I came down with a cold, yesterday. So in re-reading the brief and doing some note taking, I succumbed and went to bed early... Only to wake up at about 3:00am this morning with a coughing spasm.
While I was up, I looked around the net to see what was being said. Over at CalGuns, Gene Hoffman had posted a synopsis of the brief that was shorter and more to the point than what I was writing.
So I contacted him, via email and requested permission to reprint what he wrote. Here then, with Gene's permission (and a big Hat Tip ), is what he has to say about the Merits brief by Chicago:
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Let me start with: Heh.
Ok, some of the amusing parts (please note my sarcasm at many places):
Trotting out collective rights again? To this court that just ruled no on that. Skillful!
Chicago says:
First, because conditions vary from one place to another, residents in different locales, facing widely different conditions and social problems, should be able to address them with widely varying solutions.
Yep. Bill Cruikshank and Christopher Columbus Nash thought that local "social requirements" in Grant Parish Louisiana meant that armed black men should be
disarmed and shot - two black men to one bullet even. There's a widely varying solutions for you.
"Handguns are used to kill in the United States more than all other weapons—firearms and otherwise—combined." How can handguns be more than long guns plus handguns plus knives plus blunt instruments plus hands?
Does Chicago get to cite not yet filled Amici for their side?
Chicago argues that because the SCOTUS majority said handguns are protected, handguns therefor can not support ordered liberty??
Chicago understands the implication that carry licensing will come under 2A purview.
Chicago notes that California's microstamping requirement (and thus the roster) are subject to attack under the 2A.
Say it isn't so!
Costly Second Amendment challenges to arms regulations would no doubt force state and local governments to consider repealing them (and refrain from enacting new ones), even when, in their judgment, they could substantially contribute, under local conditions, to reducing violence, injury, and death.
Chicago at least understand that the arms protected are the ones in common use.
Chicago is cute in trying to show how few states strike down gun laws. Of course that's because the laws don't get passed in the first place. It then uses its own state -whose right has been gutted since it says "subject to the police power" - as an example. Hey! Don't look over here!
Chicago really will not like the actual counts of how far from "routinely" sates ban common weapons - especially in those states have an enforced RKBA…
Chicago utterly skips the understanding of the 2A in the era of the adoption of the Fourteenth. I do love how they otherwise cite the preamble of the Second Amendment to support that there is no right to self defense but yet skip the whole "security of a free state" part…
Chicago claims machine guns are useful for self defense. I can't wait to use that against them in the distant future.
Interesting that Chicago realizes the real danger to cities and states of the Supreme Court enforcing a right to self defense. They intentionally pick on NRA's brief to avoid the fact that the unenumerated right to self defense is front and center in the McDonald brief.
I love how every other dangerous right isn't dangerous but the 2A is. The 1A gets people killed all the time - just ask Yale University Press why they chickened out of publishing the Mohamed cartoons. Ignoring the 4A would solve a whole lot more violent crimes before the criminal could strike again.
on P or I:
1. Notice they never actually explain why Slaughterhouse was correctly decided. just that it should be relied upon.
2. The bring out the parade of horribles about non-citizens (i.e. legal aliens and corporations.) Anyone else amused that Chicago is supporting the first eight amendment rights being possessed by Corporations?
3. Note in footnote 23 that Chicago
uses the GOA and ACRU brief against us. Thanks GOA and ACRU!
Chicago quotes "George C. Thomas III, Newspapers and the Fourteenth Amendment: What did the American Public Know About Section 1?" which purports to use an online newspaper database to see if the ratifying public new what privileges or immunities meant. David Hardy did some quick
fact checking of how that paper was done and the reason it didn't find even the known examples was that the OCR software clearly failed when making the search database.
Side note: I need to check one of their quotes to the Congressional Globe as I think it may not mean what they'd like it to mean. If I'm right I'll post a follow up on in this thread.
Chicago argues that no court knew about the intent to bind the states to the first eight amendments -well, except for, "[o]nly Justice Bradley’s dissent [in Slaughterhouse], joined by Justice Swayne, endorsed a view that the Clause encompassed the first eight amendments." Only the pesky dissent in the case our side is claiming is wrongly decided…
Chicago baldly claims, "If there had been a public understanding that the Privileges or Immunities Clause made the Bill of Rights applicable against the States, those Justices would have been unable in good faith to ignore it, and commentators on the Court’s decision in SlaughterHouse would have been equally clear that a dreadful error had been made." Actually, that would be assuming the opposite conclusion of the entire argument that Slaughterhouse is wrong. Wow.
Chicago quotes Fairman and Berger. Fairman and Berger have been debunked as noted in
CGF's amicus - and in some cases they were shown to be specifically racist in intent…
Chicago argues that even though a bunch of congressmen stated that the 14A was meant to allow the federal government to enforce the Constitution that somehow the Constitution at 1866 didn't include the Bill of Rights…
Chicago points out, "Congress itself completely disbanded the militia in southern States, and prohibited any further arming of those militias. See Act of Mar. 2, 1867, ch. 170, § 6, 14 Stat. 485, 487." They studiously don't mention that the original proposal in that bill was to also disarm those militia, but that Republicans and Democratic congressman decided that would be unconstitutional under the 2A and amended it into the form actually passed.
Chicago then trots out a lot of state legislation in the 1880 and 1890's, most of which was in fact overturned by the various State Supreme Courts under their own RKBAs. A lot of those decisions are referenced in the body of Heller...
In note 26, two out of three scholars that supposedly "reached a contrary conclusion" to the vast scholarly agreement that Slaughterhouse is wrong are Fairman and Berger who have been debunked to say it nicely.
We're going to get some legal scholars as Amici on Chicago's side saying Slaughterhouse was correct. That should be amusing. Here is a hint. If you're going to college, don't take history from anyone who signs onto that brief.
***? There is no note 28 or 29 and note 30 doesn't show up in the brief… That's kind of amateur for a SCOTUS brief of this magnitude…
Also note that Chicago would really like the court to not rule on the re-registration requirements...
The key to this brief is knowing all the critical facts it leaves out.
-Gene
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