SCOTUS hears Chicago Case Megathread

Interesting perspective:

Chicago gun case could restore other civil rights
Feb. 26, 2010

By CLARK NEILY
SPECIAL TO THE REVIEW-JOURNAL
Gun owners aren't the only ones who should pay close attention to the "McDonald" Chicago gun-ban case, which will be argued before the U.S. Supreme Court March 2. If properly decided, the case could restore an important legal tool to protect the rights of small business owners and homeowners who face oppressive state and local government regulations.

Because the Supreme Court in McDonald may consider reinvigorating what is known as the "Privileges or Immunities clause" of the 14th Amendment, those engaged in civil rights battles nationwide may soon have a new arrow in their quiver to better defend the rights of homeowners and entrepreneurs. The clause states "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."

The phrase "privileges or immunities" may be unfamiliar today, but 19th-century Americans used it interchangeably with a term modern Americans know very well: rights.

After the Civil War, officials throughout the South systematically violated the rights of newly freed blacks and white abolitionists in their states and sought to keep them in abject poverty and terror. The whole point in amending the Constitution to add the 14th Amendment -- with its Privileges or Immunities clause -- was to end the pervasive culture of oppression and tyranny by state and local governments, thereby protecting through federal law those rights that are necessary to be a full and self-sustaining member of society.

Two rights the 14th Amendment was clearly intended to protect were armed self-defense and economic liberty. A federal constitutional amendment was passed to ensure that all Americans, regardless of which state they lived in, enjoyed these rights.

But in an infamous 1873 decision called the Slaughter-House Cases, the Supreme Court ruled 5-4 that Americans' protection under the Privileges or Immunities clause protected only their rights as U.S. citizens, but not as citizens of a particular state. This signaled that states were free to run roughshod over the rights of citizens in their states without interference from federal courts.

The results were predictably disastrous: Those who were politically disenfranchised soon also became economically marginalized as well. Since then, the U.S. Supreme Court has given certain constitutional rights, such as free speech, greater protection.

But other constitutional rights that are just as clearly spelled out in the Constitution, such as the right to bear arms, or those that the Framers of the 14th Amendment plainly sought to protect, such as economic liberty, have received less protection by the federal courts from state and local infringement.

McDonald presents an opportunity for the Supreme Court to finally embrace the true purpose of the 14th Amendment -- something the court hasn't done in more than 150 years. Restoring the Privileges or Immunities clause to its proper role would result in the protection not only of armed self-defense, but other vital civil rights such as economic liberty, which includes the rights to own property, enter into contracts and earn an honest living.

"The 13th Amendment, which bans slavery, was concerned with whether people were legally free," says Robert McNamara, staff attorney for the Washington-based Institute for Justice. "The 14th was designed to ensure people are meaningfully free. McDonald provides an important opportunity for the court to finally give that Amendment its intended effect.

"A McDonald ruling restoring the Privileges or Immunities clause would be a very good thing not only for those who care about armed self-defense, but for entrepreneurs who are suffocating under mounds of government red tape and property owners whose homes or businesses can be taken from them on a moment's notice at the whim of local development officials."

IJ can point to many tangible examples of specific harm caused to individual rights nationwide as a result of courts' failure to properly enforce the Privileges or Immunities clause. Among the most striking is a ruling from the 10th U.S. Circuit Court of Appeals, which upheld a government-backed casket cartel, holding "Intrastate economic protectionism ... is a legitimate state interest and that [Oklahoma's casket sales statute] is rationally related to this legitimate end."

Economic protectionism is not a legitimate exercise of government power, and it is precisely the kind of abuse that the Privileges or Immunities clause was designed to prohibit.

The constitutionality of Chicago's handgun ban remains an open question after Heller because state and local governments are not directly bound by the Bill of Rights, but instead by the 14th Amendment, which has been interpreted to "incorporate" most of the Bill of Rights -- with one notable exception: the right to keep and bear arms.

Incredibly, the U.S. Supreme Court has never decided whether Americans have a constitutional right to not be disarmed at the whim of local governments, even though the right to keep and bear arms was mentioned repeatedly during the drafting and ratification of the 14th Amendment -- by proponents and opponents alike.

Clark Neily is a senior attorney with the Arlington, Va.-based Institute for Justice. He was one of the three plaintiffs attorneys in District of Columbia v. Heller, the 2008 case that struck down the Washington, D.C., handgun ban. Neily co-authored IJ's amicus brief in McDonald v. City of Chicago. More detailed information on these cases is available at www.ij.org

http://www.lvrj.com/opinion/chicago-gun-case-could-restore-other-civil-rights-85462062.html
 
Duh! They didn't take this case to determine incorporation of the 2nd amendment. They took it for a fresh look at POI. I had the opportunity to preview Gura's arguments in person and you'll hear very little on Tuesday from him about gun owners and their rights. What you'll hear a lot about is how POI is the appropriate mechanisms for incorporation. The timing is very good for this and there's reason to believe that POI will get a lot of support from most of the justices. The issue is very popular in constitutional law circles, appeals to a wide spectrum of judicial philosophies and gives the SC a chance to put the record straight on one of it's more shameful decisions. Basically no one alive now things that Slaughter-House et al are still good precedent (except the City of Chicago and Martha Coakley)

The more I delve into this history, the more I think that there's more here than meets the eye. This incorporation issue went very quickly to the SC when the SC could easily have let the circuit courts thrash it out. First the SC granted certiorari to McDonald (based on POI) and NOT the two NRA cases (based on due process) that were heard by the 7th circuit. Next, The 7th circuit's opinion against the McDonald and NRA cases was a little surprising given the court is fairly conservative. I think the SC wanted another crack at POI and when this case came along the 7th circuit gave it to them intentionally.

I'll also point out that most of these people (except for maybe Gura) know each other very, very well. The judges and attorney's that play at this level are not strangers. They go the the same law schools, the clerk at the SC, many of them work for a time in the Solicitor General's office. You can bet they keep up their networks and don't think they don't talk shop.

This isn't a gun case anymore. The SC wants to take a new look at POI and put some bad decisions out of their misery.
 
I think they'll all support incorporation. That the SA guarantees an individual right is settled law to the SC. To decide otherwise would be to reverse a century of backing away from Slaughter-House, Cruikshank etc. and justify those decisions as good precedent. None of them will do that.

The question is POI vs Due Process. And there's a lot in POI for someone like Sotomayor to like.

ETA: I really do think that from our perspective as gun owners this case is little more than judicial book keeping. The decision(s) are going to be fascinating from the constitutional law perspective and what it means for the 14th amendment.
 
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May the wisdom of the founding fathers guide their drafting pens writting this one. I normally would have prayed for them but mentioning god will get you arrested these days.

As much as I respect the Founding Fathers of the United States, it is not their wisdom that should control. It is the wisdom of the Framers of the 14th amendment which should guide them. Rep. John Bingham, Sen. Charles Sumner, among others.
 
Here's another recent article...

http://www.msnbc.msn.com/id/35649914/ns/us_news-crime_and_courts//

CHICAGO - A couple worries that burglars who tried to break in when the wife was home alone will return. A retiree fears the drug dealers and junkies just outside his window will attempt — again — to steal what he spent a lifetime earning. And a businessman wants to protect himself as he could when he was a police officer.

Together, they are the face of the most serious challenge yet to Chicago's 28-year-old handgun ban.

On Tuesday, the four will take their seats inside the U.S. Supreme Court as their attorneys argue a lawsuit that bears their names: David and Colleen Lawson, Otis McDonald and Adam Orlov.

The four plaintiffs are not stereotypical gun rights advocates. Rather, they are the kind of hard-working, law-abiding Chicagoans that opponents of the handgun ban say should be allowed to protect themselves.

"Some people want to stereotype advocates in any case, to make them look like a bunch of crazies," said Alan Gura, a Virginia attorney who will argue the case. "But these are plaintiffs who reflect the city in which they live."

Chicago's ban on the sale and possession of handguns has been weathering legal challenges for years. But it gained newfound attention after the Supreme Court in 2008 struck down a similar handgun ban in the District of Columbia. The court now plans to decide whether the ruling on D.C., a city with unique federal status, should apply to local and state laws, too.

The lead plaintiffs in the Chicago suit decided to fight the city's gun ban for different reasons.

For the Lawsons, it stemmed from a scare in 2006, when Colleen Lawson was home alone with the flu and three men tried to jimmy open her back door. They ran off when they saw her through a window.

"That's how close they were to getting in," said Lawson, 51.

The Lawsons believe a handgun would allow them to protect their family and give them the kind of peace of mind Colleen Lawson had as a child, when she knew her grandmother kept a pistol in her apron.

"I knew without any doubt my grandmother would be able protect us," she said. "I can't say that to my children."

Seventy-six-year-old McDonald knows the feeling.

He came to Chicago from Louisiana when he was 17, as part of the Great Migration of blacks. He worked his way up from a janitor to a maintenance engineer, a good job that allowed him and his wife to buy a house on the city's far South Side in 1972, where they raised their family.

In recent years, McDonald, now a grandfather, has watched the neighborhood deteriorate, the quiet nights he once enjoyed replaced by the sound of gunfire, drunken fights and shattering liquor bottles.

Three times, he says, his house has been broken into — once the front door was wide open and the burglars still out front when his wife and daughter came home from church. A few years ago, he called police to report gunfire, only to be confronted by a man who told him he'd heard about that call and threatened to kill him.

"I just got the feeling that I'm on my own," said McDonald. "The fact is that so many people my age have worked hard all their life, getting a nice place for themselves to live in ... and having one (handgun) would make us feel a lot more comfortable."

Orlov didn't grow up with guns and doesn't hunt. But his four years as a police officer only underscored his belief that people hurt by the city's handgun ban are those obeying it.

"The law only prohibits the actions of those who are law-abiding," said Orlov, 40. "The more law-abiding the more likely you are to be vulnerable to the activities of criminals."

The Lawsons and Orlov reached out to Gura after reading that he was representing a man in the case challenging the Washington, D.C. ban, and all three went to the Supreme Court to watch oral arguments in that case.

Otis was put in touch with Gura after driving 200 miles to the Illinois capital, Springfield, for a gun-rights rally — a last resort, he said, after decades of attending neighborhood watch meetings only to see nothing change.

Mayor Richard Daley said Tuesday that he was confident Chicago would prevail and stressed that cities and states should be able to decide how best to protect their citizens.

"We have the right for health and safety to pass reasonable laws dealing with the protection and health of the people of the city of Chicago," Daley said.

It's uncertain whether the plaintiffs' involvement in the case will help their cause.

"The Supreme Court decides issues, it does not decide for or against particular people," said Benna Ruth Solomon, deputy corporation counsel in Chicago's law department's appeals division.

Even so, the four Chicagoans are part of the case for a reason.

Selecting sympathetic plaintiffs is certainly is "an effective communications strategy to show the public that many people who support gun rights and guns are not kooks," said Adam Samaha, who teaches constitutional law at the University of Chicago Law School.

And it might help sway the justices, too.

For one thing, Samaha said, while the stories of the individual plaintiffs would not be relevant if justices' questions only centered on the original intent behind the right to bear arms and equal protections. But they might be important if the questions turned to how today's courts enforce such rights.

The four are not the only plaintiffs — the Second Amendment Foundation, an anti-gun control group, and the Illinois State Rifle Association are also named — but they are the face of the case.

Had the National Rifle Association been the lead plaintiff, the lawsuit would be about a pro-gun rights group that wants to "use the courts to achieve some policy victory," Samaha said.

"Better to have Otis than the NRA," said Samaha said.

Gura said the lives of his clients are — and should be — an important part of the case.

"The right to have guns for self-defense is vitally important to a broad range of people, and the plaintiffs in this case reflect that reality. ... Otis and Colleen's experiences demonstrate that crime in Chicago is not a theoretical concept," he said.
 
Oh boy. The irony is palpable.


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Nice. But only us "gun nuts" could see the correlation between gun bans and a home invasion turning into a massacre. Remember, guns are bad and having a handgun in your house means your more likely to be injured by that gun.
 
The four plaintiffs are not stereotypical gun rights advocates. Rather, they are the kind of hard-working, law-abiding Chicagoans that opponents of the handgun ban say should be allowed to protect themselves.

This sentence from the article is infuriating. I suppose "stereotypical gun rights advocates" are not hard-working and don't abide by the law.
 
This sentence from the article is infuriating. I suppose "stereotypical gun rights advocates" are not hard-working and don't abide by the law.

Everybody knows that "stereotypical gun rights advocates" are:
Middle aged, overweight, primer-spotted pick up driving (confederate flag optional), red necked, angry, beer swilling,walmart shopping, blue collar, white guys..

Right?
 
Well, I'm not angry nor does my pickup have any primer spots but otherwise it's like you know me ...
"The the Defendants are no ordinary gun grabbers. These are rabid statists intent on enslaving the population under a tyrranical government"... [laugh]

We need to keep up the good fight. Watching TV, you can see the culture shifting. Guns, portrayed positively are appearing in more and more shows. I don't personally take anything from this, but it is a reflection of what the media feels then need to show to get viewers. As such it is a proxy for the shift that has been taking place for some time (and can be seen on the CCW time-lapsed map).
 
From www.scotusblog.com:

Analysis: 2d Amendment extension likely

Lyle Denniston | Tuesday, March 2nd, 2010 11:26 am

Analysis

The Supreme Court on Tuesday seemed poised to require state and local governments to obey the Second Amendment guarantee of a personal right to a gun, but with perhaps considerable authority to regulate that right. The dominant sentiment on the Court was to extend the Amendment beyond the federal level, based on the 14th Amendment’s guarantee of “due process,” since doing so through another part of the 14th Amendment would raise too many questions about what other rights might emerge.

When the Justices cast their first vote after starting later this week to discuss where to go from here, it appeared that the focus of debate will be how extensive a “right to keep and bear arms” should be spelled out: would it be only some “core right” to have a gun for personal safety, or would it include every variation of that right that could emerge in the future as courts decide specific cases. The liberal wing of the Court appeared to be making a determined effort to hold the expanded Amendment in check.

No surprises there.
 
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I must not be watching enough TV.
Well, first a good chunk of the history channel lineup to start.

It's subtle, I didn't really notice it at first. Last example I noticed was a promo for a show called "mercy" (that I have yet to watch) where one of the main characters is firing a gun at a range and empties the mag. She (Doctor or nurse) then yells, "I need more bullets - STAT!"

I would not have expected to see something like that 10 years ago. Or a show like "justified"...

There is no doubt the media is pushing to try to show us every incident of gun violence, but the entertainment is going the other way for the first time.

I am not saying its a "gun-friendly" TV world out there by a long shot, but considering where we started...
 
So, 2A will apply to the states through due process, and the "living document" (i.e. no document) flakes will try to limit the scope of the right. No surprises there.
It occurred to me the other day that if 2A is incorporated, does not then CCW become a 4A issue? The idea that you have an expectation of privacy in your "person?"

This will be a long slow fight, particularly in places like MA to get back to anything sane WRT to our gun rights, but we do seem to be moving in the right direction.
 
very telling of the NYT attitude.
Indeed. I am curious/anxious to see where they derive the authority for limiting of the scope of 2A beyond "SHALL NOT BE INFRINGED".

It would seem any power to regulate beyond revocation of rights for felons would have to be a whole cloth argument...
 
Anyone know where to find a transcript of the hearings ?

http://www.scotusblog.com/

And the results are looking promising!

The eagerly awaited oral argument in McDonald, et al., v. Chicago, et al. (08-1521) found all members of the Court actively involved except the usually silent Justice Clarence Thomas. And, while no one said that the issue of “incorporating” the Second Amendment into the 14th Amendment had already been decided before the argument had even begun, the clear impression was that the Court majority was at least sentimentally in favor of that, with only the dimensions of the expansion to be worked out in this case and in a strong of likely precedents coming as time went on.

An attempt by an attorney for the cities of Chicago and Oak Park, Ill., defending local bans on handguns in those communities, to prevent any application of the constitutional gun right to states, counties and cities looked forlorn and even doomed. The nub of that argument was that, unlike other constitutional rights that the Court has extended to the state and local level, the right to a gun recognized by the Court two years ago in District of Columbia v. Heller pitted the threat that guns pose to human lives against a constitutional right, so the balance should be struck differently. So far as the hearing Tuesday showed, only Justice Stephen G. Breyer was the only member of the Court attracted to that approach.
 
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