Petitioner's brief filed in McDonald v. Chicago

[freonr22]

http://www.chicagoguncase.com/wp-content/uploads/2009/11/08-1521ts.pdf

The Petitioner's brief for Incorporation of the Second Amendment was filed today in the Supreme Court.

From Calguns

In case you wanted to know


http://www.calguns.net/calgunforum/showthread.php?t=241385

 

[armoredman]

QUESTION PRESENTED
Whether the Second Amendment right to keep
and bear arms is incorporated as against the States
by the Fourteenth Amendment’s Privileges or Immunities
or Due Process Clauses.

And with that simple question a world began shaking.

 

[freonr22]

eloquently said

 

[Phatty]

I just finished reading the brief. It's really, really good.

The NRA's brief is also due today. Does anyone have a link to that brief?

 

[damien]

So where is the bad guy's brief?

 

[Phatty]

So where is the bad guy's brief?

If by "bad guy" you mean Chicago, its brief is due on December 30. But maybe by "bad guy" you mean the Brady Center, who is filing an amici brief next week.

 

[Al Norris]

The NRA's brief is also due today. Does anyone have a link to that brief?

If the NRA is filing a brief, it will be as an amicus (Friend of the Court).

The case of NRA v. Chicago (#08-4241 and #08-4243) was not granted cert. The McDonald case is seperate, and is being funded by the SAF and the ISRA.

 

[legaleagle_45]

If the NRA is filing a brief, it will be as an amicus (Friend of the Court).

Not according to Alan Gura:

Also on Monday, we expect to see filed (and of course, we’ll post here) the NRA’s “Respondents’ Brief.” If this sounds strange to you, you’re right: it is an unusual set of circumstances, but one dictated by the Court’s rules.

In the lower courts, NRA and affiliated individuals filed several companion cases against Chicago and its gun-banning suburbs. The other defendants folded, but Chicago and the Village of Oak Park soldiered on. The three cases – ours (McDonald), NRA v. Chicago, and NRA v. Oak Park – were considered together in the Court of Appeals. Under the Supreme Court’s rules,

“All parties to the proceeding in the court whose judgment is sought to be reviewed are deemed parties entitled to file documents in this Court . . . All parties other than the petitioner are considered respondents, but any respondent who supports the position of a petitioner shall meet the petitioner’s time schedule for filing documents.” Rule 12.6.

So NRA is a “Respondent in Support of Petitioners,” and Oak Park is a Respondent. The practical consequence is that NRA’s brief needs a red Respondent’s cover instead of a green Amicus one, their brief is due the same date as ours instead of a week later, and their word limit goes from 9,000 to 15,000.

http://www.chicagoguncase.com/2009/11/12/monday-monday-monday/

It appears that Alan's brief is 80% P or I argument. I would expect that there has been some coordination with the NRA and that the NRA brief will be primarily directed towards the substantive due process portion of the argument.

Another matter of note... based upon the foregoing, it would appear that we will also have two reply briefs, one by Alan and one by the NRA both due January 29. This will allow our side to more fully attack both the Chicago brief and their amicii.

 

[Phatty]

If the NRA is filing a brief, it will be as an amicus (Friend of the Court).

According to www.chicagoguncase.com, because the NRA case and McDonald case were consolidated for purposes of appeal in the 7th Circuit, the NRA is considered a party to the McDonald case and has the right to file a respondant's brief. If a respondant does not oppose the petitioner (which is the case with the NRA), then their brief is due at the same time as the petitioner's brief.

The "Monday, Monday, Monday!!!" entry dated November 12 on www.chicagoguncase.com explains this in more detail.

Edit: legaleagle, you beat me to it.

 

[Al Norris]

Thanks legaleagle. I should probably review the Court rules again....

 

[legaleagle_45]

Edit: legaleagle, you beat me to it.

That is what leagaleagles do...

 

[Phatty]

I would expect that there has been some coordination with the NRA and that the NRA brief will be primarily directed towards the substantive due process portion of the argument.

I thought the same thing after reading Gura's brief. Even if there was no coordination, it would have been safe for Gura to assume that the NRA's brief would exhaustively cover the due process incorporation arguments since that was the NRA's approach in the lower courts. I haven't heard anything at all about the NRA filing a brief yesterday, but I am assuming they did. Have you heard anything?

 

[legaleagle_45]

The take on Alan's brief from the folks over at Scotusblog:

History lesson on 2nd Amendment’s reach
With a strong plea to revive the Constitution’s ill-fated Privileges or Immunities Clause, lawyers for four Chicagoans told the Supreme Court on Monday that history shows clearly that the Second Amendment’s protection of personal gun rights applies to state and local laws as fully as to those at the federal level. Reflecting the lawyers’ view that their best chance is to rely upon the privileges clause of the Fourteenth Amendment, only seven pages of their 73-page brief are devoted to another provision of that Amendment: the Due Process Clause.

In a bold thrust, the attorneys for the challengers to Chicago’s strict handgun ban asked the Court to strike down three of its prior rulings: the Slaughterhouse Cases in 1873 — the ruling that made the privileges clause a nullity — and two decisions limiting the Second Amendment to a restriction only on federal laws: U.S. v. Cruikshank in 1876 and Presser v. Illinois in 1886. “Faced with a clear conflict between precedent and the Constitution, this Court should uphold the Constitution,” the brief argued.

More at:

http://www.scotusblog.com/wp/history-lesson-on-2nd-amendments-reach/#more-12985

 

[legaleagle_45]

Even if there was no coordination

There is coordination... in fact there is coordination between most of the amici supporting Alan as well. I know that for a fact. How I know that is confidential.

I haven't heard anything at all about the NRA filing a brief yesterday, but I am assuming they did. Have you heard anything?

Not a word, but I will keep checking my sources... As soon as I find out anything, I will post it.

 

[freonr22]

http://www.nraila.org/pdfs/NRA08-1521.pdf NRA Brief

 

[everallm]

NRA brief

http://www.scotusblog.com/wp/wp-content/uploads/2009/11/NRA-brief-in-McDonald-11-16-09.pdf

 

[legaleagle_45]

NRA Brief

Primarily a substantive due process argument.

 

[green-grizzly]

I thought the NRA brief was excellent. I like how it first shows that the application of the right to keep arms is necessary given the history; the real question is what legal theory to use. It gives the justices three ways to rule in our favor, and presents them in the order of the likelihood that the court would probably adopt them.

Gura's wild swing and the NRA conservative approach is a classic one-two punch. This has worked out very well.

It seems like Gura and the NRA's attorney's have been working closely together, given how the NRA's argument about overruling Slaughterhouse (blessed be the day!) basically says "see petitioner's brief."

You can see that Gura's agenda is much broader than the NRAs. Gura wants the privileges and immunities clause resurrected; the NRA only wants the RKBA applied to states. Gura had much more limited aims in Heller (remembers all the concessions he made at oral argument?), but he is really going for broke now.

I'm glad the NRA is along. For these Cato guys, Second Amendment litigation is a means to an end. For the NRA, the Second Amendment is the end. Well, that and sending out mailings.

Or perhaps Gura is being more tactical than I give him credit for, and he is trying to get votes from the liberal wing?

 

[everallm]

Based on the chatter on various legal boards, Gura's approach is generally believed to be calculated to appeal to more of the "liberal" wing of the SC than a straight 2A incorporation case would.

The whole P+I element of the 14th Amendment has huge potential knock on effects well outside of the realm of 2A in what would generally be. Everything from GLBT rights through the legal fiction of a corporation as a person.

It will be interested to see who else files amicus briefs

 

[legaleagle_45]

Based on the chatter on various legal boards, Gura's approach is generally believed to be calculated to appeal to more of the "liberal" wing of the SC than a straight 2A incorporation case would.

Correct. I know of at least one otherwise very liberal instituion which will be filing an amicus brief in support of this approach.

 

[Phatty]

The whole P+I element of the 14th Amendment has huge potential knock on effects well outside of the realm of 2A in what would generally be.

I'm not seeing this and I would be happy if somebody could flesh this idea out some more. The way I view the current state of the law, the Supreme Court has pretty much accomplished everything the P or I clause was meant to accomplish through the use of the due process clause of the 14th Amendment. So, the court had to get cute and use a different clause to accomplish the original purpose of the Amendment, but I don't see how the practical effect has been any different (in the long run).

Regarding liberals, what is it about the P or I clause that would give them more than they can get from the due process clause?

 

[everallm]

Err, P+I was gutted by Slaughterhouse, pardon the pun

As an example, 2A has been held not to apply against the states 'cause of the neutering of the 14th.

 

[Phatty]

Err, P+I was gutted by Slaughterhouse, pardon the pun

As an example, 2A has been held not to apply against the states 'cause of the neutering of the 14th.

Yeah, that was in the 19th century prior to the development of the due process incorporation route and doesn't answer my question. What do the liberals think the P or I clause gets them that they would not be able to get under the due process clause and why?

 

[freonr22]

http://www.abanet.org/publiced/preview/briefs/pdfs/09-10/08-1521_PetitionerAmCuRutherfordInst.pdf another brief

 

[Al Norris]

Here are the amicus briefs that are available as of right now:

• Brief of the Rutherford Institute in Support of Petitioners
• Brief of the Paragon Foundation, Inc., in Support of Petitioners
• Brief of the Heartland Institute in Support of Petitioners
• Brief of the Appellants from the Ninth Circuit Incorporation Case of Nordyke v. King, Madison Society, and Golden State Second Amendment Council in Support of Reversal

More will be coming in by end of the court day on Monday, the 23rd.

You might want to keep checking the ABA.org for the next few days after that. They are notoriously slow at making them available, if there are more than a very few (remember Heller?).