Open thread on Chicago case

Audio tape of hearing should be available soon, from some source. Email comments I've seen so far included the following words about the bench:
haughty, arrogant, dismissive, reductionist, implacable, prejudiced, predetermined, pompous.

From one email comes this comment: "Easterbrook did not understand that a ruling on the direct application of the Second Amendment (foreclosed by Barron v. Baltimore) was not a ruling about the meaning of substantive due process under the Fourteenth Amendment."

None of these thoughts are mine. Comments are gleaned from emails and forwards of emails.

It was clear a scant few seconds in when Posner interrupted Halbrook that Chicago was going to win in this court.

I was dismayed by Chicago's statement that if we don't like the law we should move out of the City.

It is true that Easterbrook and Posner both did not want to understand that selective incorporation via due process has not been ruled upon by the Supreme Court.

I'm ok with how it went...I think we get to the big game quicker this way, though a win for McDonald/NRA in the 7th would have helped out Illinoisans.

Here's audio of the arguments.

http://www.ca7.uscourts.gov/tmp/NT17I0FX.mp3

Bauer, the 3rd member of the panel, penned a 1982 opinion affirming the constitutionality of Morton Grove's handgun ban against 2nd and 9th Amendment challenges: Quilici v Morton Grove, 695 F.2d 261 (7th Cir. 1982).

I have some observations and thoughts, for what they are worth.

On 26 May 2009 I attended the oral arguments in front of the 7th Circuit Court of Appeals for the SAF/ISRA/NRA v. Chicago handgun ban case.

Background is here: http://www.chicagoguncase.com/faqs/

Briefs here: http://www.chicagoguncase.com/case-filings/

Oral arguments (audio) here: http://www.ca7.uscourts.gov/tmp/NU0HUUT6.mp3

Circuit panel comprised Easterbrook, Posner, and Bauer. Arguing for NRA was Stephen Halbrook. Arguing for SAF/ISRA was Alan Gura. Arguing for Chicago was Benna Ruth Solomon. Arguments took about 35 minutes. Twenty minutes alotted to each side ... Halbrook took 10, Gura took less than 10, Georges took about 20, and then Gura took a few more.

What follows are merely personal observations, thoughts, and opinions. For disclosure, I am not a lawyer. The following doesn't necessarily appear in chronological order. Also, note that it's difficult to predict rulings based on 40 minutes (or less) of argumentation.
____

The over-riding legal question in this case is whether the 2nd amendment is incorporated via the 14th amendment, and enforcable against states and municipal governments. Soon into Halbrook's argument, Posner made it clear that he would engage, and with some hostility or annoyance. He was clearly of the opinion that SCOTUS precedent bound the 7th circuit not to incorporate the 2nd via the 14th. Easterbrook also interjected many times, with the same opinion (as Posner). Both Posner and Easterbrook aggressively questioned Halbrook and Gura during their entire argument time ... they only really questioned Solomon toward the end of her time.

Despite the fact that the 9th Circuit (Nordyke opinion) has recently and strongly ruled for incorporation via due process, Easterbrook was openly critical of the 9th for having done so. At one point he said the issue was "above our pay grade." Posner insisted that footnote 23 of the Heller opinion left the 7th Circuit bound by Supreme Court precedent (Cruickshank, Presser, Miller; as outdated as it is).

Easterbrook made a few critical comments to Chicago toward the end of their argument. He said that the City of Chicago is not a government that is close to its people. He even noted that the Supreme Court could decide to "incorporate everything" and then the city's parking tribunals would be eliminated. He stated that Chicago was using "tired slogans" (such as local governments being "close to the people"). Easterbrook also asked Solomon whether she thought the issue would hinge on whether John Lott's position (more guns, less crime) was correct. By this I took him as meaning that Chicago's "guns are bad" and "guns are used by criminals" and "police power protects people via gun bans" arguments would get them nowhere.

Solomon's most offensive (to me) comment was that if people objected the city's gun-ban policies, they could use the democratic system to elect different officials, or that they could simply move somewhere else, to a region with policies more to their liking.

Another interesting thing (just because it appeared so brutally blunt) happened after Solomon finished. Halbrook walked to the lectern, and Easterbrook flatly said "Your time has expired" (without even addressing Halbrook). Without saying a word, Halbrook walked back to the table and sat down. Gura then stood for some rebuttal argument.

Finally, at the end of Gura's argument, Easterbrook questioned why Gura was "upset" at the prospect that the 7th would not deal with the incorporation issue. Easterbrook stated "It doesn't matter what we say, we're not going to resolve this issue. You've got yourself a conflict among the circuits, why don't you just say 'Our arguments are preserved, thank you very much.'" Gura then said "if that's what you'd like me to do, then our arguments are preserved and thank you very much" (to much laughter from the bench). Easterbrook capped off the laughter with the statement "It's going to be resolved elsewhere, thank you Mr. Gura." Basically, what Easterbrook and Posner made clear to us was that the Supreme Court would settle this issue.

On a point of personal reflection or opinion, I thought that Posner was a little snotty when he asked Gura about gun rights during the reconstruction era, and whether people were enthusiastic about them at that time. It's in the audio clip, and Gura at ca. 30m:30s (paraphrased below).

Posner: "What is the right time for interpreting the meaning of the 14th amendment? 1868 or 2009?" Gura answered 1868, and noted also that people at that time were enthusiastic about their individual right to gun possession. Then later, Posner said "Oh you mean in the SOUTH they were strong for gun rights." This brought snickers and laughter from the Chicago side of the courtroom (which are barely audible in the clip). It was apparent they hadn't read or comprehended the CORE brief. I though that Gura might have specifically mentioned the CORE brief in this context ... that the south was strong for individual gun rights but only for whites. The north, with the 14th amendment, was strong for gun rights for all and wished to restore those fundamental rights to freedmen. He might have said that it was precisely the tyranny of white, racist, Democrat gun-banners that the 14th amendment was meant to assuage, and now here in Chicago, it is precisely white, racist Democrat gun banners who are STILL trying to deny those rights to plaintiffs Mr. McDonald and Mrs. Lawson.

As an aside, I thought those snickers out of Chicago perfectly encapsulated the "culture war" here ... some modern urbanites (on the Chicago side) viewing guns and gun rights in all the stereotypically negative contexts ... "redneck, southern, rural, backwards, retrogressive, or etc." ... something that is below them and their sophistication and their inflated sense of sensibility and modern "ordered liberty."

At any rate, it seems likely to me that this panel of the 7th circuit will not follow Nordyke in incorporating the second amendment via the due process clause of the 14th.

Recording here:

http://www.ca7.uscourts.gov/fdocs/docs.fwx?submit=showbr&shofile=08-4241_001.mp3

The faster it makes it through the circuit, the faster it goes to SCOTUS (either way, to be honest - it's not like the chicago.gov is going to back down)

Oral arguments are up at the 7th Circuit site. The spam blocker on the blog won't allow a post with the link included, but anyone can find the link now. From the first interruption of Halbrook's presentation, you hear this whiny-voiced judge making clear how he was going to vote. No matter how good the oral arguments had been, that panel was not going to vote say that the 2nd is incorporated against the states.

I didn't count, but it would be interesting to know how many times Halbrook and Gura were interrupted in their presentations, as compared to Chicago's counsel who basically got to just read a long speech. Yeah, the outcome was pretty clear from the beginning on this one.

That whiny-voiced judge was Dick Posner. I notice that he was in total denial that any Reconstruction Republicans wanted the RKBA applied to states. Alan Gura actually had to correct him when he said that, in 1868, only Southerners wanted gun rights. This moron is woefully uninformed. I don't claim to be a legal expert, but even I know that the formers of the Fourteenth Amendment were quite clear on their desire for freedmen to have the ability to carry arms for self-defense.

With his total lack of any knowledge about the history of RKBA, he has no business even getting a law license, let alone being a highly-placed judge. He should resign immediately.

http://www.ca7.uscourts.gov/fdocs/docs.fwx

Ken, many judges don't know what "judicial notice" is anymore; they just presume to know everything...

I am under the impression that none of the judges even bothered to read the amicus briefs.

Transcripts of the oral argument have just been posted at:
http://www.calguns.net/calgunforum/showthread.php?p=2544370#post2544370

Carl - Thanks for the firsthand reporting.

As usual, well done.

Just curious, how can Posner write a blog entry like this one:

"Similarly, I think private gun ownership should be a matter for legislative determination, rather than judicial. The Second Amendment is unclear about whether there is a right to own guns for personal self-defense or hunting, and I don't think delving into eighteenth-century documents argued to bear on the meaning of the amendment is a sensible way of doing constitutional law in the twenty-first century." http://www.becker-posner-blog.com/archives/2009/05/conservatism_ii.html

and still pretend to be honest and objective?

Or is that not the point?

JDBerger,

Heller took the left by surprise (and on guns Posner is on the left). They thought that the issue had been settled long ago except for a few nuts. Prior to Heller, their arrogance on the topic being settled in favor of the "collective rights" position was so thick you could cut it with a knife. Accordingly, they have no serious scholarship on the gun issue, and therefore no facts to support their position - not that it would help them. Gun control was hardly alien to the Founder and no less than Thomas Jefferson is quoted as stating that laws which disarm the populace are ill-advised (quoting a prominent Italian criminologist of the time). The Founders clearly intended the militia to be comprised of citizens owning their own arms, which is the militia system they brought over from England, and which indeed is the militia system going all the way back to Rome and Greece.

In short, Heller shocked the left and they have not yet thought of a way to fight back. There is an old adage for lawyers. "If you have the law, argue the law; if you have the facts, argue the facts; if you have neither, pound the table." Posner is doing the equivalent of pounding the table. Substituting snarky comments for legal reasoning. Now, of course this is wholly inappropriate for an appellate judge (who is supposed to be neutral), but perhaps Posner is simply following the advice of his colleague Sodomyer, and "making policy" from a Circuit Court.

HappyCynic,
Posner is a prime example of why you can't simplify politics, especially 2A politics, as simply left versus right.

There is another dimension that is applicable, individualist versus statist. Both types come in leftist and rightist people.

Melancton, I think that your comment is particularly useful. There are many Democrats who, for example, seem to see government as good and benevolent (and hence the expansion of it as also good) but who fiercely value various individual rights.

I too think that the political "right" is foolish to think that the second amendment is a "right versus left" issue. Rightists will pursue that line of thinking to the peril of their party, and to the peril of the second amendment.

I am well aware that Posner is not simply a run of the mill liberal which is why I stated that on this issue he was. You can twist yourself in all kinds of semantics if you want in terms of left/right, statist, libertarian, authoritarian, etc. But for all practical purposes on this issue there are two sides with one predominantly embraced by liberals and another predominantly embraced by conservatives. Yes it may change, but that is the reality we live with today.

Solomon's most offensive (to me) comment was that if people objected the city's gun-ban policies, they could... simply move somewhere else, to a region with policies more to their liking.

One is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.

--SCHNEIDER V. STATE, 308 U.S. 147, 163 (1939).

Now all (!) we need is the equivalent Second Amendment jurisprudence.