McDonald v. Chicago (08-1521)

[5711-Marine]

Supreme Court Grants Cert in Second Amendment Incorporation Case!

This is the question that the Court held off considering in Heller.

Whether the Second Amendment is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home.

Heller finally settled the question of whether the Second Amendment protects and individual right to firearms. But unlike most of the Bill of Rights, the Second Amendment has generally (and with some exceptions back in the 1800s) not been applied to the states.

The case is McDonald v. Chicago. Fun fact: the suit was filed the same day Heller was decided.

The filings in the case so far, including the Seventh Circuit's less-than-stellar order, can be found here (scroll down).

Legal geekery below the fold.

I know many conservatives do not like the incorporation doctrine. They believe that the U.S. Constitution places restraints on the national government with only a few specific restrains on state governments. The state constitutions then constrain state and local governments.

There are a few approaches to this. First, the pragmatic approach, is to admit that the incorporation doctrine is now law; it's widely accepted; and it should not just be applied willy-nilly. In other words, if the states are going to be bound by the First, Fourth, and Eighth Amendments, the states should be bound by the Second Amendment. The argument here is whether the first eight amendments in their entirety should be incorporated (called "total incorporation") or whether the courts should continue with their "pick-and-choose" strategy (called "selective incorporation").

Another approach directly addresses the desirability of the incorporation doctrine. Proponents of incorporation will note that most of the amendments in the Bill of Rights do not place a limitation on Congress, but make a more general limitation. For example, the Eighth Amendment says: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." Nothing there to say that the Eighth Amendment only applies to the national government. (This argument fails, though, when considering the First Amendment.) It wasn't until 1833 that the Supreme Court ruled that the Bill of Rights did not apply to the states.

Furthermore, there is some evidence that the creators of the Fourteenth Amendment intended that it would incorporate the first eight Amendments against the states. In other words, incorporation is not textually prohibited and it may have been the "original intent" of the drafters of the Fourteenth Amendment.

Everyone Saw This Coming: When Heller came down, incorporation was the first thing I thought of. Also, if you're interested, check out the comments there for some discussion of the issue (I apologize that the spam has blown up the page width).
Posted by: Gabriel Malor at 11:57 AM

http://www.scotusblog.com/wp/todays-orders-40/

Docket: 08-1521
Title: McDonald, et al. v. City of Chicago
Issue: Whether the Second Amendment is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home.

* Opinion below (7th Circuit)
* Petition for certiorari (08-1521)
* Brief in opposition
* Petitioner’s reply (08-1521)
* Brief amicus curiae of Arms Keepers
* Brief amici curiae of Texas, et al
* Brief amicus curiae of National Shooting Sports Foundation, Inc.
* Brief amicus curiae of American Civil Rights Union
* Brief amici curiae of Institute for Justice, and Cato Institute
* Brief amicus curiae of California
* Brief amici curiae of Gun Owners of America, Inc.,et al.
* Brief amici curiae of Constitutional Law Professors

[Yellowfin]

I'm very glad they picked the right case to hear instead of Maloney, which could have sabotaged us, and possibly was intended to.

[anonymouse]

I'm very glad they picked the right case to hear instead of Maloney, which could have sabotaged us, and possibly was intended to.

Which one is Maloney?

[ChamberedRound]

Which one is Maloney?

James Maloney was arrested for possession of nunchaku, which is a misdemeanor in NY. The charge was subsequently dismissed and Maloney plead guilty to Disorderly Conduct. However, Maloney filed a complaint that the seizure of his nunchaku violated his 2nd Amendment rights.

The 2nd Circuit Court of Appeals rejected the appeal, stating that the 2nd Amendment is NOT incorporated, i.e. it does NOT provide protection from state regulation.

[Carnes]

http://edition.cnn.com/2009/CRIME/09...us.state.guns/

Bold Mine.

By Bill Mears
CNN Supreme Court Producer


WASHINGTON (CNN) -- Setting the stage for a dramatic battle over gun rights, the Supreme Court on Wednesday accepted an appeal challenging the ability of state and local governments to enforce strict limits on handguns and other weapons.
The question before the courts will be whether Second Amendment protections apply to local gun ordinances.


The high court returned from its summer recess, meeting in private to consider thousands of pending appeals that have piled up the past three months.


The Second Amendment case from Chicago was the most anticipated of the petitions, and oral arguments will be held sometime early next year. Nine other cases were also accepted for review.


At issue is whether the constitutional "right of the people to keep and bear arms" applies to local gun control ordinances, or only to federal restrictions. The basic question has remained unanswered for decades, and gives the conservative majority on the high court another chance to allow individuals expanded weapon ownership rights.
The appeal was filed by a community activist in Chicago who sought a handgun for protection from gangs.


The justices last year affirmed an individual right to possess handguns, tossing out restrictive laws in Washington.


The larger issue is one that has polarized judges, politicians and the public for decades: Do the Second Amendment's 27 words bestow gun ownership as an individual right or as a collective one, aimed at the civic responsibilities of state militias and therefore subject, perhaps, to strict government regulation? And, is that regulation limited to federal laws or can it be applied to local communities?


The amendment states: "A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed."
"The Supreme Court has told us one of two important things, and that is that there is an individual right to bear arms, now we are poised to find out whether that applies to state and local regulation," said Thomas Goldstein, a prominent Washington appellate attorney and co-founder of scotusblog.com. "That's really where the rubber hits the road because there are all kinds of state rules about when you can have and carry a gun."


The community activist in the Chicago case, Otis McDonald lives in a high-crime neighborhood in Chicago. He says his work helping improve his community has subjected him to violent threats from drug dealers and other criminals. But his application for a handgun permit was denied in a city with perhaps the toughest private weapons restrictions in the nation.


He was among several citizens who appealed the ordinance. A three-judge federal appeals court in Chicago -- composed of Republican appointees -- ruled in June for the city, concluding the Constitution and past high court precedent was vague on state versus individual fundamental powers.
"Federalism is an older and more deeply rooted tradition than is the right to carry any particular kind of weapon," wrote Judge Frank Easterbrook, who has a conservative track record on that bench. Figuring out the limits of an individual right is "for the justices rather than the court of appeals," he said.


The justices have not yet taken action on a separate weapons case from New York.


In that case a Long Island man is appealing a 35-year-old state law banning a wide array of weapons, including chukka sticks -- or nunchuks -- composed of two sticks joined by chain or rope. They are staples of martial arts movies.
James Maloney has sought to keep them for practice, training and possible self-defense. He was arrested in 2000 for possession of a chukka stick in his home.


Maloney runs a one-man law firm and says he has long been an aficionado and historian of East Asian cultures.
The newest Supreme Court justice, Sonia Sotomayor, was part of a three-judge panel that rejected his lawsuit in January.


"It is settled law," the unsigned opinion concluded, "that the Second Amendment applies only to limitations the federal government seeks to impose on this right."


The panel also noted the state's interest in restricting ownership of these weapons, which the judges said had been used by muggers and street gangs, and can be considered "highly dangerous." Sotomayor has not indicated whether she will recuse herself from consideration of the high court appeal.


In a separate 2004 ruling (U.S. v. Sanchez Villar) that rejected a challenge to New York state's pistol licensing law, Sotomayor and her fellow appeals court judges concluded in a footnote, "the right to possess a gun is clearly not a fundamental right."

The Supreme Court in June 2008 rejected a sweeping handgun ban in the nation's capital, offering at least partial constitutional validation to citizens seeking the right to possess one of the most common types of firearms in their homes. On a 5-4 vote, the conservative majority of justices disagreed with arguments that the District of Columbia government had broad authority to enact what it called "reasonable" weapons restrictions in order to reduce violent crime. The city has since eased, but not eliminated, much of the previous restrictions.


"We hold that the district's ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense," wrote Justice Antonin Scalia for the majority. "It is not the role of this court to pronounce the Second Amendment extinct."

Chicago and Washington are the only major U.S. cities that have enacted such sweeping firearm bans. Courts have generally upheld other cities' restrictions on semi-automatic weapons and sawed-off shotguns. The conservative high court majority has in recent years upheld a California ban on assault rifles, similar to a federal ban that expired in 2004.

But Scalia in the Washington case did not address the question now before the high court over state and local restrictions. And he cautioned the right to possess guns is not unlimited, referring to bans on gun ownership by the mentally ill and convicted felons, the assault rifle ban, and limitations on guns near schools.


"The right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose," he wrote.


Fourty-four state constitutions protect their residents' right to keep weapons, according to a brief filed by 32 state attorneys general in support of the individual weapons owners in the current appeals.


Some constitutional experts have noted the Bill of Rights had traditionally been applied by courts only to the federal government, not to local entities. It was not until the past half-century that the justices have viewed free speech, assembly, and the press -- among other rights -- as individual in nature, and fundamental to liberty, superseding in many cases the power of states.


There have been limits. The high court repeatedly has refused to extend to states the Fifth Amendment requirement that persons can be charged with serious crimes only by "indictment of a grand jury."


A CNN/Opinion Research Corp. poll of adult Americans in June 2008, the month the Washington ruling was issued, found 67 percent of those surveyed said they felt the Second Amendment gave individuals the right to own guns, and 30 percent said it only provided citizens the right to form a militia. The poll had a sampling error of plus or minus 3 percentage points.


The case is McDonald v. Chicago (08-1521).

[ehidle]

I know many conservatives do not like the incorporation doctrine. They believe that the U.S. Constitution places restraints on the national government with only a few specific restrains on state governments. The state constitutions then constrain state and local governments.

That may be true, but it can also be said that the fundamental rights described by the Bill of Rights are enumerated, not granted, by the Constitution. We have those rights by virtue of the fact that we exist, not because the federal government was feeling generous one day.

Because we hold these rights by virtue of our existence as human beings, incorporation makes complete sense despite any anti-federalist sentiments. Incorporation in this case would limit the abridgment of our innate liberties, not limit the power of the states.

Our basic human rights trump any rights claimed by any government.

[larrymeyer]

Supreme court to decide how far gun rights extend


Wed Sep 30, 2:43 pm ET

WASHINGTON (Reuters) – The U.S. Supreme Court revived the legal battle over gun rights in America, saying it would decide whether the constitutional right of individuals to own firearms trumped state and local laws.

In a brief order on Wednesday, the court said it would settle the question by ruling in a dispute over a strict gun control law in Chicago that bans the ownership of handguns in most cases.

Individuals and gun rights groups had challenged the law.

Eighty percent of Chicago's 510 murders in 2008 were committed with guns -- among them 34 Chicago schoolchildren.

Gun control advocates said the decision was no surprise. They expected the court would merely reinforce last year's ruling upholding a constitutional right to bear arms narrowly limited to guns in the home for self-defense.

Gun rights cases have been among the country's most divisive social, political and legal issues. The Supreme Court split, in a 5-4 vote, between the conservative and liberal factions, in the 2008 ruling.

The ruling last year prohibited the federal government from imposing certain restrictions, but it left unclear whether the right also applied to state and local gun control laws.

The justices are expected to hear arguments early next year with a decision likely by late June.

GUNS CROSS STATE BORDERS

The United States is estimated to have the world's highest civilian gun ownership rate. Gun deaths average about 80 a day, 34 of them homicides, according to U.S. government statistics.

Many researchers believe the few U.S. cities that have gun control laws are acting largely symbolically in a country with 250 million guns that can be easily transported across city and state boundaries.

Gun shops are clustered outside Chicago's borders.

"The fact that there are two exceptions in the U.S. does not change the perception of the rest of the world that we are a gun-toting place," said Jens Ludwig, a sociologist at the University of Chicago and director of the school's Crime Lab.

"(Gun control advocates are) worried if the bans fall all hell is going to break loose. But it's not clear that lifting the bans will have the extreme adverse impact people fear," Ludwig said.

Gun control laws do not appreciably change the rate of household gun ownership, he said, and historically Chicago has had a low rate.

New York has a strict permit process that amounts to a gun ban and if Chicago's ban is struck down it could create similar barriers to gun ownership, unless the Supreme Court rules broadly and forbids all restrictions

[Vortex]

Glen Beck interviewed the attorney involved in this case during his show today.

More information in the thread, .

There is still time to Tivo the rebroadcast at 2:00 am, if you are interested.

[ChamberedRound]

I merged a bunch of threads regarding Nor**** and McDonald into this thread, as McDonald v Chicago is the one proceeding in the SCotUS.

In fact, Dave Hardy at the Of Arms and the Law blog has reported that Alan Gura, et al have filed their petitioner's brief, and in beginning to read through it, I agree with Mr. Hardy's opinion that it is EXTREMELY well-written.

For those interested in a great history lesson on the pre/post Civil War Era, how the 14th Amendment came about, and it's relationship to the 2nd Amendment, and a compelling argument for incorporation, read this brief:

http://armsandthelaw.com/archives/20..._brief_i_2.php

Opening brief in Chicago case
Posted by David Hardy · 16 November 2009 02:51 PM

Pdf is here. Very, very, well-written.

[ChamberedRound]

As another update, from Of Arms and the Law, here's the NRA's brief:

http://armsandthelaw.com/archives/20...chicago_br.php

Pdf is here. Between this and Petitioner's brief, I think the ground is covered very well. Petitioner emphasizes incorporation under the privileges or immunities clause (which makes far more sense) and NRA emphasizes incorporation under the due process clause (which is simpler to do).

NRA files, not as an amicus, but as respondent in support of petitioner. In case you wonder what that is -- NRA also filed an appeal (a petition for cert.), but the Supreme Court took the SAF case and not the NRA one, which remains pending. The Clerk ruled that NRA, being a party to the other appeal, was entitled to file as if it were a party (meaning a longer brief, but deadline yesterday). It'd obviously be in support of the Petitioner. But custom is that anyone not a petitioner and not an amicus is a respondent. So they wound up as Respondent in Support of Petitioner).