USSC to take Chicago case on 2A incorporation

K-Romulus · Sep 30, 2009

Hang on to your seats:

http://www.scotusblog.com/wp/todays-orders-40/

The Court has granted certiorari in the following 10 cases. The full order list is available here. (Note: PDFs may load slowly because of high traffic to the site. Thanks for your patience.)
(...)

Docket: 08-1521
Title: McDonald, et al. v. City of Chicago
Issue: Whether the Second Amendment is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home.

* Opinion below (7th Circuit)
* Petition for certiorari (08-1521)
* Brief in opposition
* Petitioner’s reply (08-1521)
* Brief amicus curiae of Arms Keepers
* Brief amici curiae of Texas, et al
* Brief amicus curiae of National Shooting Sports Foundation, Inc.
* Brief amicus curiae of American Civil Rights Union
* Brief amici curiae of Institute for Justice, and Cato Institute
* Brief amicus curiae of California
* Brief amici curiae of Gun Owners of America, Inc.,et al.
* Brief amici curiae of Constitutional Law Professors

Jaybeez · Sep 30, 2009

Good news.

If they follow the same timeframe as with the heller case, i would expect a decision by the end of june 2010.

1776 · Sep 30, 2009

This Chicago incorporation case can really open the door for gun rights across the nation. Alan Gura is once again the lead lawyer, he won the Heller case. I can't wait to see how the Supreme Court rules. I am betting that the Second Amendment will be incorporated.

kstew · Sep 30, 2009

I believe good news will come of this. I can't wait to read the decision

Boxcab · Sep 30, 2009

Righteous!

:party29:

Brooksy · Sep 30, 2009

I had the pleasure of speaking with Clark Neilly (one of the other lawyers who worked with Alan Gura on Heller and this case) about a year ago this time, and he seemed rater confident that the 2A would eventually be incorporated.

He explained that a historical examination of the debates of the 14A made clear that an individual right to self-defense was one of, if not the, most important aspect that the ratifiers intended to extend. That being because they found it crucial for post-Civil War African-Americans to be able to defend themselves and not be dispossessed of their weapons, given the obvious race tensions that still existed in much of the country.

What I find even more interesting is the Court's statement of the issue in granting cert which says:

Whether the Second Amendment is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home.

Could they really be reviving the P&I clause? Neilly was asked this question and didn't put much faith in the Court taking that approach. For further reading see the ACRU amicus curiae brief which explains how the 2A could be incorporated through the P&I without overruling the Slaughter-House cases.

Boxcab · Sep 30, 2009

...thereby invalidating ordinances prohibiting possession of handguns in the home.

The words I put in bold indicate that additional hearings will be needed to really incorporate the 2nd. Or am I just being narrow minded?

Brooksy · Sep 30, 2009

No, you are absolutely right. That was Neilly's other major talking point, that he didn't see Heller or incorporation greatly changing the landscape. Yes, it may now allow those in DC and eventually Chicago to own weapons in their home. But I got the impression he felt Scalia left a lot of room for allowable restrictive gun control in Heller and that the other cases coming down the pipeline would be similarly tailored.

Kharn · Sep 30, 2009

Palmer is currently challenging DC's carry ban, incorporation would let that same result apply in MD. The MSP had better hire extra handgun division staff if both of those go our way.

Storm40 · Sep 30, 2009

It is hard to argue, I think, that one can allow the keeping without allowing the bearing, if you will. I can see a lot of wiggle room between concealed and open carry, but one cannot simply add "in the home" to an amendment without following the amendment process. Nevertheless and logic notwithstanding, I imagine we'll see incorporation, then another 5 to 10 year wait while some lucky lawsuit finds it's way to the supreme court to test "and bear"... I hope, however, that states (MD, are you listening?) will see the light and see that "and bear" is as fundamental as "keep" and do the right (pun intended!) thing.

AliasNeo07 · Sep 30, 2009

I'm scared.

I hope to god it is incorporated. But what happens if it isn't?

Judges don't rule based on partisan politics, hopefully. Who knows whether ONE of the justices that voted for heller believes that the 2nd amendment doesn't apply to the states? It is conceivable. If everyone votes the way they did on heller, we're golden.

Unfortunately I don't see that outcome. I pray to god that i'm wrong.

It is harder to argue that the 2nd amendment applies to the states than it is to argue that it applies to DC. Much harder.

I hope the heller voters vote in our favor once again.

ezliving · Sep 30, 2009

Docket: 08-1521
Title: McDonald, et al. v. City of Chicago
Issue: Whether the Second Amendment is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home.

links work.

K-Romulus · Sep 30, 2009

ezliving said:
Docket: 08-1521
Title: McDonald, et al. v. City of Chicago
Issue: Whether the Second Amendment is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home.

Opinion below (7th Circuit)

Petition for certiorari (08-1521)

Brief in opposition

Petitioner’s reply (08-1521)

Brief amicus curiae of Arms Keepers

Brief amici curiae of Texas, et al

Brief amicus curiae of National Shooting Sports Foundation, Inc.

Brief amicus curiae of American Civil Rights Union

Brief amici curiae of Institute for Justice, and Cato Institute

Brief amicus curiae of California

Brief amici curiae of Gun Owners of America, Inc.,et al.

Brief amici curiae of Constitutional Law Professors

links work.

Thanks

Alan Gura is scheduled to be on the KoJo Nnamdi Show this Friday at 12:06pm on 88.5 FM to discuss the case.

Kharn · Sep 30, 2009

Storm40 said:
It is hard to argue, I think, that one can allow the keeping without allowing the bearing, if you will. I can see a lot of wiggle room between concealed and open carry, but one cannot simply add "in the home" to an amendment without following the amendment process. Nevertheless and logic notwithstanding, I imagine we'll see incorporation, then another 5 to 10 year wait while some lucky lawsuit finds it's way to the supreme court to test "and bear"... I hope, however, that states (MD, are you listening?) will see the light and see that "and bear" is as fundamental as "keep" and do the right (pun intended!) thing.

See Footnote #9 in Heller. Scalia cited a number of cases holding that concealed carry could be banned in support of his "the 2A is not unlimited" position, but those cases all ruled that such bans could only stand because open carry was legal in each situation.

MDFF2008 · Sep 30, 2009

Can private citizens file Friend of the Court briefs?

I think MSI should file a brief, especially highlighting the discriminatory practices. That would give the court another angle.

ozwyn · Sep 30, 2009

gprimr1 said:
Can private citizens file Friend of the Court briefs?

I think MSI should file a brief, especially highlighting the discriminatory practices. That would give the court another angle.

A "gun control is racist" argument (which is very easily supported) might be beneficial, and throwing it in the face of the chicago machine would be damn entertaining.

CharlieFoxtrot · Sep 30, 2009

Great news it made my day. A revival of the P&I clause would be fantastic as well. The Slaughter-House cases are one of the two or three worst decisions in Supreme Court History IMO. Can’t wait to see what happens.

Storm40 · Sep 30, 2009

ozwyn said:
A "gun control is racist" argument (which is very easily supported) might be beneficial, and throwing it in the face of the chicago machine would be damn entertaining.

I'd attack it from the "these states allow open/concealed carry but the MD gov't is actively infringing its citizens' right to carry, where is our equal protection?" angle.

trickg · Sep 30, 2009

It seems like it should be a slam-dunk win for 2A rights, but I'm always uneasy about this kind of thing. The Heller decision, unfortunately, openend the door for registration, even if it was a major win.

We could win this decision, and at the same time it might result in the nationwide official registration of all of our guns, which would be a bad move IMO.

teratos · Sep 30, 2009

I have a simple question. If the Bill of Rights does not apply to the States, then to whom does it apply? Since we are all residents of States (With the exception of D.C., Puerto Rico, the USVI, American Samoa etc.), then the Bill of Rights is absolutely worthless.

The 10th Amendment states: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

The Second Amendment clearly says the "Right of the People to keep and bear arms shall not be infringed"

Shouldn't this prohibit states from passing laws restricting keeping and bearing firearms??

The 14th Amendment also comes into play:

"ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States"

I don't get it/

USSC to take Chicago case on 2A incorporation

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