7th Circuit Court Ruling On Chicago Gun Ban

[pcfixer]

Overturning the slaughterhouse cases? Might be funny if the judges that ruled against Heller vote to overturn the Chicago gun ban because it is the chance to overturn the understanding of the Slaughterhouse case.

Hummm.. not sure how the case will go. Just need a 5 to 4 vote!

 

[pcfixer]

this a a quote of the text.

III. This Case Presents A Unique Opportunity
To Correct This Court’s Privileges Or Immunities
Doctrine.
If reversal on substantive due process grounds is
all but foretold by precedent, reversal is also commanded
by adherence to the text, purpose, and original
public meaning of the Fourteenth Amendment’s
Privileges or Immunities Clause.
The almost meaningless construction given this
provision in Slaughter-House was wrong the day it
was decided and today stands indefensible. “Virtually
no serious modern scholar – left, right, and center –
thinks that [Slaughter-House] is a plausible reading
of the Amendment.” Akhil Reed Amar, Substance and
Method in the Year 2000, 28 Pepp. L. Rev. 601, 631
n.178 (2001). “ ‘[E]veryone’ agrees the Court [has]
incorrectly interpreted the Privileges or Immunities
Clause.” Richard L. Aynes, Constricting the Law of
Freedom: Justice Miller, the Fourteenth Amendment,
and the Slaughter-House Cases, 70 Chi.-Kent L. Rev.
627 (1994); Thomas B. McAffee, Constitutional Interpretation
– The Uses and Limitations of Original Intent,
12 U. Dayton L. Rev. 275, 282 (1986) (“this is one
of the few important constitutional issues about
which virtually every modern commentator is in
agreement”); see also Laurence H. Tribe, Taking Text
and Structure Seriously: Reflections on Free-Form
Method in Constitutional Interpretation, 108 Harv. L.
Rev. 1121, 1297 n.247 (1995) (“[T]he Slaughter-House
Cases incorrectly gutted the Privileges or Immunities
Clause.”).

 

[Kashmir1008]

Thanks. I was wondering how this case would be presented by Alan Gura.

His Question "Presented"..
Whether the Second Ammendment "Right to Keep and Bear Arms" is
incorporated as against the States by the 14th Ammendment's Priveges
or Immunties or Due Process Clauses.

Althought I've just read all this, I see Mr Alan Gura makes a very compelling
argument. The idea that the Circuit courts aren't in agreement is one
presentation. There also is disagreements on wheather the states are
incorporated or not, especially with respect to the 1st 8 Ammendments.
His case seems IMHO justified.
He is looking for SCOTUS to overturn the Slaughter-House case and overrule. He says wrongfully decided.

My questions is: What effect will the have on us or the state laws, in states that haven't any language of RTKBA in state consitutions as in Maryland?? ( if he succeeds in winning)
there are sevent that I know of. I have a bunch of thoughts on other issues but more later.

Not sure if we should have another thread on this ...
Moderators... what is your thoughts?

I would like to see the SCOTUS put into writing any registration of firearms is
not constitutional... But we will see.

I haven't finished reading all of Gura's Petition but my initial thought: I don't thing SCOTUS will go as far as to say any registration of firearms is unconstitutional. However the court did provide this dicta in the Heller decision:

"[a]ssuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home." The Court, additionally, hinted that other remedy might be available in the form of eliminating the license requirement for carry in the home, but that no such relief had been requested: "Respondent conceded at oral argument that he does not 'have a problem with . . . licensing' and that the District's law is permissible so long as it is 'not enforced in an arbitrary and capricious manner.' Tr. of Oral Arg. 74–75. We therefore assume that petitioners' issuance of a license will satisfy respondent’s prayer for relief and do not address the licensing requirement."

The court was willing to provide other remedy "in the form of eliminating the license requirement for carry in the home"

I'm not clear what they mean by "license requirement to carry in the home". It seems strange to me that one would be allowed to own a firearm under Heller, but would need a license to carry it in one's own house.

So the license to carry in the home might be found to be unconstitutional, but I can not see any SCOTUS decision eliminating all registration requirements. The court upheld the regulations relating to restricting ownership by felons or the mentally unstable which implies to me that the States would conduct some background check and process to determine who is buying what.

However, "[l]ike most rights, the Second Amendment is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." The Court's opinion, although refraining from an exhaustive analysis of the full scope of the right, "should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."


In any event it's getting interesting

 

[pcfixer]

and that the District's law is permissible so long as it is 'not enforced in an arbitrary and capricious manner.' Tr. of Oral Arg. 74–75

My opinion, and I think many in Maryland believe that CCW permits are enforced arbitrarly and capriciously in Marland. I don't understand why there are 7 states that do not have 2A language in state constitutions. Another question.. If there was a national castle law then maryland would have to abide by it.

The Court's opinion, although refraining from an exhaustive analysis of the full scope of the right, "should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."

I personally don't have a problem with the language about...some say 2A rights apply to all legal americans, even fellons who have done their time and mentally ill that have been demend fit for society again... Me I think thats a stretch... JMHO
I honestly would like to see pistol "certificate of complettion" just like hunting certificate to hunt... maybe national one by NRA. NRA certificate of basic pistol, there is also one for concelled carry & home protection.. I'm going to complete this summer....

 

[ezliving]

Jul 07 2009
Thirty-Four States Support Second Amendment Incorporation

Published by Alan Gura at 12:26 pm under Uncategorized

We are gratified that thirty-four of the states have weighed in support of our case at the Supreme Court.

Texas, leading a group of thirty-three states, filed one amicus brief urging the Court to hear our case and hold the Second Amendment binds state and local governments. California separately filed an amicus brief urging the same.

Here is the press release from Texas Attorney General Greg Abbott :
​

Texas Attorney General Abbott Files Brief with United States Supreme Court; Takes Action to Protect Texans’ Second Amendment Rights

Texas Amicus Brief Joined by 32 State Attorneys General

​

AUSTIN - Texas Attorney General Greg Abbott today filed a brief with the U.S. Supreme Court that defends Americans’ right to keep and bear arms. The amicus brief, which was filed on behalf of 33 state attorneys general, supports a legal challenge by Otis McDonald, a community activist who lives in a high-crime Chicago neighborhood.

McDonald’s work to improve his neighborhood has subjected him to violent threats from drug dealers, but city ordinances prohibit him from obtaining a handgun to protect himself.

The state attorneys general argue that cities cannot simply ignore the Second Amendment of the U.S. Constitution and impose a blanket ban on handguns.“Last year, the Supreme Court of the United States struck down the District of Columbia’s handgun ban and held that the Second Amendment protects individual Americans’ right to keep and bear arms,” Attorney General Abbott said.

“The brief filed today urges the nation’s highest court to hear community activist Otis McDonald’s challenge to an ordinance that prohibits him from possessing a handgun to protect himself from the criminals he has worked to eradicate from his high-crime neighborhood. Today’s amicus brief reflects an effort by more than thirty attorneys general to defend law-abiding Americans’ constitutionally protected right to keep and bear arms.”

The states’ amicus brief says: “The right to keep and bear arms under the Second Amendment is not just a ‘fundamental’ liberty interest. In the Anglo-American tradition, it is among the most fundamental of rights because it is essential to securing all our other liberties. The Founders well understood that, without the protections afforded by the Second Amendment, all of the other rights and privileges ordinarily enjoyed by Americans would be vulnerable to governmental acts of oppression.”According to the states’ amicus brief, the Second Amendment of the U.S. Constitution applies to states under the Fourteenth Amendment, and the right to keep and bear arms is a right that states have long recognized. In fact, 44 state constitutions protect their residents’ right to bear arms.

The brief adds: “The submission of this amicus brief provides further evidence of the States’ understanding of the fundamental importance of the arms-bearing right guaranteed by the Second Amendment.”“Just as local governments cannot constitutionally act as ‘laboratories’ for initiatives to abrogate their citizens’ right to free speech or their freedom from unreasonable searches and seizures, nor can they nullify the fundamental right to keep and bear arms secured by the Second Amendment,” the amicus brief states.“>

The states’ amicus brief acknowledges that some firearms regulations are permissible, including in circumstances where they are necessary to prevent violent felons from owning guns.

The states ask the U.S. Supreme Court to hear both the McDonald case and National Rifle Association of America Inc., et al v. City of Chicago, Ill., et al.

The states that joined Texas in the amicus brief are: Alabama, Alaska, Arkansas, Colorado, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Maine, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Mexico, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Utah, Virginia, Washington, West Virginia and Wyoming.

Texas: http://www.chicagoguncase.com/wp-content/uploads/2009/07/texas_states_cert_stage.pdf

California: http://www.chicagoguncase.com/wp-content/uploads/2009/07/california_cert_stage.pdf

 

[novus collectus]

There is a super majority of state AGs who support incorporation now.

 

[Boondock Saint]

You mean Dougie Gansler didn't file a brief too?

 

[Inigoes]

The states that joined Texas in the amicus brief are: Alabama, Alaska, Arkansas, Colorado, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Maine, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Mexico, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Utah, Virginia, Washington, West Virginia and Wyoming.

hhhmmmm, go figure.

No Maryland in the list.

 

[rambling_one]

hhhmmmm, go figure.

No Maryland in the list.

Mr. Gansler's too busy deciding which way the wind's blowing on the gay marriage issue. Perhaps he should ask the Pink Pistols how they feel about incorporation.

 

[ezliving]

QUESTION PRESENTED
Whether the right of the People to keep and bear arms guaranteed by the Second Amendment to the United States Constitution 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 the possession of handguns in the home.

All "Keep" and No "Bear."

 

[MDFF2008]

California separately filed an amicus brief urging the same.

I can't believe this.

 

[ezliving]

The enemy of your enemy is your friend. The Libs want constitutional incorporation of rights against the states for their own purposes and the price they are willing to pay is the 2nd Amendment.

California also wants specific guidance on how far they can go restricting guns and still stay out of trouble with the SCOTUS. They want to be as restrictive as possible.

 

[MDFF2008]

If gay marriage is the price to pay for carrying my gun in Maryland, it's a win win for me.

I get my guns, my friend get's her girlfriend to become her wife.

 

[ToneGrail]

If gay marriage is the price to pay for carrying my gun in Maryland, it's a win win for me.

I get my guns, my friend get's her girlfriend to become her wife.

As a libertarian, I also see it as a win-win.

 

[Trapper]

I don't give two-shits if gays want to be married. Let divorce ruin their credit too!

I don't believe laws should mention race, religion, or sexual orientation. The law should simply be the law and be applied to all equally. If the government passes laws about marriage, that law should affect everyone the same way. We don't say its okay to murder folks if you were born on the 5th Monday of October and have brown eyes.

 

[gamer_jim]

I don't give two-shits if gays want to be married. Let divorce ruin their credit too!

Exactly. Why should straight folks be the only ones to suffer from marriage.

 

[kohburn]

I don't give two-shits if gays want to be married. Let divorce ruin their credit too!

I don't believe laws should mention race, religion, or sexual orientation. The law should simply be the law and be applied to all equally. If the government passes laws about marriage, that law should affect everyone the same way. We don't say its okay to murder folks if you were born on the 5th Monday of October and have brown eyes.

personally believe that "Marriage" is a religious matter anyways, otherwise its a legal union.

but then again I just want the gov out of everyone business

 

[Trapper]

personally believe that "Marriage" is a religious matter anyways, otherwise its a legal union.

I agree, but the "legal union" is recognized by the government as a "Marriage". I don't believe Catholics, Prodestants (sp?) or any other religious group should be forced to perform or accept ANY marriage. However, the "legal union", defined by the government as "Marriage", should be available to all.

 

[ezliving]

Alan Gura posted:

The Constitutional Accountability Center has weighed in with an excellent amicus brief supporting our petition to the Supreme Court, filed on behalf of constitutional law professors Richard Aynes, Jack Balkin, Randy Barnett, Michael Curtis, Michael Lawrence, and Adam Winkler.

http://www.chicagoguncase.com/wp-content/uploads/2009/07/cac_cert_stage.pdf

 

[fightinbluhen51]

As a libertarian, I also see it as a win-win.

Ditto my friend, ditto!