Posted: 8/17/2008 10:51:43 AM EDT
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I don't how many are following the post Heller litigation but this is significant. In one of the Chicago gun ban cases (the one by SAF and some individual plaintiffs), the plaintiffs have moved for summary judgment. Summary judgment is when a party submits to the court evidence (usually through affidavits and the like) and legal briefs arguing that there are no issues of fact for a jury to decide at trial and that a court must rule in their favor as a matter of law. What that means in this case is that they are asking the court to rule, as a matter of law, that the 2nd is incorporated into the states by reason of the 14th (they are also arguing incorporation through the Constitution itself). The link is here. Motion for Summary Judgment This is something to watch. I think we can expect the District Court to deny the motion, and it may be some time before this winds through the Circuit Court of Appeals and eventually to the Supreme Court. For all of you interested (i.e. everyone in New York and New Jersey), this motion can probably be considered the first round fired in the battle over incorporation. 39Mountie PS Scalia's majority decision was ambiguous on whether they would incorporate the Second if the issue was before them. I tend to think that they will, but conservative jurists are generally states rights friendly so there is no guarantee. For those of us living behind enemy lines this case is just as important as Heller is... maybe even more so. It looks like they got the same attorney who litigated Heller, Alan Gura, to handle this case as well. I guess we can expect that their intention is to push this one to the Supremes as well. |
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Well, understand that the nation is decided into different judicial circuits. Chicago is in the 7th Circuit. New York is in the Second Circuit. Heller was decided in the DC Circuit. While court decisions in other circuits are persuasive, they are not binding on the other Circuits. That is how you end up getting splits in interpretations of laws between the Circuits. It really needs to be a Supreme Court decision to bind the Federal District Courts in the Second Circuit (and the state courts in New York as well). The motion is before the District Court for the Northern District of Illinois. The judge there will decide the motion (probably deny the motion based on Cruikshank, but who knows). I wouldn't be surprised if the City of Chicago submitted a motion to dismiss for failure to state a cause of action arguing that Cruikshank is the law and must be followed. Win or lose in the Northern District, an appeal to the Seventh Circuit will ensue. We of course want the plaintiffs to win both of those battles to start setting pro-Second Amendment precedents. If the plaintiffs lose in the Seventh Circuit (don't be surprised if the Seventh Circuit declines to apply Heller to the states), the plaintiffs will mostly certainly attempt an appeal to the Supreme Court. The thing is, you don't get an appeal to the Supreme Court as of right. You need to petition for permission to appeal. In the case of Heller, the DC petitioned the Supreme Court for Cert and it was granted. There is no guarantee that they would grant cert to a case declining to apply Heller to the states. Sometimes the Supreme Court likes an issue to kick around in the lower courts for a while to see what they come up with before hearing an issue. I tend to think that Scalia's decision reads almost like a dare for someone to bring Incorporation before them, so imho they will grant cert if it is brought to them. A more interesting question is what happens if the plaintiffs win in the Seventh Circuit? Will the City take it up to the Supremes after seeing what they did with Heller? They might not want a Supreme ruling on incorporation with this court make up hoping to tackle the issue at a latter date with a different court. Who knows. These liberals do seem intent on defending their gun laws to the end though. If the plaintiffs win in the Seventh and the City doesn't appeal to the Supremes, then we are still stuck here with no incorporation. At that point another lawsuit would have to be brought, probably here, to force the issue. So to answer your question, What does it mean for us? Potentially everything, possibly nothing. This is just as important as Heller if you live in a Liberal state. On the plus side, the statues under attack in the Chicago gun case are really, stupidly, restrictive. The registration law is especially dumb, and the handgun ban is per se unconstitutional as stated by Heller. That is why they brought the case in Chicago. There is no issue as to whether the handgun ban is propper... the only issue is whether the Second is applied to the States as far as that ban is concerned. With regards to the stupid registration rule, if they can get that knocked out on the way, more power to them. 39Mountie |
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And what happens when it is ruled that the 2nd amendment is incorporated, and states like NY, NJ, and others decide they are just going to ignore it and arrest people for violating their illegal laws? They have done it before, NYC has been ignoring federal laws for years by being a "safe haven" for illegal aliens, and of course New Orleans violated people's 4th amendment rights when they started confiscating people's lawfully owned property. My point is, even when it is clear what is legal and illegal, just like common criminals, what is to keep our elected criminals from just saying to hell with the law? Also, what are the chances of when an incorporation case comes before SCOTUS that it will be a radical socialist court appointed by obama? (assuming he wins the election) Don't mean to be a pessimist, I'm just curious what everyone thinks the possibilities are. |
Justice Kennedy was recently quoted (within the last 2 weeks) as saying that the Supreme Court is anticipating the hearing of an incorporation case as a result of the Heller decision. NY routinely facilitates the creation and maintenance of laws and statutes that blatantly violate the constitution. When no one challenges them, they remain status quo which brings me to my next point. Once one of the Chicago or S.F cases currently on the docket (challenging local/municipal firearms bans based on the heller decision) goes to the supreme court seeking the courts opinion on incorporation as it relates to the heller case (assuming that SCOTUS rules that the 2nd is incorporated) then the light at the end of the tunnel remains on. The incorporation issue isnt a given, by a long shot. Its going to take another well crafted argument by a great legal mind such as Alan Gura. As much as Scalia is a 2A guy, he is a States right's guy. You could forceably have Scalia ruling against incorporation even in light of the very favorable majority opinion he wrote in Heller. At that point it would take a willing plaintiff (NYS citizen) with plenty of time and financial backing to challenge the constitutionality of the Sullivan act, Pataki assault weapons ban, etc. The lynchpin is The Supreme Court ruling that the 2nd is incorporated. Until and unless that happens, we will continue to just tread water. We are talking about years before we will see any substantive movement on this but as of now, the light is still on at the end of the tunnel. |
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I take that as good news that Kennedy stated that they are anticipating hearing an incorporation case. That means that they should grant cert to any case that makes it to them. IMHO they are going to incorporate it, but as poster above said, not certain by a long shot. With regards to timing, I think that the sooner it gets to the Supremes the better with the prospect of an Obama presidency looming. We want at least the same 5 majority members of Heller to decide the next Second Amendment case. As far as the incorporation brief, here it is: Link to the Brief The argument is that the Second Amendment has never received a modern Incorporation analysis like the First, Fourth, etc, and that Cruikshank is not good law and should not be followed. The argument in the brief is pretty compelling, and the brief is well written (I looks like it was written by Alan Gura anyway, who apparently wants to leave his mark on the Second Amendment). If we get the Second Incorporated, it will take lawsuits to get rid of the New York AWB and high cap mag ban, make no mistake. This legislature will not repeal those laws. The State Court of Appeals has quite a few Pataki appointments, and as much as the AWB was Pataki's baby his appoints are most likely not overly Liberal. Incorporation makes such lawsuits possible. Remember, it is always better to try to make law striking down a really restrictive statute, which is more likely to be struck down and set a better precedent. New York's statutes are kind of in between. Kalinfornia's AWB statute is worse. We'd be better served seeing Kalifornia's AWB statute get challenged and tossed first. With respect to pistol licensing in New York, Heller really didn't speak to it since it wasn't in issue in that lawsuit so we really don't know how the courts are going to rule on that one. The Chicago lawsuit challenges their registration statute, so if it ever makes it to the Supremes it might give us an idea on where they stand on the issue. 39Mountie |
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I read the brief a few weeks and from my understanding the reason the plaintiffs (our guys) asked for summary judgement was that they believed no facts of case were at issue with the city of Chicago. (.ie plaintiff #1 applied for handgun permit and was denied, etc. etc.) In the original motion the city of Chicago said it had no knowledge of the plaintiff #1 situation. They did those for most of bones of contention. After the plaintiffs issued the motion that the city of Chicago is a party to all these problems they have all the documents etc. then they cannot be in disagreement about the facts. The only disagreement is about the law specifically if the 2nd amendment applies to the Chicago handgun ban. Remember juries consider and rule on facts, while judges rule on questions of law. Since this case is no longer about a dispute on the facts on its face, the plaintiffs want the judge to "get on with it" and rule based on law. So this is the first step on path of incorporation. If the judge denies the motion, which even my limited legal brain would think to be crazy, then the action will have to go slower and this case will take a longer time to sort out. If the judge rules against the plaintiffs (us), then the case will be appealed to the next level of courts. If the judge rules against Chicago (them), then they will probably appeal to the next level of courts as well. (Nonwithstanding Chicago's $420 million budget hole). Unfortuantely this will be probably be a slow slog in the end. If I recall correctly it took about 6 years of litigation to get SOCTUS to rule on Heller. |
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I was curious about Kennedy's comment on incorporation so I searched it out. This isn't my transcript, I just pasted it off a thread at a website here: Thread commenting on Kennedy's comment on Incorporation Transcript of Heller comments by Supreme Court Justice Anthony Kennedy at the Ninth Circuit Judicial Conference, Sun Valley, Idaho, July 31, 2008 on C-Span's America and the Courts. C-span Kennedy Heller Video Starting about 38 Minutes into the video: JOSEPH MEIER:You've been quoted as saying that when you taught at McGeorge Law School you enjoyed using many of the US Supreme Court decisions as great teaching cases for law students. I'm wondering what are some of the great teaching cases that have been decided during your tenure as an associate justice of the US Supreme Court? KENNEDY: Oh you mean cases that have been decided recently that are great teaching cases. MEIER: Yes KENNEDY: Oh well for years Uh I taught the Second Amendment one one year in my course - I think this was had to be in the 70's - just cause I was interested in it. I felt there was not much there there. There are not much, and we weren't confronted with highly restrictive ordinances. That is gonna be a great teaching case because it number one will ultimately involve the question whether or not this right that the court found in Heller applicable to the United States Government, cause the first eight amendments apply only to the national government, it's only through the Fourteenth Amendment that they apply. So we're gonna have, It's gonna be, we're gonna re-visit incorporation doctrine in order to decide if the Heller opinion applies to the states. Also it's going to be a very important case for teaching what is the level of scrutiny of the right. Is it like the right to own property subject to a great amount of regulation, is it the right to speech subject to very little regulation. Or there, so that is gonna to be is gonna be a great teaching case. And its very interesting and in fact its in the majority opinion. The dissent said oh well you know you're you're making it you're doing this 200 plus years later what's going on here. Well the first time that a state statute was stricken as a violation of the First Amendment establishment clause was in the 1940s. The first time a state statute or any statute was stricken on the grounds of violating free speech was in the 1930s. And there's nothing wrong with this. The constitution takes on a new meaning over time. I don't have the obviously the talents of Marshall and Brandeis and Holmes and those people. But I'm I'm better positioned than they are in an important respect. I have 200 plus years of history to look back and see the folly of some ideas the wisdom of others the meaning of the constitution, how people conceive what their personal security are, what their rights are. So there's nothing wrong with finding that the constitution has new relevance in our own times. I think that's what the framers wanted. If the framers knew the specifics - all the specifics - of a decent society, they would have put um down. They didn't |