City's brief in Chicago challenge

It's very well written as long as reading comprehension of Heller isn't a threshold issue for the word "well."

-Gene

Reading this brief is looking right into the face of statism.
Terrifying.

It's tough to see how anyone who believes in freedom and liberty could read this with a straight face. Is this supposed to impress someone, other than a fellow statist?

One thing you can say, the regulations imposed has sure decreased deaths and crime, right? And wasn't that the intent?

If you can't dazzle them with brilliance...

I'm an engineer, so maybe I don't understand legalese, but I recognize what it means when someone is talking fast and attempting to bury you in a mound of arguments.

They seemed to have piled up a mound of cites no matter how irrelevant.

Melancton Smith said it best:

"If you can't dazzle them with brilliance..."

Yes, the brief is well-written.

One thing that stood out to me was a sort of "grasping for straws" argument that various "things" are not "deeply rooted in this Nation's history and tradition" so as to be fundamental and "implicit in the concept of ordered liberty."

On page 25, Chicago states: "And in Glucksberg, the Court held that the Due Process Clause does not encompass a right to assisted suicide because that right was not deeply rooted in this Nation's history and tradition so as to be fundamental and implicit in the concept of ordered liberty."

Assisted suicide? Excuse me? What is at issue here?

I think part of this will fall on the ability to demonstrate that the right to keep and bear arms is "deeply rooted in this Nation's history and tradition" so as to be fundamental and "implicit in the concept of ordered liberty."

From my own readings about the founding, our history, the 2A, and the 14A, this to me seems a relatively easy task. It is perfectly clear, even in cursory view, that the right to arms is deeply rooted in our history and tradition. I mean ... recall what sparked the American revolution ... seizure and the threatened seizure of the people's arms! "Deeply rooted in our history" is a monumental understatement. Moreover, and especially considering that the militia is necessary to the security of a free country, the right is indeed implicit in the concept of ordered liberty. Add in the common-law right of self-defense, which also is implicit in the concept of ordered liberty ...

In as much as Gura and the Heller majority had to downplay the militia purpose, this incorporation case might have to readdress the issue, and elevate the importance thereof.

Regarding this, I got the feeling that Chicago was "calling the bluff" on militia-appropriate weapons. On page 28, they stated: "Machine guns, for example, are undoubtedly useful for self-defense (indeed, they are standard-issue military equipment precisely because they kill effectively), but they lack constitutional protection because they are not the class of arms in common use but are instead "dangerous and unusual."

Unusual? Hardly. Dangerous? Perhaps, but under heavy scrutiny it might be difficult to classify MGs as "dangerous" and semiautos (or shotguns for that matter) as "not dangerous."

Chicago is "calling the bluff" on the militia purpose, and using MGs to do it. It may work, and it may backfire on them. It will be very difficult to discuss the right to arms as "deeply rooted in our history and tradition", and especially "implicit in the concept of ordered liberty", without a historical discussion of the militia, it's purpose, and it's armaments.

Well, I think we can all agree that machine guns would be a lot less "unusual" (as in uncommon) if the federal government had not in 1934 imposed a $200 tax on the transfer of civilian ownership of one, in 1968 banned the importation of them for civilian ownership, and in 1986 outright banned the domestic manufacture of them for civilian ownership.

Did these putzi actually read the first Milita Act?

folks were to turn out with:
Rifle,
shotgun
brace of pistols
or a pair of swords.

hmmm,

putzi yup

college educated and can't read english.

oh well,

You mean I had to read through 25 pages of preliminary BS to have them say "No, it's not" like a 2 year-old?

@ Letalus: It's not so much the tax, which at the time was more punitive, it was GCA '68, combined with the patchwork of laws regulating NFA '34 designated firearms and accessories across the states.

Chicago argues:
Unlike other enumerated rights, the Second Amendment was not codified to protect individual liberty. Rather, although conferring an individually held right, the scope of the Second Amendment's protection is circumscribed by its primary purpose of preventing federal disarmament of the militia. Nor does the history of the right to arms in England and America, including its development under state constitutions, reveal a deeply rooted right to any particular category of firearms commonly used for self-defense, much less a specific right to handguns, without regard to the danger imposed by the weapon or the availability of other arms that will serve the underlying purpose of self-defense in the home. Under the operative test of "ordered liberty," state and local governments should be free to decide that the right to possess handguns --- the type of weapon most responsible for homicides, suicides, and other armed violence --- is not implicit in the concept of ordered liberty.

If the decision on incorporation is reached in favor of McDonald, then Chicago's argument is moot given Heller:

It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e. long guns) is allowed.

If the decision on incorporation goes for Chicago, then this argument need not even be reached.

It is simply padding.

I think the $200 tax on MG's was very significant factor in making MG's "unusual."

$200 is equal to $3183.86 in 2008 dollars -- a very large penalty to pay to go from semi to full auto.