Chicago gun case
Here it is. Fifty pages, 213 fns. It did take a while to write.
This is for attorney fees incurred while winning the main attorneys' fees award. Steve Halbrook emails that, seeing as Rahm Emanuel is becoming a regular contributor, they should at least send him a hat.
Is one found at the bottom of a City of Chicago check to Second Amendment Foundation, for attorney's fees and costs, in the amount of $399,950. Looks like Alan Gottlieb holding it. OK, so it's probably an automatic signature, but the thought of how Rahm must have reacted to the news that it had be sent is amusing. Essentially, Chicago involuntarily becomes the funder of the next round of pro right to arms challenges.
Before both decisions, the advocates of handgun prohibition predicted blood in the streets if the laws were struck down, but John Lott points out that crime rates fell in DC and Chicago after the decisions. Not that that proves causation, of course, but as he points out, had crime rates risen, that would have made for major stories with the causation simply assumed.
I remember back when the DC handgun ban was new, there was an article arguing that homicide rates were lower after it was passed (again, with causation simply assumed). Problem was that in the year after its passage homicide rates in fact went up. The authors played with the figures until they found that if you averaged the two years before and the two years after (but not three and three), you could say that the homicide rate declined, so they used that scale and got the desired result.
7th Circuit ruling here. After losing in the Supreme Court, and before the case came back down to the trial court so it could enter judgment, the defendant cities changed their handgun bans, and the trial court dismissed the case as moot. It then ruled in the NRA case that there were no "prevailing parties" to recover fees, since the only final judgment was a dismissal.
The Seventh Circuit reverses this. As the court asks, "By the time defendants bowed to the inevitable, plaintiffs had in hand a judgment of the Supreme Court that gave them everything they needed. If a favorable decision of the Supreme Court does not count as “the necessary judicial imprimatur” on the plaintiffs’ position (Buckhannon, 532 U.S. at 605), what would?"
The District Court has denied an award of attorney fees in NRA v. Oak Park & Chicago. Text is in extended remarks below. The grounds are that after the Supreme Court ruled in McDonald v. Chicago, Oak Park revoked its ban and Chicago replaced its with a new ordinance. When the Supreme Court sent the case back to the 7th Circuit, the Circuit ordered the trial court to dismiss the case as moot. The District Court rules that NRA did not "prevail." Don't have time to look up all the case law, but I really doubt the ruling would have been the same if plaintiff had been a more favored party and the suit a more favored cause of action.
First time I've seen this done -- Ilya Shapiro has an article summarizing the amicus briefs in McDonald v. Chicago. It notes that McDonald's 50 amicus briefs are the fourth highest number for a Supreme Court case (and as I recall, Heller took second place in that roster).
Hat tip to Joe Olson...
At Reason Online, an excellent article on Chicago and its aftermath, by Brian Doherty.
Online video here at 7 PM Pacific, 10 PM Eastern, tonight. Speaking will be Steve Halbrook (who was bringing out books on the 14th Amendment and the right to arms 20+ years before Chicago, and got I think six citations in that opinion) and Don Kilmer, attorney in the Nordyke case, where the 9th Circuit panel ruled in favor of incorporation before Chicago came down.
It's not often one sees a newspaper article that reproduces large portions of a Supreme Court opinion. It's a far cut above the usual "the decision will have these policy effects," or "these people cheered it and those people don't like it." To actually report a decision, and edit it down to suitable size, requires too much work.
"I purchased a gun several years ago, when I became concerned for the safety of my young family after receiving a verbal racial assault in our 21st century Northern California neighborhood. Perhaps I am the only Stanford Law professor who owns guns, including the one that once graced my father’s lap on that porch forty years ago. As an American, I am grateful for that gun. I am also grateful for the four black men who have made it possible for my sons to sleep at night, secure in the knowledge that I, and it, will do what is necessary to protect them."
Hat tip to reader Alice Beard...
I have long felt that Second Amendment legal thinking is guided, not by any "liberal vs. conservative" division, but by "comfortable around guns vs. guns are foreign, strange, and dangerous: division. I have a number of friends and 2A advocates -- the crowning case being Mark Benenson, former president of Amnesty International's US branch -- who could be described as "liberal" by any conceivable standard.
One short segment of the "liberal" wing's dissent in McDonald v. Chicago confirms this. The dissent argues that applying the right to arms to States will make for a lot of judicial workload (as if recognizing that the First Amendment protects pornography but not obscenity did not), asks whether the right covers "Semi-automatic weapons? When is a gun semi-automatic?"
[I doubt that the dissent had in mind Webley's 1895 patent on a semiautomatic revolver, of which under 5,000 were manufactured.
In the wake of the decision, the Jackson County (WI) prosecutor has announced he's no longer taking CCW and similar gun cases.
"Prior to this historic ruling, our state Supreme Court placed the state’s interests first, and
would only create an exception to these laws when the individual’s need for protection
outweighed the state’s interest. In the area of concealed carry, only 2 cases have
approved concealed carry, one at home, and the other one at the defendant’s personallyowned
place of business. Well, as the United States Supreme Court held yesterday, that
view was exactly backward.
As with the other fundamental rights, such as the freedom of speech, of religion, of
association, or of security in our homes, persons, and effects, government limitations on
fundamental rights are lawful only in the rare case that the state can show a compelling
governmental need that can be accomplished only by enacting a narrowly-tailored
restriction, in terms of time, place and manner. Clearly, a blanket prohibition against
carrying your loaded firearm in your personal vehicle does not pass that test."
Hat tip to reader Dave Van...
Mayor Daley proposes to replace the handgun ban with onerous regulation. Well, that's one reason for the attorneys' fees provisions of 42 U.S.C. §1988. If he wants to play, he has to pay.
Hat tip to reader Nick Lidakis....
at SCOTUSBlog. Very much to the point. A sample:
The opinions in McDonald are rich in ironies. We have conservative justices authoring opinions which squarely confront the tragic legacy of race and its impact on American Constitutional history, while we have liberal justices wanting to largely skip over that history. We have on the other hand liberal justices pleading for states’ rights and federalism while conservative justices make the case for the soundness of incorporating the Bill of Rights as a matter of original intent. The Court got it right in McDonald but how it came to do so will fascinate students and commentators for some time to come.
Opinion here. 240 pages if you count the concurrences and the dissents. A wonderful day! Everyone gets something. Alan Gura gets Thomas' concurrence, and the fifth vote. Steve Halbrook gets cited a zillion times (as I've said before, if you could copyright an argument, the Supreme Court would have had to negotiate royalties with him). I get cited by majority and the concurrence. Professors Wyldenthal, Curtis and Aynes get cited. The Women State Legislors' brief, by Sarah Gervase, Carol Bambery and Linsday Charles, gets cited, too. UPDATE: not to mention Bob Cottrol, Ray Diamond, and Clayton Cramer, who get cited by the majority, the Thomas concurrence, or both.
The majority decisively rejects Stevens' argument for "incorporation, but a weaker version applies to the States." Scalia's concurrence stomps all over Stevens' dissent. And, while not addressing standard of review, the Court repeatedly describes the right to bear arms as fundamental.
Supreme Court handed down a load of opinions today (I lost count, 5-6-7?). Last opinions will be handed down on Monday. Ginsburg got the Skilling decision today, meaning that for the sitting when McDonald was argued, only that case remains, and only Justice Alito has not written an opinion. Of course, "everyone gets at least one opinion per sitting, if possible" is custom, not binding rule, and qualified by "if possible." Josh Blackman thus bets on CJ Roberts keeping the case for himself, with Alito getting some other especially interesting case.
The custom is that each Justice gets at least one opinion from each two-week "sitting" on arguments. Coming into today's opinion releases, there were three opinions left from the sitting in which the Chicago case was argued, and three Justices who hadn't written an opinion from it. Today's four opinions included one by CJ Roberts, taking him out of the running. We have two Justices left -- Alito and Ginsburg -- and two opinions left, Chicago and Skilling v. US. The Court is scheduled to release more opinions on Thursday and Monday, a week from today.
UPDATE I'm not in on any plans, and couldn't talk about it if I were, but I'd be near certain that plans were made long ago for the next round(s) of suits, and that Alan Gura, far from being done, is about to become a very busy fellow indeed. The only question in my mind is -- how many sets of pleadings are out there, ready for filing?
It asks what gun laws Chicago should adopt if its ban is stricken. The "model gun laws" listed are worth a good laugh.
As I noted during the last such exercise, the Supreme Court considers each two-week session of oral arguments a “sitting,” and the custom is that each Justice (if at all possible) gets to write at least one opinion from each sitting.
McDonald was heard during the sitting of February 22. That sitting had 13 cases, one of which was dismissed after it settled. As of today, from that sitting, Sotomayor, Kennedy and Breyer have written two opinions apiece, and Stevens, Scalia, and Thomas have written one.
That leaves three opinions to be written, and three Justices to write them: CJ Roberts, Ginsberg, and Alito. Hmm... first incorporation case in thirty years or so, perhaps most interesting case of the Term, likely to wind up in all the Con Law casebooks ... I suspect CJ Roberts may keep this one for himself.
Other than McDonald, the two remaining cases from that sitting are Skilling v. US, (prosecution for “theft of honest services” – interpretation, void for vagueness, and prejudicial publicity issues) and Holder v. Humanitarian Law Project (1st Amendment challenge to statute forbidding providing service, training or assistance to organizations listed as foreign terrorist groups).
Double checking my count, I found I missed one that was written by Justice Breyer. That makes the count 7 decided out of 13.
Writing two opinion apiece from that sitting: Kennedy, Sotomayer.
Writing one each: Stevens, Scalia, Breyer.
Not having released one yet: Thomas, Ginsburg, Alito, Roberts
[above updated in light of comment].
The Supreme Court divides up arguments into "sittings," each of them two weeks long. McDonald v. Chicago was argued during the sitting of Feb 22. The Court's custom is to make sure each Justice writes at least one opinion from each sitting.
The Feb. 22 sitting had 13 arguments, so four Justices will write two and the other five one.
From that sitting, two Justices (Kennedy and Sotomayor) have already written two opinions, so they're not in the running. Stevens and Scalia have each written one. There are seven cases left to be decided.
Dennis Henigan pretty much accepts a loss, and looks for a silver lining in that cloud. Good try. It cuts both ways.... how many Brady supporters will keep contributing when gun bans are ruled out, and all Brady has to hope for is, oh, permit systems and things like that -- and if the right to arms is accepted as fundamental, they'd probably have to be liberal permit schemes. I suspect the New York law will be a good next target ("may issue" and $400 or whatever application fees are charged, for exercise of a fundamental constitutional right?)
Some background, at The American Thinker.
While awaiting the result in McDonald, Mayor Daley is lobbying for additional gun laws. ""The aggressiveness of the gun advocates is just one reason it's more important than ever that we work for common-sense gun laws..." He demands "changes to state law that would require background checks for those buying a gun in a private sale, ban assault weapons, require that gun dealers be licensed and limit the number of handgun purchases to one per person per month, plus micro-stamping and making it a felony to sell a gun to a known gang member (the last has major void for vagueness problems).
Here are some that I got that day. Understand, we began waiting at 5 AM. Ahead of me were Sarah Gervase and Frederick Jones, who'd been waiting since 4:15 AM, I think he said. He's Otis McDonald's nephew, and a member of the Supreme Court Bar, and was taking no chances on missing his uncle's Supreme Court case. Here are the pictures:
Some of us waiting in the predawn darkness (on the left is Frederick Jones, Mr. McDonald’s nephew.)
Here's the crowd outside after the argument,
and the Second Amendment Foundation’s reception that evening.
Available here. I think five votes for incorporation, there might be one (Thomas) who would go for privileges or immunities. (P or I has all the history and logic behind it, and due process has all the case law, and it certainly looks as if the Court favors the case law).
We thought Justice Thomas would ask a question, since toward the end of Chicago's presentation he passed a note to a clerk who departed and returned to give him a copy of the US reports (the official print of Supreme Court decisions). But no question was forthcoming, perhaps because Chicago's time ran out soon thereafter.
UPDATE: Bottom line is that Alan's argument for privileges or immunities incorporation drew serious fire from Scalia, and some from CJ Roberts, and none of the other friendly Justices rallied to assist. OK, read those tea leaves. The Court granted cert. on questions presented which included both P or I and due process incorporation, but there isn't much support for the former (or perhaps the supporters are remaining silent). Whichever it is, this is not a line of attack that at 10 AM on March 2, 2010 is going to give much promise to winning more votes if you persist.
Just got back from oral argument. Short form: I think we have five votes. MIGHT do better than five, but five seem secure. Roberts, Scalia and Kennedy seemed VERY strongly against Chicago's position, Alito seemed against it, Thomas asked no questions but is thorough pro-2a and 14thA, so it looks like the Heller majority holds. Conversely, Breyer attacked Heller and kept arguing against incorporation. Majority did not like privileges or immunities, but due process seemed solid.
Humor: the room was packed, hundreds of people, every seat taken. After McDonald, the Court remained in place to hear the next case. As I left I heard the chief justice say "Well, counsel, WE're still here." I looked back and saw what he meant -- there were perhaps 20 people staying for the next case, as hundreds left.
Story here. An excellent piece, in which the human aspects are all up front, and the complaints toward the back. Hat tip to Sixgun Sarah...
In the LA Times. Memorable quote:
"The 2nd Amendment says, "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." Throughout the 19th century, and until quite recently, the high court maintained that this clause was intended to give states the power to control armed militias.
But in recent decades, most Americans have come to believe the 2nd Amendment protects their right to have a gun, regardless of whether they serve in a militia."
Story here. His background is turning into a solid human interest story, which in my experience is rare. "High profile cases" usually have symbolic plaintiffs rather than ones with an interesting life story directly linked to their theme.
There's a good summary here, by Cornell U's Legal Information Institute.
There are three ways to reach Second Amendment incorporation, at least two of which have present and powerful advocates. I can only say that I'm in correspondence with both, and they really wish there could be an end to to conflict. Bottom line: if the three routes to incorporation each got two votes, it's still a 6-3 and a win, the other side is left to ponder that "almost" only counts with horseshoes and hand grenades, and the winner who favors one route or another has some votes (for the first time in my lifetime) on which to build. They're going into the fight of their lives, no OUR lives, and don't need the distractions. We can all engage in internecine battles after oral argument, or better yet, the decision. For now they need to concentrate.
Bottom line: there is no bad way to win a case. There may be great ways and good ways, but there is no bad way. This reminds me of a W.C. Fields description of something else, but never mind. At least every conceivable angle has been covered, and any Justice who isn't 100% opposed to the right to arms or its incorporation has had a path laid out and supported, so take your pick.
Here's the story. Interesting. Lead plaintiff, Otis McDonald, is a 76 year old grandfather and lives with his wife in a risky neighborhood. He's been burglarized repeatedly and once threatened with death. He has shotguns, but can't keep them on the nightstand when he turns in.
All in all, the perfect person to be bringing a 2nd and 14th Amendment challenge.
I read Alan Gura's brief last night while waiting to meet with my surgeon (1. I will live. 2. it wasn't much fun) and NRA's brief while bombed in the aftermath of that. So I went back this morning to read and plot things out. One thing is clear: the briefs give an excellent spread of arguments. I think there's only two paragraphs in which they overlap, which means it's going to be hell for the opposition. I can't adequately sum up 70+ pages in a posting, but here's the short version, by subject.
General: Privilege or immunities incorporation has a monopoly on history and logic. Due Process incorporation has a monopoly on Supreme Court case law. Odds are good that some Justices might like one, and others the other.
Privileges or Immunities: Alan puts heavy (but not exclusive) emphasis here. The articles Chicago cites arguing against public understanding apply an impossibly high barrier, approximately "prove that this was in the minds of millions of Americans 130 years ago." No right could pass that standard. "On this logic, all constitutional amendments must be meaningless..." What has been proven is that application of the Bill of Rights, and of the right to arms, to the States was covered in major newspapers, with nationwide readership, in popular speeches, etc., etc.
NRA doesn't put much weight here, preferring to argue Due Process incorporation, but does treat the legislative history as favoring incorporation generally (leaving it ambiguous as to which clause -- no matter which it is, it should be incorporated).
Subissue: If P or I is accepted, should the Court overrule just Cruikshank (relating to enumerated rights) or also nail Slaughter-House (which dealt with non-enumerated ones). Alan argues the Court should overrule Slaughter-House. It was a misbegotten case which created the standard that Cruikshank employed.
NRA argues whether the Court overrules both cases or just one, the right to arms should be incorporated.
Due Process Clause: Alan gives it 9 pages, a quarter of his argument. The case law is outlined, and the test of whether a right is inherent in a scheme of "ordered liberty." Chicago had again argued a laughably high standard -- essentially, unless you cannot envision a civilized country that lacks a right, it is not a right inherent to ordered liberty. Yet we would consider England a civilized country, and it has an established church, a monarchy, one house of the legislature sits by right of birth, and it has such a narrow version of free speech (suits for libel) that Congress is considering a bill refusing to enforce British libel judgments. We'd consider Japan a civilization, yet it only recently allowed a very restricted form of jury trial.
Steve Halbrook and Steven Poss, briefing for NRA (not to mention Kevin Martin and Joshua Lipshutz, of Goodwin-Proctor, who put in much work on it, and Paul Clement, who signed it, amount of work put in unknown), put their main weight on this clause. Chicago's claims are paradoxical -- that infringing a right can contribute to "ordered liberty." Its idea of ordered liberty is that of a police state, order always triumphs over liberty. It claims falsely that the 14th Amendment is all about equality, not only equality of rights but equality of their infringement. Presumably, Chicago thinks the Black Codes would have been no problem if their oppressions applied to everyone. The framers of the 14th Amendment would beg to disagree.
The Heller case (Chicago made an indirect run at this decision--the right is all about protecting State militias, and so should not restrict the States). Alan Gura argues Chicago neglects the fact that we are discussing what was seen as a natural and individual right. It argues from the wording of the 2A, but its drafters saw the 2A as documenting a natural right, not as creating one from scratch.
Halbrook and Poss argue that Chicago looks at the wrong history. All cases on incorporation look to the history of Reconstruction, not the history of the Bill of Rights. And in 1866-68 the intent to incorporate is clearly proven. Moreover, if it had to do with the militia, the militia was a federal resource as well as a State one, and what was protected against the federal government should also be against State governments.
Both briefs hit this with the point that the same Congress that reported out the 14th Amendment passed a law disbanding most southern militias. The bill started out as disarming them, too, and a 2A objection was raised, so its sponsor modified it to only disband them, and the opposition agreed that solved the 2A problem. So the 39th Congress saw the 2nd Amendment as relating to possession of arms, not as barring Federal dissolution of State militias.
Horrible hypotheticals, States will be forced to use grand juries, etc., if the entire BoR is incorporated. Both briefs respond, and point out that if this was a problem surely Chicago would have been able to get more than 3 States to sign an amicus in support. Our side, in contrast, got 36 to sign.
Policy argument (gun laws are good). Alan argues policy preferences cannot trump clear constitutional guarantees. The Court has, after all, enforced the 4th and 5th Amendments, even tho they impede law enforcement.
NRA argues criminals in Chicago already have guns; Chicago's attempt to disarm the honest is a failure. It cites Kleck and other studies demonstrating that arms ownership deters crime, and in particular "hot" burglaries where the house is entered while the owners are inside. These are common in England, but rare in the US.
Federalism (Chicago argues States should be free to experiment). Both briefs point out that experimentation has to stop when the experiment involves violating the Constitution.
As you can see, there are a few points of overlap, but only amounting to a page or so, out of a total of near 70. Chicago gets it from both sides on just about every issue.
Right here. I've read Gura's, and it is first rate, now reading NRA's. As with the opening briefs, it's a good spread, with Alan's tackling privileges or immunities, and NRA tackling due process. (I've been intending to put up an explanatory post on these issues, will do over the weekend).
Hat tip to Sixgun Sarah...
Right here. A few samples:
"In the city’s attempt to preserve its weapons ban, it proves too much, essentially urging the Supreme Court to find that protection of the Bill of Rights and other fundamental liberties against state infringement has no basis in constitutional text or history, and is instead achieved solely by judicial implication. To make matters worse, Chicago’s brief makes common cause with precedent that has been properly labeled by civil rights leaders as “among the most misdirected in the history of the Court” and celebrates a post-Civil War Court that looked the other way while Jim Crow perpetuated decades of discrimination and violent rights suppression."
"Chicago’s repeated deference to these decisions of the post-Civil War Court—beyond merely respecting them as precedent, the city’s brief calls them a “venerated” line of decisions—is disconcerting. As the NAACP points out, in the line of cases initiated by Slaughter-House, “the Court enunciated principles far broader than were necessary to decide the matters at hand, and it too readily struck down Congressional legislation designed to combat discrimination against African Americans after the Civil War, including both the Ku Klux Klan’s reign of terror and the establishment of a reconfigured caste system in the form of the Black Codes and Jim Crow.”"
For any readers lucky enough to be at the SHOT Show in Vegas, here's an SAF press release:
SAF SCHEDULES SHOT SHOW PRESS
CONFERENCE ON CHICAGO GUN BAN CASE
The Second Amendment Foundation will hold a special press conference during the Las Vegas SHOT Show on Wednesday, January 20, 11:30 a.m. - 12:30 p.m. to provide an update on the current challenge to the Chicago handgun ban now before the U.S. Supreme Court. This case could decide whether the Second Amendment applies to the states and their subdivisions. Oral arguments are scheduled for March 2, 2010.
McDonald v. Chicago
Presented by the Second Amendment Foundation
Alan Gura, lead attorney for plaintiffs in McDonald v. Chicago, who also argued the Heller case, previewing key issues in McDonald;
Lawrence G. Keane, senior vice president and general counsel for the amicus National Shooting Sports Foundation,
and officers of the plaintiff Second Amendment Foundation, Illinois State Rifle Association and National Shooting Sports Foundation.
Wednesday, January 20, 2010
11:30 A.M. to 12:30 P.M.
Press Conference Room,
Venetian Level 2,
Bassano Rooms 2601-2605
Pdf is here. Reading it now.
Thoughts after a quick read: stylistically, well-written. The argument against due process incorporation involves taking what the Court has said and not what the Court has done. The Court has said that "fundamental rights" are something of a narrow class of rights ... rights without which there is liberty or civilization. But what it did while so saying was to rule fundamental almost all the rest of the bill of rights, and unincorporated rights such as the rights to contraception, abortion, and gay relationships.
I think we can say that there can be liberty and civilization without, oh, jury trial for major misdemeanors, the right to buy condoms, the right to an appointed attorney. For that matter, with an established church, such as in England, and the right of the prosecution to move for a new trial based on legal errors. I vastly prefer living in THIS civilization and with THESE freedoms, but I can envision a liberty and civilization without them.
With regard privileges or immunities incorporation, it's right what we could expect. (1) Don't overrule 100+ years of case law and (2) OK, so there are quite a few mentions in 1866-68 of p or i enforcing the bill of rights, but they're not enough and not clear enough for our tastes. With a dash of (3) if you incorporate via p or i (AND use it to abandon rather than supplement due process incorporation) then you have to withdraw all bill of rights protections from corporations and aliens, since they may be "persons," but are not "citizens."
Audio here. Strange part is that they're interviewing the reporter who wrote the Chicago magazine story... electronic media reporting on print media rather than on the story itself. Reporter at least admits her own "personal biases," and says she was surprised at the plaintiffs' points being persuasive.
An interesting study, in Chicago magazine.
Ilya Shapiro lists five different possible outcomes for McDonald v. Chicago. It's a very good analysis.
Petitioner's attorney, Alan Gura, has agreed to divide argument and give 10 minutes to the Attorney General of Texas, to argue on behalf of the 38 States that signed the amicus brief supporting Petitioner.
Yes, I'd say this is going to be lively. Probably more so even than Heller. The Court is looking at:
1) Only its second real right to arms case (Miller was really more of a judicial notice case);
2) It's first 14th Amendment incorporation case in 20-30 years (depending upon what you mean by incorporation case) ... if you take the former measure, only Justice Stevens has been around long enough to have heard one of those, and if you take the latter measure, no one on the Court has ever ruled on the issue;
3) The first serious argument over privileges or immunities incorporation since, oh, 1947, I think ... at which point Justice Alito was not yet born, and Justice Stevens had just received his law degree.
(Gad, looking up Justice Stevens -- not to say he's been around a bit, but he saw Babe Ruth play, received a bronze star for helping with the codebreaking that got Admiral Yamamoto shote down).
I've mentioned before that there are three ways in which incorporation could be found:
1) Thru the Due Process Clause, as it's been done for a century or so.
2) Thru Privileges or Immunities, overruling back to Cruikshank (which held the first and second amendments were not privileges or immunities).
3) Thru P or I, going farther back and overruling The Slaughter-House Cases (which held the non-enumerated right to practice business w/o certain regulation was not a p or i).
The authors of the article want (2) and seem terrified of (3), arguing that it could lead to gay business marriages, destroy the Republic and so on. I really don't see the point. If the Court wanted to do the things they list, it could do them under the Due Process Clause.
In fact the Lochner case, so often cited as an example of that (it struck down a maximum hour law as a violation of liberty of contract) WAS a substantive due process case.
In contrast, Heller was argued March 18, 2008, and decided on June 26 -- I think it was the last decision of the Term, but I might be wrong. The really controversial ones come down last, probably because the opinions (and dissents, and answers to dissents) are more difficult to write. This may be easier than Heller, which was the breakthru case.
Right here. Thirty so far.
I was especially happy to see the Brief of Constitutional Law Professors. Among those signing on are Michael Kent Curtis, who essentially rescued the privileges or immunities clause during the 1980s. And the Calguns Foundation, taking on Charles Fairman and Raoul Berger, the reasons why Curtis had to perform the rescue.
38 State Attorneys General, stressing a due process approach. National Shooting Sports Foundation's amicus, which is mostly devoted to the 2d rather than the 14th Amendment. 900+ State legislators, arguing for due process incorporation. And here's Maryland Arms Collectors' Association, arguing for due process and Nordyke's approach.
And here's Calguns Foundation, hitting at Charles Fairman and Raoul Berger, who argued against privileges or immunities. Their view was dominant from about 1949 to the 1980s -- as in when I went to law school -- until Michael Kent Curtis came on the scene and bested Berger in a number of law review debates, re-establishing privileges and immunities -- all the more remarkably since Berger was then a very big-time law prof, and Curtis a fellow in private practice doing this in his spare time.
Several more, but not yet in online form (it's lots simpler to link to a document already online than to upload one).
Here's the Academics for the Second Amendment amicus. And here's the Congressional amicus, signed by 58 Senators and 251 Congressmen, and filed by Paul Clement. As Solicitor General, in Heller Clement had argued for a lower standard of review; you don't see that here!
Our theme in the A2A brief was that talk of "incorporating" a right is a bit misleading. It implies the question is whether the 1866 Framers and ratifiers meant to apply a 1789 understanding to the States. The real question is the intent and understanding of 1866-68. Americans of this period may have thought they were speaking of the 1789 intent, but actually their understanding of rights was far broader. This is especially so in the case of the right to arms. Two major changes here.
In 1789, many spoke of it in the context of a universal, mandatory militia that was absolutely "necessary to the security of a free state." But between 1816 and 1850, the mandatory militia statutes were repealed, and the Republic did not fall. In 1789, standing armies and select militias were the path to dictatorship; in 1866, millions of Americans had served, select militias were everywhere, and they had saved rather than destroyed the Republic. The 1866 Framers as often as not omitted the militia preface when quoting the Second Amendment, and went straight to the right to arms.
Conversely, conflicts over abolitionism, "Bloody Kansas," and now attempts to disarm Blacks and unionists, caused the right to arms to be seen as a purely individual right -- the right to shoot an intruder at the door, even if the intruder worked for the State. The same Congress that passed the Freedmen's Bureau Act (explicitly referring to the "constitutional right to arms") and the 14th Amendment also enacted laws disbanding most of the southern militias, precisely because they were disarming freedmen.
They're online, here. Scroll down about 3/4 of the page. So far we have the two party briefs, and four amicus ones. Deadline for amici supporting the right side is Monday, so there should be a fair number more.
That's the question asked in the Wall Street Journal Online.
Pdf is here. Between this and Petitioner's brief, I think the ground is covered very well. Petitioner emphasizes incorporation under the privileges or immunities clause (which makes far more sense) and NRA emphasizes incorporation under the due process clause (which is simpler to do).
NRA files, not as an amicus, but as respondent in support of petitioner. In case you wonder what that is -- NRA also filed an appeal (a petition for cert.), but the Supreme Court took the SAF case and not the NRA one, which remains pending. The Clerk ruled that NRA, being a party to the other appeal, was entitled to file as if it were a party (meaning a longer brief, but deadline yesterday). It'd obviously be in support of the Petitioner. But custom is that anyone not a petitioner and not an amicus is a respondent. So they wound up as Respondent in Support of Petitioner).
Pdf is here. Very, very, well-written.
Hat tip to reader Alice Beard...
Their latest, at the Huffington Post. Someone quipped that after Heller, they were going thru the seven stages of grief, starting with denial, then anger, etc.. Well, they seem to have reached the last stage, resignation. Before and right after Heller, they were indignant that anyone would even seriously consider an individual rights claim. Now it's more like when they lose, it really won't hurt so bad as it might have:
"Although the Chicago case involves interesting constitutional issues, even if Chicago loses, such a ruling is unlikely to prove a serious threat to state and local gun regulation across-the-board. "
SCOTUSBlog has some thoughts on the Chicago gun cases.
To begin with, eight of the nine Justices have never ruled whether a Federal bill of rights liberty is applied to the States by the 14th amendment. The sole exception is Justice Stevens, who was on the Court in 1979 when it last considered a rather small subset of the issue. (back in the 60s the Court had held that the right to a criminal jury trial bound the States. In the 1979 case, it held that allowing conviction on a less than unanimous verdict by a less than 12 member jury would violate this right).
UPDATE: My guess would be another 5-4. Maybe a little better, if only because the 4 the last time were the liberal wing, and they're going to be hard put to argue against incorporation. On the other hand, they managed to argue against individual right the last time, so mental gymnastics are no problem to them.
Briefing -- I think Alan Gura has 45 days to brief, taking it to mid-November, then Chicago has 30, taking it to mid-Dec., then Alan gets a reply, taking it into January. Amici file 5-7 days after the party they support. Oral argument probably February or March.
Supreme Court voted today on whether to take the Chicago gun cases, raising the 14th Amendment issue, as well as a great number of other cases that piled up over the summer break. They will probably, emphasis probably, issue their orders granting and denying review tomorrow, Wednesday. Here's hoping!
The 2d Circuit case on numchucks, which refused to incorporate the 2A against States, has had its petition for cert. set for consideration at the Sept. 29 conference, the same day the Court votes on whether to take the Chicago cases. I can't see it being taken alone. If it's taken with the Chicago cases, they'd certainly be consolidated, and since Justice Sotomayer was on the 2nd Circuit panel that ruled in the case, custom would be for her to recuse herself. No one has a clue as to her position here, but a recusal probably favors the pro-2A side.
Update--html corrected, thanks...
Update: tie means, lower court is affirmed, but the decision has no value as precedent. Tie went to the runner in these cases but that's it. In the next case, if the Court takes it, it can go either way without concern about having to overrule precedent, because this one only determined that there was a tie.
SCTOUSBlog reports that the Supreme Court will vote on whether to accept the Chicago 14th Amendment cases at its very first conference, on September 29. Results might be announced as early as September 30. Both dates are before the next Term officially opens, on October 5.
Alan Gura's reply is here, in pdf. It's the reply (last document) on petition for cert. (moving that the Court take the case -- if it does there will be another round of briefing on the question of who should win).
My latest article is quoted at pp. 9-10.
The Court is now in summer recess. It comes back the first Monday in October to start the new Term, and will probably take a vote on this pretty quickly thereafter.
In pdf, here. I'm not very impressed. The issue is whether the Court should take the case, but most of the (far too long) brief is on a theme of "if you take it we could win." OK, if they take it you'll have merits briefing to make the claim.
Amicus briefs have been filed at the cert. stage (i.e., asking the Supreme Court to take the case, not directly arguing who should win, which can be briefed later if the Court does take it) have been filed. In pdf form, here are:
The brief of 33 States, authored by the Texas Attorney General. (I note the AZ atty gen did NOT sign on, don't believe he signed onto the Heller State amicus, either).
The separate brief of California, authored by AG Edmund "Jerry" Brown. (A friend who knows him pretty well says, BTW, that while he's on the liberal left, it's not a campaign ploy; he's never seen much sense to gun control).
The brief for Institute for Justice and Cato Institute.
Alan Gura says there is also a brief from Gun Owners of America, but it's not yet online.
Hat tip to reader Alice Beard....
on why the Court should rule the right way in the Chicago case and in Nordyke.
UPDATE: the Court goes out of session late this month (before any of the petitions will be fully briefed), so the briefing will be completed over its summer break. It comes back to state the new Term on the first Monday in October. I'd guess we won't have too long to wait to see whether it takes these cases, at that point, but the Court is master of its own schedule.
Pdf here, courtesy of Prof, Eugene Volokh.
Just got word. No capacity to upload opinion just now.
I'm off to the hospital soon, and won't be in condition to blog for several days, maybe a week. But I know some readers will be going to the oral arguments in the 7th Circuit, so feel free to tell us how it went. (Note: I also won't be in condition to do very much if the spam blocker arbitrarily blocks a post. Just try a shorter one, less risk of hitting a banned word).
Chicago case, heard today: Posner, Easterbrook, Bauer. Posner=bad news. Bauer -- wrote the antigun Morton Grove ruling many years ago.
They're all posted here. Five for the Plaintiffs/Appellants, four for the scoundrels.
Clayton Cramer discusses "Embarrassingly Bad Amicus Brief in the Chicago Case.". He does a good job of taking its historical claims apart, and has a link to it.
I read it and think his title justified for a different reason as well. Legal citation is done to the standard of the Blue Book (at various times the White Book, etc.). This brief has ... well, it reads as if nobody had ever read that set of standards. It cites to State reporters without West reporters, or West without State, inserts the court's name next to the date when which court it was was already apparent from the cite, got the title of the case wrong, etc.. It'd be astonishingly sloppy work for a routine trial court brief, but for an appellate brief on an new and important issue, is about unbelievable.
Online here, in pdf. I think it's dead wrong, of course, but it is rather well written.
Pdf here. As always, written in splendid manner.
Chicago's running a massive deficit, with things getting worse. For a time it cut back on snowplowing to save money. Mayor Daley is telling other mayors that they must "“Tell your employees that there’s going to be layoffs. Tell your citizens there is going to be cutbacks of services....”
But nothing will stop Chicago from agreeing to pay another town's legal liability should they lose the handgun prohibition test case.
Hat tip to reader Ambigous Ambiguae....
The National Law Journal has some thoughts on the Chicago and other cases raising the incorporation question. I tend to think the thoughts rather shallow, rooted in "liberal vs. conservative," which doesn't always work in a 2nd Amendment context, and rarely works in a 14th Amendment one.
(To go back to my formative years ... Justice Black said the 14th Amendment incorporated the entire of the bill of rights, and "Congress shall make no law" meant Congress "shall make no law," period. Is that liberal or conservative?)
Alan Gura was in Tucson tonight, and we caught dinner at Casa Molina. He is quite optimistic. The court announce argument date sometime after the answering brief is filed (if I remember that correctly). The earliest possible argument date would be in April, no idea if it'll come then, or later.
Tonight, at 5:30, hosted by the Federalist Society's Chicago Chapter.
Hat tip to reader Carl in Chicago....
Story here. The article doesn't make it clear, but given that he'd ruled earlier, I assume this means he dismissed the case, that is, entered an appealable order.
Not a surprise to anyone. Even assuming the judge wasn't part of the local machine, the Circuit Court, which is over his head, ruled the other way in the original Morton Grove case, and he can't overrule them. But you have to raise the issue in front of him, anyway, in order to get the right to appeal.
In the Chicago case, District Court incorporating the 2nd into the 14th Amendment. Ruling is based on reasoning that he has to obey 7th Circuit precedent, Quilicy v. Morton Grove, until the 7th Circuit changes it. Not unexpected, of course -- this case was going to be settled on appeal.
Can't jump the gun on it, tho. A ruling of this type isn't yet appealable (you have to wait until he dismisses the case).
Hat tips to readers Alice Beard and Gene Hoffman...
Pdf here. Of the six Illinois municipalities that had handgun bans, all but Chicago and Oak Park have repealed them.
Hat tip to reader Carl in Chicago...
Here. As would be expected, beautifully written -- clearly expressed, and not a word to spare.
Hat tip to reader R. Vance...
"[Alderman] Rainey suggested that the city might want to consider printing the names of all those who have state firearms cards in the local paper.
"Do you want your grandchild going to visit someone who has a gun?" Rainey asked. But no action was taken on that suggestion.
Police Chief Richard Eddington said he would recommend against establishing a local registration program for firearms owners. He said the cost of the program couldn't be justified under the city's tight budget. In addition, Eddington said, the registration program would depend on everybody telling the truth, "which in my professional opinion isn't always true.""
The Chicago Tribune calls the repealed ordinance "one of the more progressive in the country" because it banned even BB guns and paint ball guns, and that Alderman Bernstein complained ""I find the Supreme Court decision repugnant."
Hat tips to readers Bill Z., Ambiguous Ambiguae, and Jack Anderson....
"Like Daley, this page strongly disagreed with the court's ruling. We admire his stand on this issue. But the court ruling was clear and explicit: A blanket ban on handgun ownership is unconstitutional under the 2nd Amendment."
Plaintiffs have filed a motion for summary judgment (pdf). As they're subject to a page limit of 15 pages, it can't be a treatise. But the critical points are made, and the style excellent. A person without a legal background can read and reasonably well understand it, which for a technical issue like 14th amendment incorporation, is hard to do.
On the side, they're giving the city flak about its answer to the complaint.
UPDATE: the odds of winning in the District Court are about zero, and appellate court not high. As I see it, the only likely win is in the Supreme Court, should it take the case. The trial court (even if not part of the Daley Machine) is going to answer "maybe you're right, but the Circuit Court of Appeals has said it's not incorporated against the States, and I can't overrule the Circuit." The Circuit would *probably* respond "maybe you're right, but (1) we've held previously that it wasn't incorporated and (2) a century ago the Supreme Court did the same (albeit under the earlier "privileges or immunities" approach only), and we can't overrule the Supreme Court." Then you go to the Supremes and see if they'll decide the issue.
Hat tip to Carl in Chicago....
Or so Daley ambiguously suggests. I recall that once during my days in the Federal government, an agency suggested rewriting a rule in order to moot a test case against it, and after research I concluded it wouldn't work.
Here it is. Plaintiffs are local residents, the Ill. State Rifle Ass'n and Second Amendment Foundation. Attorneys are Alan Gura and the legal team that won in Heller. They certainly wasted no time!