PDA

View Full Version : Oral Argument in McDonald/NRA v. Chicago


hoffmang
05-26-2009, 12:58 PM
Oral arguments were held this morning in the Chicago cases. I've updated the wiki (http://wiki.calgunsfoundation.org/index.php/McDonald_v._Chicago). The arguments themselves are available in mp3 (http://www.ca7.uscourts.gov/fdocs/docs.fwx?submit=showbr&shofile=08-4241_001.mp3) from the Seventh Circuit.

Our panel was announced moments before the argument and is Posner, Easterbrook, and Bauer. Posner doesn't like the bill of rights. Bauer wrote the anti-gun opinion in Morton Grove many years ago.

As you can tell from the panel and arguments, it looks like our side will lose which will leave us in control of the SCOTUS appeal.

I suggest listening to the arguments. A few nuggets:
1. Nordyke figures prominently.
2. The panel is happy to let us move on through to SCOTUS.
3. Gura did an excellent job.
4. Eaterbrook seems to be strongly in favor of over ruling Slaughterhouse and moving to P&I incorporation.
5. Even this panel is incredulous of Chicago's argument that handguns can be banned.

-Gene

ke6guj
05-26-2009, 1:01 PM
I was wondering about how that went today.

Matt C
05-26-2009, 1:01 PM
Transcripts? I know it's early but can we expect them soon?

Librarian
05-26-2009, 1:06 PM
On a slightly related note, does anyone know why the link to dcguncase.com returns a 404? Someone forget to renew the registration?

DDT
05-26-2009, 1:14 PM
P&I could create a new market for civil rights attorneys into the next century.

Rhys898
05-26-2009, 1:19 PM
On a slightly related note, does anyone know why the link to dcguncase.com returns a 404? Someone forget to renew the registration?

was it a 404 or a 500??? 404 just means that the html page could not be found, not that the server registration is expired. 500 means the dns doesn't resolve, which would mean the registration wasn't payed or their dns server went offline.

DDT
05-26-2009, 1:26 PM
was it a 404 or a 500???

Easier to type the post than the URL?

dcguncase.com resolves just fine and re-directs to dcguncase.com/blog which is a non-existent page.

Librarian
05-26-2009, 1:31 PM
Google's cache has
This is Google's cache of http://www.dcguncase.com/. It is a snapshot of the page as it appeared on May 19, 2009 . The current page could have changed in the meantime and that's a note from Mr. Gura.

Sometime since then the site has had all its content 'disappear' and be replaced by one of the junk 'we now have this URL and are filling it with stuff' pages.

whois says the registration is good until July 9 this year, through 1and1.

DDT
05-26-2009, 1:42 PM
Google's cache has
and that's a note from Mr. Gura.

Sometime since then the site has had all its content 'disappear' and be replaced by one of the junk 'we now have this URL and are filling it with stuff' pages.

whois says the registration is good until July 9 this year, through 1and1.

Many webhosts will put up domaineering style pages for any 404 error.

Dr Rockso
05-26-2009, 1:55 PM
Any idea what the timeline would be for a SCOTUS appeal, should Chicago win?

wolf13
05-26-2009, 1:57 PM
Overturning Slaughterhouse would be very welcome.

Maestro Pistolero
05-26-2009, 2:26 PM
Even this panel is incredulous of Chicago's argument that handguns can be banned.

Gene, I listened to the arguments, and I didn't get that sense at all. What did the court say that would make you think that?

This appears headed to the SCOTUS. If I'm right, what would the time frame look like, and if confirmed, would Sotomayor be on the court by then?

Maestro Pistolero
05-26-2009, 2:28 PM
Overturning Slaughterhouse would be a victory, not just for 2A rights, but for liberty across the board. I think the SCOTUS would love take another swing at that case.

Theseus
05-26-2009, 2:29 PM
Wow. These justices seemed pretty uninterested in even hearing the case.

And was it just me, or did the Chicago lawyer seem to follow the scripted argument more than actually answer the judges questions?

I don't know what we expected, but they do sound like they were more than happy to not make a ruling and send it to SCOTUS.

Regulus
05-26-2009, 2:55 PM
A few noteworthy quotes from the Chicago lawyer:

"… I will explain that the right <of handguns> is not a concept of ordered liberty embodied in the Fourteenth Amendment, in any event, because State and Local governments can conclude that the risk of misuse of handguns by criminals outweighs whatever benefits handguns provide to law abiding people."

"... We urge the court to find that there is no categorical right to handguns. State and local governments in 21st Century America can decide as a prophylactic measure to ban the single weapon most associated with homicides, suicides and other armed violence. Whatever the benefits of handguns whatever the benefits American's think are inherent in handguns, they do not outweigh the increased risk to ordered liberty.”

“… the rule in this country is that local governments are free to do it in the way that their own policy reasons dictate. If there is an objection to those policies, policies can be changed through the democratic process and people are also free to relocate themselves to a place where they might prefer the policies <ugh> more to their liking. “


It’s like she threw some funk that I can’t get off of me, no matter how much I scratch or bathe.

Librarian
05-26-2009, 3:06 PM
Any idea what the timeline would be for a SCOTUS appeal, should Chicago win?

My guess is similar to Nordyke:

90 days or so from today's oral argument to the court's opinion - sometime in late August; could be more or less.

2 weeks from opinion to 'en banc' request by the parties, if any -- but 30 days, apparently, for a justice to request 'en banc'.

Approximately 90 days from opinion-day (presuming no 'en banc') to file for certiorari, so late November-ish.

SCOTUS seems to have no predictable schedule on accepting.

N6ATF
05-26-2009, 3:06 PM
As you can tell from the panel and arguments, it looks like our side will lose which will leave us in control of the SCOTUS appeal.

Guess it's too much to wish for that the panel says "you lose, go to SCOTUS" in two weeks then? :p

bruss01
05-26-2009, 3:07 PM
… the rule in this country is that local governments are free to do it in the way that their own policy reasons dictate. If there is an objection to those policies, policies can be changed through the democratic process and people are also free to relocate themselves to a place where they might prefer the policies <ugh> more to their liking.


I love it. "we can violate your rights here, because you can move somewhere that they won't". Meaning "we only want to deal with compliant subjects here, anyone wishing for freedom obviously picked the wrong place so they can just leave".

N6ATF
05-26-2009, 3:09 PM
I love it. "we can violate your rights here, because you can move somewhere that they won't". Meaning "we only want to deal with compliant subjects here, anyone wishing for freedom obviously picked the wrong place so they can just leave or die at the hands of criminals supported by the .gov".

Fixed.

2009_gunner
05-26-2009, 3:12 PM
A few noteworthy quotes from the Chicago lawyer:
...
"... We urge the court to find that there is no categorical right to handguns. State and local governments in 21st Century America can decide as a prophylactic measure to ban the single weapon most associated with homicides, suicides and other armed violence. Whatever the benefits of handguns whatever the benefits American's think are inherent in handguns, they do not outweigh the increased risk to ordered liberty.”
...
.

I find that "ordered liberty" argument to be the most annoying. It is very similar to the argument I've heard anti-gunners make: "What about my right to be free of gun violence."

This argument displays an obvious lack of historical context.

I'm sure the founders had some good quotes for this lame "ordered liberty" argument.

Window_Seat
05-26-2009, 3:27 PM
MP3 of arguments copied, pasted & filed for listening tonight at work on iPod.:thumbsup: Thanks!

Erik.

hoffmang
05-26-2009, 3:30 PM
Gene, I listened to the arguments, and I didn't get that sense at all. What did the court say that would make you think that?

This appears headed to the SCOTUS. If I'm right, what would the time frame look like, and if confirmed, would Sotomayor be on the court by then?

I believe it was Easterbrook who followed up Chicago's "balancing" argument with the question along the lines of "then you mean that we're just following John Lott's book and not practicing constitutional law here?" Read between the lines, he's telling her that if incorporated, she doesn't get to succeed makin a balancing argument in the face of Heller.

This case could get to SCOTUS next term. Sotomayor is a direct replacement for Souter against us as she ruled against incorporation in Maloney as a panel member there.

-Gene

vrand
05-26-2009, 3:43 PM
I love it. "we can violate your rights here, because you can move somewhere that they won't". Meaning "we only want to deal with compliant subjects here, anyone wishing for freedom obviously picked the wrong place so they can just leave".

Government of the People, for the People... :eek:

CCWFacts
05-26-2009, 3:49 PM
This case could get to SCOTUS next term. Sotomayor is a direct replacement for Souter against us as she ruled against incorporation in Maloney as a panel member there.

It will be hilarious if she gets on SCOTUS and has an opportunity to vote on the constitutionality of 12050. PC 12050 was written specifically to disarm Latinos and legal aliens (http://californiaccw.org/files/sf-chronicle-article.htm). She has spent her career tainting her judicial opinions with issues of race and gender, and then she'll have a glorious opportunity to vote to uphold one of the last openly-racist anti-Latino / anti-immigrant laws still on the books!

Maestro Pistolero
05-26-2009, 3:56 PM
Even this panel is incredulous of Chicago's argument that handguns can be banned.

I believe it was Easterbrook who followed up Chicago's "balancing" argument with the question along the lines of "then you mean that we're just following John Lott's book and not practicing constitutional law here?" Read between the lines, he's telling her that if incorporated, she doesn't get to succeed makin a balancing argument in the face of Heller.

This case could get to SCOTUS next term. Sotomayor is a direct replacement for Souter against us as she ruled against incorporation in Maloney as a panel member there.

-Gene

Unless there's more, I don't see how that indicates that this panel is incredulous of the ban. If they are, they're playing it real close to the vest.

Regards

7x57
05-26-2009, 4:00 PM
Unless there's more, I don't see how that indicates that this panel is incredulous of the ban. If they are, they're playing it real close to the vest.


I assume that Gene interpreted the implied question to be: do you really mean to argue that expediency is the only issue here? That there is no Constitutional question at all? Presumably he would say this if he thought that the city's argument could not pass Constitutional muster if there was, in fact, a Constitutional issue in play.

7x57

1JimMarch
05-26-2009, 5:25 PM
I was wondering when somebody would say "hey, the USSC called Cruikshank stone-cold evil when they cited with approval Lane's book "The Day Freedom Died" in which "the day" was the day the Cruikshank decision was handed down...do you REALLY want to claim that as being good case law, when it was a distinctly pro-KKK decision!?".

Also highly annoying: the one grabber judge who was incredulous that the 1868 Northern legislature might have been pro-RKBA. What a complete and utter ignorance of history on display.

wolf13
05-26-2009, 5:38 PM
Overturning Slaughterhouse would be a victory, not just for 2A rights, but for liberty across the board. I think the SCOTUS would love take another swing at that case.

I hope they take another swing at it. Would be really interesting to see which way they would rule towards that decision. Easily one of the worst decisions made by the Court.

hoffmang
05-26-2009, 5:42 PM
Unless there's more, I don't see how that indicates that this panel is incredulous of the ban. If they are, they're playing it real close to the vest.

Regards

You're missing the point. Today the panel said, we will not overrule Presser and Cruikshank. They are wrong as a matter of law, they know it, and the know we're going to win in SCOTUS.

What they were saying when they asked Chicago if the best argument she had was balancing regarding handguns when Heller is directly on point is that she's hosed once the Second Amendment is incorporated. The panel happens to also be correct about that.

-Gene

nick
05-26-2009, 7:18 PM
Government of the People, for the People... :eek:

And I get to see those People on TV every now and then :)

DDT
05-26-2009, 7:57 PM
You're missing the point. Today the panel said, we will not overrule Presser and Cruikshank. They are wrong as a matter of law, they know it, and the know we're going to win in SCOTUS.


I am still quite surprised that Nordyke ruled the way they did for just this reason. It would have been easier to simply say it's a SCOTUS issue because they didn't want to overturn SCOTUS precedence even though they felt it was clearly bad law.

mblat
05-26-2009, 8:01 PM
I believe it was Easterbrook who followed up Chicago's "balancing" argument with the question along the lines of "then you mean that we're just following John Lott's book and not practicing constitutional law here?" Read between the lines, he's telling her that if incorporated, she doesn't get to succeed makin a balancing argument in the face of Heller.

This case could get to SCOTUS next term. Sotomayor is a direct replacement for Souter against us as she ruled against incorporation in Maloney as a panel member there.

-Gene

Wouldn't that preclude her from hearing the case, as in conflict of interests?

nick
05-26-2009, 8:23 PM
Wouldn't that preclude her from hearing the case, as in conflict of interests?

Having observed our judicial system quite closely in the past year, I wouldn't be surprised if she could just say, "while there may be an appearance of conflict of interest or bias, I believe I am perfectly capable of being a neutral and detached arbiter, and I am being such", and that would be that.

DDT
05-26-2009, 9:54 PM
Wouldn't that preclude her from hearing the case, as in conflict of interests?

Funny you should mention that. There is a case that SCOTUS has already heard orals on specifically about judicial recusal. Caperton v. A.T. Massey Coal Co

Librarian
05-26-2009, 9:58 PM
Over at Volokh (http://volokh.powerblogs.com/archives/archive_2009_05_24-2009_05_30.shtml#1243398293), Randy Barnett says Posner & Easterbrook in Action During Oral Argument on Incorporation of a Right to Arms: Circuit Court Judge Bauer expresses his enjoyment of Judges Posner and Easterbrook's roasting of Stephen Halbrook and Alan Gura's argument that the Seventh Circuit is not bound by Supreme Court precedent (Cruikshank & Presser) denying that the Second Amendment is applicable to the states because these decisions failed to consider whether the right to keep an bear arms is incorporated in the Due Process Clause of the Fourteenth Amendment. At the invitation of Judge Easterbrook, Gura eventually preserves his arguments on the merits and sits down. While Judge Easterbrook also expresses his view that the Slaughter-House Cases were wrongly decided, that and $2.25 will get you a ride on the CTA. For his part, Judge Posner manifests his general contempt for a constitutional right to arms--indeed he volunteers his view that states may constitutionally abolish the privilege of self-defense. He denies that there was any enthusiasm for gun rights in 1868, and seems completely unaware of the copious evidence that the Thirty-Ninth Congress was much concerned about protecting the individual right to keep and bear arms as a means for the freedman to protect themselves from violence. Here, for example, is the wording of the Freedman Bureau's Act:

And be it further enacted, That in every State or district where the ordinary course of judicial proceedings has been interrupted by the rebellion . . . the right to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens of such State or district without respect to race or color, or previous condition of slavery.

So in this regard it is fortunate that Judge Posner will not be reaching the merits of the Fourteenth Amendment claim--just as it was fortuitous he was not on the DC Circuit to hear the Heller case.

Tier One Arms
05-26-2009, 10:04 PM
What does this case mean for us?

Maestro Pistolero
05-26-2009, 10:11 PM
And be it further enacted, That in every State or district where the ordinary course of judicial proceedings has been interrupted by the rebellion . . . the right to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens of such State or district without respect to race or color, or previous condition of slavery.

That will help me sleep a little better tonight, thanks. I have confidence that the Supremes, with or without Sotomayer, will incorporate, and probably overturn Slaugherhouse in the process. And good riddance. Remember, all the SCOTUS Justices in Heller thought that 2A was an individual right. It's just that a 4 of them thought it didn't invalidate the ban. :confused: I'm still scratching my head over that disparity.

But unless they back out of Heller, (snowballs chance) I think they have to find it to be incorporated as a fundamental right.

DDT
05-26-2009, 10:14 PM
What does this case mean for us?

One more path to SCOTUS it appears.

This case, Nordyke and Maloney are all going to come to a head around the same time for SCOTUS. They'll pick the one they like the best, or they'll combine a couple or all 3 and then hear orals and make a decision regarding incorporation. Hopefully we can bring everything up in time for the next SCOTUS session.

Tier One Arms
05-26-2009, 10:26 PM
When is the next session?

Gray Peterson
05-26-2009, 10:31 PM
First Monday in October.

GaryV
05-27-2009, 8:06 AM
I think it is pretty clear what the ruling will be. While there is not a whole lot of support for gun rights on this panel, it's evident that they think that it's time for SCOTUS to address the Slaughterhouse cases and the questions of incorporation, either under I&P or DP. They're going to uphold the lower court's ruling and pass it off to SCOTUS. It'd just be nice if they'd do it sooner than later, since it's clear they've already made up their mind. The good thing is that it doesn't sound like they'll make much comment on how they personally feel about incorporation of the 2nd Amendment, and will simply say that the question is one for SCOTUS.

elenius
05-27-2009, 9:33 AM
What if Nordyke is reversed in the en banc hearing, and these guys also say no to incorporation? Then we have no circuit split. Will SCOTUS still grant cert to one of these?

Maestro Pistolero
05-27-2009, 9:38 AM
What if Nordyke is reversed in the en banc hearing, and these guys also say no to incorporation? Then we have no circuit split. Will SCOTUS still grant cert to one of these?

Excellent question. I initially thought it unlikely that the 9th would reverse incorporation, but after the scolding by the 7th yesterday, and the reasons they give for taking a pass, I'm not so sure.

What is the path to SCOTUS if both should fail? I'm not as worried about SCOTUS as actually getting the case there in the first place.

soundwave
05-27-2009, 9:47 AM
I can't even listen to that "Justice's" voice anymore. Sounds like a nagging wife/GF.

What a gd joke.

CCWFacts
05-27-2009, 9:50 AM
What is the path to SCOTUS if both should fail? I'm not as worried about SCOTUS as actually getting the case there in the first place.

There doesn't need to be a circuit split to get cert., it just helps and prioritizes it.

hoffmang
05-27-2009, 9:51 AM
What if Nordyke is reversed in the en banc hearing, and these guys also say no to incorporation? Then we have no circuit split. Will SCOTUS still grant cert to one of these?

When you read footnote 23 in Heller you'll see that it's clear that SCOTUS will take an incorporation of the second amendment case - circuit split or not. Realize that if Nordyke were to be reversed en banc, the dissent will be blistering.

-Gene

Maestro Pistolero
05-27-2009, 9:59 AM
the dissent will be blistering.
From the public, the 9th, or the SC? If it's dissent from the 9th you are referring to, does vehement dissent encourage them to grant cert?

hoffmang
05-27-2009, 10:14 AM
The quote that Posner cut Gura off on was this direct quote from Posner in his majority opinion in Norris v. United States:


Constitutional law is very largely a prediction of how the Supreme
Court will decide particular issues when presented to it for decision . .
. sometimes later decisions, though not explicitly overruling or even
mentioning an earlier decision, indicate that the Court very probably
will not decide the issue the same way the next time. In such a case,
to continue to follow the earlier case blindly until it is formally
overruled is to apply the dead, not the living, law.


Posner is judicially bankrupt. He'll predict outcomes when he likes the outcomes.

-Gene

scottj
05-27-2009, 1:20 PM
What are the ramifications beyond gun control of Slaughterhouse or Cruikshank being bounced by the SCOTUS? What other rights would then be incorporated?

DDT
05-27-2009, 1:25 PM
What are the ramifications beyond gun control of Slaughterhouse or Cruikshank being bounced by the SCOTUS? What other rights would then be incorporated?

None, the rest have already been incorporated

GaryV
05-27-2009, 1:43 PM
None, the rest have already been incorporated

Actually, that's not true. Several other rights (found in the 3rd, 5th, and 7th Amendments, for example) have not been incorporated. If you listen to the arguments, one of the judges makes the point that if this happens Chicago's traffic ticket tribunals will then be unconstitutional because of the right to jury trial in civil cases.

tube_ee
05-27-2009, 1:46 PM
never tested in Court that I know of... and if that one is ever an issue, we're already so deeply screwed that Courts won't matter much.

An overturing of Slaughterhouse and a full application of the 14th Amendment might also allow for the right of Grand Jury review in places that don't have it... I think that decision was based solely on Equal Protection, P&I having been written out of the Constitution.

Atrocious decision. And one that both "conservative" and "liberal" jurists don't care for these days. I've never heard a defense of Slaughterhouse from any legal scholar or jurist... I'm not a lawyer, so maybe I missed it, but certainly not in any forum that the informed layman would know about.

--Shannon

DDT
05-27-2009, 1:54 PM
Actually, that's not true. Several other rights (found in the 3rd, 5th, and 7th Amendments, for example) have not been incorporated. If you listen to the arguments, one of the judges makes the point that if this happens Chicago's traffic ticket tribunals will then be unconstitutional because of the right to jury trial in civil cases.

You misread my response. I was responding to his question about Crukshank specifically, not all of the BoR.

7x57
05-27-2009, 2:03 PM
Actually, that's not true. Several other rights (found in the 3rd, 5th, and 7th Amendments, for example) have not been incorporated.

[[third amendment]] never tested in Court that I know of... and if that one is ever an issue, we're already so deeply screwed that Courts won't matter much.


Nope. I used the 3rd amendment as an example of an unincorporated right once and Gene Hoffman pointed out Engblom v. Carey (http://en.wikipedia.org/wiki/Engblom_v._Carey). The Third amendment is incorporated in the Second Circuit.

What's interesting about that is the court chose a fairly expansive meaning to the Third Amendment based on right-to-privacy. OK...but as someone said, we can consistently interpret the Constitution narrowly or broadly but we have to stick with one or the other. So if the 3A is expansive, just as the 1A is, we have yet another example that the 2A must also be interpreted broadly.

7x57

GaryV
05-27-2009, 2:05 PM
You misread my response. I was responding to his question about Crukshank specifically, not all of the BoR.

I don't think I misread it, you just weren't specific. Scottj asked about Slaughterhouse as well as Cruikshank. If Slaughterhouse is overturned, then it'll affect all of the first 8 amendments of the BoR. Plus he asked "beyond gun control...what other rights would be incorporated", so his only question was about all the other rights, not RKBA. Since the only right in the 2nd Amendment is the RKBA, his question is only about the rest of the BoR.

DDT
05-27-2009, 2:26 PM
I don't think I misread it, you just weren't specific. Scottj asked about Slaughterhouse as well as Cruikshank. If Slaughterhouse is overturned, then it'll affect all of the first 8 amendments of the BoR. Plus he asked "beyond gun control...what other rights would be incorporated", so his only question was about all the other rights, not RKBA. Since the only right in the 2nd Amendment is the RKBA, his question is only about the rest of the BoR.

You are right. I was only reading his question as regarding Cruikshank. I missed the reference to Slaughter-House.

navyinrwanda
05-27-2009, 5:30 PM
Posner is judicially bankrupt. He'll predict outcomes when he likes the outcomes.

-Gene

Posner has an opinion on everything, and never hesitates to share it. Why this has garnered him the reputation as "one of the finest judges in America" is beyond me.

On the other hand, NRA v Chicago is a much cleaner case for SCOTUS to accept for incorporation (as opposed to Nordyke or Maloney). Now that the Second Amendment has been established as an individual right, it's the ideal sort of incremental case that the Court uses to explore the contours and scope of the right.

DDT
05-27-2009, 5:55 PM
Posner has an opinion on everything, and never hesitates to share it. Why this has garnered him the reputation as "one of the finest judges in America" is beyond me.

On the other hand, NRA v Chicago is a much cleaner case for SCOTUS to accept for incorporation (as opposed to Nordyke or Maloney). Now that the Second Amendment has been established as an individual right, it's the ideal sort of incremental case that the Court uses to explore the contours and scope of the right.

While I have complete sympathy with the Nordykes and feel their case is an excellent case to test the "sensitive areas" doctrine McDonald is a "cleaner" incorporation case. If 2 a is incorporated Chicago/Oak Park laws are unconstitutional period. Nordyke has other possible outcomes as the 9th has shown.

MindBuilder
05-28-2009, 12:12 AM
This is a transcript I've made of the 7th Circuit oral arguments for NRA v Chicago held May 26, 2009.

This is a transcript of the mp3 audio file from the 7th circuit court's web site at http://www.ca7.uscourts.gov/fdocs/docs.fwx?submit=showbr&shofile=08-4241_001.mp3
The audio file is 6149251 Bytes long and has an md5sum of
00ec17013286a0c02b166fc0a116279d

I'm also going to attach a file in "Transcriber" format. Transcriber is a handy Free program to make creating transcripts easier. While it's mainly for creating transcripts, you might want to use it for reading the transcript as well because it has the nice feature that you can click on the text of the transcript and it will jump to the corresponding section of the audio file. Calguns.net only takes text attachments so remove the txt extension from the trs file before use.

Make the name of the mp3 file the same as the name of the trs file but with mp3 instead of trs as the extension.

Transcriber seems to have a bug so that it won't play the last few seconds of the audio file. I had to load the court's mp3 file in another player to hear the end. There wasn't much there to miss.

Calguns.net only allows 10kByte messages so I'll put this in multiple parts. I'll attach the trs file to the first post and I'll attach the whole transcript text file to the last post. I don't think you can copyright a transcript, but in case anyone might be a little worried about reposting this, I hereby release any copyright interest I might have in this transcript to the public domain.

Without further ado:

Judge Easterbrook: Good morning ladies and gentlemen. Our first case for argument this morning is the National Rifle Association against Chicago. Mr Halbrook.

Stephen Halbrook: May it please the court I'm Stephen Halbrook, representing the National Rifle Association and various individual plaintiffs in the challenges to the handgun bans of Chicago and Oak Park. The Second Amendment right of the people to keep and bear arms, should be recognized as incorporated into the due process clause of the Fourteenth Amendment for basically four reasons:

Judge Posner: I don't see how you can get around the Supreme Court's admonition to us that we're not to anticipate overruling of Supreme Court decisions. You have Cruikshank and Presser and Miller and the Supreme Court's footnote in Heller where it declines to reexamine those decisions and it says, no, it says they hold the Second Amendment doesn't govern state action, so

Stephen Halbrook: Your honor it doesn't apply directly, but Cruikshank, Presser, and Miller vs Texas all held that the Second Amendment as well as the First and Fourth did not apply directly to the states citing Barron vs Baltimore. They did not consider whether that right was incorporated into the Fourteenth Amendment as made clear in Miller vs Texas.

Judge Posner: I know but those, especially as characterized by Heller, those Supreme Court, those cases say, no it's not incorporated. Now, they may have overlooked grounds, they may be poorly reasoned, but there they are. They're holdings, so I (unintelligible)

Stephen Halbrook: Your honor there's no reference in any one of those nineteenth century cases

Judge Posner: No it doesn't matter what's in the cases. Look we had, we had a case, the Con Oil case some years ago where we were urged to say that the, that it, an earlier decision by the Supreme Court, Albrecht, was deader than a doornail - we should ignore it. And we did think it was deader than a doornail. And we said in our opinion, we think the Supreme Court should overrule it and should reverse our decision, but we're bound by it. And I don't, I don't, the fact, as they say Albrecht had been fatally undermined by later decisions. But, and the Supreme Court said you know we were right to do what we did. We were correct that Albrecht was dead, but it wasn't our place to announce its death and internment. We had to leave that to the Supreme Court and I don't see how this is any different.

Stephen Halbrook: Well the Supreme Court has never considered whether the Second Amendment right is incorporated through the due process clause.

Judge Posner: It doesn't matter. What they said in Heller was that these earlier decisions, which rejected incorporation,

Stephen Halbrook: They didn't reject incorporation, they held that the Amendments applied directly

Judge Easterbrook: Let me quote you, council, let me quote you the language. Footnote 23 of Heller says that these decisions, and I quote "reaffirm that the Second Amendment applies only to the federal government." period. Now if what that said in Heller was something like, Cruikshank, Presser, and Miller decided that the bill of rights was not incorporated en-block against the states, I think you'd have some running room here. But what they actually said in footnote 23 is, we affirm that the Second Amendment applies only to the federal government. (unintelligible)

Stephen Halbrook: We don't contest that.

Judge Easterbrook: (unintelligible)Say they were wrong in footnote 23.

Stephen Halbrook: No your honor. That was Barron vs Baltimore. None of the bill of rights provisions applied directly. Heller

Judge Easterbrook: Look, footnote 23 doesn't cite Barron against Baltimore. It tells us what the holdings of those cases are. And I entirely appreciate
your argument that they don't discuss selective incorporation. Indeed I entirely appreciate your argument that the Slaughterhouse Cases are wrongly decided. I thought David Curry proved that very nicely, quite some time ago. But as is often said in the bureaucracy, that's above our grade level.

Stephen Halbrook: Well the last comment in Heller is that it's required to engage in the incorporation or Fourteenth Amendment analysis, it's, as our later cases. And to rotely simply cite Presser or Miller vs Texas for a proposition that they never even raised. Selective incorporation

Judge Posner: You know there's another aspect of that, of the footnote. It doesn't say the Cruikshank or Presser or Miller were wrongly decided. It just says that Cruikshank used the wrong analysis. Now you can use the right analysis and come out with the, you might come out with the same result.

Stephen Halbrook: We don't say they were wrongly decided either. They just aren't applicable to incorporation through the due process clause of the Fourteenth Amendment, which, jurisprudence of which was in the twentieth century.

Judge Posner: No but, the court, but the court didn't say in Heller that the result in Cruikshank was erroneous. It just noted that it didn't engage in the modern analysis.

Stephen Halbrook: Which it says is required.

Judge Posner: And that doesn't

Stephen Halbrook: The modern analysis took place starting in 1897 through the 20th century.

Judge Posner: I know but this is the same as that Con Oil case. A modern analysis of Albrecht showed that Albrecht was wrong, as the Supreme Court confirmed when it reversed our decision. I just don't see the difference.

Stephen Halbrook: We don't contest, we don't say those cases in the Nineteenth Century were wrongly decided. They just didn't consider the Fourteenth Amendment incorporation.

Judge Posner: Yes, exactly. Well that was the same problem the Albrecht case had had. It didn't consider the factors that the Supreme Court in its later cases, now, Consumer Welfare and so on, thought were decisive.

Judge Bauer: They had a couple of chances at cracking at it. The Quilici case was before them, they rejected it twice.
Stephen Halbrook: They denied cert

Judge Bauer: That's right

Stephen Halbrook: and of course that means nothing in terms of the merits.

Judge Bauer: It doesn't mean nothing, It doesn't mean anything except it doesn't mean they were excited about the problem anyway.

Stephen Halbrook: Now that the Second Amendment nature of that right has been clarified it's a different story because the cases holding against incorporation, made sense in terms of if it was a collective militia right, it would not make sense to incorporate that right against the states. But that's not what the Supreme Court held in Heller. That it's an individual right, protects the right to have a handgun in the home for self defense. And it makes clear it's a fundamental right. It existed, in terms of the English origins.

Judge Posner: No it actually didn't. It was not an English, it was not a right in England

MindBuilder
05-28-2009, 12:17 AM
Stephen Halbrook: Well, the English Bill of Rights

Judge Posner: No, you have a misunderstanding of that. The Blackstone position is that self defense and defense against tyrannical government. These were political rights, they're not legal rights.

Stephen Halbrook: There's no reference in Blackstone to this right existing in the English Bill of Rights for a militia purpose. It was to, for self-defense and self-preservation.

Judge Posner: It's not political right. It's not enfor, It's a political right. It's not a legal right. It's not an enforceable right. People in England had no right to carry guns.

Stephen Halbrook: Heller's interpretation of what Blackstone said supported the conclusion that it's a right of self-defense. And that right was transformed here where it's considered fundamental.

Judge Posner: I mean that's arguable. That's arguable. It's not so open and shut that we actually could know how the current Supreme Court would decide the ultimate question.

Stephen Halbrook: Well, being that the court admonishes that the later cases are required to be taken into view, whichever way the court rules, it would seem that simply relying on Nineteenth Century cases, as it says, we've gone beyond that, would not be the kind of analysis that would be expected of the court. The court should do the kind of analysis it set forth for example in Duncan, Benton vs Maryland and cases of that type, when you look at whether it's a fundamental right, it's a right that is implicit in the concept of ordered liberty and the later renditions of that test. The fact that the intention of the Fourteenth Amendment

Judge Posner: But look, you're familiar with the statement aren't you with the proposition that government asserts a monopoly of force?

Stephen Halbrook: Absolutely your honor. In terms of armed forces

Judge Posner: So government might decide not just armed forces. For example do you think there's a constitutional right of revenge?

Stephen Halbrook: No your honor. There's a right to self defense in the home however.

Judge Posner: So the government can cut off revenge. It can say no revenge. Even though there might be circumstances where revenge was the only way in which you could obtain justice.

Stephen Halbrook: We're are only arguing for the right to have arms in terms of the, within the parameters of the criminal law. The rules about deadly force, what's allowable in the home and what's not, that's all that we're presenting here. And that's what Heller says basically is a fundamental right.

Judge Posner: What if the government abolished, what if Congress or a state legislature, Chicago, what if it abolished the defense of self-defense in criminal law? Would that be unconstitutional?

Stephen Halbrook: That would be unconstitutional. Absolutely.

Judge Posner: That would?

Stephen Halbrook: Because it cannot be the case, I mean the Supreme Court has held repeatedly that the right of personal security is a fundamental right, whether through the Fifth Amendment due process clause or the Fourteenth Amendment due process clause. And a fundamental right is at stake here. It's a right of personal security. It's a right that doesn't preclude all kinds of other regulations that the Heller decision talks about.

Judge Easterbrook: Thank you Mr Halbrook.

Stephen Halbrook: Thank you your honor.

Judge Easterbrook: Mr Gura.

Alan Gura: May it please the court, Alan Gura for the appellants in the McDonald matter. Your honors we are engaging today in a predictive exercise. And the predictive exercise is one that asks the court.

Judge Easterbrook: Why. We've just been through this. Judge Posner asked, how would one predict the Supreme Court would react to a plea to overrule
Albrecht? We predicted, I think entirely correctly, that they would overrule Albrecht. And they did. But we also thought that our prediction that the justices will overrule their opinions, is not a justification for us to disregard them.

Alan Gura: Your honor

Judge Easterbrook: Why isn't that principle equally applicable here?

Alan Gura: Because the prediction that the court is called upon to make is not whether or not the Supreme Court will overrule one of its earlier cases, the prediction the court is called upon to make, is to predict how the court would apply its incorporation analysis, which has never been applied before to a right which is

Judge Easterbrook: That is a reason to overrule three cases. But it doesn't detract from the fact that the cases have to be overruled. The position you're taking, indeed the position the Ninth Circuit took, seems to be that as long as a court of appeals can think up an argument that is not explicitly rejected by the Supreme Court, decisions of the Supreme Court just aren't binding in the court of appeals. That may be the attitude of the Ninth Circuit, but it's not ours.

Alan Gura: Your honor the Seventh Circuit attitude was expressed, I think quite well by Judge Posner in Norris vs United States, which we quoted in our brief, that, and to quote real briefly, "constitutional law is very largely a prediction of how the Supreme Court will decide particular issues when presented to it for decision. In such a case, to continue to follow the earlier

Judge Posner: Sure that's the, that's when there's an open issue.

Alan Gura: And we contend the issue is open here your honor.

Judge Posner: No no but look, So here's a case, Rodriguez, this I think is the first case where the Supreme Court, you know, emphasized its prerogative, as it put it later, alone, to overrule its own decision. It says "when court precedent has direct application in a case yet appears to rest on reasons rejected in some other line of decisions, the court of appeals should follow the case which directly controls, leaving to the Supreme Court the prerogative of overruling its own decisions" Why isn't that this case?

Alan Gura: That's a fine statement of principle your honor, but it simply doesn't apply to this case because there is no directly applicable Supreme Court precedent on the question of

MindBuilder
05-28-2009, 12:21 AM
Judge Posner: But the Supreme Court said in the Heller case that these earlier decisions had affirmed that the Second Amendment didn't apply to state action.

Alan Gura: And neither does the First Amendment or the Fourth Amendment. But when the Fourteenth was brought into play, a different analysis has been required since the early part of the twentieth century.

Judge Posner: Yea, different analysis some rejected in some other line of decisions. That's what the Supreme Court said is not a basis for us to, And there's a reason for their rule, I think their rule is very sensible. Because otherwise we interfere with the Supreme Court's setting of its own agenda. You know maybe they don't want to deal with the incorporation issue just now.

Alan Gura: I think what the Supreme Court would want this court to do would be to follow its precedent in Duncan vs Louisiana, and a whole host of other selective incorporation cases

Judge Posner: There is no precedent though, concerning, I mean there's no case, there's no Supreme Court case that holds that the Second Amendment right is incorporated against state action.

Alan Gura: And there's no Supreme Court case that holds that the Second Amendment is not selectively incorporated under the due process clause.

Judge Posner: No no, that's the reasoning not the result. There are three cases that hold it's not applicable to state action. That's the holding. The reasoning may be defective, incomplete and so on. That's a separate question.

Alan Gura: The value of precedent lies your honor in the reasoning not the judgment. It's true that

Judge Posner: No no. That's wrong.

Judge Easterbrook: It has to rely on the bottom line, because otherwise you've got exactly the problem I stated. Judges, lawyers, are very inventive. And Supreme Court opinions are not legal encyclopedias. So any opinion, however long, will always fail to address some issue. And if that's all that's needed for the court of appeals to go off on its own way, we won't have a hierarchical system, we'll have chaos.

Judge Bauer: You have no idea how I'm enjoying this. Go ahead.

Alan Gura: I'm glad you're enjoying it judge Bauer. But your honor, the lower courts exist to flesh out the law and to decide upon cases as a matter of first impression. Many cases

Judge Easterbrook: I actually don't know why you're so upset about the prospect that judge Posner and I have raised with you. It doesn't matter what we say. We're not going to resolve this issue. You've got yourself a conflict among the circuits. Why don't you just say "Our arguments are preserved. Thank you very much."

Alan Gura: If that's what your honor would like me to do then I'll certainly go ahead and do that. Our arguments are preserved. And thank you very much.

Alan Gura: I'll reserve the rest of my time for rebuttal.

Judge Easterbrook: This is going to be resolved elsewhere. Yes. Thank you Mr Gura.

Alan Gura: Thank you.

Judge Easterbrook: Ms. Solomon

Judge Bauer: For heavens sakes don't talk him out of anything.

Benna Solomon: I've been busy editing my notes your honor. Thank you. May it please the court. The question presented by this case is whether the Second Amendment right to possess a handgun is an aspect of ordered liberty protected against state and local governments. That is not an issue decided by Heller, which involved only the Second Amendment itself and not the Fourteenth Amendment. But the Supreme Court has previously addressed whether the Second Amendment has any application to the states, and has three times ruled that it does not. This morning I will reiterate that those decisions are binding on this court. If the court wishes a discussion as well I will explain that the right is not a concept of ordered liberty embodied in the Fourteenth Amendment in any event, because state and local governments can conclude that the risk of misuse of handguns by criminals, outweighs whatever benefits handguns provide to law abiding people. A categorical right to a handgun, as recognized in Heller, is therefore not incorporated under the due process clause, privileges and immunities clause and the equal protection clause, which were not mentioned here, I will rest on our brief. This court should in fact summarily reject all attempts to apply the Second Amendment to the states on any theory. The Supreme Court has repeatedly rebuffed, in broad and unmistakable terms, any role for Second Amendment rights, in state regulation of arms. Cruikshank, Presser, and Miller against Texas all phrase the point a bit differently, but there is no mistaking the upshot of it; Second Amendment imposes no limitation on state legislation or prosecutions relating to firearms. It does not matter, as was mentioned this morning, that these cases were decided before the court embraced the process of incorporation under the due process clause. Whatever the theory of those cases, and whatever the theories advanced here, only the Supreme Court itself can limit or update its prior definitive holdings. They do not become non precedential simply because one can imagine an argument against them, or because the court itself might later discard them.

Judge Easterbrook: It's actually a pretty good argument against them. And it's not simply that the justices have used a different approach in recent years. It's that there's a lot of rumbling about the Slaughterhouse cases, even among the justices.

Benna Solomon: That is correct. And now as far as privileges and immunities go, even the McDonald appellants admit that that issue is foreclosed here. So I have limited, uh primarily limited my remarks to the due process clause. But on the subject of privileges and immunities, as well as the due process clause, if this case or one of the other circuit cases were to go to the Supreme Court, of course that would be its prerogative to consider overruling, limiting, changing, modifying, or clarifying Slaughterhouse. And of course it's not simply Slaughterhouse. The rule that privileges and immunities clause does not wholesale incorporate the Bill of Rights, has been repeated many times. In Cruikshank and Presser themselves, as well as Adamson against California, which albeit was overruled on other grounds, the privileges and immunities ruling has never been disturbed. So we do think that is, respectfully we think that is binding on the court as well.

Judge Easterbrook: One can only imagine William Winslow Crosskey coming back to debate this issue.

Benna Solomon: It would be ripe, no doubt for someone to present to the Supreme Court. Nothing in the footnote in Heller warrants questioning the Supreme Court's precedent. The court there recognizes a question about the continuing validity of Cruikshank on the issue of incorporation. But by its very terms, that does not undermine the prior precedent. It merely acknowledges and does not decide the issue. And it expressly notes that the issue was not before the court in that case. And for both reasons we think it inappropriate to read the footnote as having actually decided anything on the merits of that issue. Heller therefore necessarily leaves intact and binding the court's three prior rulings. Rejecting all attempts to apply the Second Amendment to someone or something other than the federal government. Footnote 23 also, with respect, does not authorize the lower federal courts to decide the issue of continuing validity themselves. That issue like the decision whether the Supreme Court's cases are right or wrong is also reserved to the court alone. The Ninth Circuit recently read Heller's footnote to leave incorporation open, but we think that is not quite right. The court did not decide the issue, and therefore left it open in that sense. But the footnote makes clear that the court had previously touched on the issue, and that it was not disturbing those rulings. The Ninth Circuit in any event notes that its ruling on incorporation was in conflict with Maloney against Quomo. And on that issue there is, as has been noted here, a conflict in the circuits. Very briefly, if the court does go beyond precedent, it should rule that the precise Second Amendment right recognized in Heller, and on which appellants rely here, namely a categorical right to a handgun, is not a fundamental liberty interest protected by the due process clause. Heller did not decide this issue either, as even Nordyke recognizes. The only issue in Heller was the meaning of the Second Amendment, and on that score the court was quite clear that whatever the right to arms meant to ordinary citizens in the founding generation, it would mean in the 21st century as well, even if it made no sense. The court went on to recognize an individual right to keep and bear arms in common use at the time of the founding. This included handguns which the court thought Americans believed to be useful and popular for self-defense. That holding does not preclude state and local governments from banning handguns in jurisdictions where the right of armed self-defense is preserved. A guaranty in the Bill of Rights is incorporated against the states only if it is a part of ordered liberty.

Judge Posner: What does ordered liberty mean?

Judge Easterbrook: (chuckles)

Benna Solomon: It means the ability of people to live together in society considering the rights of all of them, in the way that the legislature determines it to be most appropriate at any given time.

Judge Easterbrook: I've always thought that it was those things that Justice Cardozo thought were applied to the state. That was his phrase.

Benna Solomon: Well again

Judge Easterbrook: Of course Palco, where it originated, itself got overruled.

MindBuilder
05-28-2009, 12:24 AM
Benna Solomon: It did your honor. But the Supreme Court's test, considering both procedural and substantive rights, has been extremely common, extremely widespread through all the cases. Fundamental to an Anglo-American scheme of justice, necessary to ordered liberty, deeply rooted in the nation's history and traditions. And on none of those does the right to handguns in particular, rise to the top. We do not, for purposes of this case, question that the due process clause protects a fundamental right of armed self-defense. But that right flows directly from the due process clause. It does not require or depend upon incorporation of the Second Amendment. And given the Supreme Court's view in Heller, that the Second Amendment requires the availability of handguns, we think there is no basis to incorporate that right. Handguns in modern America are not conducive to ordered liberty.

Judge Posner: Well wait. What is the proper date at which to evaluate an incorporation argument? Shouldn't it be 1868 when the Fourteenth Amendment was ratified?

Benna Solomon: For due process purposes your honor, we think the correct date is modern times. Lawrence against Texas tells us that in our nation's

Judge Posner: Well that's odd isn't it? Usually you interpret statutes, constitutional provisions, according to, you know when they were written, right?

Benna Solomon: Due process is a flexible concept of course. And it is intended to change with the times. It specifically considers changed circumstances. There are after all at least two provisions

Judge Posner: Well that's not the attitude in the Heller case

Benna Solomon: That's correct. The Heller court was quite clear that as a matter of const, excuse me, constitutional interpretation of the textual provisions of the Bill of Rights, it was bound by the original intent of the framers. The court's due process cases however,

Judge Posner: Then why wouldn't they be, why wouldn't the court be bound by the understandings of 1868?

Benna Solomon: The due process cases do not take that truncated view. And on that score we actually do disagree with the Ninth Circuit in Nordyke. The Ninth Circuit used the court's limitation in Heller, and applied it to the due process inquiry. We think that was wrong. We think the Supreme Court in its due process cases has consistently examined the right in modern times.

Judge Posner: I don't know why you argued that. Seems to me the right to bear arms would have seemed more preposterous in 1868 than it does now. Right after the civil war?

Benna Solomon: But we do agree that the history, contemporaneous history at the time of the Fourteenth Amendment did not overwhelmingly indicate the support for handguns in particular. To the contrary, the states were able to and did regulate the possession of arms quite intently. The post civil war

Judge Posner: The country was much more nationalist in the 1860s than it had been in the 18th century. Right?

Benna Solomon: For purposes of due process, we think it actually doesn't matter. For consistency with both Supreme Court's latest due process cases, we have attempted to bring the right, the examination of the right for due process purposes, as current as possible. But even if considered at the time of the framing of the Fourteenth Amendment, the history is quite clear.

Judge Posner: That militia business back in the original Bill of Rights, that has kind of a succession flavor doesn't it?

Benna Solomon: There are a number of provisions of the Bill of Rights that have not survived for incorporation purposes. The Seventh Amendment civil trial, civil jury trial right has not been incorporated. The grand jury clause has not been incorporated. If the mere inclusion of rights in the Bill of Rights were sufficient as a basis to incorporate a provision of the bill of rights, the entire Bill of Rights would have been incorporated.

Judge Easterbrook: One potential consequence of the line you're taking is the Supreme Court will overrule Slaughterhouse and incorporate everything. And then all of Chicago's administrative tribunals for handling parking tickets will suddenly become unconstitutional under the Seventh Amendment.

Benna Solomon: The Supreme Court will no doubt consider that going down the privileges and immunities road would need either a limiting principle not evident in the brief, in the arguments on the other side, or it would need to overrule the cases indicating that the grand jury clause and the Seventh Amendment are not incorporated. And the court has reaffirmed those rather recently. In short it is our submission that the prior precedent by the Supreme Court, including the Heller decision, is binding on this court. And we respectfully urge the court to go no farther than that. If the court does reach the due process issue, we urge the court to find that there is no categorical right to handguns. State and local governments in 21st century America, can decide as a prophylactic measure, to ban the single weapon most associated with homicides, suicides and other armed violence. Whatever the benefits of handguns, whatever the benefits Americans think are inherent in handguns, they do not outweigh the increased risk to ordered liberty. We therefore ask that the judgment be affirmed.

Judge Easterbrook: You think the outcome of this case turns on whether John Lott is right in more guns less crime?

Benna Solomon: I do not your honor.

Judge Easterbrook: I can't imagine that as a subject of constitutional adjudication.

Benna Solomon: We think the issue turns on the prerogative of state and local governments, which are the governments closest to the people, and have typically exercised the police power most intently, to decide what is

Judge Easterbrook: All those slogans. Government closest to the people. The city of Chicago is twice the size of the entire United States at the time the nation was founded. It's not a government close to the people.

Benna Solomon: It is closer

Judge Easterbrook: One can handle this kind of constitutional adjudication without tired slogans.

Benna Solomon: Well I'm sorry for that your honor. If the court views it as a tired slogan.

Benna Solomon: As a representative of the Village of Oak Park and the City of Chicago, we do take our prerogatives rather seriously. There is a federalism aspect of this case as well as a police power aspect.

Judge Posner: But that's the real, I mean the argument is that conditions differ across the United States. You don't want to have one rule. That doesn't have anything to do with a superior democratic legitimacy of local government.

Benna Solomon: Well, without a reason in the federal constitution to require local governments to do something a certain way, the rule in this country is that local governments are free to do it in the way that their own policy reasons dictate. If there is an objection to those policies, policies can be changed through the democratic process. And people are also free to relocate themselves to a place where they might prefer the policies more to their liking. My point is simply that for purposes of the case before the court, respectfully we do urge that the court is bound by prior precedent. And beyond that that the categorical right to handguns, recognized in Heller, is not an aspect of fundamental due process. And for those reasons we do ask that the judgment be affirmed. Thank you.

Judge Easterbrook: Thank you Ms. Solomon. Your time has expired. Mr Gura, anything further?

Alan Gura: Yes I do you your honor. May it please the court. Just for a brief rebuttal, I do believe that we are sitting here before a court of law and not a court social policy. The relevant law in this case is contained in two places: the Second Amendment, which defines the contours of the right at issue, as described most recently by the Supreme Court in Heller; and the Fourteenth Amendment, as described by the Supreme Court, for our purposes here today, in Duncan vs Louisiana.

Judge Posner: Well what do you think is the right time for evaluating the meaning of the Fourteenth Amendment? 1868 or 2009?

Alan Gura: 1868 your honor. If it were not 18

MindBuilder
05-28-2009, 12:28 AM
Judge Posner: You think they were big enthusiasts for gun rights in 1868?

Alan Gura: Absolutely. The record is replete with enthusiasm for Second Amendment rights. In particular in the wake of reconstruction and the horrific history

Judge Posner: Oh you mean in the south they were strong for gun rights? Ku Klux Klan

Alan Gura: Actually it was the North larger than, that uh that got the Fourteenth Amendment ratified.

Judge Posner: Why would the North be in, in the re- The North in the reconstruction era was concerned about gun rights? What was that?

Alan Gura: Absolutely. The North was quite disturbed by the reports coming out of the reconstruction South, of American citizens, free people

Judge Posner: Northern armies occupied the South in 1868.

Alan Gura: Well the armies also sent back reports that despite the armies presence in the South, the fact is that people were being disarmed. And following disarmament came terroristic brutality. And the people at the time, uh, it was not a controversial notion that the Second Amendment guarantied a right to keep and bear arms, an individual right. And as Representative Bingham and Senator Howard and the ratifiers of the Fourteenth Amendment, uh without any controversy

Judge Posner: But would they have wanted the southerners to be armed?

Alan Gura: Actually there was no effort to disarm the white southerners. But there was an effort to disband the southern militias. And there was a protest made in the Congress that even though people in the South were behaving in ways that should be discouraged by the law, that the proper remedy was not going to be complete disarmament. There was no move afoot to actually take away the arms from the South; merely to disband the southern militias which were going through the countryside practicing violence against freedmen. It was understood that the right to arms was one that was going to be enjoyed by all the people of the South and the North as well. Because in 1868 it was well understood that the right to arms was an individual right, a fundamental right. And when the Fourteenth Amendment came about with the express purpose, intent, and common understanding, that it was to incorporate the Bill of Rights, the Second Amendment was the right that was most at issue at the time. I do believe that the question is an open one for this court. I do not see any Supreme Court precedents which foreclose what this court is called upon to do so here, which is to analyze, for the first time, whether or not the Fourteenth Amendment's due process clause is in fact incorporating the Second Amendment. And we've of course preserved our privileges or immunities argument for the upper court. But at the very least this court is still free and bound actually by Duncan v Louisiana to reverse the judgment, which we hope this court does. Thank you your honors.

Judge Easterbrook: Thank you very much Mr. Gura. The case is taken under advisement.

press1280
05-28-2009, 3:38 AM
If Maloney somehow were granted cert. by SCOTUS, could Sotomayor sit on SCOTUS or would she have to recuse since she already heard the case in the 2nd circuit?
That would be one NO vote out the window if that's the case.

yellowfin
05-28-2009, 5:05 AM
It would behoove her professionally to recuse herself, but that doesn't mean she'll do it.

Mulay El Raisuli
05-28-2009, 7:12 AM
Judge Posner: What does ordered liberty mean?

Judge Easterbrook: (chuckles)

Benna Solomon: It means the ability of people to live together in society considering the rights of all of them, in the way that the legislature determines it to be most appropriate at any given time.



I chuckled too when I first read that. Isn't "ordered liberty" something like sexual virginity? But now that I read Ms. Solomon's response (including & especially her 'move if you don't like it' comment), I see that its much worse. Does Chicago really think that The State has the right & the authority to tell us what is an "appropriate" way of life???!!!

Anyway, I see this as all good. My impression is that the court is actually pleading for SCOTUS to take this case & use it to overturn Cruikshank & the Slaughterhouse Cases. Which, as discussed elsewhere in the thread, can only be good for the US in general. If I'm right, then I see them ruling fairly quickly so that it can get to SCOTUS with as little delay as is possible.

The Raisuli

ilbob
05-28-2009, 7:34 AM
It would behoove her professionally to recuse herself, but that doesn't mean she'll do it.

I think Roberts recused himself on a matter he had once ruled on in a lower court. That does not necessarily mean she will feel the need to do so.

DDT
05-28-2009, 11:39 AM
I think Roberts recused himself on a matter he had once ruled on in a lower court. That does not necessarily mean she will feel the need to do so.

I can't imagine why she would. What recourse would they have against her if she doesn't recuse herself?

N6ATF
05-28-2009, 11:49 AM
This Judge Bauer guy... LOL

Librarian
05-28-2009, 7:14 PM
I'll just pick my favorite out-of-context partial quote:

"Judge Easterbrook: ... John Lott is right in More Guns, Less Crime."

hoffmang
05-28-2009, 7:34 PM
I'll just pick my favorite out-of-context partial quote:

"Judge Easterbrook: ... John Lott is right in More Guns, Less Crime."

Librarian,

I don't think you're taking that out of context. I think Easterbrook was saying that if Chicago is basing its argument on social science and a balancing test, then at worst concealed carry (which implies handgun ownership) has no negative effect.

Easterbrook is pretty bright and it would be why he was chastising Chicago, that and that the real topic is conlaw, not statistics...

-Gene

Aegis
05-28-2009, 9:11 PM
It would behoove her professionally to recuse herself, but that doesn't mean she'll do it.

She is an activist and hates guns. A true professional would do so, but I don't expect her to do so.