Seventh Circuit Ruling Reveals Anti-Approach to Incorporation

[Al Norris]

To recap what's going on at the moment.

There were two cases that comprised what is being called, NRA v. Chicago.

The first case was filed immediately that Heller was decided by Alan Gura, for Otis McDonald, et al.

The second case was filed two days later by the NRA.

The cases were combined at the District Court and summary judgment to dismiss was granted. The cases were appealed to the 7th Circuit where, on June 2, 2009, the Circuit declined to incorporate and held for the District Court.

The NRA filed its petition for certiorari on June 4th and Gura filed his on June 11th. On June 25th, an order extending time to file a response was entered for Chicago. Response is due on Aug. 5th.

There are currently 7 amici curiae briefs filed for the petitioners, arguing for a grant of cert, for which I have links.

Briefs filed on behalf of both litigants:

Brief amicus curiae of Arms Keepers.
Brief amicus curiae of California (AG Jerry Brown).
Brief amici curiae of Texas, et al (33 States).
Brief amici curiae of Institute for Justice, and Cato Institute.
Brief amicus curiae of Gun Owners of America and Gun Owners Foundation.

Briefs filed on behalf of the NRA:

Brief amicus curiae of American Civil Rights Union.

Briefs filed on behalf of McDonald:

The Brief amicus curiae of Constitutional Accountability Center (Law Professors).

Note: There are 2 other cert stage briefs, that I could not find links to. One is a brief (I assume) for the NRA by the National Shooting Sports Foundation and the other is a brief by State Firearm Associations (again, I presume for the NRA). Should anyone find the links, I would appreciate it, by dropping a note in this thread.


A third case, which was decided by the 2nd Circuit on Jan. 28, 2009 was filed by James Maloney on June 29th (extension of time to file granted by Justice Ginsburg).

All three cases (McDonald and the NRA cases are asking separate questions) are being petitioned for incorporation of the 2nd amendment, against the States, on Due process and/or the P&I clause of the 14th amendment.

The cases in Chicago present the Court with a ban on unregistered handguns and rifles, somewhat similar to that of D.C. It goes further in the nature of the bans. Should a citizens fail to re-register their firearm(s) (an annual requirement), then said firearm may never again be allowed to be registered. No handguns are allowed to be registered after a certain date (like the D.C. prohibition). Certain exceptions are made in the law for those moving into the city, but registration must take place before possession is allowed. All Firearms must be registered prior to possession, no exceptions.

In addition to the above, Illinois law states that all firearms owners must complete and be issued a Firearms Owners IDentification certificate (FOID), prior to possessing any firearm. This also must be renewed each year. Each and every firearm owned, must be listed on your FOID. Possession of a firearms other than what is listed is a felony.

The Federal Civilian Marksmanship Program (CMP) allows qualified US citizens to purchase certain surplus military firearms (M1 Garands; M1 Carbines) for participation in marksmanship programs. Here the Federal government will ship the qualified firearm directly to the owner. However, Chicago law says the firearm must be registered before taking possession. Can not be lawfully done, as you simply will not know the serial number of the rifle before it is shipped. Thus making you an instant felon. Added to this, because you took possession, before registration, assuming you immediately transported the long-gun out of Chicago's environs, you will never be allowed to register that rifle. Catch-22.

Despite all of this, Chicago remains a haven for guns. Unlawfully possessed by the gangs roaming the streets, against which the citizens have no protection.

While the former two cases are direct "gun" cases, Maloney differs in that the object was a prohibited, but less than lethal defensive weapon, "discovered" in his home, after a less than credible search by the police. No firearms, or other weapons charges were ever brought to trail, so the search incident to the discovery was never addressed. A plea bargain for misdemeanor disorderly conduct was entered.

There is much about Maloney that never came to light, in the press, and has subsequently colored many peoples opinions (for or against).

Maloney is interesting because, if not addressed by the Supreme Court, then the States can prohibit its citizens from possessing less than lethal defensive weapons, while maintaining the right to keep lethal weapons for home defense. This alone, severely limits any lawful response a citizen may make in any defensive situation, while in his own home, to that of a solely lethal response.

Then we have the 9th Circuit (Nordyke v King) who, as of this moment, has incorporated, but maintained the county law precluding firearms from county property (the panel determined that the county fairgrounds were a "sensitive place," per dicta in Heller).

Of all the arguments for incorporation (regardless of the "other" issues involved), the cert brief by Alan Gura is by far the best argument to grant the petition. It is, in short, simply stunning in clarity and brilliant in its logic. Should you wish to read it, you may find it here.

There is a clear difference between the NRA petition and the McDonald petition. Once again, the NRA is tossing a plate of spaghetti against the wall, to see what sticks (not a real criticism, as many attorneys do this), whereas McDonald gives due deference to the Court in its selective incorporation methods, but is primarily concerned with the Slaughterhouse Cases and how the P&I clause has been interpreted (or not). Gura is calling for the Court to revisit that decision and makes a compelling case. IMO.

What is clear to this "reporter," is that there is a split in the circuits and the need for some direction from the Supreme Court is at hand. Sooner, rather than later.

 

[Al Norris]

Copied from another post I made, and to update this, the major thread on the 7th Circuit-McDonald case for cert.

Chicago's Brief in opposition to Cert is here.

Expect Amici for Chicago within the next 7 to 20 days. Gurra will have 20 days to file a response.

To get the gist of what opposition the City of Chicago has, one need only look at the Questions presented:

QUESTIONS PRESENTED​

1. Whether the Court should consider claims that the Second Amendment right to keep and bear arms in common use, including handguns, is a fundamental liberty interest applicable against state and local governments by the selective incorporation doctrine of the Due Process Clause of the Fourteenth Amendment.

2. Whether the Court should refuse to revisit its repeated holdings that the Privileges or Immunities Clause of the Fourteenth Amendment does not incorporate Bill of Rights provisions to apply against state and local governments.​

The first question is asking the Court whether or not the RKBA is in fact a fundamental right (hinted at in Heller's dicta, but not part of the actual holding), applicable against the State via the Due Process clause of the 14th.

The second question asks that the Court not revisit Slaughterhouse and the Privileges or Immunities clause.

In answering the first question, Chicago asserts:

In our view, while Heller examined the meaning and intent of the Second Amendment in the founding era, that limited focus is not appropriate on the very different question whether Second Amendment rights are fundamental and therefore incorporated into the Due Process Clause. Thus, the precise Second Amendment right recognized in Heller—the right to a handgun as a weapon in common use—is not incorporated merely because it is protected under the Second Amendment.

With that logic, we can now do away with any incorporated right. After all, just because its a "recognized" right, doesn't mean the States have to allow it.

Then, Chicago uses the following argument:

If there is a due process right to arms for self-defense, it is preserved with arms suitable for that purpose, and does not extend to any particular weapon merely because it is in common use. Moreover, the ordinances at issue here preserve any liberty interest that might exist under the Due Process Clause to some type of firearms for self-defense in the home, for they allow residents to possess long guns, such as rifles and shotguns, for self-defense in the home.

Excuse me, but wasn't that exact argument (from D.C.) a losing argument? Why does Chicago think it will win for them, when the Court chastised D.C. for that same reasoning? It boggles the mind.

But wait! There's more!!

The right recognized in Heller to keep and bear arms in common use is not implicit in the concept of ordered liberty. To begin, this is shown by the very purpose of codifying the Second Amendment. While the Second Amendment conferred an individual right, as against the federal government, to keep and bear weapons in common use, it stands in sharp contrast to other individual liberties in the Bill of Rights because the purpose of the common-use rule was to protect, not individual personal liberties, but the militia-related need for militiamen to possess and be familiar with weapons necessary for their militia service, a purpose that Heller recognized as the very reason for the right’s codification, as well as determinative of its scope (see 128 S. Ct. at 2801, 2815-16).

Yup!

They've raised the militia clause from the dead.

After rambling on a bit about how carrying or even possesing firearms has an inherent danger to the public-at-large, thus marking a distinct difference between other rights, Chicago goes on to say:

Thus, in urban environments, where handgun abuse is so rampant, the protection of a right to handguns simply because they are in common use undermines, rather than guarantees, ordered liberty. It is, instead, the very governmental power to protect residents that is critical to the concept of ordered liberty, since enforcing handgun control laws can make an enormous difference in curbing firearms violence.

While it may be a governmental power to protect residents, but only in a general manner, all governments have gone out of their way to disclaim any liability whatsoever to actually protect any individual or group of individuals. A governmental agency has no duty to protect an individual.

At this point, I'm laughing to hard to actually concentrate on the rest of Chicago's response.

You really should read the response and see for yourself. Their argument parallels that of D.C. in many ways.

 

[maestro pistolero]

. . since enforcing handgun control laws can make an enormous difference in curbing firearms violence.

As in where? Chicago, Washington DC? Finishing a paragraph with a wholly unsubstantiated, blatantly false, and unprovable argument is, well, stupid.

We couldn't pay these guys to sabotage their case any more effectively. If they win anything, I'm calling a party foul.

By the way, just because the Second clause of 2A now stands on it's own, per Heller, I don't think we've seen the last of the 1st clause. As soon as the Feds start turning up the heat on Montana's insolence, I wouldn't put it past Montana to start issuing or authorizing nearly any kind of small arms for their entire citizenry under the 1st clause. Then let them try to argue against collective AND individual rights before the court!

 

[Composer_1777]

It defends state rights, but decreases our protection from the states while protecting the states from the National Government. Very well played, now we can get gang B**** by both.

 

[publius42]

It's hard to believe they're going to run the "long guns are enough" and "2A is only for the militia" arguments by again, but should be fun to watch.

 

[maestro pistolero]

It's hard to believe they're going to run the "long guns are enough" and "2A is only for the militia" arguments by again, but should be fun to watch.

I know, but what else can they try? They really have nothing. Their only chance is a sympathetic, activist majority that would contrive their way around the obvious.

 

[Tom Servo]

A few quick notes reading over this.

First off, they pounced very quickly on the fact that Nordyke is being reheard and that, in the meantime, it is not precedent. Therefore, there is no split among the Circuit courts.

They seem to be trying their best to preclude incorporation under Privileges or Immunities. Their strategy seems to be to force the issue to be decided by the Due Process clause.

Why? Because they're trying to prove that keeping and bearing arms is not a "natural" right, and therefore not subject to incorporation, I guess. They appear to be trying to push us into a corner, forcing us to prove that self-defense itself is a natural right.

Limiting the argument to Due Process also skips the whole mess of revisiting Slaughterhouse, as Gura wants to do. If the Court reconsiders precedent (including Cruikshank, which they shockingly call "good law" on page 6), then the implications of this case could be larger than simply 2nd Amendment incorporation.

I'm not sure they've read Heller, as they make this claim on page 9:

If there is a due process right to arms for self-defense, it is preserved with arms suitable for that purpose, and does not extend to any particular weapon merely because it is in common use. (...) the ordinances at issue (...) allow residents to possess long guns, such as rifles and shotguns, for self-defense in the home.

and later,

Laws that do not make self-defense in the home impossible are valid, and the ordinances challneged here, which allow possession of rifles and shotguns, do not make self-defense in the home with firearms impossible. (pp. 15-16)

Didn't this exact approach fail for Dellinger last year?

Then they go on to argue against incorporation because,

unlike other enumerated rights (...) the right to keep and bear arms carries an inherent risk of danger to the liberty and interests of others. (p. 11)

The "utility" argument doesn't hold water, and no amount of "research" from the VPC is going to help it.

They make a rather tortured argument that Hurtado backs up their argument, but Hurtado was concerned with the concept of a grand jury, which is a different matter. A grand jury is a parlaimentary procedure; self defense is a natural right. Apples ≠ oranges.

 

[raimius]

Some of these arguments almost seem like they are trying to anger the justices that signed the majority opinion in Heller. How could they think these arguments will work, when the ruling from Heller DIRECTLY contradicts them?

What is the definition of insanity? Trying the same thing and expecting different results...probably not going to work, even with 1 member of SCOTUS changing.

 

[maestro pistolero]

Then they go on to argue against incorporation because,
Quote:
unlike other enumerated rights (...) the right to keep and bear arms carries an inherent risk of danger to the liberty and interests of others. (p. 11)

Exactly. The Heller court categorically ruled out an interest balancing approach to this right:

Scalia:

We know of no other enumerated constitutional right
whose core protection has been subjected to a freestanding
“interest-balancing” approach. The very enumeration of
the right takes out of the hands of government—even the
Third Branch of Government—the power to decide on a
case-by-case basis whether the right is really worth insist-
ing upon. A constitutional guarantee subject to future
judges’ assessments of its usefulness is no constitutional
guarantee at all. Constitutional rights are enshrined with
the scope they were understood to have when the people
adopted them, whether or not future legislatures or (yes)
even future judges think that scope too broad. We would
not apply an “interest-balancing” approach to the prohibi-
tion of a peaceful neo-Nazi march through Skokie. See
National Socialist Party of America v. Skokie, 432 U. S. 43
(1977) (per curiam). The First Amendment contains the
freedom-of-speech guarantee that the people ratified,
which included exceptions for obscenity, libel, and disclo-
sure of state secrets, but not for the expression of ex-
tremely unpopular and wrong-headed views. The Second
Amendment is no different. Like the First, it is the very
product of an interest-balancing by the people—which
JUSTICE BREYER would now conduct for them anew. And
whatever else it leaves to future evaluation, it surely
elevates above all other interests the right of law-abiding,
responsible citizens to use arms in defense of hearth and
home.

 

[BillCA]

<sarcasm>

Notice
Be It Known to All Citizens
of the Kingdom of Daley and
Especially Chicagoland:​

By Official Decree - owing to the unbridled, uncouth and rampant abuses of certain rights dispensed to the plebeian citizens of our domain, we hereby declare possession of the following items forbidden unless permission is granted as a permit and a fee is paid.

• Possession of any automated printing device.
• The purchase of more than twenty (20) sheets of paper per month.
• The possession of an ink bottle holding more than 10 oz of ink
• The possession of more than 20 books without a library permit.
• Possessing a "marker pen" with a tip wider than 1/4 inches

In addition, new regulations are hereby enacted regarding the privileges and immunities of the plebeian citizenry, which are an affront to the governmental powers to protect our citizens and maintain our ordered liberty.

• Due to the seditious nature of words and documents, police may now read, at will, any documents a citizen carries on about his person.
• To further investigations, citizens must, at all times, provide a true, accurate amd complete account of events in question, in which they are involved, to authorities when demanded to do so, under penalty of contempt.
• Attorneys appointed by the court for citizens, being paid from public funds, may not claim communications with his client are privileged.
• As terrorists and criminals broadly use them to commit crimes, any communications, in any form, across or through a public utility or any service which receives any public funds are not private or confidential in nature.

I so declare
/s/
His Highly Honorable and Flatuent Highness King Richard of Daley and all of Chicagoland
</sarcasm>

 

[Bartholomew Roberts]

Didn't this exact approach fail for Dellinger last year?

Does the Chicago ordinance allow them to be stored assembled? If so, then that is one distinction between D.C. and Chicago and could be an important one to their argument.

Having said that, it looks like most of the Chicago brief is basically "Heller was wrongly decided." I can't imagine that is going to be very helpful when the same five Justices who decided Heller read it - especially given that they are using the same arguments that were unpersuasive in Heller.

 

[Tom Servo]

Does the Chicago ordinance allow them to be stored assembled? If so, then that is one distinction between D.C. and Chicago and could be an important one to their argument.

Yes, but it's a small difference. Overall, as Pistolero mentioned, the tack they're taking with "interest bearing" arguments is what failed.

 

[Poseidon28]

My legal question:
First conflict of law, 9th and 7th circuits, on the Incorporation of the 2 Amendment, against the states. How often are such issues brought before the Supreme Court?
In other words, what's the process to grant cert? How many judges, and which ones, approve bringing something up for cert?

 

[Al Norris]

It requires that 4 Justices agree to hear a case in order to grant Cert.

The most often used route to get to the Supreme Court (SCOTUS), is to have a Circuit split. That is, one or more Circuit Courts disagree in the interpretation of a law or other legal issue. The SCOTUS will generally take such an appeal to remedy the differences, so as to make the law/issue one of uniformity throughout the nation.

Currently, because the 9th Circuit will decide the Nordyke case en banc, there is no split in the Circuits.

How this will affect certiorari, is anyone's guess.

 

[Poseidon28]

...

 

[Al Norris]

Since we are at the cert stage before the Supreme Court, direct all comments here.

This one is closed.