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Decision from Chicago on Incorporation

Discussion in 'Legal' started by legaleagle_45, Dec 4, 2008.

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  1. legaleagle_45

    legaleagle_45 Member

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    NRA v VILLAGE OF OAK PARK and NRA v CHICAGO were decided today.... and the news at first blush is not good, as the court ruled against incorporation :banghead:

    However, upon closer inspection, the opinion was quite sympathetic, explaining that the judge is merely a peon district court judge faced with binding precedent of Quilici v. Village of Morton Grove and despite the logic presented in favor of incorporation, he was duty bound to follow precedent.

    I have tried to post the entire opinion for your review as a pdf file... I hope I successfully did so ... if not some computer nerd will tell me how to attach a file... but for now some snippets:

     

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  2. Sinixstar

    Sinixstar member

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    This does however open the door for possible appeal higher up the food chain, does it not?

    The fact that this district judge even said that he's basically making this decision solely on precedent, would kind of lend some weight to the idea that the precedent is wrong, and should be challenged.
     
  3. legaleagle_45

    legaleagle_45 Member

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    The aim is to get it in front of SCOTUS while we still have 5 justices on our side up there. It really does not matter if we are the Appellants or the Appellees...

    Reading between the lines, my take is that the Judge would have ruled in our favor but for the binding precedent of Quillici v. Village of Morton Grove... so yeah
     
  4. Sinixstar

    Sinixstar member

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    And in that context, it may be more compelling for SCOTUS to weigh in on the issue. If the district court openly admits they feel the precedent needs to be re-examined, but they lack the authority to do so...
    Seems like a compelling cause for the supreme court to hear the case is part of what we've been having a hard time with over the years - this may be a blessing in disguise.
     
  5. wep45

    wep45 Member

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    yo, lets speed up the "process".........i want to open carry by new year's 2009:evil:
     
  6. Geneseo1911

    Geneseo1911 Member

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    Hmmm....I was too busy watching "the office" to study my law homework tonight; as Micheal would say. "could you explain it to me like I was a 5 year old?"

    Seriously, does this mean that that judge ruled the Heller decision applies ONLY to DC?
     
  7. legaleagle_45

    legaleagle_45 Member

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    Not going to happen:neener: There is another case pending out there that is on a faster track... Nordyke v King in the 9th Circuit. Now before you get all in a snit about the 9th Circ, this particular panel of 9th Circ judges is decidely pro gun. Don Kilmer and Don Kates are co-counsel on the appeal and oral argument is scheduled for Jan 15, 2009.

    The Brief submitted by Don and Don is excellant... the brief submitted by the other side is hilarious in its ineptitude... I can post them if any one is interested.:cool:
     
  8. legaleagle_45

    legaleagle_45 Member

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    Not quite. He ruled that the Heller decision is binding only upon the federal government and that state governments are not bound by same.
     
  9. everallm

    everallm Member

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    This really not particularly surprising considering the gravity of the case from a constitutional perspective.

    Before the "sky is falling" tendency start on how 2A has been kicked and beaten etc etc the most relevant words are the last ones below.

    This Court should not be misunderstood as either rejecting
    or endorsing the logic of plaintiffs' argument--it may well carry
    the day before a court that is unconstrained by the obligation to
    follow the unreversed precedent of a court that occupies a higher
    position in the judicial firmament. But as later-to-be-Justice
    Oliver Wendell Holmes famously observed in 1881 in The Common
    Law:
    The life of the law has not been logic: it has been
    experience.

    In sum, this Court--duty bound as it is to adhere to the
    holding in Quilici, rather than accepting plaintiffs' invitation
    to "overrule" it (!) --declines to rule that the Second Amendment
    is incorporated into the Fourteenth Amendment so as to be
    applicable to the Chicago or Oak Park ordinances. These actions
    are set for a status hearing at 8:45 a.m. December 9, 2008 to
    discuss further proceedings.


    In a nutshell "I feel this is too important an issue to just pass on this and I will bump it up the foodchain".

    Judge Shadur seems to be generally regarded as very sharp and someone who actually reads all the briefs presented to him and gets an even handed rating on Defense v Government. Definitely a love him or loath him from the ratings.....

    http://www.therobingroom.com/Judge.aspx?ID=1218

    He is also no particular friend of some of the practices of the Chicago police and prosecutors.

    http://www.law.uchicago.edu/mandel/police/news/fdla.html

    In a double-barreled attack, a federal judge has blasted police and prosecutors for blocking defense attorneys from talking to witnesses hauled in for questioning in criminal investigations.

    U.S. District Judge Milton I. Shadur mocked assertions that everyone who is interrogated by Chicago police but not formally taken into custody is studiously informed of his or her freedom to leave.

    The real world in which attorneys for those people live and work gives the lie to that sanitized ideal, Shadur wrote in a 13-page opinion made public Monday.

    Shadurs opinion was not a final judgment in a lawsuit brought by lawyers who claim police and prosecutors are violating their First Amendment rights by denying them access to their clients.

    But the take0no-prisoners attitude Shadur displayed in declining to dismiss the First Amendment claim left no doubt that the judge believed the plaintiff- lawyers have made a case.

    Shadur also made it clear he didnt think much of the defense mounted by counsel representing Cook County States Attorney Richard A. Devine and top officials in the Chicago Police Department.
     
  10. Vegaslaith

    Vegaslaith Member

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    Someone correct me if I'm wrong, but as I understand it, if the 2A is incorporated against the states, then state laws can be no more stringent than federal laws right?
     
  11. DKSuddeth

    DKSuddeth Member

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    someone correct me if i'm wrong, but wasn't there a precedent set somewhere that lower courts could indeed stray from stare decisis and the upper courts when USSC decisions reversed or changed prior rulings? That these lower courts did not have to abide by upper court decisions?
     
  12. Bubba613

    Bubba613 member

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    I dont think so.
    The issue is, and will be, what level of scrutiny do laws have to pass in order to be Constitutional. If a court applies the "strict scrutiny" test then every law passed by a state will be prima facie unconstitutional unless proven otherwise. IOW, states would have to show a compelling interest in regulating the right. Under this standard, I think laws prohibiting felons from owning firearms would pass muster while laws requiring silly FOID cards and the like would not.
    That's what I'm hoping for anyway.
     
  13. ServiceSoon

    ServiceSoon Member

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    Can somebody please show me where the law says judges must follow precedence?
     
  14. Frank Ettin

    Frank Ettin Moderator

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    The short answer is simply, "That's how our Common Law system works." Although I generally don't conside Wikipedia to be necessarily authoritative, this is a decent discussion of the doctrine of stare decisis: http://en.wikipedia.org/wiki/Stare_decisis.

    The general idea is that there should be a certain degree of consistency and predictability to the law. Similar cases should be decided similarly, so precedent, when and as applicable, is followed.
     
  15. Gaiudo

    Gaiudo Member

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    and a good thing for it, too, otherwise the next incoming court could just decide to ignore Heller. Whats good for the goose... etc. etc.
     
  16. Maelstrom

    Maelstrom Member

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    Stare Decisis is in effect for a reason. Otherwise, the laws could change weekly across the country as judges constantly overturned the previous judges decision.
     
  17. woofe

    woofe Member

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    Re: Incorporation

    The decision is exactly what our side expected. This forms the basis of an appeal for incorporation at the Appellate level or more likely at the SCOTUS.

    woofe
     
  18. legaleagle_45

    legaleagle_45 Member

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    That is essentially correct. Once a portion of the Bill of Rights is selectively incorporated as against the states, the courts then employ "whole cloth incorporation" whereby the test to determine whether a law is unconstitutional is identical, regardless of whether it is a state law or a federal law.
     
  19. legaleagle_45

    legaleagle_45 Member

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    First some definitions:

    Binding precedent is precedent established by a higher court in the same jurisdicitional court system. A lower court is required to follow the precedent of such a higher court because that higher court is the boss of the lower court and gets to tell the lower court what to do.

    Persuasive precedent is precedent established by another court which is not within the same feeding chain. It is entitled to respect and consideration, but is not controlling.

    Stare Decis is a decision made previously by the same court. It is more "persuasive" than persuasive precedent due to the fact that our legal system seeks stability. In order to overcome stare decisis you must show clear error by the previous decision.

    Now, to answer your question, if a decision from SCOTUS in effect overrules an intermediate court when it issues a decision, a lower court is no longer bound by the "binding precedent" previously established by the intermediate court. In fact, it is obliged to follow the dictates of SCOTUS. However, in Heller, the issue regarding incorporation was specifically held open and thus established nothing of precedential value with respect thereto. Thus the lower court is obliged to follow the still binding authority of the intermediate court.
     
    Last edited: Dec 8, 2008
  20. Gaiudo

    Gaiudo Member

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    Thanks, those are helpful definitions.
     
  21. RP88

    RP88 Member

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    since the lower courts ruled basically on state precedent alone, the appeal is the next step. The case is not dead, or else there would have been no request for 'further proceedings' over it.

    Heller lost on the lower level as well, but won the appeal and later SCOTUS ruling.

    Since your lower courts' binding precedent basically lies in state laws that have pretty much never been challenged or questioned, there really wasn't any chance of a lower court ruling on incorporation because - as said - it 'goes against the system'. However, an appellate may very likely overturn the lower's decision (as they did in Heller's case, who also lost the lower court case) and turn the case over to SCOTUS afterwards.
     
  22. zxcvbob

    zxcvbob Member

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    duplicate
     
  23. zxcvbob

    zxcvbob Member

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    duplicate
     
  24. zxcvbob

    zxcvbob Member

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    Does this case have to go thru the Appellate court first (where *any* ruling is certain to be appealed by one side or the other) or could it jump straight to the S.C. due to the gravity of the case?
     
  25. cbrgator

    cbrgator Member

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    It must be appealed to the SCOTUS from the highest court in Illinois. This will reach the SCOTUS, undoubtedly. But it will take a while, and then they will have to grant cert to actually hear it.
     
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