Chicago Gun Case Incorporation Lawsuit

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I, like all of you, have been waiting for the major portion of my adult life for cases like Heller and McDonald to make it to the SCOTUS.
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After seeing things hit rock bottom in the 1990s, I didn't expect to see these kind of victories in our lifetime. I'd expected small, hard-fought, strictly specific and incremental challenges over a long period of time.

If you'd told me in 1995 that we'd win an individual-rights interpretation and incorporation in the space of two years, I would not have believed you.

Sometimes it's good to be proved wrong. :)

I don't know if McDonald will even get into the scrutiny area?
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I don't see a way of incorporating without establishing a standard of scrutiny.
 
ETA: I don't know if McDonald will even get into the scrutiny area?
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The Court may decide to let the different lower courts develop their own standards and see what works best before stepping in; but I think most will be looking for some additional guidance on scrutiny.

The downside is while there may be widespread agreement on incorporation, I am betting that the standard of scrutiny is going to be hotly debated. Justice Kennedy is likely to once again end up in the driver's seat in determining what scrutiny applies.
 
1. Perhaps the majority wish to divide the 2nd Amendment under 2 categories. Those rights that can be covered by originalism will get strict scrutiny protection. Those rights that cannot be justified by originalism and are of more recent development (such as issues involving silencers and machine guns) will get intermediate scrutiny protection.
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Best result would be that they would do away with the altogether idiotic treatment of silencers entirely. They're hearing safety equipment, for goodness sake. You're required by law to have one on your car, and if I recall correctly, your lawnmower. Many countries either completely do not regulate them or even require them. If in more common use, they could resolve the problem of firing ranges getting shut down because of noise complaints. They would certainly make firearms more friendly to newcomers--we DESPERATELY need that in many states where the average age of firearm ownership is seriously too high.

The law attached to suppressors is arcane, archaic, irrational, and quite frankly stupid. I'm really hoping the courts can scrap it within a couple of years because it is the product of one of the worst laws in US history and maintained by nothing more than absurd and one sided misinformation and superstition.
 
The law attached to suppressors is arcane, archaic, irrational, and quite frankly stupid. I'm really hoping the courts can scrap it within a couple of years because it is the product of one of the worst laws in US history and maintained by nothing more than absurd and one sided misinformation and superstition
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Agreed, but we're still in that one-step-at-a-time process. Heller laid a great deal of groundwork, and this case will help cement that.

Essentially, Heller acknowledged that the right to keep and bear arms was fundamental. The NFA is a tax on that right. If we apply prior precedent, the NFA is plainly unconstitutional. See Harper v. Virginia State Board of Elections, which ruled poll taxes unconstitutional, or Minneapolis Star v. Minnesota Commissioner of Revenue, a case that ruled a Minnesota tax on ink and paper to be an unfair abridgment of freedom of the press.

We'll get there.

Oh, and oral arguments are Tuesday, March 2, 2010 at 10:00 a.m.
 
P&I seems inherently more limiting on the scope of rights that are protected, but protects them more fully.

DP seems to allow whatever justice can get 5 votes to make up any right he/she so chooses.

P&I would be nice because it logically leads to a requirement that states bring back grand jury and civil jury protections that have been eliminated in some states.

OTOH, the courts have somehow found it acceptable to emasculate the 4th and 5th amendments. They may well find ways to do the same to the second if they incorporate it.
 
For those of you following the threads over at the Volokh Conspiracy, Alan Gura has answered Prof. Kerr, late Sunday night:
We understand that not everyone will agree with our position in this case. For example, we expect that Chicago’s attorneys will present some alternative constitutional vision that supports their desired outcome. May the more persuasive argument (ours, I should hope) prevail.

But not everyone agrees that the case should or would be based upon the Supreme Court’s views of the law. Prior to the D.C. Circuit’s decision in Parker/Heller, that case was met by many rolled eyes and deep, knowing sighs by Very Smart People. The skepticism had nothing to do with the merits of the arguments on either side, which were entirely beside the point. Simply put, the Second Amendment wasn’t going to be revived because the courts wouldn’t feel like going there.

So I wasn’t too surprised to see this point of view pop up in reaction to the McDonald case. Prof. Kerr cynically predicted we’d get wiped out 8-1 on the Privileges or Immunities claim – that’s the one based on the actual text and original public meaning of the Fourteenth Amendment – because the justices wouldn’t feel like interpreting the Constitution. Prof. Barnett capably responded to that claim, so I didn’t see the need to do so here.

But now, Prof. Kerr has asked the following set of questions in a discussion thread about the Cato Institute’s amicus brief:

It’s interesting to me that the Cato brief is based on original intent originalism rather than original public meaning originalism. That is, it is based on what the drafters wanted the 14th Amendment to do, rather than what the 14th Amendment was understood by the public to mean (or perhaps more specifically, what the words of the 14th Amendment were understood to mean by the public at the time). Do we have any good historical sources on what the public understood the P or I clause to mean at the time? If so, what do they suggest? If not, do we have reason to believe that the public knew what the authors of the 14th Amendment intended? I don’t know how widely the debates over the meaning of P or I were distributed around the country at the time. Does anyone know?

Of course, had Prof. Kerr actually read our brief, he’d have seen that we devote a significant portion of it to answering just these questions.

Failure to read the pleadings carefully enough to grasp the points they seek to make leads to some frankly bizarre questions. I’d like to respond to two such questions about our approach in this case. First, some people wonder why our Privileges or Immunities argument needs to define that provision any broader than the actual Second Amendment right at issue. The answer is dictated by logic. While we cannot define the full scope of every right secured by the Fourteenth Amendment, and have no interest in doing so, neither can we show that the right to arms fits within the Privileges or Immunities Clause without first discussing what sort of rights are embodied by that provision. It’s worth mentioning that self-defense is a natural pre-existing right, and consequently the right to arms would be a Privilege or Immunity of American citizenship even if the Second Amendment did not exist.

Second, some have asked if we’re needlessly straying from our mission in seeking to have The SlaughterHouse Cases overturned. No. While overruling SlaughterHouse is a worthy goal in and of itself, doing so is necessary to secure meaningful Second Amendment rights against state infringement under the Privileges or Immunities Clause.

We believe that the Second Amendment guarantees a fundamental right rooted in the ancient right of self-defense and self-preservation. I’ve worked very hard advancing just that view in Heller. But if the Second Amendment is merely some construct of national citizenship, a claim upon the federal government that grows out of the government’s existence, a right conferred by the government which wouldn’t exist in the government’s absence and which looks an awful lot like a rule of pre-emption, it isn’t much of a right at all. The “Save SlaughterHouse” arguments are not merely untenable as a matter of law, they suggest a very weak Second Amendment right that does us no good. We don’t believe that self-defense is an interest at the level of visiting the sub-treasuries in Washington, D.C. Since SlaughterHouse has no positive value anyway, it is hardly inconsistent with the interests of organizations focused primarily on vindicating gun rights to seek that precedent’s demise. Indeed, it should not be surprising that any litigant whose interests are served by a faithful reading of the Constitution would seek to have overruled a decision widely acknowledged as defying the Constitution.
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For those wondering why the P or I route, now you know.
 
As much as I support Gura's effort to overturn Slaughterhouse, his explanation is not very persuasive. The Court in Heller already stated that the 2nd Amendment right is a pre-existing right that predated the ratification of the Constitution. That suggests the right can exist independent of the government's existence. In fact, the Heller majority specifically mentioned the traditional anti-tyranny rationale 3 times. That clearly contemplated the existence of the right even after the end of our constitutional arrangement. So I don't see why Gura is still concerned about a 2nd Amendment right that is revocable by the government.

That's the natural rights perspective. From a purely realistic perspective, government can indeed take away any right it wishes to revoke. The inherent dangerousness of arms is what makes any comparison to the 1st Amendment problematic. For the most part, prison inmates still retain the right to free speech. But nobody is arguing that prison inmates retain a right to keep and bear arms.

There is an inherent contradiction in Gura's position. He believes that the 2nd Amendment right exists independently of the government. Yet who is he asking to redeem that right? The government, of course. The judiciary is as much a part of government as the executive or the legislature. In fact, had Justice Kennedy woke up from the wrong side of his bed for Heller, there would've been a Justice Stevens majority opinion that upheld the DC codes.

I believe that Gura's argument for incorporation and overturning Slaughterhouse is persuasive. With all due respect to Prof. Kerr, I suspect that Justice Thomas may not be the only one who will support the revival of PoI. (I actually think there is a reasonable chance that Justice Kennedy might sign on.) Doing so can help bring some order to constitutional law. That is good enough for me.
 
I suspect that Justice Thomas may not be the only one who will support the revival of PoI. (I actually think there is a reasonable chance that Justice Kennedy might sign on.) Doing so can help bring some order to constitutional law. That is good enough for me.
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A few folks are casting lots on this one, and I've heard some interesting predictions.

Some hold out more hope for PorI invigoration from the liberal side of the court than from Scalia, Alito and Roberts. That would be unfortunate coming from so-called originalists, but we've got politics in the mix. Still, I think Kennedy may be the true wild card here.
 
For the most part, prison inmates still retain the right to free speech. But nobody is arguing that prison inmates retain a right to keep and bear arms.
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Is this correct? Do prison officials not censor inmates mail and allow them to publish newspapers, tv and radio broadcasts?:eek:
 
Inmates have rights granted under CRIPA, Consitutiional Rights for Incarcerated Persons Act. Free speech is not a generally allowed item under certain guidelines. Talking about committing crimes or acts against the institution, staff, or other inmates will bring consequences. Just talking to each other, no issues, and the may read any newspapers, watch the news if they have a TV, get magazines that aren't restricted, (pornographic materials and such), but they do not publish anything. They may not hold meetings, (other than religous, with state civilian contractors and staff observing), rallies, or any other gatherings we have not thoroughly vetted far in advance.
We go through thier mail by law, and remove contraband coming in, but outgoing mail is not censored, per se. It may be held if there is something suspicious, i.e., giving orders for hits on the outside, etc.
But they can write whatever they want in those letters...and some are lurid enough to make Larry Flynt blush. Gah.
 
Quick question: If you wanted to overturn Slaughterhouse, is there a better vehicle for it than a Second Amendment challenge? I ask because off the top of my head, I cannot think of one.

It seems to me that the Second Amendment is almost the perfect vehicle to challenge Slaughterhouse, particularly in light of the precedent like Cruikshank. Are there better issues that would be more suitable if overturning Slaughterhouse was your primary goal?
 
htjyang said:
As much as I support Gura's effort to overturn Slaughterhouse, his explanation is not very persuasive.
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In what manner?

In his brief for certiorari, Gura laid out the foundation. That foundation was persuasive enough to get the attention of at least 4 Justices. In his merits brief, he fleshed it all out.

Gura discussed why it was important not just for the Court (in future rights litigation) but for the country as a whole to reinvigorate the P or I clause. He also discussed the how and why the 2A necessarily belonged to the Privileges or Immunities of all citizens. Gura discussed why Slaughter-House was wrong and how that wrong decision led to the infamous Cruikshank decision.

The audience of these briefs were the Judiciary, not the common man.

In his blog, which I copied, he tries to give the common man his reasoning's.

Based upon your later remarks, it is this "common-man view" that you don't find persuasive, yes?

Not everyone is a Jurist; a Law Professor; a Scholar. Recognizing this, Gura attempted to distill it down to that level. You think it wasn't done very well. That's fine. I personally think he did as good a job as anyone could do, given the technical nature of the arguments.
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There is an inherent contradiction in Gura's position. He believes that the 2nd Amendment right exists independently of the government. Yet who is he asking to redeem that right? The government, of course.
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Since it was the Government (in the form of the Judiciary) that took away this (and other) right(s), who would you expect one to ask for its reinstatement?

The easiest avenue was to ask the branch (of government) that took them away, to restore them.

And in that manner, the hardest form was not to take every possible concept and throw it against the wall to see what would stick, but to pick a single concept and thrust it down the throats of the Court.

The former method is a tried and true form of litigation. The latter method is the most risky. But it is the latter method that obtains the greatest reward, because a decision from that method is more pure.

We see that in Heller. Despite the dicta by Scalia, the right is now enshrined as a personal and individual right, forever destroying the competing theories.

Heller did one more thing. It utterly destroyed the idea that the US Government could again ban an entire class of arms.

When McDonald is decided and incorporation a reality, State AWB's may become a thing of the past. I say "may," because it matters which form of incorporation the Court decides to take.

That's the bigger question Alan Gura is asking the Court. Will they side for the liberties of the people, or will they side for the continued usurpation of power by the government.
 
I agree with Gura's PoI argument, but not his latest argument for making the challenge in the first place. To me, restoring the original public understanding of the PoI is sufficient. But Gura's latest argument for doing so is based upon his concern that the government might arbitrarily take away 2nd Amendment rights.

I agree with Bartholomew Roberts that the 2nd Amendment is a very good vehicle for overturning Slaughterhouse, especially since most other rights have already been incorporated. But again, that's not the argument made by Gura on his web site. Let me quote him:

But if the Second Amendment is merely some construct of national citizenship, a claim upon the federal government that grows out of the government’s existence, a right conferred by the government which wouldn’t exist in the government’s absence and which looks an awful lot like a rule of pre-emption, it isn’t much of a right at all.
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Gura's concern is that the 2nd Amendment right remains weak. In fact, his point about preemption suggests that he is concerned that the federal government may even use some of the escape clauses in Heller and transform the 2nd Amendment from a grant of individual rights to a grant of federal power.

I'm not convinced that is possible after Heller, assuming that the philosophical balance on the Court remains the same or changes to a conservative majority. On the other hand, if it changes to a liberal majority, then even if Gura wins the PoI argument, it will be of no help to gun owners. The liberals have made clear in Heller that the 2nd Amendment exists, but it has no practical application. I have no doubt that is the approach they will take in McDonald.

As for my comparison of the free speech right and the 2nd Amendment rights in prison, let me just note that the former is simply restricted whereas the latter is banned altogether. The Court in Heller suggested that such a ban is legal even for felons who have served their time and have been released. Contrast that position with the Court's assertion that a ban will fail even rational basis test. What this means is that the Court believes the 2nd Amendment right is for the general, non-felon public.
 
To Antipitas,

You separated Gura's arguments into one that is for the judiciary and one that is for the general public. It may very well be the case that was what he intended and I should not have judged his latest argument from the perspective of the judiciary. But I'm not sure that's what he intended. If it is, then expansion of 2nd Amendment rights to the states via incorporation is sufficient. Among the Chicago codes he challenged is the re-registration requirement, something that was not present during the Heller challenge. I'm not sure it really matters to the common man whether incorporation is done through DP or PoI.

Second, it's the legislatures that take away 2nd Amendment rights, not the judiciary. It was not the judiciary that passed NFA, GCA, Hughes Amendment,...etc. From Heller to McDonald, and no doubt future cases, gun rights supporters are battling various federal, state, and local legislatures, and they are doing so with the aid of the judiciary. Fair enough, that's how our system is structured. But it's unfair to suggest that the judiciary is responsible for imposing a gun control regime in the first place.

Let me put it another way. Suppose if Heller came out with Stevens writing the majority opinion. Suppose if every legislature in the country repealed all the gun control legislation of the land. In that case, the Stevens opinion becomes irrelevant. As much as we may be offended by Stevens's opinion, nowhere does it say that the DC codes are required by the Constitution.

That's a distinction that not many people appreciate, the difference between what is constitutionally permissible and what is constitutionally required. Interestingly enough, Gura appreciates that distinction. In a widely circulated e-mail of his that he wrote after Heller argument, he dealt with complaints about his position on machine guns by advising people to change public opinion. If public opinion is changed, then the legislature will repeal the Hughes Amendment. In fact, if gun rights supporters can change public opinion in Chicago, then McDonald would not have been necessary in the first place. The city council would have repealed those codes.

Therefore, this litigation is anti-majoritarian, at least for certain localities. Now, one can argue that the 2nd Amendment right, as incorporated to the states, is supposed to be anti-majoritarian and I actually agree with that view. But the anti-majoritarian nature of this litigation should not be ignored. This litigation is about redeeming individual rights against the majoritarian right to govern.

Some gun rights supporters characterize such litigation as "liberating" people living in such localities. I always found such triumphalism curious. If the people of DC, Chicago, NYC,...etc. really want their 2nd Amendment rights, why don't they stage public demonstrations by the hundreds of thousands demanding their rights? Why haven't I heard of mobs storming city halls demanding their rights back?

That hasn't happened because most people in those localities are either:

a) In favor of gun control,
b) indifferent, or
c) rank gun rights as a low priority.

It may very well be the case that after the restoration of their rights, they might grow to become dependent on them and thus become much more attached to them than they are now. (though this does bring up the question of why they allowed such regulations in the first place) My hope is that the gun rights movement does not become too attached to the litigation strategy, which is inherently anti-majoritarian. It seems to me that a strategy focused on growing the grassroots by educating the public is the one more likely to guarantee that the 2nd Amendment will forever remain alive.
 
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Article VI of the US Constitution.

Article VI
All debts contracted and engagements entered into, before the adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.
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To me, this looks as if the Bill of Rights, being a part of the Constitution, would be the supreme law of the land and all state judges as well as state legislators, state executives, etc. would be bound to abide by all of the ammendments in the Bill of Rights. This is very confusing as to how, then, our own government can argue that the Second Amendment doesn't apply to the states or local governments. Can someone please explain to me how article VI allows states and local governments to trample upon our rights protected by the Second Amendment to keep and bear arms?

I'm not a legal scholar or an expert on constitutional law, but it seems to me that Article VI settles the McDonald vs Chicago case without even being heard by the USSC. I'd like to hear an explanation by someone who is knowledgeable on this issue.

Thanks in advance.
 
Can someone please explain to me how article VI allows states and local governments to trample upon our rights protected by the Second Amendment to keep and bear arms?
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and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land;
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Well, that part is a little worriesome, considering the armament treaties that are afoot.
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Article VI establishes the order of precedence of laws when laws of different types are in conflict. That order is:

.. The US Constitution
.... Federal laws and treaties
...... State Constitutions
........ State laws

Article 1, Section 9, Clause 6 of the US Constitution say:

No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another; nor shall Vessels bound to, or from, one State, be obliged to enter, clear or pay Duties in another.
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If New York passed a law that ships passing through New York waters to dock in Jersey City had to pay New York a duty, that New York law would be in conflict with A1,S9,C6 of the US Constitution. In that conflict of laws, the US Constitution would win and the New York law would be invalid.

Foreign treaties have the same precedence as federal laws and both fall under the US Constitution. Just as a federal law that conflicts with the Constitution can be found to be unconstitutional, so can a treaty.

As to the Second Amendment and state laws, Barron v Baltimore held that the Bill of Rights applied to the federal government alone and not the states. Most of the provisions in the Bill of Rights have subsequently been applied to the states by incorporation through the due process clause of the 14th Amendment. That incorporation process did not invalidate Barron v Baltimore, but selectively circumvented it. The Second Amendment has not yet been incorporated through the 14th Amendment, so it only applies to the US government at this time.
 
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