Chicago Gun Case Incorporation Lawsuit

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Taking the last two paragraphs of Article VI:

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.

Paragraph #2 of Article VI: One could eliminate some of the statement and it would still be grammatically correct, since we have the conjuction "AND" in play.

This Constitution, ....., 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.


If I say, the speed limit law, and other traffic laws, will be enforced to the full extent, I can still say that the speed limit law will be enforced to the full extent, even if I don't mention the other traffic laws.

Paragraph #3 of Article VI: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;

So, how can one be bound by oath or affirmation to support a constitution which doesn't affect them if all of the Bill of Rights are not incorporated against the states? Is the Bill of Rights a part of the Constitution? I would guess the USSC would affirm that it is. If one amendment of the bill of rights does not apply to the states, then how can we logically and legally demand that the state legislatures, along with the state executives and judicial officers, be bound by oath or affirmation to support the US Constitution?

I know there are USSC cases which question whether all amendments contained in the Bill of Rights apply to the states or not. However, the language in the Bill of Rights combined with Article VI, would seem to make the whole constitution, including each and every one of the amendments in the B of R, binding upon the states. Am I being too logical here?
 
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)
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A very astute question, and there is a very logical answer. Because of the gun laws of Chicago, NYC, DC, etc. there has been a segregation of sorts. They do not have an established "gun culture" because of lack of opportunity for lifelong residents and tremendous deterrence of those coming from elsewhere to bring it with them if to move there at all. The anti gun laws, ideology, and mentality is spread and maintained through intense and deliberate marketing of identity politics, basically the idea that city people inherently don't own guns (legally, at any rate) and there's nothing in it for them because they don't hunt, aren't in the country, etc. Then they make it nasty by making the gun culture outcast using much of the same rhetoric as racial segregation.

They play EVERY possible issue against us that way, saying to the urbanized population that since they don't hunt, they must be against gun rights since that's a hunter thing. And because as far as they know, they don't see gun ownership as part of any life they recognize, as they've only seen guns in the hands of cops, criminals, and movie characters and they're not any of those either. With no equally competing information on a personal level, the anti gun politicians, media, and activist groups can tell them anything they want, and the ideas have become culturally entrenched:

* Since they live in a city, they must be against gun rights because that's a country thing, and they're not in the country. Legal gun ownership doesn't happen where they live or in the world they live in or for people like them. It happens in other states they're taught to dislike, like Texas or Montana, which are really more like fictional places in their minds not real places where real people like them live. Their teachers and the news media tells them so.

* If they're not Protestant, they must be against gun rights, because that's a Protestant thing, not for Catholics. Or Jews. Or atheists. Their religious leaders and friends they identify with of the same religion or lack thereof said so.

* If they're not Caucasian, they must be against gun rights, because that's a Caucasian thing, not for blacks, Hispanics, or Asians. Their ethnic group advocates said so.

* If they're female, they must be against gun rights because it's all about hunting and that's a guy thing, particularly a redneck, sexist guy thing. The culturally prominent outspoken rich liberal women in media and entertainment said so.

* If they're for abortion, they must be against gun rights because that's something only pro life people from rural America "Jesus Land" believe in. The politicians they keep reelecting for 20 years said so.

* If they're afraid of crime in the city, they must be anti gun because the only guns they know of are in the hands of cops and criminals, and the cops are anti gun there and are very vocal on the matter. Guess what the news media says about it too.

* If they're not chauvanists or misogynists, they must be against gun rights because that's not something for feminists or even people who merely believe in equal rights for both genders--so they are told.

* If they have gay friends or are themselves, or just like the idea of equal rights, they must be anti gun because only homophobic people who hate everyone like guns. The art and entertainment community says so.

* If they're educated, they must be against gun rights because all kinds of academic people with PhD's are anti gun. All through college all they heard was that guns are bad, and they heard that from supposedly very smart people. During that time nobody stood up and said otherwise, for fear that they would be labeled as not very smart, or fail the class, or lose their tenure--and have the cops called on them.

Since there aren't many gun owners in cities, none that they know at any rate, they believe it. Since that's what they're used to, they believe it, and they want it to stay that way because they don't know anything else. And since people who are like them who know differently don't want to be verbally abused, ostracized, fired from their jobs or not hired for a new one, penalized in school, or have their property vandalized or even their lives threatened, they stay silent and just go along with it. We have been so culturally maligned it's harder for someone to stand up for gun rights than just about anything. Most people get stage fright just to sing karaoke in front of a bunch of drunk friends--standing up for something you believe in that 99.9% of all printed published words and content of the airwaves are slanted to hate and 45% of the population believes every bit of it? Might as well ask them to brush a lion's teeth! For much too long the vast majority of visible promotion of gun ownership was centered around rural outdoors "sportsman" stuff, so an effective counter of equal magnitude to this misinformation and cultural slander has not been in place. We haven't even really begun to try.

Do you know the reason racist laws like segregation, Jim Crow laws, etc. had to be struck down in the Supreme Court? Racism worked GREAT for politicians. Politicians LOVED racist laws and politics. They could use fear of a little understood and submissive minority whom they could associate with crime, immorality, poverty, and other societal ills and blame it all on them so they could be the heroes who would shield society from it. They could make their majority voting base feel good about themselves and unify them under the banner of race. It worked! They won elections EVERY TIME! Exactly like today's anti gun politicians, who since the race card has been taken away from them, they simply shift the hate to gun owners and do the exact same thing. Keep us out of cities, keep us out of schools, keep us out of restaurants, keep us out of sporting events, keep us off public transportation, make us pay fees and go through complicated procedures, and we're all that's bad in the world today. Ever notice that? Oh, and it's all to protect the children, too. They didn't even bother to change the words on the laws or the arguments, just substitute guns, gun owners, and the NRA for the N word.

Need I even mention that anti gun laws were almost always originally designed and intended as racist laws in the first place.

Hence you read me saying on this gun board that we need to kick the anti gun political complex out of the country. Not play nicey nicey, not say "Oh, that's ok, I disagree but it's all politics", but absolutely remove it from political office, education, and all facets of life that it controls. As you see that's exactly what they've tried doing to us, and unless we do so to them they're going to eventually win as cities, divorce and illegitimacy, ethnic demographic shift, and pop culture try to drive us into cultural extinction. We cannot continue being content to try to stall their efforts or play penny ante win some lose some, we've got to fight as hard, as long, as deep, and as no-holds-barred as they do and drive for absolute and permanent victory.
 
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So, how can one be bound by oath or affirmation to support a constitution which doesn't affect them if all of the Bill of Rights are not incorporated against the states?
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Some parts of the Constitution apply only to the federal government, some parts apply only to the states, and some parts apply to both. As an example, the US Constitution sets minimum ages of 25 for Representatives (A1,S2,C2) and 30 for Senators (A1, S3, C3). Those requirements apply to members of the US Congress and not to state legislatures.

The Supreme Court has ruled that the amendments that make up the Bill of Rights were written to apply only to the federal government. The 14th Amendment was written to apply to the states. In various cases after the adoption of the 14th Amendment, the Supreme Court has ruled that the 14th Amendment's due process clause covers specific fundamental rights, some (but not all) of which also happen to be mentioned in the Bill of Rights.

Today, the 2nd Amendment, as written, only applies to the federal government. Hopefully, the Supreme Court will rule in the Chicago case that the right to keep and bear arms is the type of fundamental right that the 14th Amendment applies to the states.
 
Finally reading through the Arms Keepers brief. They argue for an odd model of "selective" incorporation through PorI, while preserving Slaughterhouse.

It occurs to me that I've never heard of this organization, and there's not much information, but the brief describes them as,
(...) a volunteer organization that supports reasonable regulation of handguns and rifles, instead of prohibition.
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Anyone know anything about them?
 
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He seems to be pretty pro-2A, but the phrase "reasonable regulation" turns my blood cold. I could just be getting twitchy, though.
 
Yellowfin,

1. Your argument appears to be that the vast majority in such anti-gun localities have been hoodwinked by an anti-gun elite. Fair enough, I accept such a possibility. But even assuming that is the case, it still does not change the fact that the people vote in those elites. That the people are easily deceived is not an argument against majoritarianism. If it is, then we might as well overthrow the Constitution and adopt some form of authoritarian rule. The fantasy of a highly educated and intelligent population that cannot be deceived remains just that, a fantasy. (Though one can argue that a written constitution is specifically designed to prevent such things, and I would agree with that argument.*) So the possibility that the people of Chicago have been deceived doesn't change the fact that its gun control regime is a result of majoritarian rule.

2. Your explanation may explain how the city maintains its gun control regime. But it doesn't explain how the city got that way in the first place.

The town of Chicago was founded in 1833. I have been assured by an army of 2nd Amendment scholars that in the early days of the Republic, most of the population was friendly toward the idea of firearms ownership. So how did it come to pass between then and recent decades for there to grow a clique who are in favor of gun control? I see many gun owners today who take their firearms with them whenever they move. I think it is reasonable to assume that people in the early 19th century did the same. If the general population back then was more friendly toward firearms than now, then where would that gun control clique come from? How did they get elected in the first place?

* The theory of constitution that I'm representing here is as follows: The Framers required super majorities in both Congress and the states to amend the constitution precisely because they wanted to make sure that a proposed change is truly wise and enjoys broad based support. If something is popular enough to garner a super majority, then chances are, it is also a wise decision. Therefore, it should be codified in the constitution so that it will remain immortal for darker days when such past wisdom may be forgotten.

From this perspective, the right to keep and bear arms is simply one of those ancient wisdom which some people have forgotten or, according to Yellowfin, have been deceived to distrust.
 
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New guy here, just wanted to say hello and say this is a great forum!

My question is what do you guys see post-Chicago gun case? So SCOTUS incorporates through either due process, or P&I, "we" win, done. But is it? What happens with the tens of thousands of gun laws in place in states, counties, and municipalities all over this nation of ours? Sure, some may be stricken right away because the government body will see they are clearly over-reaching, but I suspect most shall not.

So do we file thousands suits across the nation? Do we do what the constitution and courts say we can and wait to get arrested and fight them that way? Do we simply e-mail our representatives and implore them to change their laws? All of the above?

My personal favorite target would be Wisconsin's 1,000 foot school zone law. I live within 1,000 feet of a school and therefore cannot possess a firearm except on my own private property, unless it's unloaded and encased. Now, Wisconsin is also 1 of the 2 states that does not allow any CCW unless you are a police officer. So my question is how do I get a gun into or out of my home?
I cannot openly carry it from the street to my property without committing a felony by violating the school zone law. If I unload and encase it and step out of my car I am violating the CCW statute and would be committing a misdemeanor. And what about those people that do what the left tells them and takes public transportation everywhere? How the heck are they getting around with a gun?

I do not believe the 1,000 foot law would pass any form of scrutiny, where are the studies to show your dangerous at 1,000, but okay at 1,001? Who pulled this number out of left field and decided to use it? The fact that I cannot carry around my home, or in about 50% of my city because school zones over lap or come within a block or two of overlapping is not a reasonable infringements on my rights. I think the courts would agree. But how can we challenge all these gun laws? I don't think the 2 Amendment Foundation has enough money or Alan Guras to do it all!!
 
My personal favorite target would be Wisconsin's 1,000 foot school zone law. I live within 1,000 feet of a school and therefore cannot possess a firearm except on my own private property, unless it's unloaded and encased.
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Worse is the federal law, 18 USC 922(q)(2) which makes possession of a firearm within 1,000 feet of a school punishable by up to 5 years. There are a few exemptions but it is quite possible for completely innocent persons to become felons by simply driving down a public highway with a firearm otherwise legally possessed and carried.
 
Regarding the brief from Armskeepers, Gura has a few notes on the matter. Apparently, Orin Kerr was one of the co-authors of the brief, and although he seems open to the idea of visiting PorI, he cast some grim predictions about its revitalization.

Was this steely pragmatism or perhaps wishful thinking on Kerr's part? He's stated that,
Most Supreme Court briefs focus on trying to win the case, whereas this brief seems to treat that as an afterthought and instead is trying to use this case to achieve a long-time goal of the libertarian legal movement. You don’t see that very often.
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Which brings us to an interesting question: what defines a "libertarian" these days? When I was growing my political fangs, a libertarian believed that the one of the few legitimate roles of the government involved protecting the rights of its citizens. In that sense, the 14th Amendment makes perfect sense to libertarian sensibilities.

Apparently the definition has changed. We've got a divide (which even appears in this thread) among libertarian-leaning folks, in which some claim that the 14th Amendment gave the government a blank check to trample all over state sovereignty.

Take Ron Paul. His signature is missing from the Congressional brief. Why? According to Howard Nemerov:
Congressman Paul’s DC office said he didn’t sign the brief because he believes that it interferes with state’s rights, whose policies shouldn’t be dictated by the federal government.
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Never mind that states don't have rights. We've had a bit of an anti-federalist movement over the last few years (Kelo threw grease on that fire), and in many respects I agree that the Federal government has been over-reaching in its authority.

But what does that really have to do with the 14th Amendment? One objection I've heard is that a resuscitated PorI clause would codify "rights" such as housing, employment and health care through an overly broad re-reading of the 9th Amendment.

According to Ken Klukowski, who authored the ACRU brief:
It also could completely change American culture, with the court having a new basis upon which to declare constitutional rights to abortion, same-sex marriage, obscene material or a child's "right" to a public-school education over his parents' objections. (...) Although it should be about the Second Amendment, this gun rights case is, instead, a Trojan horse for everything except guns. It could remake America's economy and culture.
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This seems incredibly unlikely.

First off, the Court isn't going to roll in a Trojan horse of any sort. We're going to hear a great deal about "reliance interests," and though they may allow a peek into Pandora's box, they're not going to throw the lid wide open. Such action would be a logistical nightmare.

They'll be reviewing original intent, which, according to Senator Howard was to protect, "the personal rights guaranteed by the first eight amendments of the United States Constitution." The potential minefield of the 9th Amendment issue can thus be deftly avoided if they so choose.*

In this case, the parameters become clearer and more workable. We're dealing with enumerated rights, many of which are already incorporated anyway. Sure, we get 2nd Amendment protections, jury trials and grand juries in all 50 states under a clearer reading of PorI, but I'm not going to receive the right to marry an armadillo (please note that I have no such intentions) as a result.

Slaughterhouse can be overruled without opening the floodgates to Big Nasty Gubbmint. If anything, a true and clear reading of PorI will simplify incorporation doctrine to some extent.

The point? State-sovereignty folks are really worked up about this. Some of that sentiment seems to have found its way into several of the amicus briefs, which actually oppose Gura's philosophy and approach. It's unfounded, since the worst fears some have are very unlikely to happen.

This is an important case for the 2nd Amendment, and it sets the stage for further challenges. This is no time for infighting without good reason.

* Unenumerated rights may be an issue for future cases. Selective incorporation may still have a role where such issues are concerned.
 
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Interesting to see that everyone is predicting 9-0 for the Second Amendment applying against the states via the 14th Amendment.

Although as the Ilya Shapiro link pointed out, you could still see a 5-4 ruling with 4 affirming the lower court on the basis that although the Second Amendment applies, some type of interest balancing test means the states can still regulate that extensively.

I agree that would be the most obvious outcome based on politics; but I still don't see how even the left side of the Court can make the argument that the states can regulate a right more strictly than the Federal government can if the Second Amendment applies to the state. I also don't see how they are going to reconcile that concept with SAF's Firearms Freedom Act lawsuits that say states can regulate less strictly than the Feds.

These Justices aren't stupid. I can't see them adopting a position that puts them in such an awkward place.
 
We are fortunate to have guys like Kopel and Gura arguing for our side. They are both able to write about complex legal matters in a style that the average high school graduate can understand. In the long term, that ability may mean as much to the RTKBA as the cases themselves.
 
So far this has been a very interesting thread, especially reading all the Friend of the court briefs.

Interesting to see that everyone is predicting 9-0 for the Second Amendment applying against the states via the 14th Amendment.
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It could end up similar to the Bush Gore case, the decision on the recount being invalid was 7-2 but they split 5-4 on whether it could be fixed or not, the majority saying no it could not be fixed by a recount, at least in the time available.

I could see several minority concurring opinions being published that apply the 2nd amendment to the states with varying degrees of levels of freedom of the states to regulate.

My assumption would be the states could regulate carry of weapons, open and concealed but not forbid except the normal felon, mentally unstable etc. The may also get a lot of leeway in specifying no-gun zones such as schools. My hope would be that all states would have to go to a shall issue system for both carry and ownership if they wish to regulate guns.
 
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