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View Full Version : 7th Rules in Chicago 6/2 - 2nd not incorporated


Librarian
06-02-2009, 9:41 AM
UPDATE: NRA files for certiorari 6/3- see new thread
http://www.calguns.net/calgunforum/showthread.php?t=190601

http://www.ca7.uscourts.gov/fdocs/docs.fwx?submit=showbr&shofile=08-4241_002.pdf

Lots at Volokh.Seventh Circuit Rules That, Under Supreme Court Precedent, the Second Amendment Is Not Incorporated Against the States:

The case is NRA v. City of Chicago, the challenge to the Chicago handgun ban. The core argument:

Cruikshank, Presser, and Miller [v. Texas] [late 1800s Supreme Court precedents -EV] rejected arguments [for applying the Second Amendment to the states -EV] that depended on the privileges and immunities clause of the fourteenth amendment. The Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873), holds that the privileges and immunities clause does not apply the Bill of Rights, en bloc, to the states.... [P]laintiffs contend that we may use the Court’s “selective incorporation” approach to the second amendment. Cruikshank, Presser, and Miller did not consider that possibility, which had yet to be devised when those decisions were rendered. Plaintiffs ask us to follow Nordyke v. King, 563 F.3d 439 (9th Cir. 2009), which concluded that Cruikshank, Presser, and Miller may be bypassed as fossils.... Another court of appeals has concluded that Cruikshank, Presser, and Miller still control even though their reasoning is obsolete. Maloney v. Cuomo, 554 F.3d 56 (2d Cir. 2009) [that's the nunchaku case in which Judge Sotomayor was on the panel -EV]. We agree with Maloney ....

Repeatedly, in decisions that no one thinks fossilized, the Justices have directed trial and appellate judges to implement the Supreme Court’s holdings even if the reasoning in later opinions has undermined their rationale. “If a precedent of this Court 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 this Court the prerogative of overruling its own decisions.” Cruikshank, Presser, and Miller have “direct application in [this] case”. Plaintiffs say that a decision of the Supreme Court has “direct application” only if the opinion expressly considers the line of argument that has been offered to support a different approach. Yet few opinions address the ground that later opinions deem sufficient to reach a different result. If a court of appeals could disregard a decision of the Supreme Court by identifying, and accepting, one or another contention not expressly addressed by the Justices, the Court’s decisions could be circumvented with ease. They would bind only judges too dim-witted to come up with a novel argument.

Anyone who doubts that Cruikshank, Presser, and Miller have “direct application in [this] case” need only read footnote 23 in Heller. It says that Presser and Miller “reaffirmed [Cruikshank’s holding] that the Second Amendment applies only to the Federal Government.” The Court did not say that Cruikshank, Presser, and Miller rejected a particular argument for applying the second amendment to the states. It said that they hold “that the Second Amendment applies only to the Federal Government.” The Court added that “Cruikshank’s continuing validity on incorporation” is “a question not presented by this case.” That does not license the inferior courts to go their own ways; it just notes that Cruikshank is open to reexamination by the Justices themselves when the time comes. If a court of appeals may strike off on its own, this not only undermines the uniformity of national law but also may compel the Justices to grant certiorari before they think the question ripe for decision. State Oil Co. v. Khan, 522 U.S. 3 (1997), illustrates the proper relation between the Supreme Court and a court of appeals. After Albrecht v. Herald Co., 390 U.S. 145 (1968), held that antitrust laws condemn all vertical maximum price fixing, other decisions (such as Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36 (1977)) demolished Albrecht’s intellectual underpinning. Meanwhile new economic analysis showed that requiring dealers to charge no more than a prescribed maximum price could benefit consumers, a possibility that Albrecht had not considered. Thus by the time Khan arrived on appeal, Albrecht’s rationale had been repudiated by the Justices, and new arguments that the Albrecht opinion did not mention strongly supported an outcome other than the one that Albrecht announced. Nonetheless, we concluded that only the Justices could inter Albrecht. See Khan v. State Oil Co., 93 F.3d 1358 (7th Cir. 1996). By plaintiffs’ lights, we should have treated Albrecht as defunct and reached what we deemed a better decision. Instead we pointed out Albrecht’s shortcomings while enforcing its holding. The Justices, who overruled Albrecht in a unanimous opinion, said that we had done exactly the right thing, “for it is this Court’s prerogative alone to overrule one of its precedents.”



Oral args were May 26; this opinion came out 1 week later.

Anyone want to bet on when the opinion was actually written? :)

ke6guj
06-02-2009, 9:46 AM
wow, that was fast.

demnogis
06-02-2009, 9:46 AM
The right of the people shall not be ... incorporated?

hill billy
06-02-2009, 9:49 AM
So how will this fair in light of Nordkye? To the SC I suppose?

silvertear
06-02-2009, 9:50 AM
So...does this mean that the Supreme Court will take a look at 2nd Amendment Incorporation anytime soon?

wash
06-02-2009, 9:52 AM
Do we still have a circuit split with Nordyke going to en banc?

I would like to see the incorporation issue settled in SCOTUS (with RKBA prevailing) as soon as possible.

Model X
06-02-2009, 9:53 AM
Do we still have a circuit split with Nordyke going to en banc?

I would like to see the incorporation issue settled in SCOTUS (with RKBA prevailing) as soon as possible.

If the Supreme Court rules that 2A is incorporated then wouldn't that automatically incorporate all amendments?

Nessal
06-02-2009, 9:55 AM
Breaking

Matt C
06-02-2009, 9:55 AM
http://www.ca7.uscourts.gov/fdocs/docs.fwx?submit=showbr&shofile=08-4241_002.pdf

Lots at Volokh.

Oral args were May 26; this opinion came out 1 week later.

Anyone want to bet on when the opinion was actually written? :)

Oral arguments are really just a formality. Hopefully we will get incorporation in the 9th cemented and then SCOTUS won't have much choice but to grant certiorari and settle the conflicting opinions. Then hopefully SCOTUS gives us a great ruling.

bulgron
06-02-2009, 10:05 AM
What the 7th said is that the 2A is not incorporated because of prior SCOTUS rulings, and only SCOTUS can overrule itself so we have no choice but to find the 2A to not be incorporated.

Hopefully that will be enough to get SCOTUS' attention, with or without Nordyke.

demnogis
06-02-2009, 10:08 AM
The whole part of this debacle that bothers me... Is that they need a SCOTUS ruling to "affirm" what the Bill of Rights already says.

:banghead:

professorhard
06-02-2009, 10:11 AM
^^^^ So true

kertong
06-02-2009, 10:17 AM
The whole part of this debacle that bothers me... Is that they need a SCOTUS ruling to "affirm" what the Bill of Rights already says.

:banghead:

This is what I hate about the whole system. A victory for us is usually an affirmation - a loss for us is a loss of freedom and rights.

So, for example, say that out of every 100 cases, we win 99 of them. Even at that amazing 99% victory rate, our rights are getting eroded since 99 cases "affirm" our rights while the 1 case takes/restricts some sort of right or freedom.

Our rights are being eroded and we have to fight tooth and nail just to keep them.

Vtec44
06-02-2009, 10:40 AM
I'm not sure what to even say here... :(

N6ATF
06-02-2009, 10:45 AM
That was too fast.

1BigPea
06-02-2009, 10:57 AM
The whole part of this debacle that bothers me... Is that they need a SCOTUS ruling to "affirm" what the Bill of Rights already says.

:banghead:

It just makes no sense...so frustrating.

Librarian
06-02-2009, 11:17 AM
Do we still have a circuit split with Nordyke going to en banc?

Until Nordyke is actually taken up en banc, which we will not know for a while, Nordyke stands in the 9th Circuit.

I suppose it is technically a 7th/9th circuit split, but since the opinion out of 7th is that SCOTUS says 2nd is not incorporated, it's more like a 9th/SCOTUS split.

If the Supreme Court rules that 2A is incorporated then wouldn't that automatically incorporate all amendments?

I wish the courts had never brought up the incorporation doctrine. It is such a can of worms.

Short answer: no.

Long answer at wikipedia (http://en.wikipedia.org/wiki/Selective_incorporation).

CHS
06-02-2009, 11:25 AM
The right of the people shall be infringed.

383green
06-02-2009, 11:50 AM
Ok, now I'm biting my nails about the outcome of the 9th Circuit en banc hearing request!

This ruling from the 7th doesn't surprise me. Even how quickly it was delivered doesn't surprise me. I just didn't have any expectation of that area being a bastion of liberty and constitutionality.

Zhukov
06-02-2009, 11:53 AM
If I recall, during the oral arguments, didn't the judges openly state they knew this would go to SCOTUS?

They basically told Alan Gura (he's representing this case, correct?) that he didn't really need to both at this point because there was already a circuit split and that he would take it to SCOTUS?

Gryff
06-02-2009, 12:00 PM
Has anything other than crap ever come out of Chicago?

Roadrunner
06-02-2009, 12:01 PM
I'm afraid for my grandkids and great grandkids. The power grabbing bastards are going to try and enslave everyone they can, and the sheeple are too stupid to see it.

So far the soap, ballot, and jury boxes are only marginally working. How much more will we have to take before we go for the ammo box?

rabagley
06-02-2009, 12:15 PM
The planning on the other side is definitely long-term, and that's where the danger lies.

We have to maintain a culture of responsible gun use, but hunting is becoming more and more of an elite (read: expensive) pastime, and other gun sports do not appeal to the urban masses.

Anyone have any ideas?

383green
06-02-2009, 12:18 PM
Shooting sewer rats as an organized urban sport? :whistling:

Liberty1
06-02-2009, 12:41 PM
It think this is generally good for our over all strategy. Having "Chicago", a "simple and pure" 2nd A. incorporation case asking simply that Heller apply, move forward this quickly allows us to control more of the process with this hand picked Gura case.

Nordyke and Maloney have their "not so pure" issues. Nordyke, as long as it stands, is good for the Circuit "split" it causes.

383green
06-02-2009, 12:44 PM
Well, I suppose we can also hope for the 7th's case to be granted cert on appeal with or without the presence of a circuit split. I wonder how anxious "our 5" are to rule on 2nd incorporation?

GaryV
06-02-2009, 1:04 PM
It think this is generally good and for our over all strategy. Having "Chicago", a "simple and pure" 2nd A. incorporation case asking simply that Heller apply, move forward this quickly allows us to control more of the process with this hand picked Gura case.

Nordyke and Maloney have their "not so pure" issues. Nordyke, as long as it stands, is good for the Circuit "split" it causes.

I have to agree, I see this as a positive. Nordyke is good for as far as it goes, but even it it stands, it still only applies to the 9th circuit. We really need a SCOTUS ruling, and Chicago is the best of the 3 current cases for us to have before the court. The fact that they made it very clear they think SCOTUS should be hearing this case, and got their decision out so quickly, works completely in our favor.

After all, it's not like they made it sound like Cruikshank, Presser, and Miller, or even Slaughterhouse are good decisions, only that they are binding until SCOTUS says otherwise. If anything they seem to be implying that they might not be. And they've certainly done a decent job setting SCOTUS up to do so.

DDT
06-02-2009, 1:14 PM
Good news. I should expect Nordykes to petition for cert now and SCOTUS will likely accept and combine possibly along with Maloney.

We all knew how the 7th was going to rule. Getting it over with quickly is much better for us than dragging it out and with the result known.

Off to SCOTUS before the firearms-5 are depleted by one.

Aegis
06-02-2009, 1:22 PM
How soon could SCOTUS have the Chicago case if granted cert?

ke6guj
06-02-2009, 1:29 PM
How soon could SCOTUS have the Chicago case if granted cert?

depending on en banc timing, I'd guess that it would up to the SCOTUS for cert for the 2009-2010 which starts in October.

7x57
06-02-2009, 1:29 PM
I have to agree, I see this as a positive. Nordyke is good for as far as it goes, but even it it stands, it still only applies to the 9th circuit. We really need a SCOTUS ruling, and Chicago is the best of the 3 current cases for us to have before the court. The fact that they made it very clear they think SCOTUS should be hearing this case, and got their decision out so quickly, works completely in our favor.


I'm guardedly taking this position too. The ruling in the simplest and cleanest case, one about an issue most like the DC ban struck down in Heller, basically asks SCOTUS to step in and settle the matter once and for all. The only possible downside is that we have two circuits against incorporation, but maybe that isn't a problem in this case. While I haven't read the decision yet, it sounds like their reasoning is that SCOTUS has to overrule itself explicitly rather than implicitly, rather than non-incorporation being good law. So I think we still are 1 against 1, with the third simply saying "please settle the issue between the 2nd and the 9th.

Against that is the fact that for actuarial reasons we need to get to SCOTUS ASAP, and surely it helps having the 7th basically asking SCOTUS to give us just that.

The sinking feeling in the pit of my stomach is simply that there are still ways this could go four feet in the air. But if you can't take uncertainty, you'd better not fight.

As Wesley said to Inigo (I think): "Get used to uncertainty."

7x57

Untamed1972
06-02-2009, 1:36 PM
Since Sotomayor rules in the 2nd circuit case, were she to be confirmed to SCOTUS, would that some how precludeher from chiming in on a SCOTUS hearing of the same case/issue?

GaryV
06-02-2009, 1:41 PM
Since Sotomayor rules in the 2nd circuit case, were she to be confirmed to SCOTUS, would that some how precludeher from chiming in on a SCOTUS hearing of the same case/issue?

On the same case, I would think that the answer would be "yes", but not on other cases simply dealing with the same issue.

DDT
06-02-2009, 1:42 PM
Since Sotomayor rules in the 2nd circuit case, were she to be confirmed to SCOTUS, would that some how precludeher from chiming in on a SCOTUS hearing of the same case/issue?

Morally? Yes. By precedent? Yes. Legally? No.

Which do you suppose she'll choose? My guess is that if it's 5-3 for incorporation she recuses if it's 4-4 tie she'll vote against.

bigtoe416
06-02-2009, 1:57 PM
As Wesley said to Inigo (I think): "Get used to uncertainty."


I believe it's, "Get used to disappointment." We'll be saying that to the anti's any day now.

Librarian
06-02-2009, 3:20 PM
Professor Lund dropped into the comment thread at Volokh, providing the link to his (pre-Nordyke) paper ANTICIPATING SECOND AMENDMENT INCORPORATION: THE ROLE OF THE INFERIOR COURTS (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1239422) in the Syracuse Law Review.

He concludes The true obligation of the inferior courts is to take the Supreme
Court’s incorporation jurisprudence seriously. If they issue well-reasoned
opinions applying that jurisprudence, they will assist the Supreme Court
when it faces the issue of Second Amendment incorporation directly, as the
Court inevitably must. Such well-reasoned opinions will surely conclude
that the right to keep and bear arms is protected from infringement by the
state governments, just as it is protected against the federal government.
I hope he's correct.

Maestro Pistolero
06-02-2009, 3:27 PM
An obligation to avoid
lethal force in self-defense might imply an obligation to use
pepper spray rather than handguns.

Well now, that would depend on the threat, wouldn't it, since pepper spray might be inadequate to stop multiple or better armed attackers. I can't understand how a right to self defense can co-exist with the denial to possess the means to effect it. One might as well argue that the right to breath is not compromised by an intentional deprivation of oxygen. The results are exactly the same

anthonyca
06-02-2009, 5:15 PM
This is from the US government's own web page on the Constitution. Funny how the second ammendment is included in the bill of rights but the government lawyers argued that it is collective right reserved for the state militia IE National Guard and now that it doesn't apply to the states like the rest of the bill of rights.

http://www.archives.gov/exhibits/charters/bill_of_rights.html

During the debates on the adoption of the Constitution, its opponents repeatedly charged that the Constitution as drafted would open the way to tyranny by the central government. Fresh in their minds was the memory of the British violation of civil rights before and during the Revolution. They demanded a "bill of rights" that would spell out the immunities of individual citizens. Several state conventions in their formal ratification of the Constitution asked for such amendments; others ratified the Constitution with the understanding that the amendments would be offered.

On September 25, 1789, the First Congress of the United States therefore proposed to the state legislatures 12 amendments to the Constitution that met arguments most frequently advanced against it. The first two proposed amendments, which concerned the number of constituents for each Representative and the compensation of Congressmen, were not ratified. Articles 3 to 12, however, ratified by three-fourths of the state legislatures, constitute the first 10 amendments of the Constitution, known as the Bill of Rights.

:beatdeadhorse5:

7x57
06-02-2009, 5:33 PM
I believe it's, "Get used to disappointment." We'll be saying that to the anti's any day now.

OK, fine, it was that somewhat less famous character 7x57 that said "Get used to uncertainty." :whistling:

7x57

Quiet
06-02-2009, 6:17 PM
So far...

Second Circuit Court and Seventh Circuit Court = no incorporation

Ninth Circuit Court = incorporation

This is going to be heading to SCOTUS.

M198
06-02-2009, 6:27 PM
Can someone explain to me how the 7th ruled that Heller (almost the same case) didn't apply to Chicago?

jas000
06-02-2009, 6:41 PM
The 7th ruled that way because they believe they are simply bound by prior SCOTUS precedent (Cruikshank, Presser, Miller) that says the 2A (including what Heller said about it) only restricts Feds, not States or Cities.

SimpleCountryActuary
06-02-2009, 6:43 PM
Against that is the fact that for actuarial reasons we need to get to SCOTUS ASAP, and surely it helps having the 7th basically asking SCOTUS to give us just that.

The sinking feeling in the pit of my stomach is simply that there are still ways this could go four feet in the air. But if you can't take uncertainty, you'd better not fight.

As Wesley said to Inigo (I think): "Get used to uncertainty."

7x57

I know all about actuarial reasons. An actuary can tell you how many people will die in Chicago next year; a "wise guy" actuary can name them. Let's get incorporation to SCOTUS before someone has an accident.

DDT
06-02-2009, 6:44 PM
Can someone explain to me how the 7th ruled that Heller (almost the same case) didn't apply to Chicago?

It is not a wholly unreasonable decision.

I typically want inferior courts to abide by SCOTUS rulings. SCOTUS precedence is that the 2nd isn't incorporated. It really is their prerogative to change that, not the lower courts.

I understand why the 9th chose to incorporate (the due process claim of incorporation was never made) but it would be interesting to know how other portions of the BoR were selectively incorporated; by inferior courts or the supreme court.

DDT
06-02-2009, 6:47 PM
depending on en banc timing, I'd guess that it would up to the SCOTUS for cert for the 2009-2010 which starts in October.

I highly doubt this will be taken en banc. I don't even know if NRA is required to petition for en banc or if they can go directly to SCOTUS. Either way I suspect it will be heard in 2009-2010 as I'm confident the 7th will punt on an en banc hearing about as quickly as it punted on incorporation.

hoffmang
06-02-2009, 6:51 PM
It is not a wholly unreasonable decision.


It is wholly unreasonable. You'll also note that the forgot to cite Scott v. Sanford which hasn't been expressly overruled either. The Supreme Court said in the footnote that Presser and Cruikshank did not perform the due process analysis required by the Supreme Courts later cases.

Further the dicta claims there is no fundamental right of self defense and that federalism predates the right to arms.

1. The country was founded on the right to self defense.

2. The right to bear arms predated the Republic - where Federalism was introduced.

3. The 14A was specifically passed to abrogate states rights to disarm people.

This case argues that localities should have the right to disarm citizens. I can hear 19th century KKK leaders laughing that it took Judges in Chicago until the 21st century to agree with them that local "problems" need local "solutions."

-Gene

lioneaglegriffin
06-02-2009, 7:00 PM
It is wholly unreasonable. You'll also note that the forgot to cite Scott v. Sanford which hasn't been expressly overruled either. The Supreme Court said in the footnote that Presser and Cruikshank did not perform the due process analysis required by the Supreme Courts later cases.

Further the dicta claims there is no fundamental right of self defense and that federalism predates the right to arms.

1. The country was founded on the right to self defense.

2. The right to bear arms predated the Republic - where Federalism was introduced.

3. The 14A was specifically passed to abrogate states rights to disarm people.

This case argues that localities should have the right to disarm citizens. I can hear 19th century KKK leaders laughing that it took Judges in Chicago until the 21st century to agree with them that local "problems" need local "solutions."

-Gene

I can attest that the 2nd amendment kept my families property and lives safe from the KKK. With my Grandfather and 9 (father & uncles) boys who knew how to shoot (even the ladies could shoot Grandmother and 2 girls) making a 13 person mini army in the middle of Natchez without any neighbors for miles they out numbered the white crusaders. All they did was burn a cross and leave because you can't shoot a white man in Mississippi with out him being inside the house.

DDT
06-02-2009, 7:07 PM
It is wholly unreasonable. You'll also note that the forgot to cite Scott v. Sanford which hasn't been expressly overruled either. The Supreme Court said in the footnote that Presser and Cruikshank did not perform the due process analysis required by the Supreme Courts later cases.


Then they should have vacated Presser and Cruikshank.


Further the dicta claims there is no fundamental right of self defense and that federalism predates the right to arms.


I never said they weren't using faulty logic, only that the ultimate outcome isn't unreasonable.


1. The country was founded on the right to self defense.


Actually the country was founded on the right to repell tyrannical government.


2. The right to bear arms predated the Republic - where Federalism was introduced.


Yep. That is my understanding as expressed by Heller and lots of other places. Probably most importantly for our purposes in the English Bill of Rights of 1689 "Freedom for Protestants to bear arms for their own defence, as suitable to their class and as allowed by law."


3. The 14A was specifically passed to abrogate states rights to disarm people.

Yep.


This case argues that localities should have the right to disarm citizens. I can hear 19th century KKK leaders laughing that it took Judges in Chicago until the 21st century to agree with them that local "problems" need local "solutions."

I agree completely. However; since you mentioned the KKK and Cruikshank, it's SCOTUS's ruling to overturn not really the circuits'.

I am very thankful that we have a great, well written opinion in Nordyke regarding incorporation and I hope that Scalia et. al. use big parts of it when the finally rule on incorporation and also clean up their "sensitive places" doctrine.

As I suggested in my earlier post. If, in fact, the other BoR were successfully selectively incorporated by lower courts after SCOTUS had already ruled against P&I incorporation then I'm all good with the 9th. In fact, I'm really fine with it anyway but unless this is the way it's been historically done I have no problem with the outcome in the 2nd and 7th.

Don't take that to mean I believe the second amendment shouldn't be incorporated, quite the contrary, I just think it's SCOTUS's mess to clean up.

dfletcher
06-02-2009, 8:55 PM
When Heller was decided quite a few smaller municipalities threw in the towel, including quite a few in Illinois. Common sense would indicate they'd wait for SCOTUS before bringing them back, if they are so inclined. Any indication today's ruling will result in them coming back now; or any new gun control endeavors?

swhatb
06-02-2009, 9:05 PM
W/O Feds their would be no States :chris:

383green
06-02-2009, 9:07 PM
W/O Feds their would be no States :chris:

I think you have that exactly backwards. We had states first, and we decided to wrap a fed around them later. Now, whether that was a bright idea or not still seems to be debatable... :rolleyes:

7x57
06-02-2009, 9:27 PM
Further the dicta claims there is no fundamental right of self defense and that federalism predates the right to arms.


Did they really directly contradict the Heller historical analysis? I must find time to read the decision.


3. The 14A was specifically passed to abrogate states rights to disarm people.


That seems to be fairly impossible for the anti-gun judges to admit, doesn't it? Just sticks to the roof of the mouth like peanut butter and won't come off.


This case argues that localities should have the right to disarm citizens. I can hear 19th century KKK leaders laughing that it took Judges in Chicago and presidents of the United States until the 21st century to agree with them that local "problems" need local "solutions."


Fixed. :whistling:

Then they should have vacated Presser and Cruikshank.


Which I think Gene is saying they more or less did do, at least by strong hint:

It is wholly unreasonable. You'll also note that the forgot to cite Scott v. Sanford which hasn't been expressly overruled either. The Supreme Court said in the footnote that Presser and Cruikshank did not perform the due process analysis required by the Supreme Courts later cases.


Gene, I think, is arguing that the "did not perform the due process analysis required..." phrase is telling the circuits not to rely on Presser and Cruikshank but rather to perform the required analysis. The 9th seems to have agreed, done the analysis, and held the 2A incorporated. You, however, are siding with the 7th and claim that the "required analysis" footnote does *not* indicate that Presser and Cruikshank are no longer good law?

I guess the basis for this is that the Heller decision does not actually state that they are no longer good law. The question seems to really come down to how much weight the word "required" is to be freighted with.

My strong suspicion is that the Chicago panel knew that Heller implied the kind of decision made in Nordyke, didn't like the answer, and decided to punt so it wasn't their fault if the awful hideous gunnies ended up winning. I admit that is less obvious because they more or less just kicked it upstairs, however, instead of attempting the kind of real anti-gun logic as the 2nd circuit did in Maloney.

I suppose they simply washed their hands and said "I am innocent of his blood, but for all I care you can go ahead and execute him" while the 2nd circuit screamed "crucify! crucify!" outside and the 9th said "I find no fault worthy of death." Courageous move, 7th. :rolleyes:

Still, real anti-gunners would stall as long as possible at this point, praying for one of the Heller five to step in front of a bus or something, so I guess I must not be hard on them.


I never said they weren't using faulty logic, only that the ultimate outcome isn't unreasonable.


You argue that their reasoning is invalid, but that the conclusion they drew from that reasoning is never the less plausible using, one has to presume, a different line of argument?



1. The country was founded on the right to self defense.

Actually the country was founded on the right to repell tyrannical government.


According to the Heller logic, you are agreeing with Gene. The current doctrine of SCOTUS itself is that the right to resist tyranny is simply self-defense against government, and therefore it is a specific case of the more general right of self defense. I wish I'd read more Locke, but that in fact rings true with the Social Compact logic the colonists used to replace Divine Right.


I agree completely. However; since you mentioned the KKK and Cruikshank, it's SCOTUS's ruling to overturn not really the circuits'.


Not if SCOTUS has indicated that its former precedents no longer apply and that the circuits are to consider the matter afresh. I suspect that is Gene's position, and it also seems to be the position of the 9th circuit (currently--cross your fingers). Obviously our 7th circuit panel agrees with you, however. (The second circuit is off in a meth haze and believes in fairies and goblins, so I guess we won't consider their opinion.)

7x57

DDT
06-02-2009, 10:01 PM
Not if SCOTUS has indicated that its former precedents no longer apply and that the circuits are to consider the matter afresh. I suspect that is Gene's position, and it also seems to be the position of the 9th circuit (currently--cross your fingers). Obviously our 7th circuit panel agrees with you, however. (The second circuit is off in a meth haze and believes in fairies and goblins, so I guess we won't consider their opinion.)


The words vacate and/or invalid and/or reversed are all, I'm confident within the vocabulary of Justice Scalia, had he meant for Cruikshank and/or Presser to be invalid as precedence he surely could have written that.

DDT
06-02-2009, 10:06 PM
According to the Heller logic, you are agreeing with Gene. The current doctrine of SCOTUS itself is that the right to resist tyranny is simply self-defense against government, and therefore it is a specific case of the more general right of self defense. I wish I'd read more Locke, but that in fact rings true with the Social Compact logic the colonists used to replace Divine Right.

The colonists didn't feel that they were in particular mortal danger themselves until they chose to commit treason against the king. I think this fear of mortal injury is assumed when you use the term "self defense," we stood up against economic and social tyranny not really a sense of "self defense." To me "self defense" is defending one's self rather than fighting for a cause that is greater than any individual.

To me, this is the core purpose for protecting the rights of "the people" to keep and bear arms. The colonists didn't need to fear for their lives to take up arms and neither did citizens after the revolution.

TheBundo
06-03-2009, 1:27 AM
The colonists didn't feel that they were in particular mortal danger themselves until they chose to commit treason against the king. I think this fear of mortal injury is assumed when you use the term "self defense," we stood up against economic and social tyranny not really a sense of "self defense." To me "self defense" is defending one's self rather than fighting for a cause that is greater than any individual.

To me, this is the core purpose for protecting the rights of "the people" to keep and bear arms. The colonists didn't need to fear for their lives to take up arms and neither did citizens after the revolution.

Don't forget about the need for self-defense from some tribes of Indians

press1280
06-03-2009, 2:42 AM
The whole reason for Footnote 23(due process inquiry REQUIRED by our later cases....) was to shine a light on how obsolete Cruikshank now is. If that footnote did not exist, you know these lower courts would say,"They cited Cruikshank with full approval, so they still agree it only applies to the federal government." By also pointing out Cruikshank held the 1st amendment didn't apply to the states further shows they want someone to bring the question to them since Heller wasn't about incorporation.

cousinkix1953
06-03-2009, 3:07 AM
It is wholly unreasonable. You'll also note that the forgot to cite Scott v. Sanford which hasn't been expressly overruled either. The Supreme Court said in the footnote that Presser and Cruikshank did not perform the due process analysis required by the Supreme Courts later cases.

Further the dicta claims there is no fundamental right of self defense and that federalism predates the right to arms.

1. The country was founded on the right to self defense.

2. The right to bear arms predated the Republic - where Federalism was introduced.

3. The 14A was specifically passed to abrogate states rights to disarm people.

This case argues that localities should have the right to disarm citizens. I can hear 19th century KKK leaders laughing that it took Judges in Chicago until the 21st century to agree with them that local "problems" need local "solutions."

-Gene
Exactly right. The ku klux klan was founded in Pulaski Tennessee in 1869. These racists were still angry about losing the civil war just a few years before. They hate black people and didn't want them having guns. Modern day Democretins don't want anybody having guns except for themselves. That is why hypocrites like Feinstein and Perata were known to carry concealed weapons like paranoid rednecks and deny ordinary citizen the same rights.

Our racist Kommiefornia legislature was the first in the nation to criminalize marijuana in 1915. White politicians hated the idea that Mexican farm workers would smoke weed after work...

GaryV
06-03-2009, 6:22 AM
I highly doubt this will be taken en banc. I don't even know if NRA is required to petition for en banc or if they can go directly to SCOTUS. Either way I suspect it will be heard in 2009-2010 as I'm confident the 7th will punt on an en banc hearing about as quickly as it punted on incorporation.

Apparently they requested that the initial hearing be en banc and were turned down. That strongly implies that any subsequent request for an en banc hearing would be futile.

bulgron
06-03-2009, 7:05 AM
Exactly right. The ku klux klan was founded in Pulaski Tennessee in 1869. These racists were still angry about losing the civil war just a few years before. They hate black people and didn't want them having guns. Modern day Democretins don't want anybody having guns except for themselves. That is why hypocrites like Feinstein and Perata were known to carry concealed weapons like paranoid rednecks and deny ordinary citizen the same rights.

On a side note, it's interesting to see that it was the Democrats who fiercely fought for slavery in the 1850's and 1860's, and today it's the Democrats who are fighting to enslave everyone in an oppressive socialist regime where your labor belongs to the government. While their methods have changed, the one consistency I can observe is a determination to disarm those they want to enslave.

For a while there I had thought things flip-flopped between the parties during the Goldwater years, but when put in this perspective, it's clear nothing has changed.

DDT
06-03-2009, 7:22 AM
On a side note, it's interesting to see that it was the Democrats who fiercely fought for slavery in the 1850's and 1860's, and today it's the Democrats who are fighting to enslave everyone in an oppressive socialist regime where your labor belongs to the government.

Just for the sake of accuracy, what we are moving toward is a bit more like fascism than socialism. While there are certainly some aspects of socialism, such as welfare and health care coming at us like a freight train right now many of the government take overs of the economy will be more like GM/Chrysler and the banking industry. The institutions will simply be majority owned and controlled by the government. I don't think we'll be seeing a "planned economy" of the sort that is the hallmark of socialism/communism here.

Mulay El Raisuli
06-03-2009, 7:24 AM
Good news. I should expect Nordykes to petition for cert now and SCOTUS will likely accept and combine possibly along with Maloney.

We all knew how the 7th was going to rule. Getting it over with quickly is much better for us than dragging it out and with the result known.

Off to SCOTUS before the firearms-5 are depleted by one.



This is actually GREAT news. I sing. I dance.

My reading of Heller is that the Freedom 5 were begging for someone to present them with a case that would allow them to Rule on state/local infringements of the Right. That's what footnote 23 was all about. Now they have that. Whether the 7th is begging SCOTUS to fix the problem, or daring them to do so doesn't really matter. A nice, clean 2A case is going to the Court.

It doesn't matter if the 9th. goes en banc or not. We don't need a "Circuit Split" on this & the judges at the 7th. knew this. That's why they had Gura preserve his arguments for later. Because they already knew there was going to be a "later." By ruling so quickly, we'll have this before SCOTUS next term. Where the Freedom 5 are just chomping at the bit to overturn Cruikshank, et al.

With a little luck, we may all have a very merry Christmas.

The Raisuli

Mulay El Raisuli
06-03-2009, 7:30 AM
The words vacate and/or invalid and/or reversed are all, I'm confident within the vocabulary of Justice Scalia, had he meant for Cruikshank and/or Presser to be invalid as precedence he surely could have written that.


No, he couldn't do that. Heller didn't present a means to invalidate those cases. What he did (IMHO) is hint very strongly that he wants to have a case sent to SCOTUS that does present him a means to invalidate Cruikshank, et al.

And the 7th has just done exactly that.

The Raisuli

CSDGuy
06-03-2009, 8:40 AM
My question is, though, DID the 7th actually DO the required Duncan analysis and then come up with their ruling, or did they NOT do the required analysis, uphold the local bans, insert language that dares SCOTUS to take up the case, and, set themselves up for being overturned?

I'm no lawyer, but in skimming the opinion, I didn't see anything that looked like the 9th Circuit's analysis... The 9th (IIRC) expressly went through the prongs of the analysis... and I didn't see anything like that here.

This was clearly, and overtly, a punt to SCOTUS.

Gray Peterson
06-03-2009, 9:05 AM
My question is, though, DID the 7th actually DO the required Duncan analysis and then come up with their ruling, or did they NOT do the required analysis, uphold the local bans, insert language that dares SCOTUS to take up the case, and, set themselves up for being overturned?

I'm no lawyer, but in skimming the opinion, I didn't see anything that looked like the 9th Circuit's analysis... The 9th (IIRC) expressly went through the prongs of the analysis... and I didn't see anything like that here.

This was clearly, and overtly, a punt to SCOTUS.

Yep, intentionally so.

7x57
06-03-2009, 9:23 AM
The colonists didn't feel that they were in particular mortal danger themselves until they chose to commit treason against the king. I think this fear of mortal injury is assumed when you use the term "self defense," we stood up against economic and social tyranny not really a sense of "self defense."

I think your meaning for "self defense" is far too narrow. They still fought duels of honor, and they weren't kidding when they pledged their "sacred honor" to the rebellion along with their "lives and fortunes." For a gentleman of honor, for a citizen of Athens or Rome, and for a citizen of the nation designed to enshrine the virtues of Athens, Rome, and free citizenship, a threat to honor is as serious as a threat to life. They accepted laws against dueling because they believed honor could be satisfied without the duel (though the general open violation of such laws indicates this was questionable) and because they accepted it as violating Christian ethics (even those not Christian generally accepted most or all Christian ethics). But they certainly believed that you own arms to protect your honor as well as your life.

7x57

bulgron
06-03-2009, 9:43 AM
Just for the sake of accuracy, what we are moving toward is a bit more like fascism than socialism. While there are certainly some aspects of socialism, such as welfare and health care coming at us like a freight train right now many of the government take overs of the economy will be more like GM/Chrysler and the banking industry. The institutions will simply be majority owned and controlled by the government. I don't think we'll be seeing a "planned economy" of the sort that is the hallmark of socialism/communism here.

Yes, what we're moving towards is a kind of fascism, but that's only because of the influence of Republicans. Left to their own devices, Democrats would bring us to socialism. Just talk to any of the lunatic left and it's clear that what they want is a nanny state to take care of them cradle to grave.

Not that fascism is any better. It's just a different expression of authoritarianism, one that co-opts a free-market capitalistic economy in order to achieve it's goals.

What we have is one party pulling hard for socialism, the other pulling hard for fascism, and no major political party pulling hard for freedom. Indeed, outside of the pro-gun movement, I don't see much awareness or care about freedom in America, unless it's the Democrats pitching a fit over Republican constitutional violations in an effort to regain power.

Of course, now the Republicans are doing the same thing. Without question, they'll intensify these efforts in the next few years so as to regain power.

No matter who wins, we're all going to lose.

ilbob
06-03-2009, 10:12 AM
Exactly right. The ku klux klan was founded in Pulaski Tennessee in 1869. These racists were still angry about losing the civil war just a few years before. They hate black people and didn't want them having guns.
If you are going to cite history, cite it correctly.

The KKK was founded in response to Northern excesses against (white) southeners after the war. The founder of the KKK actually tried to disband it when it turned in an anti-freedman direction, but it was too late.

dixieD
06-03-2009, 10:56 AM
This is what I hate about the whole system. A victory for us is usually an affirmation - a loss for us is a loss of freedom and rights.

Nicely said.

hoffmang
06-03-2009, 12:51 PM
It doesn't matter if the 9th. goes en banc or not. We don't need a "Circuit Split" on this & the judges at the 7th. knew this. That's why they had Gura preserve his arguments for later. Because they already knew there was going to be a "later." By ruling so quickly, we'll have this before SCOTUS next term. Where the Freedom 5 are just chomping at the bit to overturn Cruikshank, et al.

For once we fully agree. The quick disposition of this case leads us to next term's SCOTUS calendar. However, looking at the calendar, Christmas is too early an expectation. We'd probably have a grant by then, but oral argument would only be about a month earlier than Heller was - I'd expect February or March 2010. We would probably end up with a decision at the end of term again - late June 2010.

My question is, though, DID the 7th actually DO the required Duncan analysis and then come up with their ruling, or did they NOT do the required analysis, uphold the local bans, insert language that dares SCOTUS to take up the case, and, set themselves up for being overturned?


I'm pretty certain that the 7th Circuit didn't perform the Duncan analysis. I may be stretching it, but Posner has said he doesn't even think ˆ is rightly decided...

-Gene

Mulay El Raisuli
06-04-2009, 5:47 AM
For once we fully agree. The quick disposition of this case leads us to next term's SCOTUS calendar. However, looking at the calendar, Christmas is too early an expectation. We'd probably have a grant by then, but oral argument would only be about a month earlier than Heller was - I'd expect February or March 2010. We would probably end up with a decision at the end of term again - late June 2010.


-Gene



Well, of course you agree with me. Ya had to come around sooner or later, didn't ya? ;)

Seriously though, I didn't check their calender, so your estimate of the time line has to be better than mine. Still, end of next term will do!

The Raisuli

Bugei
06-04-2009, 7:17 AM
So far...

Second Circuit Court and Seventh Circuit Court = no incorporation

Ninth Circuit Court = incorporation

This is going to be heading to SCOTUS.

Which is actually best. These three CCs having set contrasting precedent, we need the Supremes to actually and explicitly say whether or not the 2nd is incorporated against state & local.

Really, I wonder. If the Supreme Court rules that the Second Amendment is not incorporated against the States....is that where it all unravels? If that happens, then no rights are safe anywhere in the country. The politicians will rejoice. The leftist will rejoice. But after a moment of shocked and outraged silence, what will everyone else do?

Let's get this settled once and for all, and none of this "well, shucks, as long as it's reasonable...." horsesh*t. Let's have the line drawn. Let's choose up sides. Let's throw all those black dice...and may God defend the right!

dfletcher
06-04-2009, 8:25 AM
thug politicians and Tony the ant.

Now there's a nickname I haven't heard since LV.

CHS
06-04-2009, 8:42 AM
Really, I wonder. If the Supreme Court rules that the Second Amendment is not incorporated against the States....is that where it all unravels? If that happens, then no rights are safe anywhere in the country. The politicians will rejoice. The leftist will rejoice. But after a moment of shocked and outraged silence, what will everyone else do?


That's when all the gun owners move to DC, the last bastion of 2A rights. And we open-carry the hell out of the place :)

hoffmang
06-04-2009, 11:34 AM
That's when all the gun owners move to DC, the last bastion of 2A rights. And we open-carry the hell out of the place :)

Now that would be funny!

-Gene

1JimMarch
06-04-2009, 11:49 AM
My reading of Heller is that the Freedom 5 were begging for someone to present them with a case that would allow them to Rule on state/local infringements of the Right. That's what footnote 23 was all about. Now they have that. Whether the 7th is begging SCOTUS to fix the problem, or daring them to do so doesn't really matter. A nice, clean 2A case is going to the Court.

There is a second FAR more devastating slam of US v. Cruikshank in Heller.

It's in the positive citation to the book "The Day Freedom Died" by Charles Lane. In that book, "the day" is the day in 1876 when the Cruikshank decision came down. Charles Lane slams the Cruikshank decision up one side and down the other like it was Kimbo Slice in a real MMA match. He exposes it as a racist decision that cost literally thousands of lives to lynchings and an uncountable number of other civil rights violations across generations.

When the USSC positively cited that book, they were obliquely condemning their own past misconduct to a degree never seen before, EVER.

DDT
06-04-2009, 11:57 AM
When the USSC positively cited that book, they were obliquely condemning their own past misconduct to a degree never seen before, EVER.

You are absolutely correct but what they didn't do is abdicate their supreme authority to overturn their own decisions. I am CERTAIN that at least 4 justices were anxiously awaiting this petition begging for the chance to toss presser out. Heller is not the right place to do so because it is not an issue effecting state citizens.


No matter how we got there everyone knew this was destined to be decided one place and one place only. I'm very thankful to the 7th for ruling quickly and getting us "upstairs" as quickly as we can have hoped.

SimpleCountryActuary
06-04-2009, 7:58 PM
There is a second FAR more devastating slam of US v. Cruikshank in Heller.

It's in the positive citation to the book "The Day Freedom Died" by Charles Lane. In that book, "the day" is the day in 1876 when the Cruikshank decision came down. Charles Lane slams the Cruikshank decision up one side and down the other like it was Kimbo Slice in a real MMA match. He exposes it as a racist decision that cost literally thousands of lives to lynchings and an uncountable number of other civil rights violations across generations.

When the USSC positively cited that book, they were obliquely condemning their own past misconduct to a degree never seen before, EVER.

I feel better and better about our chances. The Five get to incorporate the Second and strike a blow against racism at the same time. In the meantime, WE have incorporation already!

yellowfin
06-05-2009, 4:09 AM
There is going to be an interesting sequence of events in NY when the Supremes incorporate it.

Mulay El Raisuli
06-05-2009, 5:55 AM
There is going to be an interesting sequence of events in NY when the Supremes incorporate it.



I'm in the mood for some good thinking. Please share what this sequence might be.

The Raisuli

CnCFunFactory
06-05-2009, 7:34 AM
Has anything other than crap ever come out of Chicago?

simple answer, No.