Chicago Gun Ban Case & Incorporation

[BillCA]

In case no one was watching...

One of the byproducts of Heller was the filing of a challenge to Chicago's gun ban laws. Rather than taking years to bring up the matter of incorporation, two cases are now looking at the question.

The first is the Nordyke, et al v. King, et al case, for which you can find detail information on this thread.

Here is the latest on the Chicago Case

McDONALD, et al v. City of Chicago (08-CV-3645)

10/21/2008
Gura's MOTION TO NARROW LEGAL ISSUES (Incorporation)

7/31/2008
MOTION TO STRIKE CITY OF CHICAGO’S ANSWER TO PLAINTIFFS’ COMPLAINT
Gura's MOTION FOR SUMMARY JUDGMENT

7/16/2008
CITY OF CHICAGO’S ANSWER TO PLAINTIFFS’ COMPLAINT, DEFENSE, AND JURY DEMAND

6/26/2008
COMPLAINT against City of Chicago


Gura's Motion to Narrow Legal Issues asks the court to decide the incorporation question in favor of the people against Chicago. It says that the 14th amendment was designed to overturn (by legislation) Barron v. Baltimore, and to correct state abridgements of the rights of freed blacks, including the right to arms, in the post-civil war era.

The argument is bolstered by showing a majority of legal scholars believe The Slaughter-House Cases were wrongly decided and even shows the late Chief Justice Rehnquist and Justice Thomas were open to reviewing the decision. He also argues that by the modern incorporation doctrine, the 2A rights should easily pass the incorporation tests.

The motion also covers how the courts have used the 14th Amendment to protect unenumerated rights by citing a right-to-die case and a Planned Parenthood abortion case. He juxtiposes the protection of these unlisted rights with the trampling of an enumerated right explicit in the constution.

He also shreds Chicago's reliance on Cruikshank , Presser and Miller v. Texas (1894) which are pre-incorporation doctrine cases. This undercuts the majority of the city's arguments and makes a persuasive case for incorporating the 2A against the states.

[raimius]

From my limited investigations, it would seem that arguing for 2nd Amendment incorporation should be fairly straightforward. Let's hope Gura has found an approprate case and audience.

[IZinterrogator]

Doesn't he have another case going in the 9th Circuit?

[Al Norris]

He filed an amicus curiae brief for the SAF in the Nordyke v Alameda case. See this thread for the details.

[Bartholomew Roberts]

The good news is that incorporation argument is incredibly strong - even stronger than the individual rights argument for the Second in my opinion.

The questionable news is that there are so many judicial appointments up for grab that the next President will appoint a slew of District Court judges and determine the majorities on 9 of the 13 Circuit Courts of Appeals. Even if the Supreme Court remains unchanged, the cost and challenge of getting good cases to it will increase a lot.

We have some very strong arguments; but it doesn't hurt to be able to shape the battlefield to favor your success.

[crashm1]

Bartholomew Roberts: The good news is that incorporation argument is incredibly strong - even stronger than the individual rights argument for the Second in my opinion.

The questionable news is that there are so many judicial appointments up for grab that the next President will appoint a slew of District Court judges and determine the majorities on 9 of the 13 Circuit Courts of Appeals. Even if the Supreme Court remains unchanged, the cost and challenge of getting good cases to it will increase a lot.

We have some very strong arguments; but it doesn't hurt to be able to shape the battlefield to favor your success.

IANAL but I guess I don't understand how the cost increases as it seems an incorporation split is a gimme, meaning cases will have to be plead to the Supreme Court anyway.

[Bartholomew Roberts]

Cost increases because you have to fight every little motion and side issue along the way in addition to the main issue of incorporation. For example, the trial court may not even hear certain evidence if you don't first win the battle on getting it admitted.

[BillCA]

IANAL but I guess I don't understand how the cost increases as it seems an incorporation split is a gimme, meaning cases will have to be plead to the Supreme Court anyway.

I think what he means is that future gun-law cases will be forced into more SCOTUS appeals - which are very costly - than if the lower court judges were honest constitutional followers.

[Al Norris]

Well, well! It looks like the two combined cases, NRA v. Oak Park and NRA v. Chicago were first to be heard (Before the McDonald case) and have had their first setback.

The Judge ruled that he wouldn't overule the 7th Cicuit, and wouldn't incorporate. Since no incorporation, the rest of the controversy is moot. The ordinances stand. Dec. 9th will be a hearing on the status of these cases. No real surprise here. So we can expect the NRA to appeal.

The Judge supplied a bit of humor here. He starts off with:

Fresh from a historic victory for their cause before the Supreme Court in Dist. of Columbia v. Heller, 128 S. Ct. 2783 (2008), the National Rifle Association of America, Inc.
("Association") and some of its members filed these two lawsuits just one day after the Heller decision.1

and in footnote 1 he says:

1 Even so, the Association was not quite as quick on the trigger as counsel for the plaintiffs in McDonald v. City of Chicago, 08 C 3645, who actually filed suit here on the same morning that Heller was decided in Washington! What is eminently plain is that both sets of lawyers--the counsel who are handling both of these cases and another set of lawyers in McDonald--came loaded for bear, on the assumption that the Supreme Court majority would rule as it did.

Excuse me Judge Shadur, but just DUH!

That was the highlight. Otherwise, the Judge simply reitierated what the 7th said 25 years ago about Presser, along with cherry-picking the dicta in Heller.

[maestro pistolero]

It sounds like the court felt bound by precedent, but didn't disagree with the logic nor doubt likelihood of success on appeal. I wasn't able to attach it because of the file size, but here's what the court said:

. . . Although counsel's constitutional arguments
are set out in 15 well-written pages, 2 they may be encapsulated
in a simple syllogism:
1. Under Heller, the Second Amendment's guaranty of
the right to keep and bear arms has invalidated the District
of Columbia's prohibition on the possession of handguns.
2. Almost all of the guaranties that apply against the
federal government and its agencies under the Bill of Rights
(the first ten amendments to the Constitution) have been
held to have been incorporated in the guaranties that apply
against the states and their subordinate units of government
under the Fourteenth Amendment.
3. Ergo, the Second Amendment's guaranty of the right
of the people to keep and bear arms, as construed in Heller,
also extends to Oak Park and Chicago via the Fourteenth
Amendment. QED.

That approach, however, ignores a fundamental and critical
jurisprudential curb that confronts a district judge such as the
writer who is asked to confirm that third proposition--the
judge's duty to follow established precedent in the Court of
Appeals to which he or she is beholden, even though the logic of
more recent caselaw may point in a different direction. As
stressed in Sabin v. United States Dep't of Labor, 509 F.3d 376,
378 (emphasis in original) --one of many cases standing for the
same proposition: 3

The Supreme Court has told the lower courts that they
are not to anticipate the overruling of a Supreme Court
decision, but are to consider themselves bound by it
until and unless the Court overrules it, however out of
step with current trends in the relevant case law the
case may be.

Was that just a dodge, or is this good jurisprudence at work?

[divemedic]

Well, well! It looks like the two combined cases, NRA v. Oak Park and NRA v. Chicago were first to be heard (Before the McDonald case) and have had their first setback.

I don't view this as a setback. Now we get to see (hopefully) what SCOTUS has to say. A setback is is SCOTUS refuses to grant cert.

[gc70]

I also do not view this as a setback, but an anticipated hurdle that would only be overcome at the appellate level. The trial court is supposed to be bound by Circuit precedent "even though the logic of more recent caselaw may point in a different direction." The judge followed the rules and did what he had to do.


NRA Memorandum Opinion and Order

This Court should not be misunderstood as either rejecting or endorsing the logic of plaintiffs' argument--it may well carry the day before a court that is unconstrained by the obligation to follow the unreversed precedent of a court that occupies a higher position in the judicial firmament. But as later-to-be-Justice Oliver Wendell Holmes famously observed in 1881 in The Common Law:

The life of the law has not been logic: it has been experience.

In sum, this Court--duty bound as it is to adhere to the holding in Quilici, rather than accepting plaintiffs' invitation to "overrule" it (!) --declines to rule that the Second Amendment is incorporated into the Fourteenth Amendment so as to be applicable to the Chicago or Oak Park ordinances. These actions are set for a status hearing at 8:45 a.m. December 9, 2008 to discuss further proceedings.

[Al Norris]

Originally Posted by divemedic

I don't view this as a setback. Now we get to see (hopefully) what SCOTUS has to say.

It's a setback, not because it was not anticipated (it was), but because the language used by the Judge in referencing the 7th's decision in Quilici v. Village of Morton Grove, 695 F. 2d 261 (7th Cir. 1982), and why he wouldn't rule on incorporation, may very well indicate that the 7th will not be willing to overturn Quilici.

This means an unnecessary trip to the 7th, then a trip to SCOTUS, where cert will likely be denied (the issue may not be ripe - legalese for they will wait to see what the other Circuits do).

As stressed in Sabin v. United States Dep't of Labor, 509 F.3d 376, 378 (emphasis in original) --one of many cases standing for the same proposition: 3

The Supreme Court has told the lower courts that they are not to anticipate the overruling of a Supreme Court decision, but are to consider themselves bound by it until and unless the Court overrules it, however out of step with current trends in the relevant case law the case may be.

That posture of the Court of Appeals vis-a-vis the Supreme Court is of course echoed in the posture of this Court vis-a-vis our Court of Appeals.
-----
3 See also, e.g., United States v. Santiago-Ochoa, 447 F.3d 1015, 1020-21 (7th Cir. 2006).

The above pretty much telegraphs what the 7th will do.

The 9th circuit is not bound by these rules, and the 9th may well incorporate (via Nordyke) before this case reaches the 7th. Even so, I suspect the 7th will dismiss anything the 9th does and force the issue to the SCOTUS.

[maestro pistolero]

I can't tell if this is the court's ideology speaking, or if they really think they are being prudent. To this layman, it seems like the court's reasoning here is just highbrow means for circumventing common sense in the name of politics.

If you just ask any person on the street with an IQ above room temperature, "Does the entire bill of right apply to all citizens?" The answer would be yes. But the court, in all it's wisdom, says "no." Or, at least, "not necessarily."

[raimius]

It sounds like the current precedent is not favorable for this fight. I agree that SCOTUS may not hear the case (should it advance that far, which I think is likely). Given the 5-4 nature of Heller, I'd be a bit concerned. Have the SCOTUS justices commented on incorporation recently (not necessarily wrt the 2nd Amendment)?

[Bartholomew Roberts]

Today's WSJ reporting that Illinois Gov. Rod Blagojevich has been arrested by federal agents on corruption charges. Apparently he was offering to sell Obama's Senate seat. Given his past strong support of gun control and influential role in Illinois/Chicago politics, I wonder if it will change the strategy being used?

[Al Norris]

Originally Posted by maestro pistolero

I can't tell if this is the court's ideology speaking, or if they really think they are being prudent. To this layman, it seems like the court's reasoning here is just highbrow means for circumventing common sense in the name of politics.

Actually no.

In the Heller case, the Supreme Court left the idea of incorporation open. That was correct, as the case was about a federal enclave and incorporation was not an issue. Could not be an issue in fact.

In this court, we have a Federal District court that is bound by prior precedent from its higher authority, the 7th Circuit Court of Appeals. Remember, the Circuit Court tells its lower (district) courts what and how to do things, not the other way around.

In Quilici v. Village of Morton Grove, the 7th Circuit essentially used Presser to justify not only, non-incorporation, but also the idea that the 2A, if an individual right, applied only to the Federal Government and not lower governments. Presser relied almost solely upon Cruickshank, which, in dicta, was discredited by Heller.

Now the 7th Circuit, could overturn its own precedent and incorporate. I honestly don't think that's likely, however. I expect them to use the same set of cases (Sabin v. United States Dep't of Labor and United States v. Santiago-Ochoa) and logic, to hold to their precedent.

It is only if the 7th Circuit rejects incorporation (on whatever grounds) that this case may move forward to the SCOTUS. Such a time frame would put cert, most likely in the spring 2011 session.

In the meantime, we have Nordyke in the 9th Circuit. This will be argued on Jan 15th. If Nordyke is incorporated (very good chance, as the panel appears to be for such), it will be appealed en banc. The soonest this case may hit the SCOTUS would be the fall 2009 or spring 2010 sessions, depending upon if the en banc request is granted.

However it turns out, I suspect that the SCOTUS will wait to see where the other Circuits fall on the issue, before granting any cert on the issue.

[maestro pistolero]

Excellent. I had to look up en banc. Would en banc literally mean all the judges from the circuit court deciding this issue together? Is it often granted when precedent is about to be overturned, and is this proceeding fairly rare? I'm pretty sure i've never come across the term. Thanks, Al.

[Al Norris]

Excellent. I had to look up en banc.

Really? As much as its been used by myself and several others in the past month....

I'll let someone else comment on how often it's used by any particular Circuit. I know it's done, but I don't have a clue as to the criteria or how many Judges will even review the case. I would bet that each Circuit is different in its approach.

What I've seen, is that generally, after a panel has ruled, requesting an en banc hearing appears to be the normal thing before going to the SCOTUS.

[BillCA]

maestro,

From what I've seen, once an appeals court accepts the appeal, it schedules it for a hearing before 3 of the circuit judges (or 4 judges if that's the entire lineup).

The appellant can request an en banc hearing before the entire panel of judges. Usually this request is made when a significant constitutional or procedural issue is at issue. It is also frequently done when a 3-judge panel rejects and appeal and the appellant believes an error has been made. If a request for a re-hearing en banc is denied, AFAIK that is the same as a ruling en banc for the purposes of appealing to SCOTUS.

The Court itself can decide to hear the appeal en banc if it believes a particularly significant or unique issue is at stake too.

[maestro pistolero]

Thanks, Bill

[maestro pistolero]

Oral Argument in McDonald/NRA v. Chicago:

http://www.ca7.uscourts.gov/fdocs/do...8-4241_001.mp3

Notice how often Halbrooke and Gura are interrupted by the court and what a free ride the Chicago attorney gets. This appears headed to the Supreme Court, because the court feel only the SCOTUS can overrule it's own precedent, no matter how antiquated by modern selective incorporation doctrine those cases may be.

That's the reason they gave, but the court is nevertheless obviously predisposed to allow any kind of gun ban to stand.

Here we go.

[crashm1]

The oral arguments were this morning,linky to quicktime recording.
My impression is that they are not going to over rule Quilici. Apparently they got burned once upon a time for over ruling a previous SCOTUS case. They were dismissive of the 14th amendment arguments and wish to leave Slaughterhouse and Presser standing in all their racist glory.

[maestro pistolero]

Maybe the best thing that could happen is for this to go to the SCOTUS, and do away with Slaughterhouse once and for all.

[crashm1]

Yeah maestro the judges tone was superior, condescending, argumentative and rude. Doesn't leave much hope.