Seventh Circuit Ruling Reveals Anti-Approach to Incorporation

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Thanks for sharing the link to the cert petition. I've read a lot of legal briefs and that is quite possibly one of the best briefs I have ever seen.

Gura's logic is relentless and inescapable for anybody who even makes a pretense of intellectual honesty.

I also like the way he framed the question. Instead of making this just an issue of whether the Courts should incorporate the Second Amendment under the Due Process Clause of the 14th Amendment, Gura turns it into an argument that the lower courts were bound by existing Supreme Court precedent to apply the due process incorporation test and refused to do so.

If nothing else, that brief is going to make hypocrisy on the Court abundantly clear for later generations.

Another plus of the brief is that Gura pretty clearly lays out where he is going from here for the next four Second Amendment cases. He has clearly given a lot of thought to this and is pursuing it in an extremely methodical manner.
 
When one reads the decision, written by Judge Easterbrook, and contrasts the following from Posner's article, one might wonder who has plagiarized whom.
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One has to wonder if either judge is appropriately qualified for the bench and/or has incompetent assistance. I'm not legal scholar or historian, but I can find plenty to argue over his statements.


The text of the amendment, whether viewed alone or in light of the concerns that actuated its adoption, creates no right to the private possession of guns for hunting or other sport, or for the defense of person or property. It is doubtful that the amendment could even be thought to require that members of state militias be allowed to keep weapons in their homes, since that would reduce the militias' effectiveness. Suppose part of a state's militia was engaged in combat and needed additional weaponry. Would the militia's commander have to collect the weapons from the homes of militiamen who had not been mobilized, as opposed to obtaining them from a storage facility? Since the purpose of the Second Amendment, judging from its language and background, was to assure the effectiveness of state militias, an interpretation that undermined their effectiveness by preventing states from making efficient arrangements for the storage and distribution of military weapons would not make sense.
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Obviously Posner has forgotten that the Militia Act of 1792 specified that the arms of the militia were privately owned arms and not government purchased. The relevant portion of the act specifies...

That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints ...
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The act does not authorize Congress to spend one thin dime on arming the militia or equipping the members with their weapons and accoutrement. So to answer Posner's question, if the militia required additional weaponry, the officer(s) would have to go door-to-door or ride to the nearest military fort to acquire them.

It probably makes no sense to a modern day judge living in a metropolitan city with burdensome taxes, a professionally hired and administered police force, plumbing, sewage, electricity, even cable-tv, plus some of the most corrupt bureaucrats money can buy. But it is what it is... because at one time people in this country were free.
 
Hadn't known this:
The Fourteenth Amendment’s Senate sponsor,
Senator Jacob Howard, explained the Privileges or Immunities Clause’s incorporating scope:
To these privileges and immunities, whatever they may be – for they are not and cannot be fully defined in their entire extent and precise nature – to these should be added the personal rights guarantied and secured by the first eight amendments of the Constitution; such as the freedom of speech, (...) and the right to keep and to bear arms. . . . The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees.
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Me too maestro.

Scalia, and the majority, also stated handguns are in common use and fall under the umbrella of the 2nd Amendment. That gave me warm fuzzies also! :D

When I read that "common use" discussion, I simply fell off of my chair. That discussion severely limits what restrictions the government can place on firearms ownership IMHO.

How that conclusion on common use could be "reversed" in an incorporation case has me stumped, (i.e., unless the Justice was never for the private ownership of firearms in the first place or one of the basic holdings in Heller is to be "disregarded").

DC attempted to argue the very point Robert discussed in the OP. And the SCOTUS soundly rejected it based on the common use argument.
 
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I would love to see the Senate ask Sotomayor about Easterbrook and Posner's novel theories on the outlawing of self-defense. That should make for some entertaining TV.
 
Gura's case has been docketed: 08-1521

Title: Otis McDonald, et al., Petitioners v. City of Chicago, Illinois
Docketed: June 11, 2009
Lower Ct: United States Court of Appeals for the Seventh Circuit
Case Nos.: (08-4241, 08-4243, 08-4244)
Decision Date: June 2, 2009

~~Date~~ ~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
Jun 9 2009 Petition for a writ of certiorari filed. (Response due July 13, 2009)



This is Alan Gura's case. The NRA's case for cert (08-4241, 08-4243) is separate from Gura's cert (08-4244).

For those that don't follow the "niceties" of this sort of thing, Supreme Court Rule 12.4 allows for the original and separate plaintiffs to file independent certs.

So the NRA petition was docketed as case #08-1497 on June 3, 2009. (response due on July 6, 2009).

The Court Clerk has included all 3 original cases in both certs, probably for sake of brevity and inclusion as one surviving case. I would like to hope that the NRA would agree to subsume their claim into Gura's claim. The NRA's cert is very weak, on its face.

Please note, I'm not disparaging the NRA here. I'm merely observing that they are continuing in their practice of throwing everything they can think of, against the wall, in the hopes that something will stick. It is an all too common practice in law.

Compare just the questions being presented by the two certs. First the NRA's question:
Whether the right of the people to keep and bear arms guaranteed by the Second Amendment to the United States Constitution is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home.
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Now the question, as presented by Gura:
Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment’s Privileges or Immunities or Due Process Clauses.
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When you want the Court to define a very narrow view, which question, above, would you rather want the Court to answer? Look back at the history of the Heller certs for your answer.

As to whether or not the Court will grant certiorari, remember that it only requires 4 Justices to agree to take the case for cert to be granted.

Bart? Have you heard when the hearings are to be held?
 
I haven't heard about a hearing; but I imagine the Supreme Court will grant cert on this. There is already a circuit split on the issue and the Court knew this was going to happen when they upheld an individual right in Heller. I imagine most of them have already given some thought to the issue of incorporation.

I also agree with the critique of the NRA's approach vs. Gura. Gura is very clean and precise in his legal writing and he keeps the issue very tightly focused on where he wants it to go. It is clear Gura has paid attention to Brown vs. Board of Education and other civil rights cases in laying the groundwork for this case.

The NRA does quality work; but they are going strictly for the win. They seem to be less concerned about creating precedent that might interfere with future cases and more concerned with winning this one by whatever argument they can make stick.

Should be an interesting case... I think Halbrook is 3-0 in front of the Supreme Court on gun cases; but Gura certainly impresses me.
 
No. The current term is over. The last argument was heard on April 29th.

If cert is granted, I suspect much the same time frame as what we saw with Heller.

What would be good, is for the P&I clause to be reinstated (overturning the Slaughterhouse cases). This would please Justice Thomas and sway Justice Scalia. Although that would be a big hurdle to overcome, at the same time, it would be a great win for individual rights in general.
 
Whether the right of the people to keep and bear arms guaranteed by the Second Amendment to the United States Constitution is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home.
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I understand the strategy in Heller of limiting the scope of the prayer for relief to the home. But what in the world is the NRA doing carrying that language forward into a much broader case? There are even judges (the Mehl/Gorski panel, for example) who are misreading the scope of the Heller case to be a limitation on the right itself, a misunderstanding which Gorski failed to clarify and that therefore went unchallenged.

Or could it be that the various plaintiffs are coordinating a range of requests to give the SCOTUS multiple opportunities to incorporate? I suppose incorporation is incorporation, but it would be very disappointing to come away with a limited ruling because of a meek prayer for relief.
 
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I understand the strategy in Heller of limiting the scope of the prayer for relief to the home. But what in the world is the NRA doing carrying that language forward into a much broader case? (...) I suppose incorporation is incorporation, but it would be very disappointing to come away with a limited ruling because of a meek prayer for relief.
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That's the way it works. Many people cried foul that Gura didn't pursue rights to carry, the reversal of the NFA, and any number of other infringements. What those folks didn't realize is that the question at hand was a narrow one: does the 2nd Amendment protect an individual right to keep and bear arms?

Had Gura attached a laundry list of issues outside the central question, the case may very not have been heard at all. The Court has a limited amount of time and a full itinerary, which is why we have the whole Certiorari process in the first place. Petitions are expected to be kept concise, focused and convincing.

In the present, the question is, "should the 2nd Amendment be incorporated through the 14th?" We need to keep it simple and convincing, and I trust Gura to do so.

We're reversing 140 years of infringements, and none of this is going to happen overnight. In fact, I'm still amazed how far we've come in one year. Other questions, such as the validity of weapon-specific bans and concealed carry as a right will have to be addressed in their own specific cases, in due time.

We're still laying the groundwork with Heller and McDonald, and we have to think in terms of years (or perhaps decades) as we move forward.
 
In the present, the question is, "should the 2nd Amendment be incorporated through the 14th?" We need to keep it simple and convincing, and I trust Gura to do so.
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So do I. I understand all that. Gura's question is the big one, it's perfect, and it is without the NRA's qualifier of "in the home'.

The issue of the individual right having already been settled in Heller, what purpose does the NRA's narrowing of the question serve, with respect to incorporation?
 
So do I. I understand all that. Gura's question is the big one, it's perfect, and it is without the NRA's qualifier of "in the home'.
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Sorry...too much coffee on an empty stomach made me a bit jumpy.

Not sure about the NRA's qualifier. It's likely someone in the ILA thought that narrowing the question that far would help with the argument.

Still, I prefer Gura's approach. He's calling for the final nail in the coffin regarding the Slaughterhouse cases, and it's about time. A ruling in our favor along those lines has the potential to affect a lot of future jurisprudence, and not just regarding gun rights.

As it is, it appears it's Gura's case going to SCOTUS, and given his prior track record, I'm very encouraged. I can't remember the original source, but Akhil Amar seems fairly confident of a win on this.
 
but Akhil Amar seems fairly confident of a win on this.
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Me too. I'm not a betting man, but I would take some high odds on this one.

If the court does equivocate, since that's what judges do sometimes, where would it be? It's hard to imagine with the issues and lines so clearly drawn. Incorporation seems imminent, but will their ruling offer any guidance on so-called reasonable restrictions or will it allow the lower court to fumble around for another term or two?

It would be amazing if they came out and preemptively struck roster schemes, discretionary carry (OC, CC, or both), and BS AWBs. Rather than complicate things any further, putting those known issues to bed in the near term would save a lot of time and money for both sides. A lot of folks would be shocked on both sides of the fence but at least we could get on with pulling the country out of it's economic ditch free of one distraction.
 
If the Court incorporates, I imagine they will stay relatively focused on that issue and give only general guidance (if any) on other issues. I think they will let the Circuit Courts do the hard work of hashing out the boundaries of the right.

I think that if you apply Cardozo's test for incorporation of a right through due process of the 14th Amendment, then there is no way that the Second is not incorporated. It passes that test so clearly it is unassailable:

""[The Due Process Clause of the Fourteenth Amendment protects those rights which are] of the very essence of a scheme of ordered liberty. To abolish them is ... to violate a 'principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental"

You'll note that even the lower court judges that ruled against incorporation didn't want to make the argument that it doesn't pass Cardozo's test (and that test is the foundation of all selective incorporation cases). Instead they just ruled that Presser applied and avoided the question entirely.

Having said that, the concept of selective incorporation isn't popular with the conservative wing of the Court either. I can definitely believe that some of the Justices who voted in Heller will be nervous about the consequences of selective incorporation (and especially eliminating the P&I ruling from Slaughterhouse) in this case.
 
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