NRA Appeals Seventh Circuit Ruling to the U.S. Supreme Court

http://www.nraila.org/News/Read/NewsReleases.aspx?ID=12549

Wednesday, June 03, 2009

Fairfax, Va. – Today, the National Rifle Association filed a petition for certiorari to the U.S. Supreme Court in the case of NRA v. Chicago. The NRA strongly disagrees with yesterday's decision issued by a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit, holding that the Second Amendment does not apply to state and local governments.

“The Seventh Circuit got it wrong. As the Supreme Court said in last year's landmark Heller decision, the Second Amendment is an individual right that ‘belongs to all Americans'. Therefore, we are taking our case to the highest court in the land,” said Chris W. Cox, NRA chief lobbyist. “The Seventh Circuit claimed it was bound by precedent from previous decisions. However, it should have followed the lead of the recent Ninth Circuit Court of Appeals decision in Nordyke v. Alameda County, which found that those cases don't prevent the Second Amendment from applying to the states through the due process clause of the Fourteenth Amendment.”

This Seventh Circuit opinion upholds current bans on the possession of handguns in Chicago and Oak Park, Illinois.

“It is wrong that the residents of Chicago and Oak Park continue to have their Second Amendment rights denied,” Cox concluded. “It’s time for the fundamental right of self-defense to be respected by every jurisdiction throughout our country.”

-NRA-

Established in 1871, the National Rifle Association is America’s oldest civil rights and sportsmen's group. Four million members strong, NRA continues its mission to uphold Second Amendment rights and to advocate enforcement of existing laws against violent offenders to reduce crime. The Association remains the nation's leader in firearm education and training for law-abiding gun owners, law enforcement and the military.

Hope the court hears it soon...Sotomayor is no fan of the individual RKBA.

Neither was Souter, so realistically, it won't make any difference. Hopefully, anyway...

It might be good to get incorporation heard before there is any further change in the SCOTUS makeup.

Everyone pray really hard that Scalia, Alito, Kennedy, Roberts, and Thomas remain on the bench and in good health.

Scalia, Alito, Kennedy, Roberts, and Thomas remain on the bench and in good health.

That is not a problem, they will probably take this for the next term. The real issue is that they are no friends of constitutional incorporation.

http://en.wikipedia.org/wiki/Incorporation_(Bill_of_Rights)

You can probably guran-darn-tee Stevens, Ginsburg, Breyer, and Sotomayor are no friends of constitutional incorporation on this issue. Then again, maybe one of them will surprise us.

The NRA must have reason for optimism, though, or they wouldn't have pursued this case. They hate losing.

Don't hold your breath guys. We can only lose here. Yes that's right, if the SC upholds the 7th ruling we're screwed.
If they uphold the 2nd amendment we will feel like we've won. That's the problem. When we're granted the priviledge of the 2A instead of the right we feel like it's a victory. When none of this should of happened in the first place.
All these rouge anticonstitutionalist justices,lawmakers ect should be punished for treason.......

...That's the problem. When we're granted the priviledge of the 2A instead of the right we feel like it's a victory. When none of this should of happened in the first place....Really? So how do you propose to fix things?

here is the appeal brief

http://illinoiscarry.com/forum/index.php?act=attach&type=post&id=3232

Don't hold your breath guys. We can only lose here. Yes that's right, if the SC upholds the 7th ruling we're screwed.
If they uphold the 2nd amendment we will feel like we've won. That's the problem. When we're granted the priviledge of the 2A instead of the right we feel like it's a victory. When none of this should of happened in the first place.
All these rouge anticonstitutionalist justices,lawmakers ect should be punished for treason.......

What are you babbling about ?

The SC has ALREADY stated that 2A is an individual right, the 7th's ruling is in direct opposition to that as well as the 9th's ruling.

The question is wholly moot.

The issues that will be addressed at the SC, as was already stated in Heller are

1. Does 2A need to be incorporated, Yes or No.

The answer can only be Yes as there is a plain split between multiple circuits which has to be resolved. This is a central task of the SC and cannot be ignored or brushed off.

The SC MAY decide to hold off on granting cert on this at this time to see what else comes from the other circuits. Since 30% of the circuits have come up with 3 individual different answers (2A is incorporated [9th], 2A isn't [2nd], "We don't want to answer but think not" [7th] ) this is unlikely but possible.

For example, look at the state makeup of the remaining circuits

1st ME, NH, MA, RI................................50-50 split, probably akin to the 7th
3rd PE, NJ, DE, MD................................May be a 7th, may be a 2nd to close to call
4th WV, VA, NC, SC...............................Incorporated
5th TX, LA, MS.......................................Incorporated
6th MI, OH, KY, TN.................................Incorporated
8th NE, ND, SD, MN, IA, MO, AR.............Incorporated
10th WY, UT, CO, NM, KS, OK..................Incorporated

2. What level of scrutiny is to be applied to a fundamental constitutional right

The SC in Heller specifically mentioned scrutiny as well as questioning whether it should have the identical level as the other BoR amendments or an amended one tailored to 2A.

THIS is the primary area of concern

As for "All these rouge anticonstitutionalist justices,lawmakers ect should be punished for treason......." :banghead:

It's a brand new filing, so it isn't on the court's online docket. For future reference, however, here is the link (http://www.supremecourtus.gov/docket/docket.html) to the SCT's docket site.

Here is a copy of the petition by the NRA:

http://www.scotusblog.com/wp/wp-content/uploads/2009/06/certpetitionchicago.pdf

Damned NRA. Never does ANYTHING for gun rights.

-GOA

In Heller, The U.S. Supreme Court found that the "right to keep and bear arms" was an individual right, and that because of it Washington D.C.'s local ordinance banning the possession of firearms (specifically handguns that were outright banned) in private homes, or requiring them to be made inoperable was unconstitutional. They also ruled that some laws restricting the carrying of arms outside of the home, or possession by certain classes of people (felons, mental incompetents, minors, etc) were permissible under some circumstances – but they didn’t define what such circumstances might be.

The challenge being made here is that the Chicago ordnance is almost identical to the one found to be unconstitutional in Washington D.C., and both are (or were) local ordinances, as the one in Washington was enacted by the city’s government and not by Congress. Both apply to possession of firearms (particularly handguns) in private homes.

If they don’t duck the case, they will have a hard time explaining why the residents of Chicago have to suffer restraints that are unconstitutional in Washington, but this isn’t to say they won’t find a way to do it.

Neither was Souter, so realistically, it won't make any difference. Hopefully, anyway...

It will if Nunchuks goes up. Sotamayor is conflicted, so the Souter/Sotamayor vote is moot.

I'm crossing my fingers for cert on this one.

A bit of a Supreme Court procedural trivia question...

The NRA petition is filed by Halbrook and is based on NRA v Chicago and NRA v Oak Park.

Since the 7th Circuit decision was based on the combination of three cases, can Gura file a separate petition for McDonald v Chicago?

If two (or three, depending on how you count them) separate petitions are filed, can the Supreme Court pick one of the petitions or combine the petitions and treat them as one (as the District and Circuit Courts did)?

The reason for my curiousity is that Gura seemed to have a tighter, narrower case than Halbrook's, Gura sounded better than Halbrook during the 7th Circuit oral arguments, and Gura obviously won Heller.

If they don’t duck the case, they will have a hard time explaining why the residents of Chicago have to suffer restraints that are unconstitutional in Washington, but this isn’t to say they won’t find a way to do it.

Old Fuff, I think we will finally win. After all these years, the entire USA will finally have to live with a ruling like Heller. :)

Old Fuff, I think we will finally win. After all these years, the entire USA will finally have to live with a ruling like Heller.

I hope so. But it will depend on the make-up of the Court when the time comes to decide. :uhoh:

I don't understand why they would want to take up the Seventh Circuit ruling to the Supreme Court. Wouldn't you want to take up the Second Circuit ruling because Sotomayor would have to recuse herself, thus making it harder to get a non-incorporating majority?

Also, I found the federalism argument in the Seventh Circuit opinion interesting (that the federal constitution should control the states). It is like they are trying to convince Scalia and company that the second amendment should not be binding on the states.

Blonde

The second circuit case doesn't directly deal with handguns in the home for the purposes of self defence, which is what the Heller case was about & the Chicago case.

Basically they are trying to present the same case to the same justices and ask them to give the same ruling, thereby incorporating the second as a restriction on the states. They are also asking for a level of scrutiny required for gun control laws to be constitutional.

Later cases will test the limits of what is acceptable to the courts as a non prohibitable class of weapons (nunchucks? short barreled rifles? etc, etc. ) The level of scrutiny required will greatly effect the abilty of states to prohibit certain classes of weapon.

The second circuit case would ask the justices to rule on a completely different class of weapons, not something Gura or the NRA want at this point. The step they are after is a guarantee of a right to own handguns in the home that overrides the states. Nunchucks are a side issue, even if the principle is the same.

Regarding the 7th Circuit and 2nd Circuit cases being appealed to the Supreme Court, the underlying law being challenged really is irrelevant at this point. If the Supreme Court holds that the 2nd Amendment is incorporated it will very likely remand those cases back to the respective appellate courts to determine whether the applicable laws are constitutional, because that analysis was never undertaken by those appellate courts.

Conversely, if the 9th Circuit case is appealed, the Supreme Court would take a look at the challenged ordinance because the 9th Circuit already performed the analysis.

to be the one granted cert.

It's exactly the same case as Heller, just filed in a different jurisdiction, so it brings in the incorporation argument that couldn't be brought in DC, as it's a Federal enclave.

As was posted earlier, it would take some pretty severe logical gymnastics to demonstrate that the citizens of the United States who happen to live in DC have rights that their fellow citizens, all equal before the law, who live in other places, do not have.

Granted, counting angels on the heads of pins and splitting babies are required courses in law schools, and the difficulty of same is why lawyers drive the cars they do, but still... it's a tough case to make.

I likewise hope that the nasty racist underpinnings of Slaughterhouse can be made into substantive issues before the Court. I'd bet that Stevens and Breyer, as well as the moderates, would love to see that vile precedent overturned, even though it would negatively affect (from their perspective) one issue (gun rights). There's a whole realm of liberal and center-left thought that is foreclosed by the perverse Slaughterhouse ruling, and the obvious racism of the decision (it's OK to kill black people if state law doesn't prohibit it) makes overturning it very appealing to that cohort.

A fully-applied 14th Amendment would be a very, very good thing for Constitutional jurisprudence, even though both Left and Right might not like some of it's particular consequences. There's enough in there that would appeal to both to make a majority for overturning an easy get.

Or so it seems to me.

--Shannon

Heller came out of D.C., which isn't a state. It is possible to be protected from infringement of a right by the federal government but not by a state government (and vice versa, in that state). That's what the incorporation issue is all about. Nevertheless, I have no idea why the 2nd Amendment would be treated differently from the other rights in the Bill of Rights.

The second circuit case would ask the justices to rule on a completely different class of weapons, not something Gura or the NRA want at this point. The step they are after is a guarantee of a right to own handguns in the home that overrides the states. Nunchucks are a side issue, even if the principle is the same

That is the brilliance of taking up Nunchucks, the question presented will be the same or broader: “Does a United States citizen have the right to defend their home with the weapon of their choice, regardless of state laws the contrary?”

Nunchucks is about the right to choose :neener:, not the right to possess.

Remember all the problems with gun registrations in DC after Heller. The DC city council attempted to ban all weapons except Dick Heller’s .22 revolver under their expanded definition of a machine gun. Congress stepped up and DC backed down in that situation. However, it is a real concern going forward since courts and legislatures in the non-free states will narrow down every definition to eliminate anything except those specific guns belonging to the guy going to the Supreme Court.

Nunchucks destroys this issue since it has to be categorized as the right to chose your weapon, not the right to possess. Nunchucks were unknown to the founding fathers & reconstructionists so it can’t be narrowed historically. The only way I can see a judge narrowing the question is by saying that only practical or contemporary U.S. G.I. military weapons are protected, and that does not bother me at all.

Additionally, there is no public angst regarding nunchuks, there are no purported :barf: scholarly articles or research about how nunchucks destroy communities. All you have is a New York legislature scared by Bruce Lee Movies, and a lengthy historical record of nunchucks being used by a persecuted minority to defend themselves from oppression.

While, I have the utmost respect for Alan Gura, Stephen Halbrook and Chris Conte. Kirkland Ellis and Ken Starr, the greatest appellate attorney of his generation, represent Maloney.

...I have no idea why the 2nd Amendment would be treated differently from the other rights in the Bill of Rights. It isn't.

In 1833 in the case of Baron v. Balitmore, the Supreme Court ruled that the Bill of Rights did not apply to the states. It applied only to the federal government. However, in the late 19th century, well after the adoption of the 14th Amendment, the Supreme Court began to apply the Bill of Rights in a piecemeal fashion to the states through the 14th Amendment. This process is known as "incorporation" -- selected rights enumerated in the Bill of Rights have been "incorporated" into the 14th Amendment and thus applied to the states.

Some provisions of the 1st Amendment were not applied to the states until the 1930s and 1940s. Many procedural protections available to criminal defendants in federal court under the Bill of Rights were not available to defendants in state courts until the 1960s. Some enumerated rights, like the 5th Amendment right to indictment by grand jury, and the 7th Amendment right to a jury trial in civil cases, have not been found applicable to the states.

So far the 2nd Amendment has not been incorporated (except in the 9th Circuit). One of the difficulties in getting the 2nd Amendment incorporated is that in an 1873 case, United States v. Chruikshank, the Supreme Court ruled that the 2nd Amendment did not apply to states; and Chruikshank came after the adoption of the 14th Amendment. The 9th Circuit in recently finding incorporation distinguished Chruikshank, i. e, concluded that the facts and bases for the decision in Chruikshank (it relied on one portion of the 14th Amendment) weren't applicable in the Nordyke case before it; and incorporation was thus found based on other provision of the 14th Amendment.

. . . . the NRA is seen by the Progressives as not much more than a toothless old prostitute with too many pimps and johns to hie to. Our latest rebuff by congress just goes to prove this. But there is hope, if ALL of us as members, individually, will write to our congressmen, stating our explicit views on RKBA and 2A, and then publish their letters here, we may get the job done that the "Queen Mary could not navigate. Progressives have just given the NRA a Texas Heart-shot. It's up to US to get their attention now. Will you?? ENOUGH !! !! Are you going to wait for the Civilian National Security Forces to come ask whether you have a gun?? That's the plan. ACT IN 2010 OR LOSE THE CHANCE EVER AGAIN. Just my $0.02.

If it weren't for the NRA your RKBA would have vanished decades ago.

This is as good as it gets. It has to get heard sooner or later, and we won't likely have a better court to hear it in the forseeable future. I think they should do it as fast and as strongly as possible.

This following new release should let you in on how the Progressives view the NRA, and by extension, all of the nameless and faceless supporters of the NRA. By JULIE HIRSCHFELD DAVIS, Associated Press Writer – 1 hr 50 mins ago
WASHINGTON – The National Rifle Association's threat to punish senators who vote for Supreme Court nominee Sonia Sotomayor has been met with a shrug by Democrats from conservative-leaning states and some Republicans who are breaking with their party to support her.
The gun rights group is used to getting its way by spooking lawmakers about the political consequences of defying its wishes. But it never before has weighed in on a Supreme Court confirmation battle. It was cautious about breaking that pattern, and it looks like a losing a fight to defeat President Barack Obama's first pick for the court.
Sotomayor is expected to easily win confirmation in a vote this coming week that could deflate the long-accepted truism in Washington that you don't cross the NRA.
Voting "yes" will include A-plus-rated and NRA-endorsed Democratic Sen. Max Baucus and his fellow Montanan, A-rated Sen. Jon Tester, as well as A-rated and NRA-endorsed Tennessee Sen. Lamar Alexander, the only GOP leader to break with the rest of this party to back Sotomayor.
That's not to say that the NRA's late decision to wade in hasn't had an impact.
Many Republicans who were considered possible "yes" votes for Sotomayor — including Utah Sen. Orrin Hatch, Georgia Sens. Saxby Chambliss and Johnny Isakson, and Texas Sen. Kay Bailey Hutchison — have come out against her after the NRA's announcement, citing gun rights concerns as an important reason. Some Democrats who have high NRA ratings, including Alaska Sen. Mark Begich and Nebraska Sen. Ben Nelson, are on the fence.
Still, the NRA's threats seem to hold less potency on this vote. Asked whether he was worried about ruining his perfect NRA score and endorsement by opting to vote for Sotomayor, Nelson paused and said with a smile, "I'd probably have a good rating regardless." ///not of he hears from his constitueny, he won''t \\\ "The NRA derives much of its considerable clout from what has become a kind of mantra on Capitol Hill: Defy the gun lobby on something it cares about and face recriminations at the polls; back it and enjoy a substantial political boost. /// Screw the mantra! Send a letter and post the reply here. And buy more guns and ammo///

Cert will be granted. The Ninth court already said that the Second applies to the states. Since the Seventh said it didn't, it's up SCOTUS to figure out who's right.

Yes, the NRA is so insignificant to the current administration that they are falling all over themselves to pass anti-gun legislation. WAIT. NO THEY'RE NOT.

Oh, and the 9th has decided to rescind their decision to let it be heard en banc.

Civilian National Security Forces?? Huh?
This is a figment of your imagination or does it really exist in your head?

Here's something to extend your paranoia. Obama is putting together an all negro security force to come to YOUR house and take YOUR guns!!!

Scary huh?

I don't know why you would mock someone for imagining something Obama actually stated.

explain please?

Well, that it's it. This is the exact same case as Heller, so there's no way the SCOTUS is not going to accept it. Which means we will get another 5-4 decision in our favor, only this time the 2nd Amendment will be incorporated. Incorporation will be such a crushing defeat for the gun-grabbers, that they may never recover from it. Game over.

And while I understand that in this system, anything can happen, I honestly believe this is the most likely outcome. Like I say, we won't get a better setup than this. Now is the time.

The Ninth is trying to en banc the Nordyke decision, presumably to de-rail their "faux-pas" in unintentionally incorporating the Second to the States. To little, too late, I think. Chicago is going to regret fighting this one all the way. :) If other Amendments (First, Fourth, Fifth) are applied to States, then it stands to reason that the Second would be too. You can't pick and choose which laws are valid and which aren't.

explain please?

He's referring to the July 2, 2008 speech, which contained this remark:
"We cannot continue to rely on our military in order to achieve the national security objectives that we've set. We've got to have a civilian national security force that's just as powerful, just as strong, just as well-funded."

We now return you to the actual topic. Let us stay with the matter at hand. The campaign speech is politics, which disqualifies it for discussion here.

Further posts on this non-topic will be deleted.

" The campaign speech is politics"......I'm old enough to remember Hitler's speeches (as translated by BBC, shortwave). Oh, yeah, now I remember also that they were "just politics." But some of us studied Mein Kampf in High School. When the snake rattles, it's ready to strike. Our 2A right is under attack, whether the thread is closed or isn't, or whether the front gate is open or closed. We cannot let the monolithic NRA, or (fill in blank here____ ) do it for us. We must hang together, or we will all........no, wait, I'm beginning to quote someone. Thanks mljd... for, "I don't know why you would mock someone for imagining something Obama actually stated." Frontgate1 just needs to get out with the Believers a bit more. What Obama says, Obama does......and THIS is very pertinent to any post on this site. Yes, the C.N.S.F. will be coming for our guns.
(( Dear Arfin, please delete this rather than closing everyone else out. Thanks ))