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canebrake 03-06-2010 02:56 PM

McDonald v Chicago
 
From The Shooting Wire for Wednesday, March 3

FEATURE
McDonald v Chicago

Tuesday's Supreme Court oral arguments in the case of Otis McDonald, et. al, versus the City of Chicago were not a Heller rematch.

They were the next logical step in establishment of the base of legal precedents that will finally decide if the Second Amendment of the Constitution of the United States is really an individual right that may not be regulated out of existence by state or municipal governments.

On the surface, McDonald, et al, v. Chicago, et. al is set to answer a question that sounds simple: does the Second Amendment apply to state, county and local governments the way it does to the federal government?

For nearly 220 years, the lower governments have taken the position that the Second Amendment was a collective right -applicable to militias, not individuals.

In essence, they have ignored the individual right to firearms possession through the passage of firearms laws that range from unreasonable to ridiculous.

Today, however, 90 million Americans in possession of an estimated 200 million firearms aren't quite so convinced that any political appointee has the authority to deny their right to firearm possession.

Especially when laws like Chicago's essentially forbid the ownership of a handgun. Chicago suburb Oak Park's goes even further, making it a crime for anyone inside the city limits to have a gun small enough to conceal on the person.

Today's arguments were the logical next step in overturning laws that nearly everyone - including the attorneys for the other side- agree are void if the Second Amendment really is an individual right.

As it was put by Alan Gura when questioned by Justice Sotomayor, "states may have grown accustomed to violating the rights of American citizens, but that does not bootstrap those violations into something that is constitutional."

And that was the central core of the oral arguments. Does the City of Chicago have the legal ability to restrict handgun ownership?

Not if they respect the Constitution, said Gura.

At that point, Paul D. Clement, representing the National Rifle Association stepped in, making the case that, well, there really wasn't much wiggle room, the Second Amendment says, clearly, that the right to keep and bear arms is a right, not subject to encroachment by federal, state or municipal government.

Not so, argued University of Pennsylvania Law Professor James A. Feldman, taking on the role of Special Assistant Corporation Counsel for the City of Chicago. "States and local governments," he said, "have been the primary focus of firearms regulation in this country for 220 years."

In other words, the position of the City of Chicago was, simply put, state and local governments have always had this right, and they have no intent of giving it up.

Based on the arguments, it would seem that the cities of Chicago and Oak Park should both be prepared to surrender that right.

"It was a good day," said Chris Cox, NRA-ILA head, "I'm glad we had Paul Clement making the case for the incorporation of the extension of gun rights."

That was Clement's purpose..to make a solid case focusing the "due process clause" as a vehicle for extending gun rights to the state and local levels.

Where Gura's argument was much more far reaching in its scope, Clement was taking the solid meat-and-potatoes approach. As Justice Scalia observed, Gura's position was a darling of law professors, but not really one the court relished taking on.

Based on conversations with firearms industry leaders, including NSSF's Steve Sanetti and Larry Keane, however, it might be too-early to be breaking out the champagne.

"One thing I've learned," Sanetti told me after the arguments, "is that trying to handicap the Supreme Court is a losing proposition."

That having been said, many observers were nearly encouraged at the fact that for the justices to uphold the Chicago and Oak Park bans, they would have to acknowledge, at least minimally, they were wrong in the Heller decision.

For Chief Justice John Roberts, Justice Clarence Thomas, Justice Samuel Alito, and Justice Anthony Kennedy that would be the equivalent of reversing their own decision. It is obvious, however, dissenting Justices Breyer, Stevens, and Ginsburg still disagree. In two instances, the attorneys stood quietly while Justices Breyer and Scalia argued whether extending the right of the Second Amendment would embrace "all of the refinements" the court would make or "just the core of the right."

The justices reached no conclusion, but Gura made it plain that firearms advocates were going for the full scope of whatever rights the Second Amendment were found to cover.

So what will happen?

Nothing quickly, but it is safe to say that when the Supreme Court comes into discussions on this case starting next week, it will be an energetic discussion.

Will the Chicago and Oak Park bans be overturned?

Most likely, but it's a crap shoot on how vigorously the Supreme Court will pursue the matter beyond that.

While this case gives the opportunity for the court to take far-reaching action, the Supreme Court is not known for such sweeping decisions. In this instance, it would seem the court is willing, as Justice Scalia wrote in Heller, to allow the body of jurisprudence in relation to the Second Amendment move forward on a case by case basis.

It's called "selective incorporation" of certain rights. And it's likely that the ruling in this case may be seen as a partial win for both sides. For pro-gun groups, it's likely Chicago and Oak Park will see their bans ruled unconstitutional. For anti-gun groups, it's also likely that the court will leave room for "reasonable restrictions" based on individual circumstances.

When it comes to the right to own firearms, however, there doesn't seem to be any discussion in the court as to whether that right is, in fact, an individual "right" for all Americans. It's the degree to which that "right" may be regulated that is still the cause for concern.

--Jim Shepherd

canebrake 03-06-2010 02:58 PM

Alan Korwin's PAGE NINE -- No. 79 -- SPECIAL

Are the 50 states required to obey the Second Amendment?

Or can they do whatever they want, with no obligation to respect our right to keep and bear arms?

That's what's at stake in the Chicago gun-ban case, McDonald v. City of Chicago, at the U.S. Supreme Court, where oral arguments will be heard this Tuesday, March 2, with a decision expected in June.

I'm hitting the road tomorrow (for two Texas conventions) and will be at the Court for eyewitness reports. The circus atmosphere does not appear to be in the air -- yet this case could have more far-reaching consequences than the Heller case.
There's no disagreement that when the Second Amendment and the Bill of Rights were ratified in 1791, they were designed to control the federal government only, not the states. Did the 14th Amendment change that?
The Colonists and the Founders were intensely afraid that a strong central government would eventually confiscate the rights cherished by early Americans -- the very things that made America great and that have drawn people here like magnetism. It was not a baseless fear, as we can see clearly from constant and growing federal usurpations of our rights and freedoms, with massive accumulations of power in Washington, D.C.

The First Amendment says it plainly: "CONGRESS shall make no law..." (emphasis added). The whole idea was to control the central government, not the states (which had their own protections and statements of rights).

The idea that the states should also be obligated to respect the fundamental rights in the national Bill of Rights didn't arrive until 1868, with the 14th Amendment. And that was a result of the end of slavery -- the former Confederate states did everything they could think of to deny virtually any rights to newly freed slaves -- especially the right to keep and bear arms.

Congress, led by the northern states, declared that all Americans had rights and that, "...No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws..." (the key 52 words of the 14th Amendment's 435 words, emphasis added). The historical record is emphatic in noting that the right to arms, especially for freedmen, was a prime mover in passing this amendment.

That language is clear, but here's where it gets tricky, and the heart of the McDonald case. Passage of 14A didn't automatically protect all citizens. What exactly are all the rights, privileges and immunities of the people? For reasons too complex to go into now, rights in the Bill of Rights have been applied to control the states, but only one at a time, by the U.S. Supreme Court.

There were two main ways to do this -- the Privileges and Immunities clause (which protects only citizens), and the Due Process clause (which applies to "any person"). The Court has essentially abandoned the P&I clause, and relied mainly on Due Process.

A set of cases, combined into "The Slaughterhouse Cases" (look that up, it's fascinating) pretty much gutted the Privileges and Immunities clause, by saying the only rights you have as an American are extremely narrow. The P&I clause has essentially been a dead letter since that case in 1873 -- and this is why McDonald v. Chicago is seen as so critical -- it could breathe life into the heart of the 14th Amendment. The Second Amendment is the subject matter, but the 14th Amendment is what's at stake. OK, OK, they're both at stake.

With a key chunk of the 14th essentially dead, the High Court has relied on Due Process to apply (legal eagles say "incorporate") the Bill-of-Rights rights against the states. That's why states can't search and seize your property without a warrant (well, in theory at least -- the states have usurped enormous powers too). The Due Process clause is why free speech cannot be denied by the states (again, only in theory -- the abuses here are so great it's the subject of my next book: Bomb Jokes At Airports -- And 186 Other Things You'd Better Not Say).

So now we're at the case in hand. Chicago has pretty much outlawed or severely infringed firearms rights for anyone in the city. All the city's powers are basically derived from the state of Illinois. Does Chicago have legitimate power to outlaw your rights? It says yes.

Is Chicago obligated, under the 14th Amendment, to honor and respect your rights? It says no, it can do as it pleases and screw your rights, just like other abhorrent petty tyrants currently running loose without nooses in the United States. (FWIW, Illinois, Maryland and New Jersey filed briefs supporting Chicago, a total of three arguing against RKBA rights.)

I say, along with a huge chunk of this great country, that the states should be as totally bound to protect and safeguard the rights you have as an American citizen as all government should be. (38 briefs were filed in defense of our rights, including one by 251 congressmen and 58 senators). I go a bit further and say the bigots who have been denying and repressing your rights all this time belong in prison, but we're not likely to go that far. This time.
People who know about these things believe it is most likely that, if the High Court decides the states are obligated to honor the Second Amendment (and by implication, the entire rest of the Bill of Rights) they will apply the Due Process clause to justify their reasoning. That's how it's always been done, that's the most safe and precedent-ready route, and that's the best argument to press. Or is it?

Hopes are huge and the Court has subtly signaled that it is ready to finally breathe life into the P&I clause, and that has become the dominant argument for the petitioners (McDonald, et al.) and their attorneys, led by Alan Gura. The Court has all it needs to go the Due Process route, why not give it the encouragement it needs, seems to want, to rebirth P&I.

canebrake 03-06-2010 02:59 PM

Alan Korwin's PAGE NINE -- No. 79 – SPECIAL cont.,

And here's where it gets really interesting. McDonald v. Chicago is seen as the best opportunity in more than a century to fix the harm done by Slaughterhouse. There is virtually unanimous consensus that Slaughterhouse was bad law, decided for bad reasons, and that it needs to be overturned. It has killed off a crucial part of a crucial constitutional amendment, and the times, and the Court, and the legal system are ready to set it right. It means upsetting a huge apple cart, but it's time.
Even though the subject matter of McDonald is gun rights, and a positive decision will have enormous positive impact on everyone's right to arms, many on the political left are supporting this case. Talk about strange bedfellows. They want that 14th Amendment restored because they see it as a linchpin for all sorts of possible "civil rights" they envision in the future. Think of every wacky demand the left makes, and then imagine these are "found," one by one, to be civil rights the federal government can force the states to honor and protect.

Yes, we're delighted that the states may be forced -- by our friends the feds -- to honor our right to keep arms and our right to bear arms. We can conveniently overlook and rationalize any concerns about federalism -- the concept that states are sovereign and independent, and in many matters can decide on their own how their territories will be run. Force from federal mandates seems just fine to protect free speech or stop search-and-seizure abuse, or to protect RKBA. But how well that flies if it's "newly discovered privileges and immunities" (polygamy? drugs? animal rights? affirmative action? debt? medicine? carbon neutrality? diversity? greenness? diet?) remains to be seen.
Those are far fetched and unlikely concerns, according to most people in the know. And the idea of losing the case, leaving states free to trample our precious right to arms, is just unthinkable. Giving up the best chance we've had in our history to right the wrongs of Slaughterhouse is not an easy option to consider. But the NRA, with laser aim on reinstating the rights of Chicagoans, has stepped into the fray, and asked for and received part of the tiny argument time (30 minutes) Alan Gura has before the Court.

The NRA has retained Paul Clement, the former solicitor general whose experience before the Court is unrivaled (and who wrote the pro-rights brief signed by 58% of the U.S. Congress for this case). The NRA wants to make sure the Due Process arguments are firmly made, since Mr. Gura has chosen the somewhat riskier focus on the Privileges and Immunities clause (though both camps make arguments for both approaches). The NRA's request for time, unusual but not unheard of, was definitely a fly in the ointment, but an ointment they felt needed a stir and examination.

To be sure, many of the friend-of-the-court amicus briefs filed in this case brought up and documented well the value, need and reasons to re-establish the P&I clause -- but it would break very new ground. So the NRA's position is not out in left field -- they are recognizing and making the more traditional case based Due Process. It's a double-barreled approach for success. which is a good thing. Probably. You never know when the Supreme Court gets its hands on an issue.

The most dangerous game may be the side note about Chicago's gun-registration scheme. If you can have a gun there at all it must be re-registered every year, most guns simply cannot be registered, and if you miss your renewal date (and fee for every gun you own) the gun(s) becomes permanently unregisterable and contraband. Is that OK? The Court's handling of this policy if they decide to touch it (and it seems they may have to based on the facts of the case), is fraught with danger for gun rights.
So there you have it. In the amicus brief my company Bloomfield Press filed with lead attorney Chuck Michel and dozens of district attorneys, gun rights groups from Texas, Virginia and Arizona, sheriff Richard Mack who was behind the original Brady law case (which he won) and others, we mainly left the 14A arguments for others. Instead, we addressed some essential points that got far less attention.

Our brief establishes this crucial point: the Second Amendment protects an American right that is long standing, deeply rooted and truly fundamental, and therefore meets the tests for incorporation under the 14th Amendment.

We did this with five separate arguments, two of which were a direct result of the work I did with attorneys Dave Kopel and Stephen Halbrook on my 10th book, Supreme Court Gun Cases. We found 92 gun-related cases the Court had heard (starting in 1820) up to that time (2003) and they were uniformly consistent with an individual right to keep and bear arms. (By my count, the Court has actually heard 103 gun-related cases at this point. McDonald will be the 104th).

In 14 of these prior cases the Court repeatedly stated every basic tenet of self defense in effect today. The Heller case forced the modern-day judiciary to finally unambiguously recognize and accept self defense as a core reason and justification for the right to arms in the first place. The public already understood this well. We carefully documented which classic cases supported which aspects of self defense (innocence, reasonable belief, grounds for belief, actions not words, necessity, equal force, immediacy ends, retreat and chase, plus rightfully armed, mutual combat, wounding and withdrawal) to show how solidly grounded these rights and issues are in the High Court's existing jurisprudence.

canebrake 03-06-2010 03:08 PM

Alan Korwin's PAGE NINE -- No. 80 -- SPECIAL

EYEWITNESS REPORT
Mar. 1, 2010 (Late)
[Bawky hotel computer connection -- excuses for bad format, reserve the right to correct quickly made word choices etc.]

I'm back in my hotel, having endured the weather in front of the U.S. Supreme Court, anticipating oral arguments in McDonald v. Chicago in the a.m., the case that will decide the standing of our Second Amendment rights in the 50 states.
Well, people are lining up allright. Young people who can withstand it.

It's bitter cold with a 20 MPH wind, but if you've decided to come here for the latest most seminal gun-rights case imaginable that's not going to stop you.

At 5PM when I arrived (night before the oral argument) there were eight people awaiting seats for tomorrow's McDonald v. Chicago 14th Amendment/Second Amendment case. By the time I left, with my feet too numb to feel, there were thirteen people trickled in, including a GW law-school student and her Mom who brought an air matress and a comforter. When I cell-phoned some of the stalwarts later, before beginning this draft, I was told there were nearly 50 people there, including 15 or so high-school students who decided to rough it and see a landmark case at the Supreme Court. Only 50 are guaranteed seats, so the window of opportunity is pratically closed. The Marshall's office expected the crowd to develop in the a.m., looks like they'll be SOOL. Coulda been worse -- for Heller, the line started TWO days ahead of time. This night-before stuff is child's play. But it's COOOOOLD.

As usual, the hale and hearty on line are more knowledgable about this case
than most of the public (and the media -- Wash Post made their above-the-fold front-page story today a referendum on Justice Scalia, read like an unsavory biography (they don't like the guy!), instead of the merits of the case; what facts Court reporter Robert Barnes did provide were out of whack, thin, misleading, pretty standard for that rag. Guess what they chose for an illustration -- a picture of Chirs Broughton carrying his AR-15 at the Obama rally in Phoenix!! I kid you not. That makes sense, right? The Wash Compost's idea of a gun image is a months old piece of discriminatory controversy, not something depicting basic human rights).

We had dynamic chats on the street about the premise of the case (the Post barely touched it), constitutional realities, the unknowns, the likely outcomes, the vote -- Mike the blogger, incredibly knowledgable and with past cases at his fingertips with such detail and a tongue too fast even for me to follow, predicts a 9 -0 result -- the Court will not overrule its Heller jurisprudence, and even hopelessly anti-gun-rights Ginsburg will forgo her hatred of 2A to reintstate 14A, or so he believes. Robert Cumberland flew in from Californai and is first in line -- and he knows his stuff. This case affects him more than even Heller -- that case set the groundwork, but this is the one that might actually force reinstatement of his abrogated rights, and he wants to be here to see it.

The carnival atmosphere is definitely lacking, there isn't a single camera crew set up -- at Heller there were dozens at this point, but no doubt there will be some tomorrow. Yet this case stands to have more net effect than Heller, it just doesn't break ground in the same way. Dick Heller was out there after I left (phone tips from the folks I met, seven men and one woman), chatting up the crowd, enjoying his 15 years of fame, his nephew plans to be on line to see the proceedings, some guy named Robert is holding a place in line in the freezing cold for a party unnamed, at $20 an hour. Dan Schmutter, attorney for JPFO dropped by to see what's up, this is definitely the hot ticket in town -- all seats in Chambers are reserved, save for the precious few for the rabble (what we call the public).

Perhaps the most telling perspective came from a British theology professor visiting here, met in a bar on the frigid way home -- he thinks the only rights you legitimately have are those the government gives you. You can have a gun if government "allows" it, with no ammo, locked in a locker, and this is freedom. If he was on the Court we'd be doomed. I'm not making this up.

Exhausted, need to pack, will observe tomorow and provide my observatiosn soon. Real soon.

Alan.

canebrake 03-06-2010 03:13 PM

Alan Korwin's PAGE NINE -- No. 81 -- SPECIAL

EYEWITNESS REPORT
Mar. 2, 2010

[Out of D.C. and now on a ranch in Texas; didn't have time to get this report out before catching my flight; this is only partial, will need details and fill in many blanks, that will have to come later, better to get the basics out now, thanks for understanding.]
This case was way more complicated than Heller.

Both attorneys faced hostility from the bench. Chicago's lawyer got hit from all sides with little in the way of what you might call support. But the surprise was the way Alan Gura got blasted, even by the best friend gun-rights has up there, Justice Scalia.

Whoever or however we believed the Court might be ready to review the Privileges or Immunities clause of 14A was totally wrong. Every Justice had problems with the scope of such a decision, and poor Gura had to withstand withering assaults on his reasoning and approach.

I definitely need a transcript to go over what exactly happened, I thought audio was weak in chambers, complexity was way large, and in chatter afterwards found I wasn't the only one. How those aging Justices keep up -- and they did, note for note, cite for cite -- is a bloody miracle.

BOTTOM LINE -- it looks like the Heller majority may hold together for this case, and the Second Amendment will be incorporated against the states, under the familiar selective incorporation of Due Process. The same 2A that controls federal activity will apply to the states, no more, no less, though that issue of degree got a lot of attention. Not that the scope of 2A is all the well defined, but there was animus to the idea that incorporation would yield a "shadow" version for the states.

Gura may get the win, but not for any brilliant strategic planning -- there was open hostility to the idea, central to his arguments, of 2A being a Privilege or Immunity of citizenship (I'll discuss soon). The win, if there is one, may be more of a result of the bench being unprepared to treat 2A as some special bastard child the states do not have to follow, unlike the rest of the Bill of Rights that has been incorporated so far.

And let me tell you, thank God for the NRA. They took a lot of heat for asking for and getting some of Gura's oral argument time, using Paul Clement who had argued the government's unsavory position for a low standard of scrutiny in Heller, getting their hat in the ring. That turned out to be baloney, they were life savers. Considering the ferocity with which Gura and P&I were attacked, we were lucky to have at elegant, articulate, eloquent voice to apply 2A through Due Process. (Don't get me wrong, Chicago fared just as poorly, but for different reasons.)

Clement's arguments were so well made and so compelling, he got to speak at length without interruption, with the Justices in rapt attention. I asked him about that afterwards and he said yeah, it was really nice getting some "air time."

There's so much more to tell, the back-and-forth over substantive and procedural due process, and the -- un-frickin-believable -- lengthy consideration by the Justices of how much RKBA we'd enjoy if there was "no Second Amendment" (protected instead as a privilege or immunity), plus Breyer's astounding hostility towards guns in general ("guns kill!"), and Stevens' 'parading around with guns' concerns... it'll have to be later (been on the go since 5:30 a.m., probably when I return to Phoenix, beginning of next week.

It was an honor and a thrill witnessing it all.

Alan.

Jpyle 03-06-2010 03:16 PM

BOTTOM LINE -- it looks like the Heller majority may hold together for this case, and the Second Amendment will be incorporated against the states, under the familiar selective incorporation of Due Process. The same 2A that controls federal activity will apply to the states, no more, no less, though that issue of degree got a lot of attention. Not that the scope of 2A is all the well defined, but there was animus to the idea that incorporation would yield a "shadow" version for the states.

Hopefully this will be the case. Rather ironic that an amendment that was meant to protect state's rights from the Federal government must now rely on a limitation of those rights to protect the rights of the people.

Davyboy 03-06-2010 04:21 PM

Wow
 
Longest post I have ever read. However very interesting stuff.

dunerunner 03-06-2010 04:34 PM

Thank You Cane!! You never hear this on the Networks!!

+100

JuggNuttz 03-16-2010 03:22 AM

i been watching this very closely too, i keep waiting to hear the outcome. I'm tired of keeping half my collection at my fathers, cuz i cant have hang guns in Chicago. and my father was a Chicago cop for 23 and a half years, and he is hoping that this gets overturned.

course the few times ive had my hand guns here, my father said to me, "If you use it to protect yourself, then who cares what the law is, you did what was needed..." but if this does get overturned now i wont have to worry if i use it to protect myself, if ill be charged or lose my guns.

/e crosses fingers


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