THR cited in McDonald Amicus Brief

[Sebastian the Ibis]

The Chicago Board of Education brief at *15 (24 of the .pdf pages), link below, cites thehighroad.org.


Unfortunately I am not sure what point they are trying to get across. The thread is about having a bathroom gun. Most THR posters said that they take their pistols with them when they answer the call of nature, since they keep their pistol holstered on them at all times. I think CBE is trying to make some point about how impractical it would be to properly keep a gun for home defense, since it would require a different gun in every room. However, I think they completely missed the fact that the THR posters probably have a holstered pistol on them most of the day wherever they go.

I can tell from these lines in their briefs how sh**y the defendants case is.

CBE brief:
http://www.chicagoguncase.com/wp-content/uploads/2009/05/08-4244_amicus_chicago-bd-of-ed.pdf

Cited THR thread:
http://www.thehighroad.org/showthread.php?t=7560

 

[jim in Anchorage]

Regardless of
whether it is “easier” for those lacking upper body strength to lift a handgun, no data
shows that women and the elderly are any less able to use, for example, a lightweight
20-gauge shotgun with low recoil ammunition than a handgun.15 The idea that a
handgun can be pointed at a burglar with one hand while the other hand dials the
police appears, on its face, to be a suboptimal solution for summoning the police –
except for those physically gifted individuals who can observe, hold and dial the phone
with one hand and one eyeball while leveling a handgun and keeping watch on the
intruder with the other hand and eye. Much more effective is directing the intruder to
dial the police, which can be accomplished persuasively with either a shotgun or a
handgun.16

I just don't know where to start.

 

[General Geoff]

I found this particular piece astounding:

The popularity of a firearm among a small fraction of Americans is not a
workable principle for determining the constitutionality of state and local laws. If
popularity of a weapon is the standard, the assault-weapon bans presently in place in
seven states may be vulnerable to constitutional challenge because, following the
election and inauguration of President Obama, assault weapons apparently were
purchased en masse.30

Are they trying to preemptively destroy their future case arguments?

 

[Lou McGopher]

We tolerate few restrictions on the right to free speech because of its salutary effects, and because, “sticks and stones may break my bones but words can never hurt me,” as the nursery rhyme goes. Guns, on the other hand, will kill you.

The authors then go on to cite that there are restrictions on freedom of speech because words apparently can hurt people.

But, oh! Reread that last part.... "Guns will kill you."

Got that, people?

Guns will kill you.

They will... someday.... like the vehicles and other machines in Maximum Overdrive, I'm sure.

In virtually every state, the right to arms for self-defense is subject to reasonable regulation under the police power, which includes the power in urban areas to prohibit classes of arms in order to prevent crime and protect public safety.

Nevermind that such laws do not have the intended effect, and often produce the opposite of the desired effect.

The Second Amendment right to have arms for self-defense in the home, recognized last year by the Supreme Court in District of Columbia v. Heller, ultimately is subordinate to the greater right of all individuals to “personal security.”

Not surprisingly, the rest of the amicus fails to explain how the right to have arms and the right to personal security are ever incompatible.

for if the right to arms is not subordinate to everyone’s right to personal security and the power of the state to act on their behalf, then we are all on our way back to Locke’s dreaded state of nature.

Not all of Locke's conclusions were correct. Or even self-consistent. Furthermore, Locke's idea of mankind's "state of nature" was, well.... ignorant.

Furthermore, there's no evidence anywhere that the possession of arms leads to their indiscriminate use against innocent people.

As long as a regulation does not prohibit the use of all firearms, it does not unduly burden the right to have arms for self-defense

In other words, we'd all be just fine defending ourselves with muskets.... stored with child safety locks, in a safe, with fingerprint activation, and kept unloaded until needed, of course.

Right?

Instead, it held, without citing a single authority or citation (conspicuous, and odd, in a 34-page majority opinion otherwise bursting with citations), that the availability of long guns as an alternative to handguns “is no answer” because “the American people have considered the handgun to be the quintessential self-defense weapon.”

How about the ubiquity of concealed handgun permit laws, for starters?

While it is true that among handgun owners, just under two-thirds have handguns primarily for self-defense, no data indicates that such owners would be less secure in their homes with an alternative firearm (a long arm) if handguns were banned.

No data indicates that unarmed citizens would be safer if handguns were banned.

even among highly trained police officers, 16% of officer homicides occur with the officers’ own service weapons

Those officers are approaching and attempting to subdue/handcuff the people who grab their service weapons. Most criminals are incapable of effecting the Jedi Mind Trick, as far as I am aware.

 

[Cosmoline]

Reliance on non-legal sources and anecdotal speculation by counsel is always a sign of a very weak legal argument.

 

[cbrgator]

Reliance on non-legal sources and anecdotal speculation by counsel is always a sign of a very weak legal argument.

Agreed. All of the justices on the high court are smart enough to know that. Let's just see if they'll put politics aside and come to a reasonable conclusion.

Editorial: Politics won't be put aside and the decision will be a 5-4 mirror of DC Heller

 

[RP88]

I like this argument. It seems easily defeatable by any communications major, let alone an expert practitioner like Gura and his associates.

 

[Sebastian the Ibis]

Reliance on non-legal sources and anecdotal speculation

+1

Nixon Peabody ought to be be ashamed of themselves for putting their name on a brief like this. While I do not believe they have a particularly effective appellate practice, this is the type of brief that you either 1) do not write, or 2) ghost write for your client for them to sign.


Take a loot at this quote which is essentially the crux of their argument:

Instead, [SCOTUS] held, without citing a single authority or citation (conspicuous, and odd, in a 34-page majority opinion otherwise bursting with citations), that the availability of long guns as an alternative to handguns “is no answer” because “the American people have considered the handgun to be the quintessential self-defense weapon.”

It conceeds that SCOTUS ruled against their argument just last year. And goes on to bring up the biggest flaw in their brief, the complete lack of authoritative citations.

They cite news reports about isolated incidents as conclusive proof of a counter-intuitive general proposition. They cite an obscure handgun manual for the proposition that "most experts agree." And they cite threads on THR that are not really relevant. Those are just a couple of the technical failures of this brief.

This brief is a complete disaster. I would be fired if I submitted this at my law firm as a rough draft in support of a state court summary judgment motion. This is an embarrassment.

 

[legaleagle_45]

This brief is a complete disaster. I would be fired if I submitted this at my law firm as a rough draft in support of a state court summary judgment motion. This is an embarrassment.

Agreed, what is telling is that this is not an amicus brief submitted to SCOTUS, but an amicus brief submitted to the Court of Appeals. Essentially, they are asking the Court of Appeals to overrule SCOTUS.... absolutely crazy.

 

[MT GUNNY]

I'm no scholar but I see Holes in that every other sentence. Is that a Joke that some one Wrote?

 

[ConstitutionCowboy]

Still, though, we've hit the big time! All we're gonna hear now is how we shouldn't post anything lest the antis will use it against us. But, if all the ammo they have is this brief, good luck to them!

Woody

As the Court said in Boyd v. United States: [p] "It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon."

-------------------------------------------------------------------------------------

There is no "difference" between gun control and gun rights. Gun control seeks to put bounds upon, and effect the possible elimination of, our inalienable Right to Keep and Bear Arms. Don't be led astray with the inference that it is "gun" control or "gun" rights. The rights in discussion are rights of the people. Human rights! Guns are inanimate objects; tools of freedom and self defense. Dehumanizing the discourse tends to lessen the impact of discussion from what it would be - were it directed at the RIGHT OF THE PEOPLE being infringed - and attempts to remove it from the strict scrutiny of the Constitution. B.E.Wood [/p]

 

[KyJim]

Did you notice this brief was not filed in the Supreme Court case to be heard this term? It was filed in the 7th Circuit Court of Appeals in April. It is my understanding that, technically, there have been no friend of the court briefs siding with Chicago. However, two of the briefs purporting not to be in favor of either party are actually anti-gun briefs (Brady Campaign and NAACP).

 

[Ryder]

Essentially, they are asking the Court of Appeals to overrule SCOTUS.... absolutely crazy.

That is funny but is it any crazier than ignoring The Constitution to begin with? I think you'd be crazier to oppose hundreds of millions of people rather than just 12 judges. So this being crazy thing is nothing new to them.

 

[everallm]

Ryder,

It's crazy as in a total, expensive and pointless waste.

The case is with the SC not the 7th Circuit so, wrong jurisdiction and the SC will never look at it

The 7th Circuit has no jurisdiction over the SC

If the SC rules that 2A is incorporated the brief automatically and inherently becomes a dead letter

If the SC should somehow remand the case back to the 7th the brief will not be relevant and need to re-written and re-submitted

The only folks to get anything out of this as Nixon-Peabody via their billables.......

 

[Quoheleth]

One thing this does proove:

I've heard lots of speculation here on THR that courts COULD use a post you made to come back to bite you in the biscuits.

A lawyer, whether good or bad (as this case might be), will search to find something to help his case. If he can find your screen name and pay someone to search your posts he can find something to incriminate you.

I know we can't live our lives by what COULD happen, but this is a call to maintain our standards of conversation that is high road.

Q

 

[danez71]

In virtually every state, the right to arms for self-defense is subject to reasonable regulation under the police power, which includes the power in urban areas to prohibit classes of arms in order to prevent crime and protect public safety.

If I was a lawyer I would pound on this fabrication. Banning a class of firearms does not prevent crime. Not one shred of evidence could support this claim.

What crime was prevented by high cap ban? What crime was prevented by "evil black rifle" ban? None.

Id pick about 10 of those type of things and discredit their entire argument as being unfounded, unsupported by evidence, speculative and just plain IDIOTIC.

I could build a better case than them. Oh well, their loss is our gain.

 

[ConstitutionCowboy]

All we're gonna hear now is how we shouldn't post anything lest the antis will use it against us.

One thing this does proove:

I've heard lots of speculation here on THR that courts COULD use a post you made to come back to bite you in the biscuits.

A lawyer, whether good or bad (as this case might be), will search to find something to help his case. If he can find your screen name and pay someone to search your posts he can find something to incriminate you.

I know we can't live our lives by what COULD happen, but this is a call to maintain our standards of conversation that is high road.

4 posts from prediction to actualization.

Woody

 

[ilbob]

They claim handguns somehow don't qualify as arms as refered to in thw 2A.

I bet they would never claim you can outlaw newspapers as long as magazines are allowed.

 

[hammerklavier]

What if my pistol has a cell phone integrated into the grips that automatically dials 911 when I press a single button? What do you say to that Chicago B of E?

 

[cbrgator]

PEOPLE PEOPLE PEOPLE.

Did anybody look at the date this was filed? April 28, 2009. The case was argued May 26, 2009 and the opinion was written June 2, 2009.

This is not a current brief. It isn't asking the 7th Circuit to overrule the SCOTUS. This brief has not been submitted to the SCOTUS and plays no role in the current case to which the high court has granted certiorari. It is a brief that was submitted while the case was on appeal in the 7th Circuit. Unless it is re-filed, it is just a piece of history.

 

[Sebastian the Ibis]

This is not a current brief.

Agreed, however, I did not notice THR cite until recently. And it is fun to point out how brainless these arguments are.

If I was a lawyer I would pound on this fabrication. Banning a class of firearms does not prevent crime. Not one shred of evidence could support this claim.

What crime was prevented by high cap ban? What crime was prevented by "evil black rifle" ban? None.

Id pick about 10 of those type of things and discredit their entire argument as being unfounded, unsupported by evidence, speculative and just plain IDIOTIC.

Challenges to gun laws should never reach "the evidence." They should be decided on the law, specifically the Constitution. The only way anti's can win is by getting courts and legislators to ignore the law and listen to their bogus "evidence," and have decision makers deffer to other decision makers that have made choices based upon this "evidence." The latter is called "Rational Basis Scrutiny" and it is the sole thrust of the Brady Bunch's brief. It's a battle that can be won, and should be won easily, however it should never ever be fought.

 

[Quoheleth]

4 posts from prediction to actualization.

Woody

I aim to please.

Q

 

[cbrgator]

Sebastian,

I know you know. I was just correcting some of the other members who thought they had submitted the brief to the 7th Circuit asking them to overturn the SCOTUS and what not.

What firm are you working for now? Last time we spoke you were still a 3L if I recall. (I'm a 2L there now, if you remember.) PM me, I'm curious to know what route you have taken since graduation. Congrats by the way.

 

[Cosmoline]

Unless it is re-filed, it is just a piece of history.

The case is still active, and the Supreme Court has this brief along with the rest of the case history.

 

[Jim K]

I suspect that telling the Supreme Court that their previous decision was stupid and wrong is not the way to win friends, even SC members who might otherwise be inclined to your viewpoint.

Jim