USSC to take Chicago case on 2A incorporation

[Patrick]

Great article. Will Palmer necessitate a form of carry throughout the states, or will there need to be a McDonald to Palmer's Heller?

No need for another case. Palmer will be enough.

During McDonald orals there was a lot of banter back and forth about "jurisprudence" and the fact none existed (yet) on Heller. Scalia (I think) pushed for Chicago to admit and for Gura/Clement to agree that jurisprudence would matter post-McDonald/Heller. They all agreed.

What does all this mean?

Simple. "Jurisprudence" in this context means "related judicial cases". That means once 2A is applied against the states, a decision at the Supreme Court related to it applies everywhere at the same time. Think Miranda, Roe v Wade and Brown v Board of Education (desegregation)...decided once and applied for all.

So Palmer could be the penultimate case.

Assuming McDonald and Palmer go the way we want, this leaves states like CA and MD to fight over nit-pick issues: bullet counts, types of guns (revolver or pistol), etc.

I think states will have a hard time coming up with substantive "compelling state interest" in restricting certain types of weapons (semi-auto vs revolver, for instance), especially since their current compelling-interest arguments (reducing violence) have been scuttled by the court.

And open vs. concealed carry might be tough for states as someone is bound to argue that forcing open carry makes people targets and prevents some from carrying at all (a woman in a dress without a belt).

Oh...and all the challenges that could come from disabled persons wanting to carry. Has anyone considered what the Americans with Disabilities Act could mean here?

 

[krucam]

Great post Argument discussion on Law.com

Meanwhile, Georgetown University Law Center professor Randy Barnett -- one of the professors who joined Kendall's brief -- thinks that the Gura/Clement one-two punch "was, as a tactical matter, brilliant." The privileges or immunities argument scared the justices to such a degree, Barnett said, that Clement's due process argument seemed tame and agreeable -- even though a few years ago, the due process argument might have turned off Scalia and others.

"Given how afraid they were" of Gura's argument, said Barnett, "Clement looked good because he told them what they wanted to hear."

Optimistic for a favorable ruling in June...this will be a GREAT 2010 people...

 

[ezliving]

Oh...and all the challenges that could come from disabled persons wanting to carry. Has anyone considered what the Americans with Disabilities Act could mean here?

That gem is worth a new topic. That will be huge for The Bear.

 

[krucam]

An older link that I just got today, but it's absolutely priceless...Mayor Daley having a blather-fit on the day after the McDonald arguments, from the
Chicago Sun Times

“Why can’t I go to the Supreme Court and sit there with a gun and listen to the arguments? If a gun is so important to us on the street or someone’s home, why can’t I go to the Supreme Court and sit there with a gun? I’m not gonna shoot anyone. But, I have a right to that gun,” Daley said, his voice dripping with sarcasm."

“There’s a reality, but also there should be passion and common sense. We assassinated President John F. Kennedy. We assassinated Martin Luther King. And we assassinated Robert F. Kennedy — and we’re proud of that. That’s the answer to problems with a gun. That is not,” Daley said, again ladling on the sarcasm.

 

[Inigoes]

An older link that I just got today, but it's absolutely priceless...Mayor Daley having a blather-fit on the day after the McDonald arguments, from the
Chicago Sun Times

“There’s a reality, but also there should be passion and common sense. We assassinated President John F. Kennedy. We assassinated Martin Luther King. And we assassinated Robert F. Kennedy — and we’re proud of that. That’s the answer to problems with a gun. That is not,” Daley said, again ladling on the sarcasm.

Who's We?

 

[Dreago]

Nobody knew it, but he had a mouse in his pocket at the time.

 

[krucam]

On 3/2/10, I was #77 in line...Mike Sachs was #3. I spoke with him and he picked me out in line around 6am for a chat...probably had something to do with my MDS ball cap. He has a great write-up of the Orals here:
http://www.abajournal.com/news/article/there_will_be_blood/

Great write-up, but what caught my attention was one of the comments in this American Bar Assn webpage, Comment #12

12. Jim March
Mar 5, 2010 2:07 PM CDT

See…it might be possible to argue that Slaughter-house had some merit at the time, although even the majority opinion makes clear that it was possible the few slaughterhouse operations left open might have been those owned by political cronies or otherwise maintained by local corruption. Again: statements suggesting that might be the case were made by the *majority*.

What Slaughter-house led to was the abomination known as Cruikshank, final decision in 1876. That’s the case that ended reconstruction; it was a distinctly pro-KKK ruling that took the US government out of the civil rights protection business for generations. It didn’t just allow local and state government officials to disarm blacks, it did so when the obvious purpose was the 100+ murders that immediately followed.

Cruikshank also allowed states to violate first amendment rights (freedom of assembly) and 15th amendment voting rights, positions we long ago abandoned.

In the Heller decision, Cruikshank came under heavy fire first in a footnote but more importantly in the positive citation to a then-new 2008 book by Charles Lane, “The Day Freedom Died” in which “the day” was the issuance of the Cruikshank decision which effectively legalized over 4,000 lynchings and countless other civil rights violations. When the Heller court cited that book, it was the strongest condemnation of one of their previous cases *ever* if you know what the book is about.

The Cruikshank case relied strongly on Slaughter-house, so getting rid of Cruikshank automatically casts doubt on Slaughter-house. Presser v. Illinois a few later and Miller v. Texas are both just mindless re-hashes of Cruikshank. Whenever you see somebody try and defend Presser, it’s because they don’t have the guts to try and defend anything as loathsome as Cruikshank.

The problems with Cruikshank are well known on both sides of the issue. A lot of 9th Circuit case law including Fresno Rifle v. Van De Camp and Hickman v. Block are based on Cruikshank. A few years ago in the Silveira decision, Judge Reinhardt attempted to construct an entire new legal basis for state-level gun-grabbing that didn’t depend on Cruikshank.

Unfortunately his main foundational plank was Michael Belesiles “Arming America” only weeks before it was finally condemned as a fraud from top to bottom and Belesiles was tossed out of Emory U. in disgrace. Reference to Belesiles’ work was hastily stripped out from a revised Silveira decision but it still referenced papers from a panel symposium that was basically just a Belesiles fan club. Anyways. Point is, this insane incident shows that the gun-grabber side has known for a while that Cruikshank is a festering hole in their whole game.

So, was the PorI argument really killed off? I think not. Look, we suspect Thomas is in favor of PorI from his dissent in Saenz. If the “Liberal 4” (assuming Sotomayor goes that way) realize that the “gun nuts” are going to win regardless, then why not get gay marriage and Goddess only knows what else in with the bargain by forming a voting block with Thomas? That gives us 9-0 in favor of the gunnies overall, 5-4 in favor of PorI and a 4-vote block of concurring dissent lamenting that Due Process should have gone in.

Now for the fun part. Concealed carry.
There were numerous references to “concealed carry won’t be a right”. In Heller there’s a footnote citing six (or seven?) past state supreme court decisions on that point, including Nunn. All say the same thing explicitly: bans on concealed carry are OK so long as open carry of loaded handguns is legal.

This same issue came up in 2003 at Ohio’s Supreme Court. Gunnies in the Klein case were suing for a right to apply for concealed weapons permits which at that time didn’t exist outside of some “special deputy status” permits given to cronies. We “lost”. However, the Ohio Supremes said in passing “it’s OK to ban concealed weapons (under this state’s version of the 2nd Amendment) because everybody knows open carry is legal.”
At that point, the gunnies turned to each other and grinned. The mayors and police chiefs went pale. In one throwaway sentence the Ohio Supremes had effectively banned the usual practice of tossing open carriers in jail for “disturbing the peace”.

Within days happy heavily armed peaceful mobs of gunnies marched laps around the various state and city capitol buildings, and literally annoyed them into passing a concealed carry bill inside of a year after Klein.
That’s the future the US Supremes appear to be about to create in New York City, Chicago, Hawaii, California, New Jersey, etc. It’ll be hilarious and it WILL lead to concealed carry permits pretty damn quick if Ohio’s experience is any indication

Buh-bye Cruikshank, Presser, Miller. I mentioned these earlier in this thread. They're standard precedents referenced in any upholding of anti-gun bills.
Hello mandatory carry laws??
Perhaps Privileges or Immunities is reincarnated?

 

[Patrick]

Krucam: cool article and blog. Thanks.

The real question in my mind is, "If the Court goes with Substantive Due Process, does this imply Strict Scrutiny or a Rational Basis Review?"

We'd obviously do well under strict scrutiny. MD would love the rational basis review -- it's tough to overturn laws that fall under it.

It's late and I cannot remember my Heller...anyone want to act as my crib sheet and remind me were Heller fell? Strict or Rational?

I still can't see P&I making a comeback, although I see the arguments in my head (and screen). Too much to toss, I think.

But I am just an armchair historian, so my opinion amounts to squat. I agree it would be hilarious to see the most conservative of the bench actually writing a concurring, dissenting opinion on a pro-2A case over P&I.

 

[ezliving]

I believe enumerated rights have always received "strict scrutiny."

 

[Patrick]

I believe enumerated rights have always received "strict scrutiny."

Tks. I thought so. Maybe I'll need to go back and re-read Heller.

 

[pcfixer]

I believe enumerated rights have always received "strict scrutiny."

I believe you are correct according to this.

http://legal-dictionary.thefreedictionary.com/Strict+Scrutiny+Test

"The strict scrutiny standard of judicial review is based on the equal protection clause of the Fourteenth Amendment. Federal courts use strict scrutiny to determine whether certain types of government policies are constitutional. The U.S. Supreme Court has applied this standard to laws or policies that impinge on a right explicitly protected by the U.S. Constitution, such as the right to vote. The Court has also identified certain rights that it deems to be fundamental rights, even though they are not enumerated in the Constitution."

According to Heller, the 2A RKBA is a fundamental right.

"that the operative clause of the Second Amendment—"the right of the people to keep and bear Arms, shall not be infringed"—is controlling and refers to a pre-existing right of individuals to possess and carry personal weapons for self-defense and intrinsically for defense against tyranny, based on the bare meaning of the words, the usage of "the people" elsewhere in the Constitution, and historical materials on the clause's original public meaning;"

"The core holding in D.C. v. Heller is that the Second Amendment is an individual right intimately tied to the natural right of self-defense."

 

[krucam]

I guess my question would be is how does 'Reasonable Restrictions' (highly suggested in McDonald) interact/coexist with 'Substantive Due Process' and 'Strict Scrutiny'?

To me, they seem mutually exclusive...

 

[Boondock Saint]

Is it June yet?

 

[Patrick]

I guess my question would be is how does 'Reasonable Restrictions' (highly suggested in McDonald) interact/coexist with 'Substantive Due Process' and 'Strict Scrutiny'?

To me, they seem mutually exclusive...

The old "Yelling Fire in a Crowded Theater" comes to mind as a reasonable restriction on 1A. There is an expectation that your action will cause direct harm on others and therefore deny them liberty (safety).

This is where I was going with the strict scrutiny question. What is the 2A analogy of "Yelling Fire"?

I think it stands that the following would be reasonable restrictions (in addition to what Scalia wrote in Heller):

- Brandishing a weapon in an intimidating manner for other than truly defensive purposes

- Intimating hostility with a weapon

- Firing a weapon in a manner that could reasonably cause harm to others

- Firing a weapon in a crowded theater (i.e, anywhere that a discharge could reasonably frighten the masses into panic)

- Use of explosive devices or ammunition that could reasonably be expected to cause fire or damage beyond that required for immediate self defense

- Use of a weapon for other than defensive or sporting purposes -- i.e. it's a gun, not a door opener

Others?

Unreasonable restriction would be those against:

- Immediate defense in the face of harm to yourself or others

- Sporting purposes

It's a small list because in reality, that's what guns are for. Notice no talk of "bearing", because I think that one will be a foregone conclusion if McDonald and Palmer go the right way.

Big question: is it "reasonable" to use a deadly weapon for the protection of property? How much property? A candy bar?...no. A house?...yes. A car...no?

In other words, where is that line?

I think this is where the future discussions will lie.

 

[Inigoes]

The old "Yelling Fire in a Crowded Theater" comes to mind as a reasonable restriction on 1A. There is an expectation that your action will cause direct harm on others and therefore deny them liberty (safety).

This is where I was going with the strict scrutiny question. What is the 2A analogy of "Yelling Fire"?

I think it stands that the following would be reasonable restrictions (in addition to what Scalia wrote in Heller):

- Brandishing a weapon in an intimidating manner for other than truly defensive purposes

- Intimating hostility with a weapon

- Firing a weapon in a manner that could reasonably cause harm to others

- Firing a weapon in a crowded theater (i.e, anywhere that a discharge could reasonably frighten the masses into panic)

- Use of explosive devices or ammunition that could reasonably be expected to cause fire or damage beyond that required for immediate self defense

- Use of a weapon for other than defensive or sporting purposes -- i.e. it's a gun, not a door opener

Others?

Unreasonable restriction would be those against:

- Immediate defense in the face of harm to yourself or others

- Sporting purposes

It's a small list because in reality, that's what guns are for. Notice no talk of "bearing", because I think that one will be a foregone conclusion if McDonald and Palmer go the right way.

Big question: is it "reasonable" to use a deadly weapon for the protection of property? How much property? A candy bar?...no. A house?...yes. A car...no?

In other words, where is that line?

I think this is where the future discussions will lie.

I personally, believe people should use their own judgement, when it comes to resonable restrictions on their behvior, not the tools. If they use poor judgement, then let them stand trial for their actions.

Such as limiting a persons capabilities because someone else used poor judgement is unsatisfactory.

Back in the day (70s-80s), it was cheap to blowout a hole in the ground for a septic system using explosives. All you had to do is go down to the hardware store and get a few sticks. Now you can't even get an M80.

As for yelling something or making a loud noise in the theatre, if the occasion arises for such a form of communication, then it should be deemed acceptable, like when there actually is a fire in the theatre.

 

[Pushrod]

The old "Yelling Fire in a Crowded Theater" comes to mind as a reasonable restriction on 1A. There is an expectation that your action will cause direct harm on others and therefore deny them liberty (safety).

This is where I was going with the strict scrutiny question. What is the 2A analogy of "Yelling Fire"?

.

Bad analogy. There is NO PRIOR RESTRAINT on a person in a theater. They can yell fire all they want whether there is a fire or not. If there is no fire and they had no reasonable reason to yell 'fire' then they assume responsibility for their actions and any harm that came from said action.

Likewise there should be no 'prior restraint' on any other fundamental right, such as the second amendment.

 

[pcfixer]

I guess my question would be is how does 'Reasonable Restrictions' (highly suggested in McDonald) interact/coexist with 'Substantive Due Process' and 'Strict Scrutiny'?

To me, they seem mutually exclusive...

Will Marylands Permit to Carry Law, " Has, based on the results of investigation, "good and substantial reason" to carry a handgun, including a finding that the permit is "necessary as a reasonable precaution against apprehended danger." : meet the substantive due process?

Maybe a permit? But how much? Registration of firearms I would think
wouldn't meet the test! JMHO

 

[krucam]

I truly believe we will have the ability to at least OC by the end of this year.

The 2nd Amendment ONCE Incorporated against the States, includes that pesky "...Keep and Bear Arms shall not be infringed" sentence. 'Bear' was brought up in Heller and in McDonald while discussing that concealed carry was not implied, leaving the door open that at least OC would be protected, and therefore 'Strict Scrutiny' would be required against any law regarding any sort of carry.

Palmer v. DC and Sykes v. McGiness (CA), both being led by Alan Gura are both going to address the Carry/Bear aspect, probably post-McDonald for the Sykes case. Both would be great templates for MD if/when push comes to shove for CCW...

 

[Patrick]

Will Marylands Permit to Carry Law, " Has, based on the results of investigation, "good and substantial reason" to carry a handgun, including a finding that the permit is "necessary as a reasonable precaution against apprehended danger." : meet the substantive due process?

Maybe a permit? But how much? Registration of firearms I would think
wouldn't meet the test! JMHO

There must be a "compelling government interest" when the government stands between you and a fundamental right. If the Court holds that carrying a weapon is a fundamental right (this has not yet been asked of the court in any case), then it would stand reason that MDs laws are too broad. Strict scrutiny means using the most narrow law possible to restrict that right, and even minor restrictions require intense review (think Freedom of Speech cases).

I think "reasonable restrictions" will be like those I outlined above and require background checks, etc. Gura pretty much wrote the same in Palmer, probably under the assumption he could get Substantive Due Process and Strict Scrutiny applied. He wanted to set the ground rules before someone else did -- the anti's are playing catch-up on all these cases lately

Also, the states will probably hold the final say on open/concealed carry. But the trend would probably be to "keep those things hidden".

 

[Patrick]

I truly believe we will have the ability to at least OC by the end of this year.

You are one optimistic guy. I like that line of thinking. But I think for that to happen in 9 months we would need a trifecta:

#1 McDonald to be incorporated "Substantially" and requiring strict scrutiny of all anti-2A laws

#2 Palmer to be decided on 2A-friendly terms at the Circuit level with no Supreme Court intervention (possible)

#3 MD lawmakers to not drag their feet and force years of lawsuits before complying with the law.

#1 and #2 are out of MD purview. But you can bet the liberals in the MD House and Senate will fight and drag things out, unless someone somewhere starts making money from suing governments that "infringe civil rights".

My guess is a cottage industry of lawyers forms to fight (and profit from that fight) governments for our newly (un)recognized civil right.

Which means Frosh will probably jump sides.