Chicago Gun Case Incorporation Lawsuit

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On the eve of oral arguments in McDonald, the Volokh Conspiracy has a number of interesting posts relating to the case:

Randy Barnett examines an argument that the 14th does not incorporate the Bill of Rights from another well-respected colleague and responds to it by discussing Justice Taney's conclusions in Dred Scott.

Meanwhile Dave Kopel has an interesting piece on why U.S. vs. Miller was so badly written which draws on personal biographies of Justice McReynolds by his clerks. Suffice it to say that Justice McReynolds does not appear to have been a likable man, despite his disdain for FDR's New Deal.

Meanwhile over at Reason.com, Damon Root highlights some of the economic liberties that libertarians hope to restore via a P&I win in McDonald and he also gives a nice reply to Akhil Amar of Yale Law's assertion that P&I could support a right to health care by way of Frederick Douglass.

All of these articles are useful reading that will help inform you on tomorrow's oral arguments better and most of them are quite short as well.

Also worth noting, the Supreme Court offers transcripts of oral arguments posted on their websites the same day as the argument is held:
http://www.supremecourtus.gov/oral_arguments/argument_transcripts.html

In addition, SCOTUSblog (which is sponsored by Akin-Gump, one of the firms that defended Washington D.C.'s gun ban in Heller) will be blogging the oral arguments tomorrow.
 
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Update: SCOTUSblog reports that the Supreme Court has refused a request by cable and the other broadcast networks to release an audiotape of the oral arguments in McDonald on the same day. So it looks like SCOTUSBlog and the Supreme Court website will be the only source for the oral arguments.
 
I have some final thoughts about McDonald on the eve of oral argument:

1. The outcome of the case is not in doubt. There is no way the Court will confine the 2nd Amendment to areas under federal jurisdiction.

2. Therefore, the issue here is PoI or DP incorporation. Justice Thomas is the one most likely to support PoI though I would suggest that Justice Kennedy might be persuaded to support it as well. My observation of Kennedy's jurisprudence suggests that he has an idealistic view of the Constitution and the Court's place in the constitutional arrangement. The likes of Slaughterhouse and Cruikshank are such contemptible blots on the Court's history that I suspect he might be tempted to wipe them off. Second, what comes with that idealistic view is that he also thinks fairly highly of himself. Hence he might be tempted by the prospect of either writing the majority opinion to strike down those precedents or, alternatively, writing a concurrence denouncing them.

If Gura can gain Kennedy's vote, then the chances of gaining CJ Roberts and Justice Alito's votes improve substantially. The 2 justices' jurisprudence lie somewhere between Thomas and Kennedy. If the 2 of them can agree on PoI, then everyone in between is likely to join.

3. Now we come to the question of what approach Gura should take. I don't think Gura should spend too much time arguing the reasoning and history behind PoI. He already did that in his brief and that's not likely to persuade anyone other than Thomas. For Kennedy, Gura should emphasize that the precedents in question are a vestige of segregation that must be destroyed. He should also throw in a few references to the Colfax Massacre.

My next suggestion may be somewhat controversial for those of you who still hold out some hope that liberals will support PoI. Maybe it's because I'm a conservative, but I think liberal support on this issue is neither likely nor desirable:

a) I recall there were plenty of gun owners fantasizing about liberal support for Heller. They point to things like Prof. Laurence Tribe's tentative support for the individual rights model and a throwaway line from the Ginsburg dissent in Muscarello. Needless to say, that support did not materialize.

In my view, any hope that PoI might attract liberal support should have been buried by the NAACP brief. If the NAACP can be so dedicated to gun control that they are willing to support the continuation of Slaughterhouse-Cruikshank....

I think that the liberal justices are every bit as dedicated to gun control as the NAACP.

b) The way to attract liberal support for PoI is to offer an expansive interpretation. But that threatens to antagonize conservative justices. I don't think it's wise to sacrifice votes from the Heller majority for this case because their votes will be needed again in the future when more such cases will be litigated to the Supreme Court.

c) The reason some liberal scholars support PoI is because they want to create a right to health care, a right to education, a right to be driven to work in a Rolls Royce,.... Do we really want to help them?

My view is that instead of trying to chase after liberal votes which may or may not be delivered (Even if they agree on the PoI issue, you can be sure they will still vote for Chicago in the judgment section.) and run the risk of antagonizing our friends on the Court, possibly jeopardizing future cases and opening a Pandora's box that many of us would not want to open, Gura should stick to retaining the Heller majority.

That leads to:

4. One of the key concerns the Court has with adopting PoI is that it might unsettle precedents that use DP to incorporate other constitutional rights. Gura is right in not fully rejecting the DP approach and allowing for the possibility that the 2nd Amendment may be incorporated under both clauses. He should also advise the Court to employ language that will, at least for the short-term, confine the exercise of PoI to the 2nd Amendment until such time that PoI challenges for other sections of the Constitution arise. (Since most of the Constitution have been incorporated, such challenges are unlikely.)

To allay conservative concerns about how PoI might be abused, Gura should stress that it should be read in its 19th century context.

Let me end this absurdly long post by wishing Mr. Gura success tomorrow. My own personal preference is that the Court will rule by 5-4 to use PoI incorporation. The opinion should be written by Thomas or Kennedy. Having Thomas overrule Slaughterhouse-Cruikshank is poetic justice. Furthermore, Thomas's opinions tend to be most firmly rooted in the Constitution and we can expect him to write a strident opinion (Does the man write any other kind?) in defense of the 2nd and the 14th. Having Kennedy write the opinion will send a signal to lower courts. If the only swing vote on the Court is stoutly defending the 2nd Amendment, that might discourage lower courts from engaging in any creative interpretation of the Constitution to emasculate the 2nd Amendment.
 
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The reason some liberal scholars support PoI is because they want to create a right to health care, a right to education, a right to be driven to work in a Rolls Royce,.... Do we really want to help them?
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Actually, Jacob Howard specified that the 14th Amendment was meant to protect the first eight. The sticky unenumerated stuff like "rights" to employment and health care really comes through the 9th Amendment.

It's sad that many conservative folks didn't realize that before crying foul over PorI.

Otherwise, a fine post and good reading. Thanks!
 
To Tom Servo:

Then there are other liberal scholars like Jack Balkin and Bruce Ackerman who believe that things like a right to education or a right for employees to own a share of their employer's company come from PoI.
 
Good post htjyang!

Yes, like Tom said, the P&I clause is to apply to the first eight amendments from reading I've done........but time will tell as to how the people involved in this case argue and decide this issue.

It would seem that Justice Thomas will probably write this opinion and I'm so excited about that possibility that I cannot contain myself!! :)

Man, I never thought I'd live to see the day when Heller and, now probably, McDonald would go my/our way. I have to pinch myself everytime I think about this.

I was one of those who thought some liberal Justices would hold for Heller. I was completely wrong and you are probably correct.........another 5-4 decision.

I will be VERY interested in the dissent from the liberal Justices if it goes our way. (Not as interested as the majority opinion but interested nonetheless.)

P&I or Due Process..............(?)...........I have no idea how that will turn out.

ETA: I'm just not sure how Sotomayor will decide where to cast her vote. I know she is liberal but..............who really knows for sure how she will view this issue?

She has been quoted as saying people should be allowed to own firearms. So, how would she be able to approve of outright bans by the government for no other reason than the "possibility of reducing crime"?

This is an especially weak argument to put forth since outright bans have never been shown to reduce crime. Arguably just the opposite has occurred and, in the Chicago case, crime has NOT been reduced by these firearms ownership prohibitions.

That is a simple fact that has to be addressed and is a VERY important fact since that is Chicago's reason for adopting firearms ownership prohibitions.

Now, as to P&I or Due Process........did I say........I have no idea how this will go? :D

Seriously though, P&I, Due Process and outright prohibitions are intertwined issues in this case IMHO. I know alot of the experts disagree with me on this but we are still dealing with outright prohibitions on firearms ownership and that initial question must, and will, be addressed in detail IMHO.
 
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In a 1997 book, "A Matter of Interpretation," Justice Scalia wrote that he viewed "the Second Amendment as a guarantee that the federal government would not interfere with the right of the people to keep and bear arms."

Yet, this next passage gives court watchers some pause. "Of course," Justice Scalia continued, "properly understood, it is no limitation upon arms control by the states."
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http://online.wsj.com/article/SB100...771717464954.html?mod=rss_Politics_And_Policy

Let's hope his opinion has matured since 1997.
 
A lot of people (on both sides of the aisle) have used that reference (Justice Scalia's quote) to try and hold Scalia to a predetermined mindset.

I think it wise to remember that in 1997, we did not have the holding that the 2A was an individual right. Nor did we have anything close to a case for incorporation. So what Scalia wrote, back then, was the exact truth.

The anti-gunners will use whatever they can, to discredit firearms. They know that they are currently in a losing end game. They will not give up.

The decision will most likely be a straight-up incorporation via DP (with Thomas concurring but explaining why Slaughter-House should have been overturned). The case will be remanded back to the District court for further consideration consistent with Heller.

We should be aware of what is already happening and what is planned:

Nordyke v. King - Once incorporation is settled, this case will come out of its (en banc) hold and perhaps the "sensitive areas" issue will be settled in the 9th Circuit.

Sykes v. McGinness (similar case Palmer v DC): Pending - Put on hold until resolution of Nordyke. Challenges the carry license issuing policies in Yolo and Sacramento Counties. Should reciprocate throughout the state.

Peña v Cid: Pending - put on hold for SCOTUS decision on McDonald and Nordyke. Challenges the California Roster of Handguns also known as The Safe Handgun List.

Palmer vs. D.C. - Currently awaiting a decision on a Motion for Summary Judgement. Several issues involving the "bear" part of the right, outside the home.

Hodgkins v. Holder - A D.C. challenge to Federal residency requirements to acquire firearms in DC Circuit.

All but the Nordyke case above, are represented by attorney Alan Gura. I understand (from a very good source) that within a day of the McDonald decision, Mr. Gura will challenge the NYC gun laws (Sullivan Act).

The basic litigation concept follows that of the NAACP in its, decades long, struggle in overturning Plessy (see Brown v. Board of Ed). Each of these cases are building upon each other and will become precedent, should the various cities keep appealing.

As I finish writing this, the McDonald orals will have started. See ya tonight.
 
The SCOTUSblog analysis of the oral arguments is in and can be found here:
http://www.scotusblog.com/2010/03/analysis-2d-amendment-extension-likely/#more-17012

Summary of SCOTUSBlog report: looks like incorporation of the Second Amendment through due process was "the dominant sentiment", though there was considerable disagreement about scrutiny.

On the downside, Justice Roberts shot down P&I within minutes of the opening argument by Gura saying that such an approach was foreclosed by Slaughterhouse.

More reporting on today's oral arguments from Tony Mauro:
http://legaltimes.typepad.com/blt/2...ase-supreme-court-sounds-note-of-caution.html

Looks like even Scalia dogpiled Gura on the P&I argument. It looks like P&I is pretty much a dead end for the foreseeable future and Slaughterhouse remains good law on that point.
 
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Looks like even Scalia dogpiled Gura on the P&I argument. It looks like P&I is pretty much a dead end for the foreseeable future and Slaughterhouse remains good law on that point.
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I expect Thomas (if he's not writing the majority opinion) to write about the matter in his concurrence. I was worried that Scalia would oppose incorporation altogether, but he said, "As much as I think it's wrong, even I have acquiesced in it."

Though we're not overturning Slaughterhouse and Cruikshank, a win through even selective incorporation is another chink in their armor, as were Gitlow and Benton.

Our chances for incorporation look excellent. I'm a bit bummed that we didn't have a chance to clear up the Chase Court's mess, but this is still a big win.
 
Oral argument transcript is available here:
http://supremecourtus.gov/oral_arguments/argument_transcripts/08-1521.pdf

Wow, they really ate Feldman (Chicago's counsel) alive. I could barely understand the written transcript. I can only imagine what the orals were like.

Thomas was completely silent, as per his tradition. Sotomayor, Ginsburg, and Alito asked a few questions but Roberts, Scalia, Breyer and Stevens led the dialogue.

I can't believe that Stevens and Breyer suggested a whole new judicial doctrine of "partial incorporation" to just incorporate the "core right." Generally, I would expect the minority wing of the Court to be a little more careful about suggesting doctrines that would allow the majority to creatively revisit all kinds of established precedent with regards to incorporation.

And Feldman... wow, telling the Justices who wrote Heller that Heller was about the militia - and doing it right after one of the Justices asks you "Isn't that the argument of the losing side in Heller?" I appreciate that the case doesn't leave you many options besides either arguing for the destruction of previous due process incorporation doctrine or basically rearguing Heller; but that was just awful.

Just off the top of my head, I am thinking Thomas for P&I, Scalia, Alito, Roberts, Kennedy, Ginsburg, and Sotomayor for Due Process Incorporation, Stevens and Breyer for their weird "partial due process incorporation". However, I imagine that even if the 3 dissenting Justices from Heller (+ Sotomayor) go with due process, they will still find that the city of Chicago's ban on handguns meets whatever level of scrutiny they choose to apply - so I am guessing another 5-4 vote on that part of the decision.
 
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JUSTICE SCALIA: Is the right to trial by jury implicit in the concept of ordered liberty?

MR. FELDMAN: I--

JUSTICE SCALIA: My goodness --

:)

Breyer's "imaginary importance of ordered liberty chart" is truly a surreal idea. He tried to get a few digs in at the Heller majority but failed. Scalia and Roberts did a very deft job tearing Chicago's case to pieces.

Chicago's ban is going to fall. What's left is the extent of scrutiny they'll settle on.
 
Clement at pages 20-21 does a good job emphasizing the favored position the 2nd Amendment should take compared to unenumerated rights:
I guess I would stress that I think that, whatever the debates about substantive due process when it comes to unenumerated rights, I think the gist of this Court's incorporation doctrine is that the textual provisions of the Bill of Rights stand in a favored position with respect to incorporation. . .

the one place that I see where the Court has not effectively translated all the case law is one of the procedural rights, the Sixth Amendment criminal jury right. And I think with respect to the substantive rights -- and I think the alliance here or the similarity between the First and the Second Amendments are very stark in this respect -- this Court has incorporated essentially not just the amendment and not just the right, but all of the jurisprudence as well.
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I think this is a big point against "partial incorporation."

Showing the illogic in Chicago's position that the right to ban firearms is implicit in an ordered society:
JUSTICE ALITO: Let me see if I understand your argument. I thought you said a minute ago that if a State or local government were to ban firearms completely, this Court might hold that that violates substantive due process because the right to use a firearm for self-defense is -- might be held to be implicit in the concept of ordered liberty; is that right?

MR. FELDMAN: That is correct.

JUSTICE ALITO: And -- but I thought you began by saying that the right to keep and bear arms is not implicit in the concept of ordered liberty.
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JUSTICE ALITO: Let me see if I understand your argument. I thought you said a minute ago that if a State or local government were to ban firearms completely, this Court might hold that that violates substantive due process because the right to use a firearm for self-defense is -- might be held to be implicit in the concept of ordered liberty; is that right?

MR. FELDMAN: That is correct.

JUSTICE ALITO: And -- but I thought you began by saying that the right to keep and bear arms is not implicit in the concept of ordered liberty.
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Kind of Orwellian doublethink don't you think?

To know and not to know, to be conscious of complete truthfulness while telling carefully constructed lies, to hold simultaneously two opinions which canceled out, knowing them to be contradictory and believing in both of them, to use logic against logic, to repudiate morality while laying claim to it, to believe that democracy was impossible and that the Party was the guardian of democracy, to forget, whatever it was necessary to forget, then to draw it back into memory again at the moment when it was needed, and then promptly to forget it again, and above all, to apply the same process to the process itself -- that was the ultimate subtlety; consciously to induce unconsciousness, and then, once again, to become unconscious of the act of hypnosis you had just performed. Even to understand the word 'doublethink' involved the use of doublethink. - George Orwell, Nineteen Eighty-Four

The power of holding two contradictory beliefs in one's mind simultaneously, and accepting both of them....To tell deliberate lies while genuinely believing in them, to forget any fact that has become inconvenient, and then, when it becomes necessary again, to draw it back from oblivion for just so long as it is needed, to deny the existence of objective reality and all the while to take account of the reality which one denies — all this is indispensably necessary. Even in using the word doublethink it is necessary to exercise doublethink. For by using the word one admits that one is tampering with reality; by a fresh act of doublethink one erases this knowledge; and so on indefinitely, with the lie always one leap ahead of the truth. - George Orwell, Nineteen Eighty-Four

This guy should apply for a job at the Ministry of Truth.
 
It's been too long since I read any Orwell but the terms doublethink and doublespeak certainly sum it up.
 
It's been too long since I read any Orwell but the terms doublethink and doublespeak certainly sum it up.
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Oceana has always been at war with Europa. :)

Think about the scenario, though: Chicago needs a lawyer to argue their case before the Supreme Court. It's a weak case, built on fallacious readings of precedent, and any lawyer taking it is going to be up against the Guy Who Won Heller.

Not the most enticing job offer, is it? I don't imagine many folks were fighting over it. So, Chicago (like DC in 2008) had to settle for whoever was willing to utter those two magical words: "why not?"

I'm willing to guess that Feldman probably didn't believe too strongly in Chicago's case, and as such, he wasn't as prepared as he should have been. Poor guy got eaten alive.

While I'm still digesting it all, perhaps this will explain Breyer's stance:

breyer.jpg
 
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Just finished reading the transcript. It is pretty clear why the court wanted the NRA Lawyer, Clement, it looks like Due Process is it. None of the Justices seemed to want to use the privileges and immunities clause although Gura plugged it as much as he could even in rebuttal. Neither Gura or Feldman seemed to get much respect from the Justices, but certainly Feldman got hammered a lot more. Clement had a few longer monologues whereas Gura and Feldman got cut off lot.
 
After some more reading and study it seemed to me that the court does not want to go the P&I route as it would open a sort of Pandora's box for future decisions. Since courts tend to like narrow interpretations and thereby give maximum leeway to future cases I see now why the NRA wanted in. Gura is a libertarian and might have been looking at more issues than just gun rights. Man, I am glad I am not Mr. Feldman. Wow! Did they ever beat him up! By the end of the transcript I couldn't figure out what his position was.
 
Sort of an aside, possibly off point, but I think interesting, some might agree, some won't.

Chicago's Mayor, as I recall mouthed something to the effect that The Second Amendment Would Be Different In Chicago, or It Would Have a Different Meaning.

Going along that line of "thinking", might it be that Freedom of Religion, Freedom of Speech, also the subject of constitutional guarantees might be exercised or allowed in parts of the country, but as for Chicago, special circumstances would be the rule of the day? After all, the administration there would hardly be expected to allow remarks/speech held "insulting to itself", would it?
 
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