Heller!

Yep, one and the same:

Absolutely, Justice Ginsburg, and just -- I mean, to give you a clear example, we would take the position that the kind of plastic guns or guns that are specifically designed to evade metal detectors that are prohibited by Federal law are not "arms" within the meaning of the Second Amendment and are not protected at all.

In our view it makes a world of difference, Justice Ginsburg, because we certainly take the position, as we have since consistently since 2001, that the Federal firearm statutes can be defended as constitutional, and that would be consistent with this kind of intermediate scrutiny standard that we propose. If you apply strict scrutiny, I think that the result would be quite different, unfortunately.

[Bartholomew Roberts]

I can see why they hired Paul Clements, there would be several advantages to having the Solictor General who prepared the United States case in Heller working with you. He is going to have a very good understanding of the other side's case for one.

As far as what was argued in Heller, the job of the Solictor General is to defend the laws passed by Congress, so he is by default going to be arguing that whatever laws Congress has passed are constitutional. In Heller, that put him in the position of arguing for a standard of scrutiny that would uphold all of the current Federal firearms laws - as we know, it is pretty hard to have a standard of scrutiny higher than rational basis that preserves all of the various silly federal laws on firearms. If you have a duty to argue that those laws are constitutional and you can't make an argument for rational basis without spitting in the face of the Bill of Rights, you are pretty much stuck with the intermediate scrutiny argument. So I would expect him to make that argument as Solictor General... now if he made the same argument representing the NRA here, then that would be a big problem for me.

Even SAF has hired Bill Mateja to represent them on firearms cases (he was the government attorney arguing for a collective right in the Emerson case).

[Bartholomew Roberts]

Interesting commentary by Orin Kerr today at the Volokh Conspiracy suggesting a possibility that the Heller vote was closer than commonly acknowledged - although you need to read the comments too to get a better idea of how tenuous that notion is.

http://volokh.com/2010/01/09/when-sc...ity-in-heller/

[Tom Servo]

Interesting commentary by Orin Kerr today at the Volokh Conspiracy suggesting a possibility that the Heller vote was closer than commonly acknowledged - although you need to read the comments too to get a better idea of how tenuous that notion is.

Orin Kerr's voiced opposition to Gura's approach in McDonald. He co-authored the Armskeepers brief, which argued for upholding Slaughterhouse. I can't help but notice the absence of any Volokh regulars in the comments.

Have I always agreed with Scalia? Heck no. Is he a bit of a hog for the spotlight? Yep. I'm actually a bit worried about his take on this case.

I've heard nothing to suggest he's retiring, however. There are pretty credible rumors about Stevens doing so.

[Bartholomew Roberts]

Over at the Volokh Conspiracy, Orin Kerr has noted that the NRA motion to receive a portion of Gura's oral argument time was granted.

If you aren't aware of this, there is background info in Post #311 of this thread.

In any case, the Volokh Conspiracy has more info as well as links to the respective motions. It also has a nice back and forth between Gura (representing SAF and McDonald) and Clement (representing NRA):

Clement: “I think the grant of the NRA’s motion may signal that the Court is interested in ensuring that all the avenues to incorporation, including the due process clause, are fully explored at the argument. Of course, I look forward to working with Alan.”

Gura: “The suggestion that I wouldn’t present all the arguments to the Court was uncalled for. I hope that this time Paul understands that handgun bans are unconstitutional.”

[Tom Servo]

Gura: “The suggestion that I wouldn’t present all the arguments to the Court was uncalled for. I hope that this time Paul understands that handgun bans are unconstitutional.”

This is bad news, mostly because I'm wary of Clement arguing for us in any capacity before the Court. For Pete's sake, let's hope he doesn't try bringing up machine guns again.

If this case is set to be as important as I expect, it's likely a few Justices have cold feet in regards to overturning Slaughterhouse, and it's likely that Clement is being allowed to speak for the sake of further clarification.

[Bartholomew Roberts]

Clement is a familiar face with SCOTUS, I don't think the NRA would have won their motion if it had been Halbrook making it.

[Al Norris]

Another (shorter) entry can be read at the Legal Times Blog.

[Tennessee Gentleman]

Egos, turf battles? Hope they can check those for the greater good. Otherwise, as Pogo said "We have met the enemy and he is us"/

[Al Norris]

The logical portion of my mind knows that Mr. Clement will aggressively argue on his clients (NRA) behalf, just as he argued for his former client (the U.S.). That's what attorneys do. I can find no fault there.

It is the political and therefore emotional side of me that wishes it was anyone else.

I fear entrapment by Justice Ginsberg in bringing back his (Clements) prior arguments over machine guns (to sway Kennedy).