Will the Chicago case lead to a constitutional reawakening?
That's the question asked in the Wall Street Journal Online.
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NRA's Chicago brief
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).
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Opening brief in Chicago case
Pdf is here. Very, very, well-written.
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LA Times endorses Chicago gun case
Hat tip to reader Alice Beard...
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Brady Campaign on the Chicago cases
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. "
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Interesting thought
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).
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CERT GRANTED!
Orders here. Discussion at SCOTUSBlog.
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.
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The waiting....
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!
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Numchuck case up for cert. conference
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.
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Chicago cases up early
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.
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Reply briefs in Chicago gun case
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.
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Chicago brief opposing Sup. Ct. review
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.
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SCOTUSBlog on 14th Amendment cases
"Might It Happen? Slaughterhouse Overruled?".
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Amicus briefs in Chicago case
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....
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SCOTUSBlog on upcoming 14th Amendment cases
Discussion here.
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An article in Reason
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.
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Petition for cert. in one of the 7th Cir. cases
Pdf here, courtesy of Prof, Eugene Volokh.
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7th Cir goes other way in Chicago case
Just got word. No capacity to upload opinion just now.
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Open thread on Chicago case
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).
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7th Circuit panel of judges
Chicago case, heard today: Posner, Easterbrook, Bauer. Posner=bad news. Bauer -- wrote the antigun Morton Grove ruling many years ago.
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Amicus briefs in Chicago 14th Amendment case
They're all posted here. Five for the Plaintiffs/Appellants, four for the scoundrels.
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Antis amicus in Chicago case
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.
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City's brief in Chicago challenge
Online here, in pdf. I think it's dead wrong, of course, but it is rather well written.
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Opening brief in Chicago case
Pdf here. As always, written in splendid manner.
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Need to have priorities, I suppose...
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....
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Thoughts on the 14th Amendment cases
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?)
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Chicago 14th A appeal -- opening brief filed
Right here.
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.
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Debate on Chicago cases
Tonight, at 5:30, hosted by the Federalist Society's Chicago Chapter.
Hat tip to reader Carl in Chicago....
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District Judge rules for 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.
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Busy day for the 14th
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...
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Winnetka IL repeals its handgun ban
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...
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Motion in Chicago gun ban case
Here. As would be expected, beautifully written -- clearly expressed, and not a word to spare.
Hat tip to reader R. Vance...
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Evanston IL drops handgun ban
Story here.
"[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....
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Chicago Tribune on guns & Heller case
Editorial here.
"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."
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Movement on Chicago gun case
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.
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Chicago digs in its heels
Good.
Hat tip to Carl in Chicago....
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Chicago may rework gun law
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.
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Website for Chicago gun case
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!