New Amicus Briefs


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legaleagle_45
July 7, 2009, 02:30 PM
Amicus Briefs in support of a writ of cert filed in McDonald v Chicago. They include the one from the Cato Institute, one from 33 states and one from <gasp> California (signed by Jerry Brown, no lees). I have received the first two and I am awaiting the third. Hopefully I can succesfully attach them.

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legaleagle_45
July 7, 2009, 02:52 PM
Attached is the California amicus brief.

everallm
July 7, 2009, 03:36 PM
Whilst very nice to see the California AG filing in support for incorporation, it has to be taken in context.

The 9th Circuit has already ruled that 2A is incorporated as far as they are concerned so the AG going against it is not really on the cards.

The brief has a substantial self serving element in that it prominently references the CA "approved" handgun registry. A registry that is under legal challenge and any ruling from the SC may be used to bolster CA's view that it is a "reasonable regulation". In addition they are being challenged on the recent Nordyke case ruling of what comprises a "sensitive" area that may prohibit firearms.

ArmedBear
July 7, 2009, 03:51 PM
A registry that is under legal challenge and any ruling from the SC may be used to bolster CA's view that it is a "reasonable regulation".

It's an arbitrary restraint of trade, among other things. I'm not even sure that RKBA will be the most prominent argument in the case. That's a guess, though.

But how can there be any guarantee that incorporation would help California's side?

Without incorporation, there's no limit on what is "reasonable" because there's no limit on regulation. With it, the state might have to show how the "approved list" has some connection to "reasonable", not a very easy case to make. As a former resident, I'm pretty familiar with the list, and at least a good portion of the laws governing it have little or no connection to anything "reasonable", since it extorts money from gunmakers to keep their guns "approved", it requires features that don't exist (I don't think any LCI has met California's supposed requirements yet).

I really wonder what sort of incorporation Moonbeam thinks would be more likely to uphold the ridiculous extortion that is the "list".

ArfinGreebly
July 7, 2009, 06:03 PM
My wife has a contact affiliated with the Texas AG.

She received this in her email this morning.


http://www.oag.state.tx.us/images/agga_logo_pr.jpg
CONTACT
Press Office at
(512) 463-2050
FOR IMMEDIATE RELEASE
July 7, 2009
www.texasattorneygeneral.gov (http://www.texasattorneygeneral.gov)
Subscribe to E-News (http://www.oag.state.tx.us/newspubs/subscriptions.shtml)

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.

Media links
Brief Filed with U.S. Supreme Court by Attorneys General (http://www.oag.state.tx.us/newspubs/releases/2009/070709nra_amicus.pdf)

“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.

FOR OTHER ITEMS ASSOCIATED WITH ATTORNEY GENERAL ANNOUNCEMENTS, ACCESS OAG NEWS RELEASES ONLINE AT WWW.TEXASATTORNEYGENERAL.GOV (http://www.texasattorneygeneral.gov).




I'm sure plenty of Texans also received this release.

Phatty
July 8, 2009, 10:02 AM
The 9th Circuit has already ruled that 2A is incorporated as far as they are concerned so the AG going against it is not really on the cards.
I don't understand this point. It would have been completely logical for the California AG to request that the Supreme Court take the case and rule against incorporation to free CA from the 9th Circuit's ruling. In fact, one week ago, I would expect that most people would have thought that California would go that route.

What seems weird to me is that any state would request a federal court to impose restraints on the state's own powers.

The brief has a substantial self serving element in that it prominently references the CA "approved" handgun registry.
Now I think you're getting to the crux of the motivation for CA to file this brief. They've probably decided that they can catch more flies with honey rather than vinegar, so to speak. The only reason to file the brief is if they have decided that incorporation is a foregone conclusion and they want to be on the "winning side" to help shape the Court's jurisprudence with regard to the scope of the RKBA.

If CA stubbornly argued "our citizens have no RKBA" than all of its gun regulations would become suspect, because they were enacted under the assumption that there was no RKBA to be concerned about. However, if CA argues that "our position is that our citizens enjoy a federal RKBA" than it can argue that its legislature balanced that RKBA against the state's compelling interests when enacting its gun control regulations.

ConstitutionCowboy
July 8, 2009, 11:38 AM
I read this somewhere where someone on this or "another" form stated exactly my thoughts on this California matter: These people are interpreting that DC v. Heller includes some sort of blessing for "reasonable restrictions" on the RKBA and believe this supposed "blessing" will allow them to continue with their "reasonable restrictions", only now those "reasonable restrictions" will have been sanctified by the Court. It appears they are falling for it hook, line, and sinker. Fishermen for the truth they are not and it's to our benefit.

Here's why:

Scalia's Clever Cover On "Reasonable Restrictions"...

In DC v. Heller. at 54, Scalia wrote:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.

This excerpt contains "purpose" which the Second Amendment does not protect. It is also pertinent to note that it doesn't make much difference whether the right secured by the Second Amendment should be unlimited or not. The Founding Fathers secured the right as if it is unlimited. I, for one, believe it is unlimited as did the Founding Fathers. How else could We the People grant unlimited power to the Union to defend us if we didn't have that unlimited power ourselves?

Further along at 54 and 55, Scalia wrote:

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should 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.26

(Note the footnote #26 which we'll get to in a minute.) Scalia did not say all the 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 are sacrosanct or are "reasonable restrictions". He wrote that they didn't do a complete analysis of the scope of the Second Amendment and could not say those "restrictions" were in doubt without a complete analysis. He left it wide open for a future analysis to make such a definitive call. All he said was that such a call wasn't made in this deliberation(DC v. Heller).

Now I'll address Footnote 26 in which Scalia wrote:

26 We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.

What can we glean from this? That his list of restrictions was incomplete? Yes, but more important is the inclusion of the phrase "presumptively lawful". The opinion of the Court is only PRESUMING these regulatory measures ("reasonable restrictions") are constitutional. That's twice Scalia made that point. This is the Court passing the buck on to the next case to come along that would address the issue of the constitutionality of all of these presumptively - for the time being - lawful regulatory measures.

There is a reason the issue of these presumptively lawful regulatory measures was not addressed. My guess would be to secure a fifth concurrence, and I would further guess that the fifth concurrence would be that of Justice Kennedy.

It can be said of Justice Antonin Scalia that he artfully crafted the majority opinion in DC v. Heller and secured the fact that the Second Amendment protects a right of the individual, and made it clear that this is just the beginning of the denouement.

There is no lock on "reasonable restrictions" in DC v. Heller

Woody

Phatty
July 8, 2009, 11:59 AM
Woody,

I'm with you 100% on the "reasonable restrictions" fallacy. For whatever reason, tons of anti-gunners have jumped on this notion that Heller allows "reasonable" restrictions. If "reasonableness" was the test, than that would mean that the 2nd Amendment is subject to rational basis review, which was explicitly rejected by the Supreme Court. Any right protected by a "reasonableness" standard is no right at all.

I'm also bothered by any test that depends on whether a certain restriction is "longstanding." If a restriction is a constitutional violation, it should not be grandfathered in just because the government has gotten away with it for a long period of time.

There is a reason the issue of these presumptively lawful regulatory measures was not addressed. My guess would be to secure a fifth concurrence, and I would further guess that the fifth concurrence would be that of Justice Kennedy.
I don't know why everybody seems to point the finger at Kennedy as the swing vote in Heller. Just because he is often the swing vote in other issues, doesn't mean he is the swing vote on an entirely different matter. For once, I'd like someone to point to any evidence which suggests that Kennedy is less supportive of 2nd Amendment rights than the other judges in the Heller majority. My opinion, based on the questions and comments from the judges during oral argument, is that Kennedy is a stronger supporter of 2nd Amendment rights than the other judges.

green-grizzly
July 8, 2009, 12:29 PM
I too don't get why the "presumptively lawful" language gets people so uptight. The court has said many times that ALL acts of congress are "presumptively constitutional." It is certainly a presumption that can be rebutted.

Phatty
July 8, 2009, 12:46 PM
I too don't get why the "presumptively lawful" language gets people so uptight.
That's easy. Every lower court has regarded that language as binding on them whenever somebody challenges one of those "presumptively lawful" regulations.

It's one thing to argue how that language should be construed, but the reality is that the language is being uniformly misused by lower courts.

ConstitutionCowboy
July 8, 2009, 01:28 PM
I don't know why everybody seems to point the finger at Kennedy as the swing vote in Heller. Just because he is often the swing vote in other issues, doesn't mean he is the swing vote on an entirely different matter. For once, I'd like someone to point to any evidence which suggests that Kennedy is less supportive of 2nd Amendment rights than the other judges in the Heller majority. My opinion, based on the questions and comments from the judges during oral argument, is that Kennedy is a stronger supporter of 2nd Amendment rights than the other judges.

Maybe so. I was just guessing.

Woody

RDak
July 9, 2009, 09:56 AM
Here's what our Michigan Attorney General had to say in rebutting the rabidly liberal, anti-gun Detroit Free Press (editor's staff) editorial: (He signed on to the NRA Brief for the Chicago case.)



A stand for principle on gun rights
BY MIKE COX
MICHIGAN ATTORNEY GENERAL

The Free Press editorialized Wednesday -- "Your taxes at work for the NRA (and Cox)" -- against my filing of a legal brief with the U.S. Supreme Court that supports the National Rifle Association's challenge of a Chicago ordinance banning the possession of most handguns.

My support for this challenge to the Chicago gun ban is rooted in Michigan's own Constitution, which states: "Every person has a right to keep and bear arms for the defense of himself and the state."

My defense of this constitutional principle is longstanding. In 2007, I filed an amicus brief with the U.S. Supreme Court in opposition to the District of Columbia's drastic ban on guns, arguing that the Second Amendment's right "to keep and bear arms" is an individual right. The Supreme Court agreed with that position and overturned the D.C. ban in its Heller decision.

The Free Press failed to mention that 34 attorneys general signed on to the NRA's challenge of Chicago's strict gun ban, including both Democrats and Republicans. This isn't about politics; it's about standing up for principle.

It may come as news to the Free Press, but this office files amicus briefs all the time to protect the rights of the state and its citizens. For example, this office has filed amicus briefs in support of the Big Three auto industry and tougher standards to protect the Great Lakes.

In my own experience of more than 13 years as a homicide prosecutor and head of the homicide unit of the Wayne County Prosecutor's Office, I never saw anyone charged with murder who had a license to legally carry a concealed weapon. Most people who want to possess guns are law-abiding and present no threat to others. Rather than the availability of weapons, my experience is that gun violence is driven by culture, police presence, or the lack of same, and failures in the supervision of parolees and probationers.

Since becoming attorney general, I have worked to ensure that the rights of Michigan citizens to defend themselves are protected. For example, I have expanded the number of states that recognize Michigan CCW permits from eight states to 35 states. And I'll continue to take action when constitutional priciples are threatened.

I make no apologies for my support of the Constitution and the Second Amendment..

Mike Cox

Michigan Attorney General, Lansing
Link

We've got a great AG here in Michigan!!! And our current govenor hasn't been too bad either IMHO.

JN01
July 9, 2009, 05:58 PM
When will the Supreme Court announce which cases they will hear for the next session? If they resume business in October, I would think it would be reasonably soon to allow the parties involved time to prepare.

Truthseeker
July 9, 2009, 10:25 PM
Let there be no doubt, the California brief was filed with "reasonable regulation", not keep and bear arms in mind. This is a smokescreen.

Ragnar Danneskjold
July 9, 2009, 10:50 PM
We do indeed have a fantastic AG in Michigan. To be honest, I would like to see him run for the big job once Jenny is on the way out.

mljdeckard
July 9, 2009, 11:04 PM
I have personally spoken to Utah Attorney General Mark Shurtleff about his position on gun control. Not only is he very much on our side, he's running for senate.

highmountain78
July 9, 2009, 11:17 PM
Ragnar, consider your self lucky.

You have a governor and senator to get rid of. We have one senator on the left and another senator recently elected , by the state supreme court, who is on the lunatic far left and we get six years of this clown.

RDak
July 10, 2009, 04:22 AM
Highmountain: We have two Senators to get rid of (i.e., Levin and Stabenow - both rabidly anti-gun). In fact, Levin ranks right up there with Lautenberg and Feinstein IMHO.

Our governor has passed every pro-gun bill that came before her and is a supporter of concealed carry. She wasn't always for concealed carry but, when reviewing the stats from other States, she changed her mind and admitted she was "wrong" and "now supports concealed carry".

She is, by far, the most pro-gun governor we have ever had in Michigan IMHO. And she's a democrat!!?? I know, hard to believe, but it's true. :)

Ragner: I think Mike Cox has announced he is running for governor IIRC.

Phatty
July 10, 2009, 12:33 PM
and another senator recently elected , by the state supreme court, who is on the lunatic far left and we get six years of this clown.
Sure, go ahead and ignore that over 1.2 million of your fellow citizens voted for that fool. Your state gets what it deserves. There's no way that election should have been remotely close to even provide the courts with an opportunity to give it it Franken.

legaleagle_45
July 10, 2009, 10:29 PM
Just in... the Academics brief here:

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

BTW, it does California absolutely no good to support incorporation as a Trojan Horse so as to impose "reasonable regulations". If that was their purpose, they would be MUCH better served by opposing incorporation.

ConstitutionCowboy
July 10, 2009, 11:19 PM
BTW, it does California absolutely no good to support incorporation as a Trojan Horse so as to impose "reasonable regulations". If that was their purpose, they would be MUCH better served by opposing incorporation.

(Tee hee!)

On'tda etlay etha atca outa etha agba!

Woody

ArmedBear
July 10, 2009, 11:24 PM
Let there be no doubt, the California brief was filed with "reasonable regulation", not keep and bear arms in mind. This is a smokescreen.

That's the intent.

I still ask: how can Moonbeam think this will work?

The case against California's bizarre "list" will stand or fall on its merits and the judges' opinions about the "list" and the case as argued.

Signing on to incorporation doesn't help California's case. It's not like a judge will sit there and say, "Well, I'd find against California, but man that Jerry Brown sent an amicus brief to the Supreme Court, so I guess I will decide the other way, despite my opinions about the law and the Constitution." That may happen in Congress, but that's not how courts work.

BTW, it does California absolutely no good to support incorporation as a Trojan Horse so as to impose "reasonable regulations". If that was their purpose, they would be MUCH better served by opposing incorporation.

Agreed. If Moonbeam is that stupid (and he just might be), he might be trying that. But it can't work.

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