Decision from Chicago on Incorporation


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legaleagle_45
December 4, 2008, 11:21 PM
NRA v VILLAGE OF OAK PARK and NRA v CHICAGO were decided today.... and the news at first blush is not good, as the court ruled against incorporation :banghead:

However, upon closer inspection, the opinion was quite sympathetic, explaining that the judge is merely a peon district court judge faced with binding precedent of Quilici v. Village of Morton Grove and despite the logic presented in favor of incorporation, he was duty bound to follow precedent.

I have tried to post the entire opinion for your review as a pdf file... I hope I successfully did so ... if not some computer nerd will tell me how to attach a file... but for now some snippets:

Al though counsel's constitutional arguments
are set out in 15 well-written pages, 2 they may be encapsulated
in a simple syllogism:
1. Under Heller, the Second Amendment's guaranty of
the right to keep and bear arms has invalidated the District
of Columbia's prohibition on the possession of handguns.
2. Almost all of the guaranties that apply against the
federal government and its agencies under the Bill of Rights
(the first ten amendments to the Constitution) have been
held to have been incorporated in the guaranties that apply
against the states and their subordinate units of government
under the Fourteenth Amendment.
3. Ergo, the Second Amendment's guaranty of the right
of the people to keep and bear arms, as construed in Heller,
also extends to Oak Park and Chicago via the Fourteenth
Amendment. QED.

That approach, however, ignores a fundamental and critical
jurisprudential curb that confronts a district judge such as the
wri ter who is asked to confirm that third proposi tion--the
judge's duty to follow established precedent in the Court of
Appeals to which he or she is beholden, even though the logic of
more recent caselaw may point in a different direction.

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Sinixstar
December 4, 2008, 11:41 PM
This does however open the door for possible appeal higher up the food chain, does it not?

The fact that this district judge even said that he's basically making this decision solely on precedent, would kind of lend some weight to the idea that the precedent is wrong, and should be challenged.

legaleagle_45
December 4, 2008, 11:49 PM
This does however open the door for possible appeal higher up the food chain, does it not?

The aim is to get it in front of SCOTUS while we still have 5 justices on our side up there. It really does not matter if we are the Appellants or the Appellees...

The fact that this district judge even said that he's basically making this decision solely on precedent, would kind of lend some weight to the idea that the precedent is wrong, and should be challenged.

Reading between the lines, my take is that the Judge would have ruled in our favor but for the binding precedent of Quillici v. Village of Morton Grove... so yeah

Sinixstar
December 5, 2008, 12:03 AM
Reading between the lines, my take is that the Judge would have ruled in our favor but for the binding precedent of Quillici v. Village of Morton Grove... so yeah

And in that context, it may be more compelling for SCOTUS to weigh in on the issue. If the district court openly admits they feel the precedent needs to be re-examined, but they lack the authority to do so...
Seems like a compelling cause for the supreme court to hear the case is part of what we've been having a hard time with over the years - this may be a blessing in disguise.

wep45
December 5, 2008, 12:12 AM
yo, lets speed up the "process".........i want to open carry by new year's 2009:evil:

Geneseo1911
December 5, 2008, 12:15 AM
Hmmm....I was too busy watching "the office" to study my law homework tonight; as Micheal would say. "could you explain it to me like I was a 5 year old?"

Seriously, does this mean that that judge ruled the Heller decision applies ONLY to DC?

legaleagle_45
December 5, 2008, 12:19 AM
yo, lets speed up the "process".........i want to open carry by new year's 2009

Not going to happen:neener: There is another case pending out there that is on a faster track... Nordyke v King in the 9th Circuit. Now before you get all in a snit about the 9th Circ, this particular panel of 9th Circ judges is decidely pro gun. Don Kilmer and Don Kates are co-counsel on the appeal and oral argument is scheduled for Jan 15, 2009.

The Brief submitted by Don and Don is excellant... the brief submitted by the other side is hilarious in its ineptitude... I can post them if any one is interested.:cool:

legaleagle_45
December 5, 2008, 12:21 AM
Seriously, does this mean that that judge ruled the Heller decision applies ONLY to DC?

Not quite. He ruled that the Heller decision is binding only upon the federal government and that state governments are not bound by same.

everallm
December 5, 2008, 09:02 AM
This really not particularly surprising considering the gravity of the case from a constitutional perspective.

Before the "sky is falling" tendency start on how 2A has been kicked and beaten etc etc the most relevant words are the last ones below.

This Court should not be misunderstood as either rejecting
or endorsing the logic of plaintiffs' argument--it may well carry
the day before a court that is unconstrained by the obligation to
follow the unreversed precedent of a court that occupies a higher
position in the judicial firmament. But as later-to-be-Justice
Oliver Wendell Holmes famously observed in 1881 in The Common
Law:
The life of the law has not been logic: it has been
experience.

In sum, this Court--duty bound as it is to adhere to the
holding in Quilici, rather than accepting plaintiffs' invitation
to "overrule" it (!) --declines to rule that the Second Amendment
is incorporated into the Fourteenth Amendment so as to be
applicable to the Chicago or Oak Park ordinances. These actions
are set for a status hearing at 8:45 a.m. December 9, 2008 to
discuss further proceedings.

In a nutshell "I feel this is too important an issue to just pass on this and I will bump it up the foodchain".

Judge Shadur seems to be generally regarded as very sharp and someone who actually reads all the briefs presented to him and gets an even handed rating on Defense v Government. Definitely a love him or loath him from the ratings.....

http://www.therobingroom.com/Judge.aspx?ID=1218

He is also no particular friend of some of the practices of the Chicago police and prosecutors.

http://www.law.uchicago.edu/mandel/police/news/fdla.html

In a double-barreled attack, a federal judge has blasted police and prosecutors for blocking defense attorneys from talking to witnesses hauled in for questioning in criminal investigations.

U.S. District Judge Milton I. Shadur mocked assertions that everyone who is interrogated by Chicago police but not formally taken into custody is studiously informed of his or her freedom to leave.

The real world in which attorneys for those people live and work gives the lie to that sanitized ideal, Shadur wrote in a 13-page opinion made public Monday.

Shadurs opinion was not a final judgment in a lawsuit brought by lawyers who claim police and prosecutors are violating their First Amendment rights by denying them access to their clients.

But the take0no-prisoners attitude Shadur displayed in declining to dismiss the First Amendment claim left no doubt that the judge believed the plaintiff- lawyers have made a case.

Shadur also made it clear he didnt think much of the defense mounted by counsel representing Cook County States Attorney Richard A. Devine and top officials in the Chicago Police Department.

Vegaslaith
December 8, 2008, 01:40 AM
Someone correct me if I'm wrong, but as I understand it, if the 2A is incorporated against the states, then state laws can be no more stringent than federal laws right?

DKSuddeth
December 8, 2008, 12:09 PM
someone correct me if i'm wrong, but wasn't there a precedent set somewhere that lower courts could indeed stray from stare decisis and the upper courts when USSC decisions reversed or changed prior rulings? That these lower courts did not have to abide by upper court decisions?

Bubba613
December 8, 2008, 01:03 PM
Someone correct me if I'm wrong, but as I understand it, if the 2A is incorporated against the states, then state laws can be no more stringent than federal laws right
I dont think so.
The issue is, and will be, what level of scrutiny do laws have to pass in order to be Constitutional. If a court applies the "strict scrutiny" test then every law passed by a state will be prima facie unconstitutional unless proven otherwise. IOW, states would have to show a compelling interest in regulating the right. Under this standard, I think laws prohibiting felons from owning firearms would pass muster while laws requiring silly FOID cards and the like would not.
That's what I'm hoping for anyway.

ServiceSoon
December 8, 2008, 01:37 PM
Can somebody please show me where the law says judges must follow precedence?

Frank Ettin
December 8, 2008, 01:57 PM
Can somebody please show me where the law says judges must follow precedence?
The short answer is simply, "That's how our Common Law system works." Although I generally don't conside Wikipedia to be necessarily authoritative, this is a decent discussion of the doctrine of stare decisis: http://en.wikipedia.org/wiki/Stare_decisis.

The general idea is that there should be a certain degree of consistency and predictability to the law. Similar cases should be decided similarly, so precedent, when and as applicable, is followed.

Gaiudo
December 8, 2008, 02:31 PM
and a good thing for it, too, otherwise the next incoming court could just decide to ignore Heller. Whats good for the goose... etc. etc.

Maelstrom
December 8, 2008, 03:06 PM
Stare Decisis is in effect for a reason. Otherwise, the laws could change weekly across the country as judges constantly overturned the previous judges decision.

woofe
December 8, 2008, 05:19 PM
The decision is exactly what our side expected. This forms the basis of an appeal for incorporation at the Appellate level or more likely at the SCOTUS.

woofe

legaleagle_45
December 8, 2008, 09:10 PM
Someone correct me if I'm wrong, but as I understand it, if the 2A is incorporated against the states, then state laws can be no more stringent than federal laws right?

That is essentially correct. Once a portion of the Bill of Rights is selectively incorporated as against the states, the courts then employ "whole cloth incorporation" whereby the test to determine whether a law is unconstitutional is identical, regardless of whether it is a state law or a federal law.

legaleagle_45
December 8, 2008, 09:26 PM
someone correct me if i'm wrong, but wasn't there a precedent set somewhere that lower courts could indeed stray from stare decisis and the upper courts when USSC decisions reversed or changed prior rulings? That these lower courts did not have to abide by upper court decisions?

First some definitions:

Binding precedent is precedent established by a higher court in the same jurisdicitional court system. A lower court is required to follow the precedent of such a higher court because that higher court is the boss of the lower court and gets to tell the lower court what to do.

Persuasive precedent is precedent established by another court which is not within the same feeding chain. It is entitled to respect and consideration, but is not controlling.

Stare Decis is a decision made previously by the same court. It is more "persuasive" than persuasive precedent due to the fact that our legal system seeks stability. In order to overcome stare decisis you must show clear error by the previous decision.

Now, to answer your question, if a decision from SCOTUS in effect overrules an intermediate court when it issues a decision, a lower court is no longer bound by the "binding precedent" previously established by the intermediate court. In fact, it is obliged to follow the dictates of SCOTUS. However, in Heller, the issue regarding incorporation was specifically held open and thus established nothing of precedential value with respect thereto. Thus the lower court is obliged to follow the still binding authority of the intermediate court.

Gaiudo
December 8, 2008, 09:30 PM
Thanks, those are helpful definitions.

RP88
December 9, 2008, 12:17 AM
since the lower courts ruled basically on state precedent alone, the appeal is the next step. The case is not dead, or else there would have been no request for 'further proceedings' over it.

Heller lost on the lower level as well, but won the appeal and later SCOTUS ruling.

Since your lower courts' binding precedent basically lies in state laws that have pretty much never been challenged or questioned, there really wasn't any chance of a lower court ruling on incorporation because - as said - it 'goes against the system'. However, an appellate may very likely overturn the lower's decision (as they did in Heller's case, who also lost the lower court case) and turn the case over to SCOTUS afterwards.

zxcvbob
December 9, 2008, 12:45 AM
duplicate

zxcvbob
December 9, 2008, 12:46 AM
duplicate

zxcvbob
December 9, 2008, 12:48 AM
The decision is exactly what our side expected. This forms the basis of an appeal for incorporation at the Appellate level or more likely at the SCOTUS.


Does this case have to go thru the Appellate court first (where *any* ruling is certain to be appealed by one side or the other) or could it jump straight to the S.C. due to the gravity of the case?

cbrgator
December 9, 2008, 12:51 AM
It must be appealed to the SCOTUS from the highest court in Illinois. This will reach the SCOTUS, undoubtedly. But it will take a while, and then they will have to grant cert to actually hear it.

ServiceSoon
December 9, 2008, 12:07 PM
Will the SCOTUS grant cert?

If they don't we are stuck with the last ruling. Does anybody know which court that would be?

esq_stu
December 9, 2008, 12:14 PM
It must be appealed to the SCOTUS from the highest court in Illinois. The decision was in U.S. District Court. The next step is the U.S. Court of Appeals for the 7th Circuit. I kind of doubt the case will be filed, briefed, argued, and decided in the 7th Circuit in time for a SCOTUS appeal to be heard before the 2010-2011 session. That means the earliest SCOTUS decision might be spring 2010, but my betting is spring 2011.

cbrgator
December 9, 2008, 01:02 PM
The decision was in U.S. District Court. The next step is the U.S. Court of Appeals for the 7th Circuit.
Pardon me. You are absolutely right. I didn't notice the court in which this suit was brought.

legaleagle_45
December 9, 2008, 02:45 PM
That means the earliest SCOTUS decision might be spring 2010, but my betting is spring 2011.

Agreed, which is why I suggest keeping an eye on Nordyke v King. Oral argument in 9th Cir is scheduled in about a month. The panel hearing the case is very pro 2nd Amend. Only problems are:

1.) It is not a "pure" incorporation" case as state law preemption statutes are also in the mix; and,

2.) Any decision by the 9th Circ will be the first post Heller evaluation at the Court of Appeals level. SCOTUS generally awaits for there to be a split in the Circuits prior to granting cert.

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