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7th Circuit Decision

Discussion in 'Legal' started by legaleagle_45, Jun 2, 2009.

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  1. RDak

    RDak Member

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  2. RDak

    RDak Member

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    I love this quote from the decision:

    (Relating to a local law prohibiting self-defense and how those localities can "trounce" the true meaning of the 2nd Amendment):

    In short, what a bunch of whooey!! The SCOTUS held self-defense is ok and using a firearm for self-defense purposes is lawful. But (according to the 7th Circuit) the States/Localities can enact statutes that go against that fundamental holding? Like I said, what a bunch of whooey. (I mean, the 7th Circuit says it's arguably a "cherished" thing when a locality can infringe on what the SCOTUS has held to be a fundamental, individual right. Okey dokey??!!)

    Also, what is so "novel" about the anti-gun agenda? It's been ongoing for decades and shown to be an abysmal failure. The exact opposite of gun control (i.e., allowing individuals to own firearms) has been shown to result in less crime. Even the Heller decision acknowledged that anti-gun laws in DC were a failure.

    Chicago has had firearms prohibitions and Illinois has had draconian registration schemes for DECADES. And, as we all know, that city is still experiencing huge violence problems.

    So, the 7th Circuit should have analyzed their own statement and concluded the anti-gun movement/statutes are not "novel" and the "experiment" has been a failure. Geez, even an idiot like me can understand that. (They just plain avoided the obvious and pushed this case to the SCOTUS. That's all they should have said without all the silly nonsensical arguments IMHO.)

    I never thought I'd say this but I respect the 9th Circuit alot more than the 7th and 2nd Circuits when it comes to the 2nd Amendment nowadays. I can't believe I just said that!!:p

    At worst, we will win by another 5-4 decision. If the liberal justices accept the prior Heller decision, then we win by a landslide IMHO.

    Edit: The last sentence of the decision is all they really had to say without all the silly diatribe IMHO. (Like one of the other members here stated, their silly "lecturing" might irritate the SCOTUS Justices.):

     
    Last edited: Jun 4, 2009
  3. P.O.2010

    P.O.2010 Member

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    Assuming that the Supreme Court agrees to hear the case the most likely outcome is that the Second Amendment will be incorporated but that the states can still require permits to own and carry firearms, can still require the registration of firearms, can still require waiting periods to obtain a firearm and can still restrict access to certain sub-categories of firearms (i.e. you can own rifles but not so-called "assault rifles"; Remington 700 legal, AR-15 illegal).

    In short, you will be guaranteed the right to own a bolt action rifle, double barreled shotgun or revolver provided you jump through hoops, make five or six trips to Police Headquarters or the Sheriff's Department and are willing to lay out hundreds of dollars in administrative fees. If your particular municipality is opposed to private firearms ownership you will be straight out of luck.

    In the decision I expect a lot of great Constitutional history, a lot of good rhetoric and then I expect to see a section, as we found in Heller, talking about dangerous and unusual and long standing prohibitions and basically saying that the local government can do whatever it wants as long as it is theoretically possible to have a J-Frame S&W in your bedroom.

    On the other hand, I could be pleasantly surprised. SCOTUS could rule that the Second Amendment is incorporated and that states can't prohibit semi-automatic weapons based on cosmetic features and that there is a right to carry. But I'm not holding my breath. In all likelihood what we will get is the status quo. Vermont and Alaska will remain gun friendly and New York and Illinois will remain decidedly unfriendly. At the end of the day the Justices are government officials and I think the idea of loosening gun laws in any meaningful way disturbs and/or frightens a majority of them.
     
  4. legaleagle_45

    legaleagle_45 Member

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    Agreed. SCOTUS uses selective incorporation and once a portion of the BoR is incorporated via that process, the restrictions on the states are identical to the feds... no variance based upon local circumstances are allowed. The argument presented by the 7th has absolutely no merit if the 2nd is incorporated. The citations given by the 7th I agree with, but they are inopposite. Thus, under our federal system a state may experiment with workers comp and deposits on soda cans and such laws are valid. States can not experiment with restrictions on the 1st Amend.....
     
  5. everallm

    everallm Member

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    Agreed. SCOTUS uses selective incorporation and once a portion of the BoR is incorporated via that process, the restrictions on the states are identical to the feds... no variance based upon local circumstances are allowed

    Which also addresses PO 2010

    In short, you will be guaranteed the right to own a bolt action rifle, double barreled shotgun or revolver provided you jump through hoops, make five or six trips to Police Headquarters or the Sheriff's Department and are willing to lay out hundreds of dollars in administrative fees. If your particular municipality is opposed to private firearms ownership you will be straight out of luck.
     
  6. Phatty

    Phatty Member

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    Congress should pass a law similar to the Voting Rights Act that requires states having long histories of infringing the right to keep and bear arms, such as Illinois, to pre-clear with the Justice Department any and all laws relating to firearms.
     
  7. ilbob

    ilbob Member

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    Draconian? A $10 shall issue card that is good for ten years? A minor inconvenience, but no where near the draconian scheme in some other states like NY or CA. You will notice no one in this debate has made any kind of serious attempt to claim gun control reduces crime. Its never, ever been about reducing crime.

    I think you are way too pessimistic. Time wise we are looking at a couple of decades of litigation to sort things out, but here is where i think it will end up.

    Acquisition/possession - NICS or Illinois style FOID card ok. The model for this is voting. You have to pre-register to vote and ID yourself, and have to show ID to vote (at least in many places). I figure this is close to a lock. Normal guns including so called assault weapons. Large capacity mags may fall through the cracks though.

    Carry is a completely different issue. I suspect the court is going to allow states to regulate the heck out of carry, especially CC.

    NFA items - might give us a few bones, but you are not going to be buying them in the machine gun aisle at WalMart.
     
  8. legaleagle_45

    legaleagle_45 Member

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    Patience is a virtue. We can not resolve all issues involving the 2nd in one case... in fact it would be unconstitutional to do so under the cases and controversies limitation to federal jurisdiction found in the constitution. Instead of "one day at a time" it will be "one case at a time".
     
  9. P.O.2010

    P.O.2010 Member

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    Acquisition/possession - NICS or Illinois style FOID card ok.

    And this is the rub. Depending on the State or municipality getting and maintaining that card may be very difficult and/or expensive. What will happen is that anti-gun areas will make the process as cumbersome, time consuming and costly as they humanly can without being held in contempt. Even if the Supreme Court should specify the prerequisites for such a permit there is a lot of administrative wiggle room to work with. The number of tricks that can be used to frustrate the court's will is virtually unending. Just imagine Chicago's response should they be ordered, for example, to allow the concealed carry of handguns with a permit. They'll probably put one person in the entire licensing bureau and it will take 18 months for you to get a permit if they don't find a reason to deny you.

    On its face NYC's licensing process doesn't look very onerous and there's no reason why it should be - except for the fact that the Mayor, City Council and high ranking members of the NYPD don't want non-LEOs to own and carry firearms. You have to be prepared to take multiple days off from work, pay hundreds of dollars, be ready for a summons to One Police Plaza at any time, submit to an interview and on and on just to receive a permit to possess a handgun in your home. If your application has minor errors, start over. If you can't make it one day, start over. Too many traffic tickets, start over.

    As far as I'm concerned if SCOTUS renders a ruling which explicitly allows for the mandatory registration of firearms and a requirement to obtain a permit to simply own them then we have lost. Just my opinion.
     
  10. RDak

    RDak Member

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    ilbob wrote in part:

    You're joking right?

    The reason the 1982 prohibition on handguns was enacted in the first place was to reduce crime.

    Furthermore, the brief filed by Chicago is rife with arguments stating handguns are dangerous, used in suicides, homicides, assaults, armed robberies etc., and are therefore, subject to prohibitions. That's the whole point of the statute and plays a large part in Chicago's reasoning.

    And the 7th Circuit stated municipalities and States can "experiment" with "novel" methods for bringing about an orderly society. In this regard, the 7th Circuit is stating prohibiting the ownership of firearms to reduce crime is arguably ok.

    Like I said, that's the whole point of the statute involved.

    Chicago is defending the very statute we are talking about by arguing it was enacted to prevent crime and suicides.

    To not argue that would make their position silly and without purpose. To ban something just for the sake of banning it would be frivilous. The starting point, and the most important point, is why are you banning something.

    If your reason is shown to be incorrect or falls far short of your adversary's arguments, the remainder of your position is built on a "house of cards".

    That's why Gura will never say the results of the handgun ban on crime are immaterial. He didn't in Heller and won't in this case either. In fact, as you know, the abysmal failure of gun control was pointed out in the Heller case and was discussed.

    Here's a link to the brief:

    http://www.chicagoguncase.com/wp-content/uploads/2009/04/appellees_brief_mcdonald.pdf

    Here's a link to a brief discussing the abysmal failure of the gun ban in Chicago:

    http://www.chicagoguncase.com/wp-content/uploads/2009/02/ileeta-chicago-amicus-final-brief-only.pdf

    ETA: You make a good point about the 10 year purchase permit. That's not draconian but not allowing concealed carry is. There are States far worse though. I'll give you that.
     
    Last edited: Jun 5, 2009
  11. peyton

    peyton Member

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    I caught this on Foxnews, I am posting it because the author made very valid points and it is easy to understand (at least more me).

    http://foxforum.blogs.foxnews.com/2009/06/04/klukowski_gun_issue_sotomayor/
    FOX Forum » Forum Contributor
    June 4th, 2009 9:37 AM Eastern
    KLUKOWSKI: Gun Issue Heats Up for Sotomayor as NRA Appeals to Supreme Court
    By Ken Klukowski

    This week a federal appeals court held that the Second Amendment does not apply to state or city gun laws. Supporters of Judge Sonia Sotomayor incorrectly argue that this affirms her recent gun-control case. Now the NRA is petitioning the U.S. Supreme Court to take the case, and in doing so heats up the gun-rights issue to potentially become the dominant topic in Sotomayor’s confirmation hearings.

    On June 2, the U.S. Court of Appeals for the Seventh Circuit handed down its decision in NRA v. Chicago. The city of Chicago has a ban on handguns almost as severe as the one invalidated by the Supreme Court last year in D.C. v. Heller. The National Rifle Association filed suit, seeking to have the Chicago gun ban struck down.

    The Seventh Circuit held that the Second Amendment right to bear arms does not apply to state or city laws. All three judges on the panel hearing the case were appointed by Republican presidents. In January, Sotomayor was on a three-judge panel from the Second Circuit that similarly held that the Second Amendment affects only federal law, not state or local law. Supporters of Sotomayor are touting the Chicago ruling as proof that her Second Circuit case, Maloney v. Cuomo, was a mainstream opinion, arguing that the Seventh Circuit agrees with her.

    But that’s not exactly correct. It’s true that both courts reached the same conclusion. It’s also fair to say that this is not a “pro-gun” opinion, so gun owners shouldn’t be thrilled with it. But it’s not an “anti-gun” ruling, either. The circuit court here released a nine-page analysis delving into this issue in an even-handed manner, written by one of the best-regarded appellate judges in the nation.

    Originally, the Bill of Rights applied only to the federal government. Then during the 1900s, the Supreme Court began applying (or “incorporating”) most of the Bill of Rights to the states through the Fourteenth Amendment. Before that time, the Supreme Court had held back in 1876, and again in 1886, that the Second Amendment does not apply to the states. But it never had an occasion to revisit the Second Amendment during the 1900s incorporation cases. It also did not need to do so last year in the Heller case because Washington, D.C. is a federal enclave, not a state, and is therefore directly controlled by the Bill of Rights.

    As recently as 1997 the Supreme Court reiterated that even old precedents from the High Court bind all lower courts. The Seventh Circuit appropriately noted the Supreme Court’s instructions, and concluded that questions about whether the Second Amendment is incorporated, “are for the [Supreme Court’s] Justices rather than a court of appeals.” In other words, they recognized that after last year’s Heller case the Supreme Court appeared ready to incorporate the Second Amendment, but the Seventh Circuit considered their hands tied on the issue. They essentially have tossed the case up to the Supreme Court.

    Contrast the Seventh Circuit’s opinion with Sotomayor’s Maloney case from the Second Circuit. This week the Seventh Circuit devoted nine pages to its analysis. The Ninth Circuit, which held in April that the Second Amendment is incorporated to the states, devoted 12 pages to its analysis.

    Sotomayor’s Second Circuit devoted merely a single paragraph to the issue. The opinion does not even note that there has been a century of Supreme Court cases—15 cases, to be exact—incorporating various Bill of Rights provisions to the states. It simply embraced the 1886 Supreme Court case on the issue, said the Second Amendment does not apply whatsoever to the states, and then dropped the issue without further discussion.

    Well-crafted judicial opinions lay out legal rules with clear reasoning to interpret the Constitution and provide guidance to other courts. The Second Circuit was the first appeals court after the Heller decision to consider whether the Second Amendment applies to the states. To routinely discard such an important question with a single paragraph is simply stunning.

    Now this issue may become the single hottest issue in Sotomayor’s confirmation hearings, because one of these cases—most likely NRA v. Chicago—will almost certainly be going to the Supreme Court in the next 12 months. The NRA petitioned on Wednesday for the Supreme Court to take the case, and various groups are already lining up to support the petition.

    That means that whoever sits on the Court will decide this issue that is so important to millions of American voters. This already red-hot issue now becomes white-hot, as gun owners realize that the future of their Second Amendment rights is likely to get a second look from the nation’s highest court.

    Ken Klukowski is a fellow and senior legal analyst with the American Civil Rights Union.
     
  12. MT GUNNY

    MT GUNNY Member

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  13. Fenris

    Fenris Member

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    It is my understanding that there is no legal requirement at the SCOTUS level for recusal. The decision of a SCJ to recuse or not is entirely within their individual discretion. Some groups tried to strong arm Scalia a few years ago, and he basically told them to pound salt.

    Of course I may be wrong it happened once before in '72. Or was that '74?
     
  14. lanternlad1

    lanternlad1 Member

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    I'm pretty sure SCOTUS will hear the case. The Seventh said no, but the Ninth said yes!


    http://www.csmonitor.com/2009/0620/p02s02-usgn.html


     
  15. legaleagle_45

    legaleagle_45 Member

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  16. Gryffydd

    Gryffydd Member

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    :barf:
     
  17. Colt Smith

    Colt Smith Member

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    An excerpt from the July 2009 issue of American Rifleman:

    "On April 20, the U.S. Court of Appeals for the Ninth Circuit marked a milestone in Second Amendment history by ruling, in the case of Nordyke v. King, that the Second Amendment applies to the states through the due process clause of the Fourteenth Amendment to the U.S. Constitution."

    OK, so what does this mean for us? I'm not as informed as some of you with regard to the workings of the courts. I'm thinking that it doesn't mean anything until the Supreme Court decides it is so? And, if the Supreme Court rules that the 2nd is incorporated, what affect will that have on real-world laws and regulations at the state and local level?
     
  18. Birdmang

    Birdmang Member

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    Don't get your hopes up, the Supreme Court probably wont grant cert.
     
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