Chicago Gun Case Incorporation Lawsuit

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It would be naive of anyone, IMHO, to believe that the outcome of this SCOTUS decision will settle the matter.


Anti-gun groups may be expected to mount continuing challenges along an ever-broader array of increasingly narrow lines of argument.


Although I am not a lawyer, as many of you may be, it is my contention that NRA's reduction of Gura's time is not likely to substantially harm the pro-2nd Amendment arguments being presented, and may strengthen them.

As noted previously, with a 5/4 decision in Heller there are likely SCOTUS justices who may find different (pro-2A) legal arguments unpursuasive.

It is difficult to predict accurately what is in the minds of the listeners; two speakers may ultimately be more convincing than one - for any specific justice. I do not impugn the abilities of the Cato counselor to argue his case.

Given the proven ability of Brady lawyers to twist logic in what appears otherwise to be commonly understood language, however, I suspect that NRA presenting a DP argument at worst will not harm the chances of a favorable outcome, and at best may improve them.

IMHO. YMMV.

FWIW.
 
Although I am not a lawyer, as many of you may be, it is my contention that NRA's reduction of Gura's time is not likely to substantially harm the pro-2nd Amendment arguments being presented, and may strengthen them.
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It's not the 2nd Amendment arguments that worry me. Due Process incorporation is in the bag. A 1st-year law clerk could successfully argue for it.

What we need Gura for (and what I wish the NRA was on board with) is overturning Slaughterhouse, Cruikshank and Presser. This case is about a larger issue than the 2nd Amendment.

I don't worry that the NRA is going to sink this case. In fact, I'm not so sure that their allotment of time really jeopardizes anything. I just find their involvement to be a bit distracting and overbearing.

Clement may not have argued as strongly for the RKBA as we all would have liked in Heller, but neither did Gura. They both accepted restrictions that most of us would probably disagree with.
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Actually, in Gura's case, he didn't agree to any restrictions. The Justices asked questions about issues that fell outside of the central argument in Heller, and he refused to go down that road.

I know a lot of gun folks who got steamed that we didn't push for revoking the NFA or instituting nationwide CCW, but that was never a question for Heller.

The questions in Heller were whether the 2A guaranteed an individual right, irrespective of militia service, and whether the District's handgun regulations violated that right. Gura kept the focus on those questions. Had he gone off the reservation, we may have lost.

If Clement accepts some of these "reasonable restrictions" that the NRA opposes in order to win this particular case, all of the NRA haters on the gun boards will finally have their proof that the NRA really does hate guns.
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Which is why I really hope the NRA has thoroughly briefed him, and that they're on the same page. The guy arguing for the case wasn't present for the process leading up to it, and I hope he's carrying the same torch.

Another homerun from Gura on the Reply brief. Simple, direct and straightforward.
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The man's not someone I'd want arguing against me. This bit is classic:

A paper based on little more than a Google search should not be used against decades of detailed, disciplined scholarly work by some of the Nation’s leading legal historians.
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Mr. Gura seems to be taking advantage of this litigation to transform it into a sort of libertarian crusade for the redemption of PoI. His spirit may be commendable, but it also raises the question of whether he is truly serving the interests of his clients. In contrast, it seems to me that the NRA is much more narrowly focused on the interests of their membership. I seriously doubt there are many gun owners who demand PoI incorporation and nothing else.

I'm not terribly concerned about the Court's decision in part because Chief Justice Roberts has been known to extend argument time for interesting cases. It happened during Heller and may very well happen here as well. I suspect Mr. Gura may end up with close to his original 30 minutes.
 
Actually, in Gura's case, he didn't agree to any restrictions. The Justices asked questions about issues that fell outside of the central argument in Heller, and he refused to go down that road.
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He did go down it a ways:
MR. GURA: Well, my response is that the government can ban arms that are not appropriate for civilian use. There is no question of that.
JUSTICE KENNEDY: That are not appropriate to?
MR. GURA: That are not appropriate to civilian use.
JUSTICE GINSBURG: For example?
MR. GURA: For example, I think machine guns: It's difficult to imagine a construction of Miller, or a construction of the lower court's opinion, that would sanction machine guns or the plastic, undetectable handguns that the Solicitor General spoke of.
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MR. GURA: That's true, Your Honor. However, better safe storage approach is the one used by the majority of jurisdictions, I believe, that do have such laws, which is to require safe storage, for example, in a safe. And that is a reasonable limitation. It's a strict scrutiny limitation. Whatever standard of review we may wish to apply, I think, would encompass a safe storage provision.
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JUSTICE GINSBURG: If there's a fundamental right, what about licensing? One piece -- we've talked about trigger locks, we've talked about the ban on handguns, but there is also a requirement that there be
a license for possession of a handgun. Assuming you're right on the first question, that you couldn't flatly ban handguns, what about a requirement that you obtain a license to carry -- to have a handgun?
MR. GURA: Justice Ginsburg, that would depend on the licensing law itself. We don't have a problem with the concept of licensing so long as it's done --
JUSTICE GINSBURG: What about this very law? If you take out the ban -- there is a law on the books. It's one of the ones that you challenged. It's section 22-4504(a). Wouldn't that be okay -- would that be okay? It says that you have to have a license to carry.
MR. GURA: Yes, so long as the licensing law is not enforced in an arbitrary and capricious manner, so long as there are some hopefully objective standards and hopefully some process for --
JUSTICE GINSBURG: It just says -- it says you have to get a license if you want to possess a gun. What kind of standard? It just says you have to have a license.
MR. GURA: Well, the government could set reasonable standards for that, Your Honor. The government could require, for example, knowledge of the State's use-of-force laws. They can require some sort of vision test. They could require, perhaps, demonstrated competency. And those are the types of things that we sometimes see; background checks, of course. Those are going to be reasonable licensing requirements.
However, if the license requirement is we only wanted to give licenses to people who look a certain way or depends on how we feel or if the licensing office is only open Thursdays at 3:00 in the morning -- I mean, it all depends on the implementation. And --
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MG bans. Safe storage laws. Licensing. Screw all that.
 
MG bans. Safe storage laws. Licensing. Screw all that.
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Indeed. I don't think even Clement, let alone Gura will make that mistake again. They have taken a lot of heat for that, I think they will have a better answer ready next time.

The NRA reply is excellent.

Highlight for me:
Moreover, allowing a patchwork of local
laws to ban various types of firearms in different
parts of the country would chill the exercise of
Second Amendment rights everywhere and hinder
travel between jurisdictions.


CA Roster and AWB . . . Bye Bye now
 
Not Gura, the NRA counsel: Halbrook, Clement, etc.
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There are two Reply briefs. One by Gura/SAF for McDonald and one by the NRA for their plaintiffs. I was commenting on Gura's brief since I read it first. I haven't finished Halbrook's yet; but it is also good.

Gura just has a very distinct style in his briefs that I like. Very clean prose and direct. I'd like to pay him to write about something I object to just to see if I am still as impressed by his writing. :)
 
Looks to me, more and more, that Prof. Kerr (Volkh Conspiracy) is hoping that the court goes against incorporation, just to validate his "feelings" about Alan Gura.

He has certainly made it clear he doesn't want P or I incorporation, whatever his real thoughts on DP incorporation may be.
 
I'm not sure that presumption is fair. It seems that Prof. Kerr objects to PoI incorporation and has doubts about Mr. Gura's approach. But I don't see anything in his statement that calls into question his commitment to DP incorporation.

There is another angle on the divided argument that no one has pointed out yet. Mr. Clement may stand before the Court as one who respects the stare decisis of Heller even though he did not agree with it at the time. He can then sing the praises of stare decisis and urge the Court to follow the Heller precedent's logical conclusion and incorporate the 2nd.
 
There are two Reply briefs. One by Gura/SAF for McDonald and one by the NRA for their plaintiffs. I was commenting on Gura's brief since I read it first. I haven't finished Halbrook's yet; but it is also good.

Gura just has a very distinct style in his briefs that I like. Very clean prose and direct. I'd like to pay him to write about something I object to just to see if I am still as impressed by his writing.
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Sorry. I hadn't seen Gura's yet, and the NRA's had just been linked in a previous post.

I loved the NRA's brief and was happy to see that they at least concurred and payed homage to the P and I route to incorporation.

I think Gura had less of a free hand in the reply to be his normally crystal-clear self, only because Chicago had dumped so much garbage on the road in front of him. I confess my eyes blurred a couple of times. If I were to re-read the Chicago brief again, some of the finer points would come clear.

He certainly eviscerated them on their patchy and contrived, if not erratic historical analyses. If incorporation were to somehow fail after these briefs, I would lose considerable faith in the SCOTUS and be very sad for our future. But, I really don't think believe that could happen.
 
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green-grizzly said:
"MG bans. Safe storage laws. Licensing. Screw all that."
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Agreed.

I am not inclined to dismiss NRA involvement as "grandstanding" or band-wagoning to earn points with their membership.

NRA has different talking-points than Cato Institute. Different agenda objectives.

I'm not certain that its wise to have a single negotiator define before the court what "reasonable government standards" are; especially one that uses the phrase "plastic, undetectable handguns". A weapon that perhaps has no place in modern U.S. civil society may be a 155mm howitzer, but given potential technological design over the next 30 years, lets not go down the slippery slope of "plastic, undetectable handguns".

I do not perceive NRA involvement as an error - legal or otherwise.

JMHO...
 
"plastic, undetectable handguns"
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It may have been a blind spot at one time, but I don't think we'll hear any more of that or any more MG crap from either Gura, or Clement. They have taken a lot of heat for that, and they should have.
 
htjiang said:
I'm not sure that presumption is fair.
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Perhaps, or perhaps not.

The one thing that Prof. Kerr has never done, is to adequately explain why McDonald was chosen for cert. over NRA (or Maloney). When confronted of the fact that it takes at least 4 Justices to grant cert, and that McDonalds question was the question that at least four Justices wanted to hear, Prof. Kerr hemms and haws.

Prof. Kerr has even questioned the integrity of Gura in his merits brief, saying he wasn't acting in the best interests of his clients. In fact, he continues with this inuendo, even after being told that the clients all agreed to this line of attack, by none other than Alan Gura himself.

He doesn't like Guras attitude towards the NRA. Kerr admits to knowing of some dispute between them, but won't trouble himself to learn why. If you're going to disparage someone for how you think they are acting, have at least the gall to find out what the dispute is about, else hold your opinions to yourself.

Prof. Barnett has called his bluff a couple of times. Prof. Kerr does not answer any of Barnett's challenges directly.

Prof. Kerr does not like P or I direction of incorporation, this is true. But his reasons are tied to what might happen, as if Pandora's Box were to be opened (Something that Josh Balckman and Ilya Shapiro - http://papers.ssrn.com/abstract_id=1503583 - have already addressed).

Because of all this, I have lost some measure of respect for the man.



Now, in a lighter vein, here is something that David Hardy linked to, in his blog:

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The article below appeared in 28 Feb, Pittsburgh Post-Gazette, and can be viewed at their web site, post-gazette.com, type under fire or crosshairs in the search field. If the article has already been posted here, excuse the repeat.

Posters Comment:

If our side "wins" this one, it could well be a giant step forward for the rights of the law abiding, should things go the other way, who knows. In either case, I would expect that court room battles will go on for years to come, for the anti gun lobby is not likely to quietly fold it's tent and drift off to Nirvana.

In any case, I respectfully suggest that interested parties carefully read/reread the last paragraph, which makes mention of the "reasonableness" of some gun laws. How "reasonable" is spelled, could turn out to be a most interesting question, the answer to which likely depending on who is the speller. This is an aspect of the thing that bears close attention from gun owners everywhere, or so it seems to me.
Sunday, February 28, 2010
Under Fire
By Michael Doyle, McClatchy Newspapers
WASHINGTON -- State and local gun laws are in the crosshairs as the Supreme Court prepares for a historic oral argument Tuesday.

The conservative majority that struck down Washington, D.C.'s handgun ban in 2008 appears poised to stretch the Second Amendment further. The hourlong session Tuesday will let justices test-fire arguments in a case in which the reasoning could be as intriguing as the outcome.

For gun owners and lawmakers, the case called McDonald v. City of Chicago presents one bottom line: If the court agrees that the Second Amendment covers state and local governments, as seems likely, some but not all gun restrictions will be blown away.

For constitutional scholars, the court's means may be as important as its ends. In order to eliminate Chicago's gun ban, court conservatives could end up overturning a 137-year-old precedent that's hindered the expansion of new rights.

With the case so crucial, the sidelines are jammed. Forty-nine amicus briefs have flooded the court, representing groups ranging from Jews for the Preservation of Firearms Ownership to specialists in 17th-century English history.

The attorneys general for Florida, Texas, Alaska and 34 other states have urged the court to strike down Chicago's gun ban. So have a majority of members of Congress, and individual prosecutors from 34 California counties.

"The people's right to arms is inextricably tied to the equally fundamental right to defend oneself, to fight to save one's own life," Fresno County District Attorney Elizabeth A. Egan and her colleagues argue.

The U.S. Conference of Mayors joined 55 members of the House of Representatives and others in warning against expanding gun rights. Separately, Sacramento, Calif., Seattle and eight other major cities have urged the court to uphold Chicago's gun law.

"The 18th-century version of the right to bear arms codified in the Second Amendment ... imperils law-enforcement strategies with enormous promise in the fight against violent crime," the mayors group said.

The Second Amendment says that "a well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

For decades, the "well regulated militia" clause incited debate but no definitive court ruling. Some called gun rights fundamental, enjoyed by individuals much like the right to speak or worship. Others, stressing the well-regulated militia reference, thought that governments had more authority to control guns.

The Supreme Court finally took sides in the 2008 case called District of Columbia v. Heller. In striking down Washington's strict handgun ban, the court's majority concluded that Second Amendment rights have nothing to do with militia membership.

"We are aware of the problem of handgun violence in this country," Justice Antonin Scalia wrote for the majority, "but the enshrinement of constitutional rights necessarily takes certain policy choices off the table."

Since that ruling, Justice Sonia Sotomayor has replaced the retired David Souter. She seems skeptical of expansive Second Amendment claims. In a 2009 appellate court case involving New York's ban on nunchucks, Justice Sotomayor joined colleagues in ruling that the Second Amendment didn't cover state laws.

District of Columbia v. Heller applied only to federal jurisdictions, because the Bill of Rights, as originally written, covers federal but not state and local governance.

To expand the Second Amendment beyond federal boundaries, court conservatives must figure out what constitutional provisions allow them to do so. The 14th Amendment, adopted after the Civil War, has been the standard tool for expanding other rights.

It declares that states can't "deprive any person of life, liberty, or property, without due process of law." This due process clause has been used previously to apply, or "incorporate," other Bill of Rights guarantees to state and local levels.

However, the 14th Amendment also declares that "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." An otherwise obscure 1873 decision in what are called the Slaughterhouse Cases rendered this "privileges or immunities" clause toothless.

If the court overturns the Slaughterhouse Cases and revives the privileges or immunities clause as a way to end Chicago's gun ban, a potential side effect might give future plaintiffs another basis to argue for expanding other rights.

"It was never the intent of the 14th Amendment to strip the states of their existing sovereignty to protect and regulate the right to bear arms and replace it with a federal standard," Sacramento, Seattle and other cities argued in their legal brief.

Even if the court strikes down Chicago's strict prohibition, other gun laws will remain. Justice Scalia noted in the 2008 ruling that certain laws may still be reasonable, such as those that ban firearm possession by felons or forbid firearms to be carried in places such as schools and government buildings.
 
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