Chicago Brief

[legaleagle_45]

The Chicago incorporation case is now with the 7th Circuit. The brief for our side was filed yesterday. You can view it here:

http://www.chicagoguncase.com/wp-content/uploads/2009/01/appellants_brief_074244final.pdf

Chicago's brief is due in 30 days...

 

[tube_ee]

I'm reading it now,

and it's great stuff. Once again, Mr. Gura proves that he's one hell of a lawyer.

We're gonna win this one. And we're gonna win Nordyke.

We need three things to get us where we want to go:

(a) Individual right. Done, in Heller. And a far, far more significant change than a lot of folks here realize.

(b) Incorporation. On its way, and if it's decided in two separate Circuit Courts, I'd imagine that the other Circuits will go along. We may not even need SCOTUS to rule on this, although either Chicago or Alameda will likely appeal.

(c) Strict Scrutiny. That will have to wait for a later case... which I'm sure that Alan Gura already has on deck.

There is a plan here, and the plan is working.

We're going to win.

--Shannon

 

[dmazur]

As I'm definitely weak in following legal arguments, are we going to have to win an entirely different fight on ammunition, or are various ammunition bans going to be considered going counter to these court rulings that will (hopefully) be in our favor?

I realize this is a complex question, as there are legitimate environmental concerns which I believe the government is already addressing in its practice ammunition for the Army.

However, there is a difference between outright ammunition bans and requiring ventilation, lead recovery, etc. at shooting ranges and requiring lead-free ammo for hunting.

Also, the issue of "ammo encoding" may not be considered a direct opposition to a right to keep and bear arms.

Any thoughts on this, or is it just too complex for a simple answer?

 

[Glockman17366]

This guy is sharp!
Holder will probably try to hire him before this case goes too far.

 

[dmazur]

I wasn't trying to be obtuse. (Probably succeeded without trying...)

I don't understand strict scrutiny. I realize it is a goal that hasn't been achieved yet, and that there is no guarantee we will get it.

From Wikipedia -

To pass strict scrutiny, the law or policy must satisfy three prongs:

First, it must be justified by a compelling governmental interest. While the Courts have never brightly defined how to determine if an interest is compelling, the concept generally refers to something necessary or crucial, as opposed to something merely preferred. Examples include national security, preserving the lives of multiple individuals, and not violating explicit constitutional protections.

Second, the law or policy must be narrowly tailored to achieve that goal or interest. If the government action encompasses too much (over-inclusive) or fails to address essential aspects of the compelling interest (under-inclusive), then the rule is not considered narrowly tailored.

Finally, the law or policy must be the least restrictive means for achieving that interest. More accurately, there cannot be a less restrictive way to effectively achieve the compelling government interest, but the test will not fail just because there is another method that is equally the least restrictive. Some legal scholars consider this 'least restrictive means' requirement part of being narrowly tailored, though the Court generally evaluates it as a separate prong.

So, using a hypothetical lead ammunition ban as an example, I could see how the government could address unleaded bullets for hunting and shooting range lead recovery as environmental concerns, with language narrowly tailored to address this, rather than an outright ban on lead ammunition.

I'm trying to understand how strict scrutiny may afford some protection, and also what it may not protect. (All, of course, just spitting in the wind, as the court cases are still being decided.)

 

[yokel]

Indeed, how does one possibly "weigh" this sort of right against the government interests? Does it make sense to talk about, for instance, "strict scrutiny" when the most obvious compelling government interest seems so directly in conflict with the very essence of the right?

The Second Amendment also has another purpose, spelled out in the
prefatory clause: preservation of the people’s ability to act as militia.
Heller, at 2800-01. The Amendment’s framers believed this purpose was
“necessary to the security of a free state.” U.S. Const. amend. II. By its
own terms, the Second Amendment secures a fundamental right.

This little doozy from Gura on pg.32 ought to make all those left-leaning political actors masquerading as "judges" wretch in horror.

 

[General Geoff]

The government's legitimate interests insofar as the second amendment would only be that of reducing and/or preventing violent crime. Fortunately, we all know that gun laws do not actually prevent or even reduce violent crime, so we should be safe if any of the judges have a brain.

 

[dmazur]

Not arguing that present government interests are in our favor (i.e. RKBA), as it certainly seems that a lot are definitely going in the opposite direction.

What I was trying to put forward, was after we get Individual Right, Incorporation and Strict Scrutiny, I believe there will still be challenges.

For example, the "opposition" could suggest outright ammunition bans, but all that would likely survive strict scrutiny would be something narrow, such as environmental concerns, and then only with as little infringement as possible.

(This is probably incredibly naive, but I'm new to the legal aspects of shooting and trying to understand the implications... )

 

[yokel]

The government's legitimate interests insofar as the second amendment would only be that of reducing and/or preventing violent crime. Fortunately, we all know that gun laws do not actually prevent or even reduce violent crime, so we should be safe if any of the judges have a brain.

Having brains to spare is fine, but I like someone who can maintain uncompromised standards of integrity and discipline like George Sutherland, who served as an Associate Justice of the U.S. Supreme Court between 1922 and 1938. Writing in his dissent in Home Bldg. & Loan v. Blaisdell (1934) that "whether the legislation under review is wise or unwise is a matter with which we have nothing to do. Whether it is likely to work well or work ill presents a question entirely irrelevant to the issue. The only legitimate inquiry we can make is whether it is constitutional. If it is not, its virtues, if it have any, cannot save it; if it is, its faults cannot be invoked to accomplish its destruction. If the provisions of the Constitution be not upheld when they pinch as well as when they comfort, they may as well be abandoned."

 

[ConstitutionCowboy]

Sure looks good. As one who believes the Second Amendment stands alone to be applicable to the several states, the added insurance of the Fourteenth Amendment and the added power for Congress to enforce the provisions of the Fourteenth Amendment is icing on the cake.

As for "Incorporation", if it is needed to please the Court, this case and the one in the Ninth Circuit Court of Appeals have a good chance of bringing it about.

Woody

 

[legaleagle_45]

Constitutional Cowboy wrote:

As for "Incorporation", if it is needed to please the Court, this case and the one in the Ninth Circuit Court of Appeals have a good chance of bringing it about.

Taking the long view.... it may be better to lose one and win one (speaking of the Nordyke case in California and the Chicago case).

Reason: Granting of cert by SCOTUS is discretionary. One of the main criteria used by SCOTUS in evaluating a case for cert is whether there exists a split in the Circuit Courts on the issue. If we win them all, we might never be granted cert, and I, for one, would prefer SCOTUS to hear it now rather than at some distant date when the membership of SCOTUS may have changed....

 

[Noxx]

I just wish this was coming west faster. After a lifetime of injured liberty, the legal machine can't grind fast enough for us folks here on the west coast.

 

[ConstitutionCowboy]

Reason: Granting of cert by SCOTUS is discretionary. One of the main criteria used by SCOTUS in evaluating a case for cert is whether there exists a split in the Circuit Courts on the issue. If we win them all, we might never be granted cert, and I, for one, would prefer SCOTUS to hear it now rather than at some distant date when the membership of SCOTUS may have changed....

You might get your wish - and that would be OK with me. It isn't called the "Ninth Circus" for nothing.

Woody

 

[Yosemite Sam]

Legal documents usually make me dizzy, but I'm reading this one.

What in the world are the defense attorneys for Chicago thinking:

50. Handguns, as a class of weapons, are “arms” whose possession by law-abiding adult citizens is protected by the Second Amendment right to keep and bear arms.

ANSWER: The City denies the allegations contained in Paragraph 50.

This is just one of many examples in that document, but it's one of the easiest to pick out. How in the hell can you deny that a handgun is a type of gun?

 

[husbandofaromanian]

Does anyone remember if the Heller decision stated that registration was allowable?

 

[everallm]

Heller was a very narrowly tailored case dealing solely with the constitutionality of banning a class of weapon in common use as well as storage requirements. All in the context of a limited self rule federal enclave.

The whole "comma", "militia", "individual right" could have been side stepped but was gravy.

Registration, along with incorporation, level of scrutiny etc where not part of the original brief and could not therefore be ruled on.

Chicago speaks directly to registration.

 

[legaleagle_45]

How in the hell can you deny that a handgun is a type of gun?

They did not. They denied that possesion of a handgun by law-abiding adult citizens is protected by the 2nd. Cutting through the BS, they are merely denying that the 2nd is applicable in this case and offers no protection to Plaintiffs.