Chicago Law Banning Handguns in City Upheld

[DonP]

We all expected this guys - take a breath

Alan Gura, who handled the DC case, also presented the oral arguments in Chicago.

Alan and the rest of the team knew this was very likely to happen and have been preparing for the appeal for about as long as the case has been up.

He has a web site on the Chicago case he posts details on, as well as transcripts and MP3 recording of the trial. It's at the bottom of my post.

The judges were pretty much bound to follow the precedent in their circuit. That's why the decision only took a couple of days to reach. No real deliberation was required. If you read the transcripts or listen to the MP3 recoding of the case, two of the judges were almost apologetic to Gura that they had to follow the original case precedent in their own circuit.

Now they have two circuits disagreeing on whether the 2nd amendment can be incorporated and apply to the states as well as the Federal government.

SCOTUS will probably grant certorari and hear the case next Fall and resolve the incorporation issue. It would be stunning if the 2nd amendment was found to be a part of the BoR that does not apply to the states!

Here's the website.

http://www.chicagoguncase.com /

I think this case will be a base for some very serious questioning for Sotomayer in her confirmation hearings, more so than any Roe v Wade stuff, and if she comes out as anti 2nd as I'm afraid she really is, she will have some Democrats in a bind if they vote for her.

 

[damien]

Why doesn't this go to an en banc review by the 7th before it goes to SCROTUS?

 

[Phatty]

They exercised judicial restaint when they likely wanted another result.

The panel of judges, although generally recognized as conservatives, are well-known as being anti-gun and anti-2A. The idea of judicial restraint only applies where the judge wants a certain result but "restrains" himself because of being bound by the law.

Now they have two circuits disagreeing on whether the 2nd amendment can be incorporated and apply to the states as well as the Federal government.

You should thank these judges. They just created a circuit split on incorporation, which is the best way to see that SCOTUS addresses the question sooner rather than later.

There already was a circuit split before this decision (9th vs 2nd).

Why doesn't this go to an en banc review by the 7th before it goes to SCROTUS?

Because en banc review would be worthless (not enough votes to go the other way) and the NRA just wants to get in front of the Supreme Court as quick as possible.

 

[Crashola]

I personally believe that the Court wouldn't even grant en banc review if it were requested. The panel, which consisted of two of the most respected judges in the Circuit, ruled that it was precedent-bound. It's unlikely that the other judges in the circuit would upset that ruling. The issue is teed up for the SCT and they'll have a hard time ignoring it. The circuit split has profound consequences -- local governments in the 2nd and 7th Circuits can ban handguns while their counterparts in the 9th Circuit cannot.

 

[Gunnerpalace]

This is the most retarded statement I've read in regards to Constitutionality in quite some time.

Bears repeating.

 

[legaleagle_45]

I think it likely that SCOTUS will grant cert, but the odds are not as strong as they were for Heller. The status of the split in the circuits is similar to the situation in Emerson where the appeals court found an individual right, but nevertheless upheld the law being challenged. As such, the 2nd was not "outcome determinative" in Emerson. An opinion finding no individual right would have reached the same decision reached by Emerson. Same scenario with Nordyke. The 9th's opinion found incorporation, but upheld the ordiance challenged from 2nd amendment attack. The same decision would have been reached the the 9th if they had determined no incorporation... thus the odds for granting cert are not as great as they were in Heller, where the individual rights opinion was necessary for the decision being reached.

The 7th circuit panel included Posner who blasted Heller as judicial activism eqivalent to Roe v Wade. The decision itself would have been ok based solely upon binding SCOTUS precedent, but the opinion went further and made some serious errors. Chief among them was an assertion that the right protected by the English Bill of Rights circa 1689 protected a "political right" (read militia right). This is WRONG, and it is lifted directly from our good friend and esteemed colleauge, Saul Cornell. (That is sarcasm, in case you were wondering)

 

[Phatty]

The status of the split in the circuits is similar to the situation in Emerson where the appeals court found an individual right, but nevertheless upheld the law being challenged. As such, the 2nd was not "outcome determinative" in Emerson. An opinion finding no individual right would have reached the same decision reached by Emerson. Same scenario with Nordyke. The 9th's opinion found incorporation, but upheld the ordiance challenged from 2nd amendment attack. The same decision would have been reached the the 9th if they had determined no incorporation... thus the odds for granting cert are not as great as they were in Heller, where the individual rights opinion was necessary for the decision being reached.

The extreme difference that you are glossing over between Emerson and Nordyke are the practical repercussions stemming from those decisions. The Emerson opinion really did not make much of a difference, because even though they held that the 2A protects an individual right, it was still understood that the 2A only applied to federal laws and the Emerson court did not say anything that would make any of the existing federal laws suspect to challenge.

Nordyke, on the other hand, has tremendous practical consequences. California has some of the most restrictive firearms laws in the country, which are now being challenged left and right since the 9th Circuit declared state laws subject to the 2A.

The practical result of the circuit split is that California would be forced to comply with the 2A while other anti-gun states such as Illinois would not have to. I can't think of any other circuit split more extreme than one where states in one circuit are forced to comply with a certain constitutional provision while the remaining states do not have to do the same.

The only real danger to the Supreme Court not granting cert here is if the Nordyke case is heard en banc and changes the incorporation finding. There would no longer be a circuit split. However, I've never believed that a circuit split was even necessary for the Supreme Court to take an incorporation case.

 

[legaleagle_45]

The only real danger to the Supreme Court not granting cert here is if the Nordyke case is heard en banc and changes the incorporation finding. There would no longer be a circuit split. However, I've never believed that a circuit split was even necessary for the Supreme Court to take an incorporation case.

I believe that an en banc decision from the 9th would be in favor of incorporation... In Silveira v. Lockyer, the en banc opinion asserted that if the 2nd was an individual right it would of course be binding upon the states. The 9th would have to be seriously hypocritical and wedded to a liberal doctrinarial stance to change gears now... wait, I am talking about the 9th Circuit, nevermind.

The extreme difference that you are glossing over between Emerson and Nordyke are the practical repercussions

Not unless and until the 9th Circuit actually finds one of them laws to be in violation of the 2nd. However, with that said, I go back to my original statement that I think SCOTUS will grant cert.

 

[ilbob]

My guess is that SCOTUS knew very well that incorporation was the next issue that they would tackle and would not have left so many clues in the Heller decision about it if they did not intend to accept some kind of incorporation case.

 

[MT GUNNY]

The Odds are stacked in Our Favor:

2nd and 3rd Amendments are the only ones Not Incorporated.

The Writings of some of the Judges During Heller have strong words, that can be used for arguing for Incorporation.

The 7th Circuit Court Totally Ignored Heller and other cases that should have had an impact on there decision. Instead they use Rulings From the 1800's before any of the amendment were Incorporated.

14th Amendment Section 1: ...No State shall make or enforce any law which shall abridge the Privileges or Immunity's of citizens of the United States.....

I'm not shure witch one , But there is another Amendment that can be used to Incorporate the 2nd Amendment.

 

[legaleagle_45]

>2nd and 3rd Amendments are the only ones Not Incorporated.

Not quite... grand jury indictment is not required, nor are jury trials in civil actions. Both of those were rejected for incorporation using modern due process analysis. Niether the 2nd nor the 3rd have been subjected to such mordern due process anlysis as of yet. In fact, there has never been a 3rd amendment case of any kind in front of SCOTUS, ever.... and it is the only portion of the BoR's to hold that distinction.

 

[gc70]

What people should want in their judges is for the judges to err on the side of constitutional and statutory limits on government.

Let decisions that give the benefit of the doubt to individual freedom be appealed to SCOTUS, if they are. Let the government fight for each power it wants to grab, don't force citizens to fight to regain each little right that is "guaranteed" but is taken from us.

Agreed.... depending on how you define "limits on government" and "power (government) wants to grab."

With respect to incorporation, the power of the federal government to compel the state governments is being expanded.

 

[Dex Sinister]

Agreed.... depending on how you define "limits on government" and "power (government) wants to grab."

With respect to incorporation, the power of the federal government to compel the state governments is being expanded.

A power expressed by the Federal government which limits the ability of the states to deprive people of a right, is not an expansion of power.

The "states' rights" v. "federalist powers" debate is a false dichotomy - it obscures the fact that the true issue is "government powers (at whatever level)" v. "rights and freedoms held by the people."