Chicago Gun Case Incorporation Lawsuit
- Thread starter Al Norris
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<snip for brevity>Yellowfin said:
Nice summation, Yellowfin.
One other thing that plays into this. Yellowfin hit part of it with the education point.
I was going to point out how turn of the century "progressives" played on race and ethnic fears to convince white Americans of dangers in letting people like blacks or eye-talians be armed.¹ Or how they rationalized that firearms & weapons were the tool of the "uncivilized" (uneducated, savage, uncouth) peoples.²
But I think we can still spot some of their successful propaganda today. Such as when the arugment is raised that it's not worth killing a thief or robber over "a few bucks" or for "merely" breaking in to your home to take property. They also argued that a "civilized people" did not need to use weapons but should instead rely upon government agencies - police, the courts, etc. - to resolve conflicts.
Then there is the argument that an otherwise intelligent and "civilized" man who uses violence when attacked violently thereby "lowers himself" to the level of the [uncivilized, uneducated, barbarian, savage] thug. This gives rise to the idea that if you lower yourself to acting like a thug, you should be treated like a thug, no matter how just your cause.
Some of this "evolved" in the 60's to suddenly include the victim of society. Suddenly we were all to blame because David was poor or Leroy was black or Juan didn't speak English well. They were short-changed by society and "forced" to commit crimes.
¹ Use of race and nationality were used in NYC to pass the Sullivan Act of 1911 when murder jumped 50% after a large influx of Italian immigrants. Propaganda pandered to other ethnic groups to pass the law, especially those from countries with little or no firearms heritage.
² For a good example of these prejudices, watch the movie 12 Angry Men (1957) directed by Sidney Lumet.
I've got my fingers crossed for strict scrutiny, but the Court will feel forced (as they did in Heller) to qualify it. Most likely, we'll see something that places a very high burden of proof on governments when they claim a given regulation is constitutional. Whether or not they have to prove a compelling interest...we'll have to wait and see.
Just a slight hijack. Marko Kloos wrote a great article entitled Why the Gun Is Civilization that addresses this idea quite handily.
The Court will have to articulate a standard for scrutiny. Any tendency by the Justices toward fence-stradling will pose its own hazards. The Justices are well aware that any divergence from current practice with respect to the 2nd Amendment will inevitably be tested against other fundamental rughts.
A quick question about SCOTUS process . . .
Recent reporting shows Sacramento City Council voted to join other cities in an Amicus in support of Chicago . . .
Sacramento Press, Dec 15
Sacramento Bee, Dec 28
Didn't Amicus filing close on Nov 23 or would supporting Amicus also be extended with Respondent's extra time (Dec 30)? There was only one entity to request leave to file late and they are supporting the Petitioners.
Is an Amicus from these cities (Baltimore, Cleveland, Los Angeles, Milwaukee, New York, Oakland, Philadelphia, Sacramento, San Francisco, Seattle and Trenton, N.J.) or other entities supporting Chicago to be expected?
Recent reporting shows Sacramento City Council voted to join other cities in an Amicus in support of Chicago . . .
Sacramento Press, Dec 15
Sacramento Bee, Dec 28
Didn't Amicus filing close on Nov 23 or would supporting Amicus also be extended with Respondent's extra time (Dec 30)? There was only one entity to request leave to file late and they are supporting the Petitioners.
Is an Amicus from these cities (Baltimore, Cleveland, Los Angeles, Milwaukee, New York, Oakland, Philadelphia, Sacramento, San Francisco, Seattle and Trenton, N.J.) or other entities supporting Chicago to be expected?
Bartholomew Roberts
Moderator
The date to file amici briefs is done. Looking at Rule 37, I do not see any leeway for the cities to file after the required date if they have not already requested an extension.
I imagine the Court can always consider amici briefs despite the Rules; but I would think that missing the deadline by several months is going to get you a chilly reception even if they do accept it.
I imagine the Court can always consider amici briefs despite the Rules; but I would think that missing the deadline by several months is going to get you a chilly reception even if they do accept it.
Bartholomew Roberts
Moderator
Yes, I was thinking that because Brady had filed, the time for amici was past due; but you are correct. Brady technically could have waited until January 6th to file... which makes me wonder why they chose to file that excerable brief when they still had several months.
However, the city council voted on December 28 to join a brief that must be filed by January 6? Basically all that is going to happen there is that the taxpayers of the city of Sacramento are going to give some law firm money for a brief that they were already paid to write and had already written. Great deal for the law firm. I'd be irked if I was a taxpayer in Sacramento though.
Or maybe they really will crank out a Supreme Court brief on a major revamp of Constitutional Law in a week. That should be good for a laugh. Either way, I don't think it is going to have much impact.
It will be interesting to see the other briefs come out of the woodwork though. I wonder if anyone will attempt to argue against incorporation through due process? My guess is that most of the remaining briefs will accept incorporation as a given and concentrate on standard of scrutiny and suggest a functional equivalent to rational basis without actually calling it that.
Brief for Chicago and Oak Park is up on Gura's site.
HERE (463KB PDF)
One sentence that stands as a summation . . .
HERE (463KB PDF)
One sentence that stands as a summation . . .
"Chicago and Oak Park may legitimately conclude that, in “an urban landscape, the Second Amendment becomes 17 the enemy of ordered liberty, not its guarantor.” Id. at 87. For that reason, it should not be incorporated."
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It was the first thing I checked when I got home from work. Nothing. Then checked SCOTUS Blog, Volokh Conspiracy and several other gun boards... Nothing.
Gura & Company must have put it up within the last few minutes and TFL is among the first to have a link!
Many Thanks ReelinRod. Way to go!!
Gura & Company must have put it up within the last few minutes and TFL is among the first to have a link!
Many Thanks ReelinRod. Way to go!!
How Many Ways Do I Loathe Thee? Let me count the ways....
Written, no doubt with a straight face, all the while ignoring the Ruling in Heller, which did, in fact, strike down an outright ban.
Did Chicago forget that this "collective rights" argument is now a dead letter?
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!
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.
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.
Chicago said:
Written, no doubt with a straight face, all the while ignoring the Ruling in Heller, which did, in fact, strike down an outright ban.
Did Chicago forget that this "collective rights" argument is now a dead letter?
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!
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.
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.
The NAACP brief also implied that. I don't remember if it was this thread where I went into apoplexy about that, but yes, there's real cognitive dissonance here.
So must they. This part was odd:
I think it's meant to serve two purposes. The first is to pour gasoline on the whole "OMG gay m4rriage!" fire that folks have been whipping up on both sides of the aisle to preclude PorI incorporation.
The second purpose is to say, as DC counsel did in Heller, that as long as some guns are not banned, the right to self-defense (which they argue is some weird emanation of the 9A) would be preserved. They're reaching.
They also claim that Heller was deficient because the 2A was only supposed to protect the "rights" of state militias to arm themselves:
They attempt to drive a wedge between an armed militia and an armed individual. For now, I'll let George Mason dispute that:
As for the phrase "ordered liberty," it appears no less than 27 times, being the linchpin of their argument that,
Well Regulated
New member
I concur with post above. Chicago's brief is mostly a re-argument of settled issues in Heller, although cleverly done in some places. They never mention that Heller settled the issue that when the term People is used in the Bill of Rights it means individuals, not a collective right.
They do a very good job of using an Orwellian definition of "Ordered Liberty" that is actually Slavery. They do a good job of using the fear factor that so many laws will be repealed because of Heller. It is interesting that they use the holding in Heller that machine guns are not protected under the Second Amendment in a very effective way and in essence say the court can't have it both ways.
They do a very good job of using an Orwellian definition of "Ordered Liberty" that is actually Slavery. They do a good job of using the fear factor that so many laws will be repealed because of Heller. It is interesting that they use the holding in Heller that machine guns are not protected under the Second Amendment in a very effective way and in essence say the court can't have it both ways.
maestro pistolero
New member
Scalia won't even have to sharpen his fangs to shred this to pieces. This is too good. Mustn't gloat. . .mustn't gloat.
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I've finished my first read. I have tomorrow off, so I'll be able to study this for any real content I may have missed.... Not saying there was anything to find, mind you... Just saying!
IIRC, Gura will file his reply brief in 15 days... He is going to shred these guys!!
IIRC, Gura will file his reply brief in 15 days... He is going to shred these guys!!
Quoting Palko v. Connecticut, they opine that,
It can very handily be argued that liberty and justice would be threatened if the citizenry did not have the tools to bodily support a just government and resist an unjust one.
Nope. That won't fly after Heller. So, what's left? Heck, let's compare America to other countries!
There are, however, two fundamental differences. First off, none of those countries ascended from colony to democracy through armed rebellion. None saw the need to articulate an explicit right to self-defense. Our founders did.
The second rebuttal is this: they argue that if the pesky 2nd Amendment wasn't in the way, we'd enjoy a halcyon world of non-violence. One needs only to look at England's recent troubles to see that bans simply don't reduce violence. If they did, then the petitioners could easily cite their own cities as proof that such draconian social engineering has merits. They cannot.
It can very handily be argued that liberty and justice would be threatened if the citizenry did not have the tools to bodily support a just government and resist an unjust one.
Nope. That won't fly after Heller. So, what's left? Heck, let's compare America to other countries!
There are, however, two fundamental differences. First off, none of those countries ascended from colony to democracy through armed rebellion. None saw the need to articulate an explicit right to self-defense. Our founders did.
The second rebuttal is this: they argue that if the pesky 2nd Amendment wasn't in the way, we'd enjoy a halcyon world of non-violence. One needs only to look at England's recent troubles to see that bans simply don't reduce violence. If they did, then the petitioners could easily cite their own cities as proof that such draconian social engineering has merits. They cannot.
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:
------ Start of Reprinted Material ------
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:
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!
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
------ End of Reprinted Material ------
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:------ Start of Reprinted Material ------
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:
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!
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
------ End of Reprinted Material ------
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