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hoffmang
01-28-2009, 9:05 PM
Alan Gura filed the appeal of the lawsuit against Chicago's handgun ban.

His blog post (http://www.chicagoguncase.com/2009/01/28/opening-appellate-brief-filed/) is here and the filing is McDonald v. Chicago (http://www.chicagoguncase.com/wp-content/uploads/2009/01/appellants_brief_074244final.pdf).

NRA v. Chicago and NRA v. Oak Park have also been consolidated with Alan's case so all three will be heard at one time and ruled on at one time. Oral arguments will probably occur in April. There is a non zero chance that Nordyke's opinion would issue right before oral argument in the Chicago cases.

Chicago in April is cold...

-Gene

wildhawker
01-28-2009, 9:16 PM
Alan Gura filed the appeal of the lawsuit against Chicago's handgun ban.

His blog post (http://www.chicagoguncase.com/2009/01/28/opening-appellate-brief-filed/) is here and the filing is McDonald v. Chicago (http://www.chicagoguncase.com/wp-content/uploads/2009/01/appellants_brief_074244final.pdf).

NRA v. Chicago and NRA v. Oak Par have also been consolidated with Alan's case so all three will be heard at one time and ruled on at one time. Oral arguments will probably occur in April. There is a non zero chance that Nordyke's opinion would issue right before oral argument in the Chicago cases.

Chicago in April is cold...

-Gene

Assuming CA9 rules in our favor on incorporation, what kind of bearing would that have on McDonald?

I've read some posts which discuss the potential for McDonald and Nordyke to be joined and punted to SCOTUS if CA9 does not rule first; I've not read much on how a favorable CA9 opinion would influence Chicago.

For those who have not been to Chicago in winter, it's a real treat.

hoffmang
01-28-2009, 9:23 PM
Assuming CA9 rules in our favor on incorporation, what kind of bearing would that have on McDonald?

I've read some posts which discuss the potential for McDonald and Nordyke to be joined and punted to SCOTUS if CA9 does not rule first; I've not read much on how a favorable CA9 opinion would influence Chicago.


A win for us in Nordyke would be pretty persuasive for the 7th Circuit - thus making us start winning at the 3 judge panel and en-banc. This gets strategically complex quickly but if the pro-gun side were to win in both circuits I don't really think the other side will appeal to SCOTUS. If we win one and lose one, we'll appeal the loss. If we lose both we'll appeal (an outcome I highly doubt.) If there is an appeal from either circuit I give it a very high probability of going on up to SCOTUS. That's where the complexity comes in because we could end up having all 4 cases consolidated at SCOTUS which would not be bad for us - just challenging to see who will argue for our side.

-Gene

elenius
01-28-2009, 9:30 PM
So, "court of appeals", what does that mean? Still state court? How many more steps until they get to 7th circuit court?

wildhawker
01-28-2009, 9:43 PM
A win for us in Nordyke would be pretty persuasive for the 7th Circuit - thus making us start winning at the 3 judge panel and en-banc. This gets strategically complex quickly but if the pro-gun side were to win in both circuits I don't really think the other side will appeal to SCOTUS. If we win one and lose one, we'll appeal the loss. If we lose both we'll appeal (an outcome I highly doubt.) If there is an appeal from either circuit I give it a very high probability of going on up to SCOTUS. That's where the complexity comes in because we could end up having all 4 cases consolidated at SCOTUS which would not be bad for us - just challenging to see who will argue for our side.

-Gene

Thanks, that does present a clearer picture for these cases and the implications of each. It seems that it may actually work to our advantage to have one (or all) of them go on to SCOTUS now, with the current makeup of the court being favorable, and have a SCOTUS decision rather than one at CA9 and/or 7. That said, it would imply a lengthier process to incorporation, but the upside of having solid SC-level precedent (to me) set based on contemporary law would be the more favorable outcome.

ke6guj
01-28-2009, 9:43 PM
So, "court of appeals", what does that mean? Still state court? How many more steps until they get to 7th circuit court?they are in federal court, and are arguing in the Court of Appeals for the 7th Circuit, one level below the Supreme COurt.

wildhawker
01-28-2009, 9:47 PM
So, "court of appeals", what does that mean? Still state court? How many more steps until they get to 7th circuit court?

It's in the US Court of Appeals for the Seventh District.

Monoz
01-29-2009, 7:39 AM
If and when the incorporation question goes to SCOTUS, I personally hope it is the Chicago case that makes it there. It is a very "clean" case with few side issues, and it is a logical extension of Heller.

gd-bh
01-29-2009, 7:51 AM
There is a non zero chance that Nordyke's opinion would issue right before oral argument in the Chicago cases.

Would you please clarify this for those of us who are a bit slow...Are you saying that you do not expect a ruling from Nordyke until after the subject case is argued in the 7th?

truthseeker
01-29-2009, 9:30 AM
Would you please clarify this for those of us who are a bit slow...Are you saying that you do not expect a ruling from Nordyke until after the subject case is argued in the 7th?

To me "non zero" used in his sentence means that Nordyke WILL be ruled upon BEFORE the other cases.

ke6guj
01-29-2009, 9:40 AM
To me "non zero" used in his sentence means that Nordyke WILL be ruled upon BEFORE the other cases.I read that as Nordyke MAY be rulled on before the other case. And if it was, then that ruling could be brought up during the oral arguements.

"non zero" could mean anywhere from 0 to 100%. So it would be read as There is a "0% to 100%" chance that Nordyke's opinion would issue right before oral argument in the Chicago cases.

ar15barrels
01-29-2009, 9:44 AM
Chicago in April is cold...

-Gene

I lived in chicago for 3 months in the winter of 96/97.
Have fun.

pullnshoot25
01-29-2009, 9:47 AM
I am pretty stoked about this. Let the citizens be heard!

CapS
01-29-2009, 11:36 AM
"non zero" could mean anywhere from 0 to 100%. So it would be read as...

1 to 100%
or, in usual statements of probability,
0.01 to 1.0 :cool:

/Cap

ke6guj
01-29-2009, 11:39 AM
So if the Surpreme Court hears the case in April will we be looking at another June decision?The Supreme Court is not hearing this in April. We haven't even gotten past the Court of Appeals.

But if the Court of Appeals hears this in April (don't think a court date has been set yet), then sometime in the next couple months, a ruling could be rendered.

PolishMike
01-29-2009, 11:39 AM
So if the Surpreme Court hears the case in April will we be looking at another June decision?

huh? none of these cases are going to the Supreme Court. (at least not yet)

hoffmang
01-29-2009, 11:55 AM
Let me try to clear up some confusion I caused.

1. McDonald v. Chicago will probably not have oral argument in front of the 7th Circuit Court of Appeals in April as I stated above. It is theoretically possible, but I didn't take into account the last filing due dates in the appeal. May or June is more likely when oral argument would occur.

2. Based on 1, it is highly likely (I'd guess 80% chance) that the Nordyke opinion on incorporation of the Second Amendment will have been issued by our current 3 judge panel in the 9th Circuit. What isn't known is whether we'll actually go en-banc.

Either way, the Chicago cases or the Nordyke case have a lot of possible outcomes that returns one or all four to the Supreme Court. However, the earliest we would see a cert granted would be after the summer recess for SCOTUS or fall of 2009. That would be the fastest. The more likely would be early-mid 2010 though there is also a potential outcome where we win both and none of the cases go to SCOTUS because there is no circuit split on the question of whether the 2A applies to the states because both the 7th and the 9th hold that it does.

-Gene

Aegis
01-29-2009, 12:44 PM
Either way, the Chicago cases or the Nordyke case have a lot of possible outcomes that returns one or all four to the Supreme Court. However, the earliest we would see a cert granted would be after the summer recess for SCOTUS or fall of 2009. That would be the fastest. The more likely would be early-mid 2010 though there is also a potential outcome where we win both and none of the cases go to SCOTUS because there is no circuit split on the question of whether the 2A applies to the states because both the 7th and the 9th hold that it does.

-Gene

Assuming we get incorporation via Nordyke, is it binding pending an appeal by the opposition? If so, can actions proceed such as attempting to get shall issue CCW or LOC, or do we have to wait again to see if the opposition appeals and SCOTUS hears the case?

hoffmang
01-29-2009, 3:05 PM
Assuming we get incorporation via Nordyke, is it binding pending an appeal by the opposition? If so, can actions proceed such as attempting to get shall issue CCW or LOC, or do we have to wait again to see if the opposition appeals and SCOTUS hears the case?

The ruling wouldn't take effect until the time for an en-banc appeal has been exhausted. If the en-banc is denied it becomes effective shortly after. If an en-banc is granted we go through one more full cycle of briefing and oral argument. If in any case we're heading to SCOTUS it will generally not be binding until cert is denied or cert is granted and the case is heard by SCOTUS.

-Gene

CCWFacts
01-29-2009, 3:20 PM
The ruling wouldn't take effect until the time for an en-banc appeal has been exhausted. If the en-banc is denied it becomes effective shortly after. If an en-banc is granted we go through one more full cycle of briefing and oral argument. If in any case we're heading to SCOTUS it will generally not be binding until cert is denied or cert is granted and the case is heard by SCOTUS.

So, best case for us Californians who want to start enjoying freedom is that we get a good ruling from the panel, en-banc is denied, and cert is denied, meaning we could start using the case sometime this year.

Worst case, it gets an en-banc review, it gets appealed to SCOTUS, SCOTUS grants cert and then has its hearing on it, meaning it could take a couple of years. But the outcome of that would be great because it would make Heller incorporated throughout the US, and would do so before Obama has a chance to change the balance of the courts very much.

Chicago
01-29-2009, 3:23 PM
I predict a March decision on Nordyke as follows:
1A freedom of expression claim
Denied ... Doesn't survive O'Brien test
2A incorporation claim
Denied ... Inconsistent with Fresno precident
2A right to bear arms claim
Denied ... 2A is not controlling upon the states
14A equal protection claim
Affirmed ... Remanded back to the District Court

Then:
1A claim will be abandoned
2A claims will yield a Petition for Writ of Cert
14A claim will yield a victory

Ultimately:
The 2A Petition for Writ of Cert will be denied
SCOUTUS wants McDonald as the vehicle for 2A incorporation
The 14A victory will do nothing ...
for Nordykes or for gun rights advocates

Things will play out much the same in the 7th Circuit with Quilici playing the role of Fresno. But unlike Nordyke, the goal here has been to get SCOTUS to rule on 2A incorporation from the get-go. The up side is that 2.5MM Chicagoans deprived of the means of self defense are a more sympathetic bunch than 2 Californians whose gun show has to find a new venue. The big problem (and it's very very big) is that the makeup of SCOTUS will be changing soon. McDonald may not make it in time.

At least you all have some nice wines with which to drown your sorrows.

Fjold
01-29-2009, 3:34 PM
I agree that the makeup of SCOTUS may change soon but it will probably be Stevens and Ginsburg who leave first and that will be less of a risk to us as they are two of the most anti-Second Amendment justices on the court already.

Since the current Senate's litmus test will probably be more about abortion, minority rights, stem cell research, etc. the replacement candidates could easily be more favorable to the Second Amendment.

wildhawker
01-29-2009, 3:59 PM
So, best case for us Californians who want to start enjoying freedom is that we get a good ruling from the panel, en-banc is denied, and cert is denied, meaning we could start using the case sometime this year.

Worst case, it gets an en-banc review, it gets appealed to SCOTUS, SCOTUS grants cert and then has its hearing on it, meaning it could take a couple of years. But the outcome of that would be great because it would make Heller incorporated throughout the US, and would do so before Obama has a chance to change the balance of the courts very much.

Best case for the short-term and long-term seem to be mutually-exclusive in certain respects; while I would love to see shall-issue CCW this year, I would much rather have a favorable SCOTUS decision on which to rely for years.

pullnshoot25
01-29-2009, 4:11 PM
So, best case for us Californians who want to start enjoying freedom is that we get a good ruling from the panel, en-banc is denied, and cert is denied, meaning we could start using the case sometime this year.

Worst case, it gets an en-banc review, it gets appealed to SCOTUS, SCOTUS grants cert and then has its hearing on it, meaning it could take a couple of years. But the outcome of that would be great because it would make Heller incorporated throughout the US, and would do so before Obama has a chance to change the balance of the courts very much.

Reading this just made me want to jump in front of a soccer mom's Ford Exploder.

Criminey...

hoffmang
01-29-2009, 4:40 PM
I predict a March decision on Nordyke as follows:
1A freedom of expression claim
Denied ... Doesn't survive O'Brien test
2A incorporation claim
Denied ... Inconsistent with Fresno precident
2A right to bear arms claim
Denied ... 2A is not controlling upon the states
14A equal protection claim
Affirmed ... Remanded back to the District Court

Then:
1A claim will be abandoned
2A claims will yield a Petition for Writ of Cert
14A claim will yield a victory


Fresno didn't perform the necessary Duncan analysis. I don't think this panel would have dusted Nordyke off if they were going to duck the core issue.

I think the likelier outcome is that Alameda gets smart and doesn't appeal the en-banc denial. If they're dumb, I think all the cases get consolidated in one cert grant. Nordyke is cleaner than it looks from SCOTUS' perspective.

-Gene

Gray Peterson
01-30-2009, 12:28 AM
Not to mention Fresno Rifle was only a Privileges and Immunities challenge, not a due process challenge.

Chicago should listen to the oral arguments first.

CA_Libertarian
01-30-2009, 11:20 AM
I think the likelier outcome is that Alameda gets smart and doesn't appeal the en-banc denial. If they're dumb, I think all the cases get consolidated in one cert grant. Nordyke is cleaner than it looks from SCOTUS' perspective.

-Gene

If it weren't for the budget crunch, I'd predict Alameda would fight to the bitter end. However, with the lack of public funds in this state, government agencies are cutting budgets. On top of that, Alameda has to know it's a sinking ship by now - so very unlikely they'll win. I wouldn't be surprised if Alameda doesn't even request en banc review.

Mulay El Raisuli
01-31-2009, 5:55 AM
Fresno didn't perform the necessary Duncan analysis. I don't think this panel would have dusted Nordyke off if they were going to duck the core issue.

I think the likelier outcome is that Alameda gets smart and doesn't appeal the en-banc denial. If they're dumb, I think all the cases get consolidated in one cert grant. Nordyke is cleaner than it looks from SCOTUS' perspective.

-Gene


If you're right, it would be VERY good sequence. For us, that is. Freedom would return to the PRK quickly, while McDonald goes to SCOTUS, because I've no doubt that Chicago WILL appeal if they lose (as will we if we lose) to clear things up for the rest of the country later on.

That's takes care of ME! ME! ME! NOW! NOW! NOW! & takes care of the rest of the country too.

OOH! I'm giddy.

The Raisuli

P.S. What's the time frame for Alameda to not request en banc? I.E., how long will we be on tenterhooks before we get finality from the Ruling?

elenius
01-31-2009, 7:47 AM
Another hypothetical:

- We win Nordyke
- Alameda county does not appeal
- Whoever loses in the 7th circuit appeals

Will we be effectively incorporated here while we wait for SCOTUS to decide on the Chicago case?

DDT
01-31-2009, 8:32 AM
Another hypothetical:

- We win Nordyke
- Alameda county does not appeal
- Whoever loses in the 7th circuit appeals

Will we be effectively incorporated here while we wait for SCOTUS to decide on the Chicago case?

If the decision is a clear incorporation then we will have the protections of the second amendment as residents of CA. The 9th circuit is the "law of the land" for CA. That being said lower circuit and state courts are not required to accept precedence and could "precedence shop" other circuits for the decision they want. If 7th decides against incorporation it is conceivable that cases would have to be elevated to the 9th Circuit court of appeals before the precedence is recognized. This is highly unlikely but it is not impossible.

As a more likely outcome if the circuits are split incorporation would be recognized by lower courts and there'd be an injunction war from the state over any legislation we try to get nullified that would essentially keep the cases in limbo until SCOTUS decides on the combined Chicago case. I don't really have a clear idea of what would happen if the 7th decides against us and SCOTUS doesn't accept the Chicago cases. I can't really see SCOTUS doing that as they've shown a willingness to address the 2A at this time and a split precedence at the circuit level is BAD.

ar15barrels
01-31-2009, 9:33 AM
It'd only take ONE appointment between now and the SCOTUS taking the case to break out backs on this one.

The two justices most likely to retire are anti-gun.
Replacing either with another anti-gun justice does not change the mix of the court.
There would need to be a pro-gun justice replaced for it to matter.

hoffmang
01-31-2009, 9:39 AM
Will we be effectively incorporated here while we wait for SCOTUS to decide on the Chicago case?

Yes.

-Gene