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DDT
06-03-2009, 4:01 PM
In another thread about this case I asked if NRA was required to petition for en banc before petitioning for a hearing in front of SCOTUS.

Today I got my answer. They have petitioned SCOTUS.

Here is a link to the petition from Volokh's website.

http://volokh.com/files/nrapetition.pdf

Sobriquet
06-03-2009, 5:10 PM
You're quick on the draw, DDT. I was just coming here to post the news. Let's all hope incorporation is settled quickly and favorably. We've got battles to fight.

Fjold
06-03-2009, 5:12 PM
It's a good read.

Thanks for posting it.

CABilly
06-03-2009, 5:14 PM
Whether the right of the people to keep and
bear arms guaranteed by the Second Amendment to
the United States Constitution is incorporated into
the Due Process Clause or the Privileges or
Immunities Clause of the Fourteenth Amendment so
as to be applicable to the States, thereby invalidating
ordinances prohibiting possession of handguns in the
home.

I understand the thousand cuts theory, but I still don't like this part.

:|

vrand
06-03-2009, 5:15 PM
You're quick on the draw, DDT. I was just coming here to post the news. Let's all hope incorporation is settled quickly and favorably. We've got battles to fight.

And so is the NRA :thumbsup:

JURISDICTION
On June 2, 2009, the court of appeals rendered
judgment affirming the district court’s order
dismissing the complaint. This Court has jurisdiction
under 28 U.S.C. § 1254(l).

vrand
06-03-2009, 5:17 PM
I understand the thousand cuts theory, but I still don't like this part.

:|

and

...prohibiting possession of handguns in the
home.

:confused:

7x57
06-03-2009, 5:23 PM
I understand the thousand cuts theory, but I still don't like this part.

We need the case as absolutely clean and simple as possible. Chicago's ban in the home is more or less the same as DC's, so that's clean. We don't want any other issues (such as what "to bear" means) just yet.

Basically, we're dog-training here. You have to get the dog to sit right in front of you before you try to get the dog to sit at range, let alone turn the head of the flock and gather them back to you. :rolleyes:

7x57

HondaMasterTech
06-03-2009, 5:28 PM
I think the important thing is that it speaks positive of an individual right, regardless of it being in the home.

Sobriquet
06-03-2009, 5:31 PM
We need the case as absolutely clean and simple as possible. Chicago's ban in the home is more or less the same as DC's, so that's clean. We don't want any other issues (such as what "to bear" means) just yet.

Basically, we're dog-training here. You have to get the dog to sit right in front of you before you try to get the dog to sit at range, let alone turn the head of the flock and gather them back to you. :rolleyes:

7x57

Exactly right. If we go for too much without laying the proper foundation, we'll end up with a either a stain on the rug... or a dog bite.

gregorylucas
06-03-2009, 5:53 PM
Is it just me or is all of this happening blindingly fast post Heller, legally speaking that is.

Greg

7x57
06-03-2009, 5:59 PM
Is it just me or is all of this happening blindingly fast post Heller, legally speaking that is.


Speaking for myself, I can hardly take the G-forces. ;)

The big smile on my face is because the acceleration is pulling my cheeks back to my ears. :thumbsup:

7x57

Californio
06-03-2009, 6:26 PM
What bothers me about Heller and this one is RKBA in the "Home". I sure hope we don't define the 2nd as Homebound and get boxed in.

It is amazing to me that they want to protect States Rights at this point in History, was not the Civil War about States Rights to declare certain persons property.

The whole idea of the 14th was the Rights of the People (all the people) in the Federal Constitution were to be applied equal and consistent in each State. Selective Rights discriminate across the board.

7x57
06-03-2009, 6:27 PM
Say, Jim March ought to be pleased. Stephen Halbrook wasn't shy about saying to The Nine (say, the bunch of nine wearing robes that I know about also had rings :chris: ) that the 14A was intended to explicitly overrule Dred Scott:



By thus overruling the Dred Scott decision, the Fourteenth Amendment invalidated the “special laws” and “police regulations” passed by the States which violated the rights to speech, assembly, and arms.



Halbrook put some effort into going for P&I incorporation. :)

7x57

SimpleCountryActuary
06-03-2009, 6:54 PM
Speaking for myself, I can hardly take the G-forces. ;)

The big smile on my face is because the acceleration is pulling my cheeks back to my ears. :thumbsup:

7x57

"But it does take the wrinkles out." James Garner in Space Cowboys

tiki
06-03-2009, 6:54 PM
1) "In the home" isn't what the 2nd Amendment states, but rather, what the DC case was about.

2) The 2nd Amendment is either incorporated or not. We won't see a partial incorporation for in the home only.

Heller decided that the 2nd is an individual right and that the DC laws outlawing all handguns and making long guns useless in the home violated the 2nd Amendment.

Now, we need to get 2nd Incorporation. Like others have said, clean and simple. No new issues.

We already got individual right. We already got no complete ban on all handguns. We already got, not dangerous and not unusual. Lets just get incorporation. With that, we can continue slicing.

yellowfin
06-03-2009, 7:39 PM
Should I point out that the dangerous and unusual part only pertained to carry the dangerous and unusual weapons, not owning them? Owning a rocket is a right; carrying it into town is what can be limited. Carrying of ordinary arms cannot.

DDT
06-03-2009, 8:31 PM
Owning a rocket is a right; carrying it into town is what can be limited.

No, that's not a rocket. I'm just happy to see you.

elenius
06-03-2009, 8:37 PM
Funny how Halbrook cites his own book on almost every page :)

7x57
06-03-2009, 10:08 PM
Funny how Halbrook cites his own book on almost every page :)

It's good to be king. :)

For all those who keep saying the NRA isn't good at the legal side, d'ya suppose it's just a coincidence that the NRA hired the guy who wrote a good chunk of the scholarly literature that SCOTUS would have to rely on? :43:

7x57

CSDGuy
06-03-2009, 10:33 PM
Whether the right of the people to keep and
bear arms guaranteed by the Second Amendment to
the United States Constitution is incorporated into
the Due Process Clause or the Privileges or
Immunities Clause of the Fourteenth Amendment so
as to be applicable to the States, thereby invalidating
ordinances prohibiting possession of handguns in the
home.
and

...prohibiting possession of handguns in the
home.

:confused:

Doesn't Chicago prohibit possession of handguns in the home? ("Unregistered" ones anyway...) Doesn't Chicago prohibit possession of unregistered firearms (long or handgun) in the home? Hmmm. Sounds a LOT like the Heller case, only this time it's a political subdivision of a state that has that kind of law and not a Federal Enclave... And the 7th Circuit did say something to the effect that Cruikshank and Presser control... and in Heller (footnote 23?) was it not said that lower courts shouldn't rely on those cases in their decisions?

Somehow, I get the feeling that the wording of the 7th Circuit's decision is one of those... "we dare you to take this case and overrule us..." and at least set into stone that those prior cases are dead instead of hinting at it.

Hmm. SCOTUS implied earlier that certain cases are basically dead... 7th says not incorporated because they control... SCOTUS has to either revive those cases to deny incorporation (might weaken Heller in the process?) or find an arcane reason why the 2nd "lives" in DC and not anywhere else that has the same kinds of laws... or vacate those previous cases for 2A purposes, and send the case back to the 7th with instruction to do the Duncan analysis...???

Could any of these be alternatives to SCOTUS not immediately incorporating the 2A?

1JimMarch
06-04-2009, 1:11 AM
Just got done reading it.

Overall very good of course. Halbrook cites Dred Scott's description of the "Privileges and Immunities", which is cool.

He does make one mistake though: too much reliance on his own work.

Halbrook has been preaching this sermon since 1984 that I know of (in the book "That Every Man Be Armed..."). And he fleshed it out some in later works.

But like it or not, the BEST 14th Amendment analysis *overall* (covering the whole Bill Of Rights, not just the 2A) was done starting in the early '90s by liberal Yale law professor Akhil Reed Amar, culminating in his 1998 book "The Bill Of Rights". Despite being younger, Amar holds more weight with the courts than Halbrook, and Amar never acknowledged Halbrook's earlier analysis of the intent of the 14th, which no doubt yanks Halbrook's chain pretty hard.

Amar is annoying in other ways: he doesn't like what he's had to report on the 14A/2A linkage, and in "The Bill Of Rights" tossed in a line about "so maybe muskets should be legal". I confronted him in person once about the state of arms development circa 1868, including 15-shot leverguns, snubnose concealable revolvers and more. He was visibly uncomfortable :).

Halbrook should have toughed that out and cited some Amar anyways. Right now he comes across as a "lone voice in the wilderness". Hmmmm. (Come to think, it's a bit of a "Gorski-ism" in terms of ego...:D)

I would guess that an Amicus out of SAF or similar will address this in due course.

ilbob
06-04-2009, 5:43 AM
Whether the right of the people to keep and
bear arms guaranteed by the Second Amendment to
the United States Constitution is incorporated into
the Due Process Clause or the Privileges or
Immunities Clause of the Fourteenth Amendment so
as to be applicable to the States, thereby invalidating
ordinances prohibiting possession of handguns in the
home.


I understand the thousand cuts theory, but I still don't like this part.

:|

Its not about a thousand cuts.

Heller only protects handguns kept in the home, and acquiring them to some extent.

The Chicago case is about being allowed to keep handguns in your home.

You can't go to the SCOTUS to ask for relief on something unrelated to the lower court case.

ilbob
06-04-2009, 5:51 AM
It is amazing to me that they want to protect States Rights at this point in History, was not the Civil War about States Rights to declare certain persons property.
In part. It was far more complicated than that. There were a lot of other factors that came together with the slavery issue to bring it to a head.

Even so, if a southern militia had not gotten hot headed and started firing on northern troops, it might have been resolvable without a war. Once the shooting started, it was not going to stop until one side or the other was a clear loser.

The 13th and 14th amendments were intended to bring blacks into the fold as citizens. It probably would have worked a whole lot better if the north had handled reconstruction with a little more compassion. But like a lot of things human, all the good intentions in the world can easily fall victim to simple human failings.

dfletcher
06-04-2009, 8:15 AM
Is there anything not related to the facts of the case that would indicate SCOTUS would not grant cert? As in, SCOTUS never grants cert to resolve a lower court split so soon after their initial (Heller '08) decision or they're waiting for another appeal court to chime in?

SgtDinosaur
06-04-2009, 8:19 AM
The whole point is to get the 2A incorporated in all the states. Then we take it from there to the next logical conclusion, and so on. The fact that the intent of the 14thA was perverted by SCOTUS originally is shameful, and now they have an opportunity to do something about it.

Mulay El Raisuli
06-05-2009, 7:36 AM
.




Its not about a thousand cuts.

Heller only protects handguns kept in the home, and acquiring them to some extent.

The Chicago case is about being allowed to keep handguns in your home.

You can't go to the SCOTUS to ask for relief on something unrelated to the lower court case.



This is as how I understand things also. So, my thinking on the probable time line is; Chicago will get to SCOTUS first, just because cert was asked for first. Once the en banc question is resolved for Nordyke, cert will asked for in that case & will then arrive at SCOTUS sometime later, maybe (hopefully) in time for the end of 2009-2010 term.

Fingers crossed, SCOTUS uses Chicago to Rule that the 2A is incorporated. Then, since no other Fundamental Right is limited to the home, Nordyke is used to clarify the issue of "to bear" to mean that only concealed carry justifies permits & that "sensitive places" are defined only as those that are past the metal detectors. Which would give us LOC, just about everywhere, as the minimal Constitutional Standard. With even more luck, SCOTUS could exercise some "judicial economy" & make Nordyke moot by using Chicago to decide all of this.

I'm giddy with the thought.

The Raisuli

7x57
06-05-2009, 10:16 AM
Hmmm. Sounds a LOT like the Heller case, only this time it's a political subdivision of a state that has that kind of law and not a Federal Enclave...


That's pretty much precisely the point. Attempting to reverse-engineer the lawyers' thinking (how else can an amateur learn how the law works "on the street" as it were?), the Chicago case is about as perfect as a case can be for two reasons.

First, the Chicago handgun ban is near-identical to DC's; I think I was told one was modeled on the other, in fact. This makes the case very, very clean. The only new issue is incorporation, and the case stands or falls on that. If the Second is incorporated, then Chicago's ban must fall for precisely the reasons DCs did. If the Second is not incorporated then the 2A has nothing to say about Chicago's ban and so the suit must fail. So far as I can understand the lawyers, SCOTUS likes to take baby steps and deal with one principle at a time, and there is never going to be a more pure incorporation case than this short of someone actually adopting the wording of the DC ban in toto (which sounds like a silly qualification until you remember that DC did just that with the California roster).

Second, Chicago's thugocracy has the will stand and fight and the taxpayer dollars to play to the very end. If the other side folds, we "win" but don't get incorporation. We have to fight these cases in the heart of darkness, so to speak, because small governments will fold because of the cost, like most of the Chicago suburbs did. We have to fight against people who believe they're the god-emperor of their feudal fiefdom that no one can touch, like the DC city council or mayor Daley, or they'll fold to avoid giving us an incorporation case like SF did (apparently becoming the NRA's cat-toy got old and they decided to let someone else fight for a while). Daley has the arrogance to fight to the bitter end.

BTW, it's my guess that Daley doesn't even really care about guns; this is probably one of the purest cases of "it's about control, stupid." Chicago is so corrupt that even the Renaissance Italians would probably have to nod and smile in their direction, and getting to have a handgun is a powerful patronage tool. I bet Chicago has all this honed to such a science that they'd laugh at the amateurish attempts of our more corrupt sheriffs to get mileage out of CCW. But from our standpoint it's all good--it means he's *less* likely to fold for strategic reasons. A true anti might decide to try to put off incorporation nationwide a bit longer, but if Daly has to lose personally I'm sure he doesn't care about anyone else at all. He's fighting for one of the sources of power in his machine.

As with DC, sometimes we have to make them trip over their own evil. :43:


Somehow, I get the feeling that the wording of the 7th Circuit's decision is one of those... "we dare you to take this case and overrule us..." and at least set into stone that those prior cases are dead instead of hinting at it.


I don't know about "dare," since they must know doing just that is likely. You "dare" when you think they just won't really do it. But the latter, certainly, they might as well have said "if that's what you really really meant, just say so."

Courageous bunch of judges, that panel.


Hmm. SCOTUS implied earlier that certain cases are basically dead... 7th says not incorporated because they control... SCOTUS has to either revive those cases to deny incorporation (might weaken Heller in the process?) or find an arcane reason why the 2nd "lives" in DC and not anywhere else that has the same kinds of laws...


It's not arcane--it's non-incorporation, the precise issue at stake. Not incorporated means the 2nd has no effect on state laws.


or vacate those previous cases for 2A purposes, and send the case back to the 7th with instruction to do the Duncan analysis...???

Could any of these be alternatives to SCOTUS not immediately incorporating the 2A?

I've actually wondered about sending the case back, but that's fine--that would be an explicit ruling that Cruikshank and Presser are dead. Does anyone think the panel would dare do the analysis and find the 2nd unincorporated? That sounds pretty unlikely, since the panel didn't even try to argue that line. They'd also then have to directly interact with both Nordyke and with all the issues and scholarship that they basically dismissed as irrelevant in the oral arguments.

The one possibility, I suppose, is that one of the judges (I don't care enough to look up whom) make some sort of wise-crack about Federalism predating the American tradition of private arms (and yes, I'm being disrespectful by calling it a wise-crack--any judge that makes an argument that blatantly false on a subject that he's professionally obliged to research just a wee bit does not deserve any professional respect). So far as I know, that could only be an indirect references to Michael Bellesiles' Arming America thesis. That book was a work of fiction masquerading as scholarship and the fraud was so blatant that even a bunch of anti-gun professors had to fire him for misconduct.

Can that judge really, truly be thinking of pursuing that line of reasoning against incorporation, as he hinted? Dear god, I would almost like SCOTUS to send it back (not really, because it would delay incorporation for a while) and have them try that line in a finding of non-incorporation just to see it get eviscerated in the subsequent appeal to SCOTUS (see all the delay this fun would cost?).

In reality, I'm pretty sure he wouldn't dare actually trying that in an opinion, and if he did he couldn't get one of the other two to go along. Bellesiles' fraud (and I repeatedly use that word because I'm almost as insulted by the fraudulent scholarship as by the anti-gun bias, I guess there is still a bit of the scholar left in me) is such a steaming pile of festering dung that I just don't think we'll find a judge stupid enough to try it (again, as Jim March says one of our own 9th judges got burned that way already back when the fraud wasn't as obvious as it is now).

7x57

hoffmang
06-05-2009, 10:50 AM
I would guess that an Amicus out of SAF or similar will address this in due course.

You should expect Gura's cert petition Monday or Tuesday. I expect it to be a tour de force.

-Gene

N6ATF
06-05-2009, 11:20 AM
You should expect Gura's cert petition Monday or Tuesday. I expect it to be a tour de force.

-Gene

LOL

Can't wait for the coup de grâce by SCOTUS!

nicki
06-05-2009, 11:50 AM
When the Heller case was filed, Alan Gura and the team resisted the temptation and they went for "Low hanging fruit", the following:

1. Is the second amendment a collective or individual right.
2. Do people have a right to have functional arms.
3. Can whole classes of "common arms" be banned.

They specifically didn't challenge licensing or carry restrictions. So this was in fact a Keep, not bear arms case.

The SCOTUS could have done a far shorter and less conclusive ruling, but Judge Scalia took it as a opportunity to push the envelope and I thought he did it as far as I think he could without alienating Judge Kennedy.

This time around, things are different, because we have a map of exactly how the Supreme court will rule.

A nice clean case directly on Incorporation will get at least 5 votes. The question of course for the other 4 justices is if they vote against incorporation, they are effectively voting to uphold Dredd Scott, Crunshiak and Presser.

As against gun rights as they are, could they stomach voting against the 14th amendment and have it in the historical record and their individual legacies that their commitment to equal rights was subjective.

Chicago case will be very interesting to say the least.

Nicki

SimpleCountryActuary
06-05-2009, 7:54 PM
When the Heller case was filed, Alan Gura and the team resisted the temptation and they went for "Low hanging fruit", the following:

1. Is the second amendment a collective or individual right.
2. Do people have a right to have functional arms.
3. Can whole classes of "common arms" be banned.

They specifically didn't challenge licensing or carry restrictions. So this was in fact a Keep, not bear arms case.

The SCOTUS could have done a far shorter and less conclusive ruling, but Judge Scalia took it as a opportunity to push the envelope and I thought he did it as far as I think he could without alienating Judge Kennedy.

This time around, things are different, because we have a map of exactly how the Supreme court will rule.

A nice clean case directly on Incorporation will get at least 5 votes. The question of course for the other 4 justices is if they vote against incorporation, they are effectively voting to uphold Dredd Scott, Crunshiak and Presser.

As against gun rights as they are, could they stomach voting against the 14th amendment and have it in the historical record and their individual legacies that their commitment to equal rights was subjective.

Chicago case will be very interesting to say the least.

Nicki

I can't decide which I would like more: to have the four liberals vote in favor of upholding racist decisions; or one or more of them to break ranks and support the 2nd. :rolleyes:

N6ATF
06-05-2009, 9:13 PM
They voted in favor of the racist D.C. side, why should they suddenly turn away from evil now? With great/supreme power comes great/supreme ARROGANCE.