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hoffmang
11-16-2009, 12:40 PM
The Petitioner's brief for Incorporation of the Second Amendment was filed today in the Supreme Court.

http://www.chicagoguncase.com/wp-content/uploads/2009/11/08-1521ts.pdf

-Gene

RP1911
11-16-2009, 12:55 PM
Indeed, southern courts also denied Congress’s
authority to establish federal citizenship. Mississippi’s
Chief Justice held the Civil Rights Act
unconstitutional in upholding the conviction of black
Union veteran James Lewis for carrying a gun,
reasoning that only states could establish
citizenship—to which Lewis was not entitled.
Decision of Chief Justice Handy, Declaring the Civil
Rights Bill Unconstitutional, N.Y. TIMES, Oct. 26,
1866, at 2, col. 2.


The New York Times retorted:
The Constitution of the United States . . .
provides that “the right of the people to keep
and bear arms shall not be infringed.” But
this restriction is . . . a restriction upon the
power of the United States alone, and gave
to James Lewis no protection against the law
of Mississippi, which deprived him, because
of his color, of a right which every white man
possessed.

Nice!

freonr22
11-16-2009, 1:05 PM
Thank you!

IrishPirate
11-16-2009, 1:08 PM
damn, a 91 page "brief"! Hopefully these guys will win their case, subsequently winning for all of us the RKBA. I can just imagine all the law suits that are going to flood the CA courts and the 9th circuit if this passes!!

ilbob
11-16-2009, 1:47 PM
damn, a 91 page "brief"! Hopefully these guys will win their case, subsequently winning for all of us the RKBA. I can just imagine all the law suits that are going to flood the CA courts and the 9th circuit if this passes!!

yea. me too. hoepfully most of them won't be ones that lead to bad case law.

Stubby
11-16-2009, 1:52 PM
Brilliant, Absolutely brilliant :D

navyinrwanda
11-16-2009, 2:18 PM
Another tour de force of legal scholarship.

And Alan Gura's only 38 years old! This is a landmark career in the making.

Jarhead4
11-16-2009, 2:28 PM
Nice!

You left one out.


Whatever its language might signify to modern
ears, “an amendment to the Constitution should be
read in a ‘sense most obvious to the common understanding
at the time of its adoption, . . . For it was for
public adoption that it was proposed.’ ” Adamson v.
California, 332 U.S. 46, 63 (1947) (Frankfurter, J.,
concurring) (citation omitted), overruled on other
grounds by Malloy v. Hogan, 378 U.S. 1 (1964).

Toolbox X
11-16-2009, 2:43 PM
The Petitioner's brief for Incorporation of the Second Amendment was filed today in the Supreme Court.

To clarify for those dummies like me out there, this is what SCOTUS reads and decides if they will hear, correct?

RP1911
11-16-2009, 3:14 PM
If I have this correctly,

SOTUS has decided to hear. These are the supporting arguments for incorporation. The opposition will file their's and the justices will do their due diligence and be ready for oral arguments.

Maltese Falcon
11-16-2009, 3:20 PM
...I wish I could be there in person for the beginning of arguments. This will be an epic case.

hoffmang
11-16-2009, 3:29 PM
SCOTUS has taken this case. This is the opening brief from our side. Chicago responds December 30. We reply January 29 and oral arguments will occur sometime in February.

Amicus for our side are due next week, so there will be a lot more to read shortly.

This is a heavy, history making brief.

-Gene

Kharn
11-16-2009, 3:33 PM
I thought it was a very informative read on how bad SlaughterHouse has been for this country, the vast majority of the argument was for P&I revitalization instead of rehashing Heller. It was also nice to see almost every quote about guns from the 1800s including 'bear'. ;)

Fjold
11-16-2009, 3:52 PM
How ironic. Let the Libs defend Slaughterhouse and hang by their contradictions.

Paul E
11-16-2009, 3:55 PM
Wow, Great stuff. A history lesson in and of itself, and an excellent argument on top of it!

BroncoBob
11-16-2009, 3:59 PM
Damn exciting times......

bulgron
11-16-2009, 4:13 PM
I, for one, am going to be very interested to see how the libs defend a racist decision like Slaughter-House.

If this thing doesn't go 9-0 in our favor, the people on the court aren't the unbiased, fair-minded individuals that I expect them to be. :D

7x57
11-16-2009, 4:18 PM
How ironic. Let the Libs defend Slaughterhouse and hang by their contradictions.

"Make them live up to their own ideals." -- Saul Alinsky :43:

7x57

7x57
11-16-2009, 4:19 PM
I, for one, am going to be very interested to see how the libs defend a racist decision like Slaughter-House.


Why would that be difficult for professional, ideological racists? Those who can't do a little thing like that don't build an ideology of racial preferences.

7x57

bulgron
11-16-2009, 4:25 PM
Why would that be difficult for professional, ideological racists? Those who can't do a little thing like that don't build an ideology of racial preferences.

7x57

Because they walk around pretended to not be racists, that's why. There's no way for them to argument against P&I incorporation without outing themselves as the ideological racists that they are.

Well, I suppose they can say, "Slaughter-House is settled case law and stare decisis dictates that you must honor that case." And then leave it at that. Don't know if that argument would fly or not.

In fact, I rather expect the entire counter argument to be heavily rooted in stare decisis. What else could they say?

hoffmang
11-16-2009, 4:47 PM
Scotusblog weighs in:


History lesson on 2nd Amendment’s reach (http://www.scotusblog.com/wp/history-lesson-on-2nd-amendments-reach/)
Merits brief, McDonald v. Chicago, 08-1521

Monday, November 16th, 2009 5:29 pm | Lyle Denniston

With a strong plea to revive the Constitution’s ill-fated Privileges or Immunities Clause, lawyers for four Chicagoans told the Supreme Court on Monday that history shows clearly that the Second Amendment’s protection of personal gun rights applies to state and local laws as fully as to those at the federal level. Reflecting the lawyers’ view that their best chance is to rely upon the privileges clause of the Fourteenth Amendment, only seven pages of their 73-page brief (http://www.scotusblog.com/wp/wp-content/uploads/2009/11/McDonald-brief-11-16-09.pdf) are devoted to another provision of that Amendment: the Due Process Clause.

In a bold thrust, the attorneys for the challengers to Chicago’s strict handgun ban asked the Court to strike down three of its prior rulings: the Slaughterhouse Cases in 1873 — the ruling that made the privileges clause a nullity — and two decisions limiting the Second Amendment to a restriction only on federal laws: U.S. v. Cruikshank in 1876 and Presser v. Illinois in 1886. “Faced with a clear conflict between precedent and the Constitution, this Court should uphold the Constitution,” the brief argued.

The Slaughterhouse precedent, “and its unavoidable progency, Cruikshank and Presser,” the brief said, “established that the States could continue to violate virtually all privileges and immunities of American citizens, including those codified in the Bill of Rights, notwithstanding [the Fourteenth Amendment] Section One’s clear textual command to the contrary.” Those three rulings, it added, “lack legitmacy.”

“When this Court first passed on the Fourteenth Amendment, it announced a theory of the Privileges or Immunities Clause never apparently considered by anyone during the framing and ratification process, standing diametrically opposed to every statement of intent and understanding related to the Privileges or Immunities Clause,” the document asserted. “With this decision, civil rights inhering naturally in individuals, and which predate the Constitution, would be left to the States’ protection.”

The phrase “privileges or immunities,” the McDonald counsel said, had long been synonymous with rights in general, but acquired “additional heft” with an 1823 court ruling interpreting that clause to have a sweeping breadth. That was the decision in Corfield v. Coryell, which Supreme Court Justice Bushrod Washington wrote while “riding circuit” on a lower court in Pennsylvania.

“The Fourteenth Amendment reflected the broad common usage of ‘privileges or immunities,’ including the pre-existent natural rights of the sort identified in Corfield and the personal rights guaranteed by the Bill of Rights,” according to the filing. And yet, it noted, the privileges clause “was all but erased from the Constitution” in the Slaughterhouse ruling in 1873.

“Slaughterhouse transformed the Framers’ broad protection of individual liberty, commonly understood, into a clause securing only the most obscure rights, rarely exercised by any American and with which the States could not ordinarily interfere even had they the will to do so.”

The brief sought to trace the “privileges or immunities” concept back to James Madison in his original articulation of what would become the Bill of Rights, then followed it through the pre-Civil War period, and then through the drafting and ratifying process after the Civil War had ended and the Union moved to codify its victory over the Confederacy and its social structure.

“In sum,” the brief said, “a straight line of popular understanding of ‘privileges’ and ‘immunities’ runs from Madison through Corfield, leading abolitionists, Dred Scott, and the Fourteenth Amendment’s Framers.” The clause, it contended, embraces natural, fundamental rights, as well as “the rights codified in the first eight amendments” — including, of course, the Second.

The document’s abbreviated discussion of the Due Process argument focused on the fact that that provision “has incorporated virtually all other enumerated rights,” and contended that there is no reason to make the Second Amendment an exception.
The city of Chicago has 30 days, under the Court’s Rules, to file its merits brief. That time can be extended, but the Rules say that such an extension at the merits stage “is not favored.”

-Gene

tgriffin
11-16-2009, 4:55 PM
SCOTUS has taken this case. This is the opening brief from our side. Chicago responds December 30. We reply January 29 and oral arguments will occur sometime in February.

Amicus for our side are due next week, so there will be a lot more to read shortly.

This is a heavy, history making brief.

-Gene

You make me all warm and tingly when you talk like that Gene :43:

Maestro Pistolero
11-16-2009, 4:56 PM
This is our republic at work. We can whine all we want about this or that administration, but our triple layered protection will prevail on the important stuff.

yellowfin
11-16-2009, 5:06 PM
yea. me too. hoepfully most of them won't be ones that lead to bad case law.That will entirely depend upon our ability and diligence in picking battles on our terms and not just have whatever comes handed to us. This is a point I'm trying to get across to the New York people but it's very, VERY slow to hammer through the thick shell of defeatism, insulation, complacency, and apathy. It's like trying to carve a full scale replica of Mt. Rushmore with a dental pick. I need more people than just me to get the message out in such a way that it will make a big impact, ideally someone higher up the chain to speak with more authority.

Sgt Raven
11-16-2009, 7:01 PM
It will be interesting to see if JB files an Amicus Brief.

WokMaster1
11-16-2009, 7:58 PM
I'm doing some research right now on cold weather gear for those who will be lining up outside SCOTUS in February. It's brutally cold that time of the year.

Anyone knows if they allow a small gas camping stove outside the building? Probably not.

Lone_Gunman
11-16-2009, 8:54 PM
For those of us who have not followed the SCOTUS before how long do oral arguements last typically? What is the next thing to happen after the oral arguements? Is that when we get a decision or is there more that happens?

sholling
11-16-2009, 9:55 PM
SCOTUS has taken this case. This is the opening brief from our side. Chicago responds December 30. We reply January 29 and oral arguments will occur sometime in February.

Amicus for our side are due next week, so there will be a lot more to read shortly.

This is a heavy, history making brief.

-Gene
Great read! It looks like Gura has left the court little wiggle room. Either uphold the entire 14th and apply the entire Bill of Rights to the states, or declare that Stare Decisis trumps the Constitution as written.

Because they walk around pretended to not be racists, that's why. There's no way for them to argument against P&I incorporation without outing themselves as the ideological racists that they are.

Well, I suppose they can say, "Slaughter-House is settled case law and stare decisis dictates that you must honor that case." And then leave it at that. Don't know if that argument would fly or not.

In fact, I rather expect the entire counter argument to be heavily rooted in stare decisis. What else could they say?
I suspect that you are correct. One of the principals that liberals have hammered on for years is the concept that Stare Decisis trumps the original intent of the constitution. The other is that as a living document the constitution says whatever they'd like it to say.

Futurecollector
11-16-2009, 11:47 PM
Can someone PM me what this means, in english that is.... lol

hoffmang
11-16-2009, 11:48 PM
For those of us who have not followed the SCOTUS before how long do oral arguements last typically? What is the next thing to happen after the oral arguements? Is that when we get a decision or is there more that happens?

Oral argument will happen one weekday morning in February 2010. It will be the hottest ticket since Heller and the court doesn't have many seats. Just like Heller, I expect a few Calgunners will camp out overnight (or two) before the argument in the very cold on a DC sidewalk with a nice view of the capitol. Oral argument lasts one hour usually. A written opinion will not be issued that day, and will likely be issued on the last day of the term in June 2010.

-Gene

Lone_Gunman
11-16-2009, 11:55 PM
Oral argument will happen one weekday morning in February 2010. It will be the hottest ticket since Heller and the court doesn't have many seats. Just like Heller, I expect a few Calgunners will camp out overnight (or two) before the argument in the very cold on a DC sidewalk with a nice view of the capitol. Oral argument lasts one hour usually. A written opinion will not be issued that day, and will likely be issued on the last day of the term in June 2010.

-Gene

Good to know. Thanks.

ke6guj
11-17-2009, 12:37 AM
Oral argument will happen one weekday morning in February 2010. It will be the hottest ticket since Heller and the court doesn't have many seats. Just like Heller, I expect a few Calgunners will camp out overnight (or two) before the argument in the very cold on a DC sidewalk with a nice view of the capitol.

-Gene

Gene, try not to sleep in this time:43:

FreshTapCoke
11-17-2009, 1:32 AM
Gene, try not to sleep in this time:43:
:(

When will the date of the hearing be known?

Librarian
11-17-2009, 7:04 AM
Can someone PM me what this means, in english that is.... lol

You might ask a question that narrows the field some - the whole 'incorporation' thing is pretty well summed up at Wikipedia (http://en.wikipedia.org/wiki/Incorporation_%28Bill_of_Rights%29).

Dave Hardy (http://armsandthelaw.com/archives/2009/11/nras_chicago_br.php) posts the link to the NRA brief (http://www.nraila.org/pdfs/NRA08-1521.pdf) in support of Gura et al.

Chicago
11-17-2009, 8:53 AM
Sadly, and embarrassingly, its authors and editors improperly cite the constitution's "privileges AND immunities clause" (Base Document, Article 4, Section 2, Clause 1) nearly five times for every one time they properly cite its "privileges OR immunities clause" (Fourteenth Amendment, Section 1, Clause 2).

freonr22
11-17-2009, 9:20 AM
Sadly, and embarrassingly, its authors and editors improperly cite the constitution's "privileges AND immunities clause" (Base Document, Article 4, Section 2, Clause 1) nearly five times for every one time they properly cite its "privileges OR immunities clause" (Fourteenth Amendment, Section 1, Clause 2).


Politely, at least they reached the point to where Scotus is hearing it. I wish you well if thats your attitude.

nat
11-17-2009, 10:10 AM
It will be interesting to see if JB files an Amicus Brief.


I thought Jerry Brown had filed briefs in support of incorporation.

elSquid
11-17-2009, 10:24 AM
I thought Jerry Brown had filed briefs in support of incorporation.

It can be found here:

http://www.scotuswiki.com/index.php?title=McDonald%2C_et_al._v._City_of_Chic ago

-- Michael

Chicago
11-17-2009, 10:30 AM
With all due respect to freonr22, "they" did NOT get to that point. The Supreme Court is hearing the McDonald case, not the NRA case. My point is simply that the NRA brief, drafted in support of McDonald, would be more effective did it not contained such a glaring and frequently repeated error. McDonald v. Chicago is a Fourteenth Amendment case, as much as (if not more so than) it is a Second Amendment case, and it behooves its advocates to convey an awareness that the Fourteenth Amendment does not contain the "privileges AND immunities" clause.

With regard to nat's question, Jerry Brown's was an amicus brief filed in support of McDonald's (and NRA's) Petition for Writ of Certiorari last summer.

7x57
11-17-2009, 11:30 AM
Sadly, and embarrassingly, its authors and editors improperly cite the constitution's "privileges AND immunities clause" (Base Document, Article 4, Section 2, Clause 1) nearly five times for every one time they properly cite its "privileges OR immunities clause" (Fourteenth Amendment, Section 1, Clause 2).

Not this again. :willy_nilly:

7x57

Untamed1972
11-17-2009, 11:35 AM
Just got done reading the brief.......all I can say is....GENIUS!!!!

Gura is truly eloquent in his arguments. Looking forward to the June SCOTUS smackdown.

aileron
11-17-2009, 3:31 PM
Reading it now. Just got through the first half, something strikes me as very intriguing....

There is an awful lot of Bear percolating to the surface. :43:

I can't imagine that this will go unnoticed. It also gives me high hopes to the future 'Bear' case. :D Where ever that may be.

yellowfin
11-17-2009, 4:06 PM
I'm sure Coach Bryant is looking down and smiling on this indeed, aileron.

JackOfClubs
11-17-2009, 6:23 PM
It's worth noting that those of us who supported Bork's appointment can now rejoice that we lost. This argument totally rips his "ink blot" theory to shreds. If he were the 5th vote rather than Kennedy, I imagine he might be just a little cranky.

hoffmang
11-17-2009, 8:36 PM
It's worth noting that those of us who supported Bork's appointment can now rejoice that we lost. This argument totally rips his "ink blot" theory to shreds. If he were the 5th vote rather than Kennedy, I imagine he might be just a little cranky.

Bork would have been an unmitigated disaster. He and Posner (who Easterbrook was parroting in the appeals court in this case) are birds of a statist feather...

-Gene

BigDogatPlay
11-17-2009, 9:21 PM
Gura and team have, once again, produced a masterful brief.

He challenges the court to do what most competent scholars (and some members of the court itself) have been arguing for years... that the time has come for the overtly racist Slaughter-House to go on the ash heap, followed by the equally distasteful Cruickshank. They are bad law invoked by the statists to satisfy their end... which is no different than the original intent of those decisions save for it being solely about the color of some people's skins.

The respondent's brief is liable to be really interesting or really, really vacuous. I doubt there is much room left between for them after reading Gura's brief.

wash
11-17-2009, 9:42 PM
I'm only about 1/2 through reading the brief.

It sounds good so far.

The race card is what will win here. I never thought I would be happy to say that.

freonr22
11-17-2009, 10:44 PM
another brief in support

INTEREST OF AMICUS CURIAE1
The Rutherford Institute is an international
civil liberties organization with its headquarters in
Charlottesville, Virginia. Founded in 1982 by its
President, John W. Whitehead, the Institute
specializes in providing legal representation without
charge to individuals whose civil liberties are
threatened or infringed upon, and in educating the
public about constitutional and human rights issues.

http://www.abanet.org/publiced/preview/briefs/pdfs/09-10/08-1521_PetitionerAmCuRutherfordInst.pdf

hoffmang
11-17-2009, 11:11 PM
The race card is what will win here. I never thought I would be happy to say that.

Well, considering that one of the overarching reasons that the 14A was passed was to allow freedmen and their white supporters to have arms to protect themselves from racists kinda makes the race card... relevant.

-Gene

Liberty1
11-17-2009, 11:58 PM
Glory Halleluia, Kingdom comin in the year of Jubillo!!!!:party::79:

7x57
11-18-2009, 12:03 AM
The race card is what will win here. I never thought I would be happy to say that.

You know, in this case I'm not going to call it the race card. Think of it as a symbol to rub the justices' noses in what the nullification of the P&I clause was really all about--disarming the victims of the original KKK.

I have no problem with that. Why *shouldn't* Mr. McDonald have the honor? It's not so much liberal reverse racism as destiny.

7x57

Liberty1
11-18-2009, 12:15 AM
another brief in support

INTEREST OF AMICUS CURIAE1
The Rutherford Institute
http://www.abanet.org/publiced/preview/briefs/pdfs/09-10/08-1521_PetitionerAmCuRutherfordInst.pdf

Interesting "living document" argument for incorporation. They appear to be struggling in their attempt to be pro 2A but for the sake of incorporation if they make it easier for an anti to vote pro I'll take it.

7x57
11-18-2009, 12:44 AM
Interesting "living document" argument for incorporation. They appear to be struggling in their attempt to be pro 2A but for the sake of incorporation if they make it easier for an anti to vote pro I'll take it.

It's bizzare in that it claims the original understanding was for militia members only, but seems to accept this was an individual right and not a collective one. That's not a position I recall hearing defended. Then it takes the position that Heller just willy-nilly expanded the right.

So yeah, that far this shows what pro-gun Living Constitutionalists are like. But notice the last part suddenly argues for allowing government control of purchase and storage. That's not so pro-gun.

I'm not sure what their game is. I can make up too many variations to fit the rhetoric. Perhaps they're genuinely pro-gun, but from such a different universe of interpretation that they think all that makes sense. Or perhaps they're less interested in guns than in getting Incorporation (but they didn't argue P&I much, did they--it's P&I restoration that makes it worth throwing gun control under the bus for some people, not Due Process Incorporation). Or perhaps they are just trying to make an argument more palatable to the four who voted against Heller.

Or, and here is my best tinfoil hat thought, they see Incorporation coming and are just trying to minimize the damage. Either they hope to expand the court's notion of "reasonable gun control," or they are worried about the court's acceptance of Originalism and are hoping to keep the Living Constitution at the table by offering it as a way to do what the court plans to do anyway and incorporate. :TFH:

Either way, it wasn't exactly a stellar piece of writing, nor does it count as any kind of scholarship. Limited to the militia indeed.

7x57

FreedomIsNotFree
11-18-2009, 1:16 AM
Wait a second...white people can use the race card? :shrug:

In all seriousness, I doubt the clerical mistakes in the NRA's brief will play much a role, if any, in the final outcome. What were they going to do...not file an amicus?

Kharn
11-18-2009, 3:50 AM
FreedomIsNotFree:
McDonald is a black guy IIRC.

ilbob
11-18-2009, 5:54 AM
I have heard that the NRA is not real thrilled with Gura on this one either. The story goes that they think he is more interested in overturning Slaughter House this go round than anything having to do with the 2A.

OTOH, I am not sure how you go a whole lot farther forward without dumping Slaughter House.

Mulay El Raisuli
11-18-2009, 6:40 AM
Sadly, and embarrassingly, its authors and editors improperly cite the constitution's "privileges AND immunities clause" (Base Document, Article 4, Section 2, Clause 1) nearly five times for every one time they properly cite its "privileges OR immunities clause" (Fourteenth Amendment, Section 1, Clause 2).


Actually, they didn't. In each & every instance when quoting or directly referring (solely) to the 14A, they used the word "or." There are some instances where the word "and" was used, but in each instance, they were referring to Art. IV, Sec. 2 of the Constitution, speaking generally, or directly quoting others. In fact, they do such a nice job of making the distinction that, were I an English teacher, I would give them an A for being so careful in their usage.

The Rutherford Brief however, does misquote the 14A.

In any event, this is a GREAT Brief. Throwing the racist roots of Slaughterhouse & Cruikshank back at them is not *only* historically accurate (and so called for), its brilliant. Still hedging ones bet isn't a bad idea & the extra stuff about how the "Due Process" clause also applies was good. Still, overturning (via PorI Incorporation) Slaughterhouse & Cruikshank would be the greatest advance in civil rights since 1867, & it would be nice to see that come about also.

The Raisuli

P.S. Edited to add missing *only* above

Mulay El Raisuli
11-18-2009, 6:46 AM
Interesting "living document" argument for incorporation. They appear to be struggling in their attempt to be pro 2A but for the sake of incorporation if they make it easier for an anti to vote pro I'll take it.


It is because it is so "interesting" that I hope that SCOTUS ignores this one. The Constitution simply isn't a "living document."

I'm not happy about how they emphasize "in the home" either. The hope here is that one of the next Briefs gives the Heller Five the opportunity to finally correct the mistaken belief that Heller was just about in the home.

I did like how they used 7X57's favorite quote though. :)

The Raisuli

bulgron
11-18-2009, 6:49 AM
I have heard that the NRA is not real thrilled with Gura on this one either. The story goes that they think he is more interested in overturning Slaughter House this go round than anything having to do with the 2A.

OTOH, I am not sure how you go a whole lot farther forward without dumping Slaughter House.

I can't speak to the NRA bit, because I haven't heard that rumor before.

I imagine, though, that there are a lot of pro-gun people out there who aren't very happy with Gura. He could reach incorporation via Due Process, but instead he's "going there" on P&I. This has got to be irritating to the state's rights fanatics amongst us, even if they won't come right out and admit it.

RP1911
11-18-2009, 7:10 AM
Let's see if the NAACP and ACLU (national or local) will file amicus briefs.

Otherwise, they are full of it.

GuyW
11-18-2009, 7:39 AM
Interesting "living document" argument for incorporation. They appear to be struggling in their attempt to be pro 2A but for the sake of incorporation if they make it easier for an anti to vote pro I'll take it.

I never would have guessed that Rutherford would put out "living document" garbage.....

.

wash
11-18-2009, 7:44 AM
The reason I never thought I would be happy to see the race card win is because I want to live in a world where race has no effect on the courts (or every day life).

A victory for us here can undo a century and a half of bad legal precedence.

Maybe I'm a bit too optimistic but I can imagine a different United States which will once again be a shining beacon of freedom. A time when politicians can see that protecting and enhancing the civil liberties of the people leads to a safer more prosperous country.

A tide turning.

It's a great dream.

RP1911
11-18-2009, 7:52 AM
I would guess a 6-3 or 7-2 win.

freonr22
11-18-2009, 7:54 AM
Interesting, From the highroad.us

Quote" Bubbles (http://thehighroad.us/member.php?u=10811)
Administrator


Join Date: 04-26-04
Location: Eastern Panhandle of West Virginia
Posts: 1,723
http://thehighroad.us/images/misc/im_aim.gif (http://thehighroad.us/showthread.php?p=5194921&posted=1#)

The comments at the link are also interesting reading.

Kopel on the Petitioner's and NRA Briefs (http://volokh.com/2009/11/17/nra-brief-in-mcdonald-v-chicago/comment-page-1/)

November 17, 2009 7:59 pm

Last night, Orin noted the filing of the Petitioner’s brief in McDonald v. Chicago, the case that will decide whether the 14th Amendment makes the 2d Amendment applicable to state and local governments. As Orin noted, that brief is almost entirely devoted to incorporation under the Privileges or Immunities clause. It directly asks the Court to over-rule Slaughterhouse, Cruikhank, and Presser.

In my view, it’s a superb brief. It’s worthy of study by law students and anyone else who wants a great example of legal writing that is passionate and forceful, yet also sober and serious.

In the brief’s short discussion of Due Process, attorney Alan Gura aptly writes: “A ‘law’ depriving one of life, liberty or property ‘must not have exceeded the limits of legislative power marked by natural and customary rights.’” (quoting Frederick Gedicks, An Originalist Defense of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, and the Fifth Amendment, 58 Emory L.J. 585, 644–45 (2009).) This is an important point; “substantive due process” may be ill-named, but it is founded on legitimate, originalist doctrine.

Many folks have been wondering why the Gura brief concentrates so heavily on the bolder theory (Privileges or Immunities) rather than the one that courts have used over the last century (Due Process). Here’s the answer: After Heller, the Second Amendment Foundation (SAF) and the National Rifle Association each filed separate lawsuits against the Chicago handgun ban. The cases were consolidated in the Seventh Circuit; after the panel ruled, SAF and NRA each filed separate petitions for certiorari. The Supreme Court granted cert. in the SAF case, McDonald v. Chicago. A few weeks later, the Court added NRA to the case as a party. So NRA is now a “Respondent in Support of Petitioners.” The suburb of Oak Park, which had been sued by NRA but not by SAF, was also added as a party.

So as a party, NRA filed its brief yesterday. The lead attorneys on the brief are Stephen Poss (attorney of record), Stephen Halbrook, and others. The NRA brief takes the more conservative approach. It mainly argues for incorporation via Due Process, with only a brief discussion of Privileges or Immunities. NRA does not ask for any cases to be over-ruled, since Slaughterhouse, Cruikshank, and Presser are all P or I cases, and predate the Court’s recognition of selective Due Process incorporation.

Because the Question Presented by the Court asked about both P or I and Due Process incorporation, it was appropriate that one party brief focused on the former, and the other party brief on the latter.

Amicus briefs (including one I am writing) in support of Petitioners are due Monday, Nov. 23. The Chicago and Oak Park briefs are due Dec. 30, since the Court granted them a two-week extension. Amicus briefs in support of the Chicago and Oak Park handgun bans are due one week after that.

When the amicus briefs start appearing a few days, I will blog about the most important or interesting ones.
__________________
EFI, LLC
07 FFL / 02 SOT
http://www.extremefirepower.com (http://www.extremefirepower.com/)

Karma is a chestnut mare.
"end quote
(http://thehighroad.us/report.php?p=5194864)

dirtnap
11-18-2009, 8:04 AM
I believe I have found a new one for the sig line.

No valid reliance interests flow from the wrongful deprivation of constitutional liberties. The reliance interest to be fulfilled remains Americans’ expectation that the constitutional amendment their ancestors ratified to protect their rights from state infringement be given its full effect.

yellowfin
11-18-2009, 8:10 AM
A time when politicians can see that protecting and enhancing the civil liberties of the people leads to a safer more prosperous country.They will see that when they see that not doing so leads to unemployment and possibly further negative consequences for them. Such has been far too distant an idea for far too long and currently the reverse has been made true.

aileron
11-18-2009, 8:25 AM
In any event, this is a GREAT Brief. Throwing the racist roots of Slaughterhouse & Cruikshank back at them is not historically accurate (and so called for), its brilliant. Still hedging ones bet isn't a bad idea & the extra stuff about how the "Due Process" clause also applies was good. Still, overturning (via PorI Incorporation) Slaughterhouse & Cruikshank would be the greatest advance in civil rights since 1867, & it would be nice to see that come about also.

The Raisuli

What I find funny, is that, as you point out, this is probably one of the biggest Civil Rights cases in our history. Its huge!!! To overturn Slaughterhouse, I would think the press would be all over it.

I wonder how they will spin it to the American people if we are victorious. Because in their minds it going to be... "a bunch of gun nuts just turned over one of the biggest shams in history from SCOTUS." Sort of like we stole their liberal thunder and for a cause they despise. There is so much irony in here.

I'm giggling...

7x57
11-18-2009, 8:43 AM
I have heard that the NRA is not real thrilled with Gura on this one either. The story goes that they think he is more interested in overturning Slaughter House this go round than anything having to do with the 2A.


I have not heard this. However, I don't understand it--P&I incorporation does the job as surely as it can be done, and moves the court further towards originalism. Due Process incorporation, while it also does the job, doesn't help as much with promoting originalism. It can certainly recognize the original public meaning of the 2A, but throws the OPM of the 14th under the bus like we've been doing for a century.

Perhaps the objection is that P&I incorporation is harder to get than DP, and they're afraid Gura is risking losing any incorporation for the 2A to get it. I'm not sure I see that, however. It seems to me that even if the justices decline to overturn Slaughterhouse, arguments about P&I incorporation also make the point that the 2A was regarded as vital to protect for the freed slaves (BTW, I haven't had time yet to read Gura's 95-page novella, so perhaps that doesn't reflect his real line of argument--I absolutely will, but I sort of like to do the mental equivalent of reading his briefs with a cigar and brandy in front of a roaring fire). That seems to be what DP incorporation requires--proof that the right is fundamental to an Anglo-American etc, etc.

So I'm not sure Gura gave up anything by concentrating on P&I even if the justices reject that method of incorporation. Arguments to the contrary?


OTOH, I am not sure how you go a whole lot farther forward without dumping Slaughter House.

On firearms alone, I doubt the method of incorporation matters much. P&I is all about what else it might do--whether it is to further the left's program of creating new rights crafted to protect their agenda or Gene's (I think) very nice point that Slaughterhouse was an anti-free enterprise, anti-private property decision and overturning it could have a salutary effect in stemming the tide of Statism elsewhere.

Of one thing there is no doubt--P&I is much more "interesting" than DP incorporation. That said, the Chinese are said to have a curse that goes "may you live in interesting times." Adventure *IS* just horrible things that happen to someone else....

7x57

7x57
11-18-2009, 8:45 AM
I did like how they used 7X57's favorite quote though. :)


Yeah. Obviously my influence. :D

Er, except I don't want to be tarred with any responsibility for their line of argument.... :chris:

7x57

wash
11-18-2009, 8:58 AM
SCOTUS had a choice, they could take the McDonald P&I case or the NRA Due Process case. They chose McDonald.

It's my opinion that many SCOTUS justices have a desired outcome and chose the case that could get them there or possibly they chose P&I because they thought upholding Slaughterhouse would be such a negative thing that the anti's in the court would have to side with the Heller 5.

yellowfin
11-18-2009, 8:58 AM
P&I incorporation will make the argument much more direct in dealing with carry and license issues than needing to go the roundabout way by extrapolating it purely from the 2A alone. NY & NJ courts in particular will fight harder than CA against the average person getting a carry license--and it will take a decade or two if not longer to get them to do unlicensed open carry, if ever--and stall with all kinds of tactics or at very least punt every single case to SCOTUS, unless the issue is settled quickly and decisively by either McDonald alone or in combination with Palmer, and even then they'll still plug their ears and scream "They weren't talking about New York SPECIFICALLY in that case, so it doesn't apply." Then "OK, so they were talking about the STATE of New York, but not New York City, so it doesn't apply." Then "Ok...so they WERE talking about the state and city, but not YOU. Denied." All the way to SCOTUS every time. The 2nd Circuit would rather swallow a barrel full of rusty razor blades than rule in favor of a legitimate gun owner, and they'd rather swallow ten barrels than overturn the Sullivan Law--they WILL NOT DO IT because they're that psychotically in love with the anti gun mindset, not even if they had a rifle pressed into the back of their skulls.


Yes, they're that bad.

wash
11-18-2009, 9:12 AM
I can see the anti's getting behind 2 or maybe three full court press defenses. They'll get b-slapped every time.

Perhaps in the first defense they might even get a circuit court to side with them but SCOTUS will rip them a new A-hole on the appeal.

The second time around the circuit court judges and will get it right and it will be the anti's that appeal. SCOTUS will decline to hear that case.

After that anything the anti's try will be like pissing in the wind. They will get tired of that real quick. They will give up defending old style prohibitions and find some new tactic. They will still be annoying but probably less successful and this is going to happen ~soon, my guess is in five years NY will be shall issue CCW and even chacu stick friendly.

7x57
11-18-2009, 9:16 AM
The 2nd Circuit would rather swallow a barrel full of rusty razor blades than rule in favor of a legitimate gun owner, and they'd rather swallow ten barrels than overturn the Sullivan Law--they WILL NOT DO IT because they're that psychotically in love with the anti gun mindset, not even if they had a rifle pressed into the back of their skulls.


Wait. Are those options on the table? I'm basically OK with that. :43:


Yes, they're that bad.

That's always been my sense. It wouldn't surprise me if even feudal citadels of autocracy like Chicago are brought to heel before NYC.

On the other hand, we can dream about the salutary effects on other jurisdictions if NYC is made a grisly public example of. Not too many places would feel light fighting something big enough to hang NYC's legal head on a pike in the public square.

To me, the two keystone Infringements are the Sullivan law and the NFA. I fear we won't eliminate the latter, but the former.... :43:

7x57

yellowfin
11-18-2009, 9:48 AM
The real question becomes, then, in how well we can do in the next few elections to oust the big turd in the White House to get someone decent in there again and keep the office in our hands to nominate replacements for Ginsberg, Stevens, and Breyer to insure that we have SCOTUS as long as we need it to outlast NY/NJ/MA/MD's endless stalling and fighting to the last man. As I see it from here it's going to be like Okinawa.

Maestro Pistolero
11-18-2009, 10:09 AM
Gura gives the court a rich, and rare opportunity to dump Slaughterhouse, without requiring it to be dumped for incorporation, should the court decline the larger invitation. Indeed, he seems he is arguing to overturn the incorporation doctrine itself, claiming that the 14th already incorporates the B of R; fundamental rights, etc, if left unmolested.

Liberty1
11-18-2009, 10:21 AM
The real question becomes, then, in how well we can do in the next few elections to oust the big turd in the White House to get someone decent in there again and keep the office in our hands to nominate replacements for Ginsberg, Stevens, and Breyer .

The next statist republican is only the lesser evil at this time. What a choice; perpetual warfare or perpetual welfare. A government that can go anywhere in the world (bases in 150+ countries) and do anything to the "hitler dejure" can and will take all your money and liberty back home.

Looking forward to a restored robust 14th A!!!!

bulgron
11-18-2009, 10:43 AM
P&I incorporation ...

This is a nit, but it's beginning to bother me. We're asking the court to incorporate the 2A by reinstating the "Privileges OR Immunities" clause, yet people always abbreviate it 'P&I'. That leads to the ill-informed calling it the "Privileges AND Immunities" clause.

Though not a lawyer, I've come to appreciate that where constitutional rights are concerned, we really do need to be precise about those 'ORs' and 'ANDs'.

Maybe we should therefore be abbreviating it 'P|I' or possibly 'P||I'.

wash
11-18-2009, 10:52 AM
I say let the lawyers worry about that. Since there are privileges and there are immunities, I'll call it P&I.

yellowfin
11-18-2009, 10:56 AM
Would P/I suffice?

sholling
11-18-2009, 10:57 AM
SCOTUS had a choice, they could take the McDonald P&I case or the NRA Due Process case. They chose McDonald.

It's my opinion that many SCOTUS justices have a desired outcome and chose the case that could get them there or possibly they chose P&I because they thought upholding Slaughterhouse would be such a negative thing that the anti's in the court would have to side with the Heller 5.
I agree completely. If Gura had gone along with Due Process then the liberals would have been able to vote yea or nay based on their politics. By going after P&I and Slaughter-House the liberals are backed into the corner of either upholding an obviously unconstitutional and racist decision or accepting full incorporation even if it legalizes gun ownership. I'm of the opinion that both the liberals and the conservatives will find Slaughter-House too distasteful to uphold.

My guess at this stage is 6-3 for us with a 4 justice "go get'em Gura" opinion, and a 2 justice concurring "lite" opinion, and a 3 justice "stare decisis" opinion.

7x57
11-18-2009, 1:27 PM
The next statist republican is only the lesser evil at this time. What a choice; perpetual warfare or perpetual welfare.

So what alternative to perpetual warfare to keep the government bound in the chains of the Constitution did the system engineers promise you? So far as I can tell, when they handed over the controls they promised you nothing but perpetual warfare to prevent power from accumulating to the government.

What they promised you was a system that gave you a chance of retaining individual liberty within the rule of law, and the satisfaction of knowing that you were a man and a citizen who did a man's duty. That's the opposite from what people seem to have ended up believing, that the system would "just work" so they didn't have to make a citizen's sacrifices.

I don't read much from the late eighteenth century besides perpetual warfare. All they really did was attempt to rig the rules as much in favor of the citizen as possible, no more.

7x57

stag1500
11-18-2009, 2:36 PM
My guess at this stage is 6-3 for us with a 4 justice "go get'em Gura" opinion, and a 2 justice concurring "lite" opinion, and a 3 justice "stare decisis" opinion.

That would be nice. Who do you think will be the 6th justice to vote on our side? I still see a 5-4 outcome.

hoffmang
11-18-2009, 9:32 PM
NRA chose to limit its brief to Due Process. Gura chose P or I. The court chose Gura.

The main reasons to go for P or I:

1. It's actually the truth. The right to arms is not really a due process right like the 4A or 5A.

2. Incorporating via the P or I clause will turn a "usual" gun case into something historic. The right to keep and bear arms will be central to the two most important SCOTUS cases of the young century.

3. We may just go beyond the Heller 5 on the win - thus securing the 2A far more than otherwise.

Finally, once incorporated yellowfin is incorrect. It somewhat doesn't matter what the antis claim in Federal court. Even anti gun Federal judges understand incorporation.

-Gene

7x57
11-18-2009, 10:07 PM
1. It's actually the truth. The right to arms is not really a due process right like the 4A or 5A.


So now you agree with me that substantive due process doesn't really exist and was a cheat to fix the problem that they'd cut right out the clause that actually protects the substantive rights? I haven't tried to research it, but I don't expect the concept to predate the monkey business with P&I.

Due Process: oppress people or not, but do it fairly.

P&I: and don't oppress them, either. :D

7x57

hoffmang
11-18-2009, 10:30 PM
So now you agree with me that substantive due process doesn't really exist and was a cheat to fix the problem that they'd cut right out the clause that actually protects the substantive rights?

No. If the government takes your land without justly compensating you, you've lost your due process rights. If the government searches you or seizes you unreasonably and certainly without a valid warrant you didn't get your substantive due process.

Violating your first amendment rights aren't really violating your due process rights. Remember that SDP came of age in the criminal process context - excluding the original 5A issues.

-Gene

7x57
11-18-2009, 10:35 PM
Violating your first amendment rights aren't really violating your due process rights.


It may be I don't use the term correctly, but the above is in fact what I mean. It seems to me that selective incorporation was designed to do whatever little bit of the P&I clause the justices could stomach at the time. Say, something short of arming black men.

It seems the history of the 14th amendment is in fact all about guns from start to finish.

7x57

Sgt Raven
11-18-2009, 10:39 PM
It may be I don't use the term correctly, but the above is in fact what I mean. It seems to me that selective incorporation was designed to do whatever little bit of the P&I clause the justices could stomach at the time. Say, something short of arming black men.

It seems the history of the 14th amendment is in fact all about guns from start to finish.

7x57

The same reason we don't have LOC anymore in California, they were afraid of armed Black men. :eek: ;)

Gray Peterson
11-18-2009, 10:49 PM
It may be I don't use the term correctly, but the above is in fact what I mean. It seems to me that selective incorporation was designed to do whatever little bit of the P&I clause the justices could stomach at the time. Say, something short of arming black men.

It seems the history of the 14th amendment is in fact all about guns from start to finish.

7x57

:iagree:

Exactly, 7x57. Now you understand. The entirety of the southern fears was that black people would be killing white people, whether it be "just for fun", or during the white southern terrorist oppressions of civil rights. The brief lays out the laws that were passed against the black population....

FreedomIsNotFree
11-18-2009, 11:15 PM
FreedomIsNotFree:
McDonald is a black guy IIRC.

I'm well aware of that. I imagine I should have used the sarcasm emoticon rather than a followup that began with "in all seriousness".

press1280
11-19-2009, 2:57 AM
:iagree:

Exactly, 7x57. Now you understand. The entirety of the southern fears was that black people would be killing white people, whether it be "just for fun", or during the white southern terrorist oppressions of civil rights. The brief lays out the laws that were passed against the black population....

+1. The 2A rights incorporated against the states WAS the reason for the delay of any incorporated rights and why the due process clause was used in order to incorporate whatever the court thought was reasonable to incorporate, as opposed to P & I, which includes the BoR.

7x57
11-19-2009, 8:07 AM
:iagree:

Exactly, 7x57. Now you understand. The entirety of the southern fears was that black people would be killing white people, whether it be "just for fun", or during the white southern terrorist oppressions of civil rights. The brief lays out the laws that were passed against the black population....

Oh, I've understood for a long time--say from about ten minutes after I started reading about the history of the 14th amendment. It's really, really nakedly obvious, unless you have ideological blinders on (which admittedly puts blinders on most of the population).

The advantage of this knowledge, if you have a lot of disregard for certain PC customs about what you can and can't talk about in America, is that my apologia for civilian arms to black men is not something they expect to hear from the "racist white Christian Southern militia anarchist KKK uneducated ignorant nazi" that they have been told gun owners are. :D

Unlike most avenues of argument, there is a distinct lack of ideological antibodies for the argument that there is an entire amendment to the Constitution so that they can shoot back at the guys in white hoods and not depend on the police (who at the time of the 14th amendment probably also had a hood stashed for off-duty use) to protect them. And who was it who told them not to depend on "the man" anyway? :43:

It's all part of making sure the franchise extends as far and wide as possible.

ETA: but that doesn't mean I don't appreciate lawyers and semi-lawyers checking my homework and verifying that I didn't miss something through lack of technical knowledge, which is always possible for amateurs reading about the law. :thumbsup:

7x57

7x57
11-19-2009, 8:11 AM
+1. The 2A rights incorporated against the states WAS the reason for the delay of any incorporated rights and why the due process clause was used in order to incorporate whatever the court thought was reasonable to incorporate, as opposed to P & I, which includes the BoR.

That's my belief. I think it still is, and the reason there is interest in restoring the P&I clause is that Due Process Incorporation appears just around the corner anyway, and once that happens there is no further benefit to be gained from the P&I fraud. Once the jig is up, there's no further benefit from lying.

7x57

Untamed1972
11-19-2009, 8:23 AM
I was thinking about this 14A thing on the way to work this morning and it sparked at thought about what other state (or even fed) laws this might affect.

From the standpoint of guns, what would this do to AFT regs about buying guns in other states? If I am to have the full protection of freedom of travel and the right to aquire property and be entitled to the same rights while visiting a state the residents of that state have then wouldn't reg telling me I can't buy guns in other states violate my rights?

What about CA trying to tax things you buy out of state and bring back with you? If they don't tax the property of people visiting CA and the things they bring with them, then how can they treat me differently when I bring things back to the state?

I was also thinking about how CA won't let you buy a new car out of state and then bring it back to CA with you. Is that not somehow limiting my right to travel and conduct business and aquire property?

Just curious what the great legal mids here think.....am I way off base on this?

loather
11-19-2009, 9:09 AM
I was thinking about this 14A thing on the way to work this morning and it sparked at thought about what other state (or even fed) laws this might affect.

You're right. It will be such a fundamental shift in thinking and operation that many aspects of life will change. While not immediately possible, some of the things you say in your message I can see happening. It's all a matter of time.

This, folks, gives me hope. I like feeling hopeful.

dirtnap
11-19-2009, 9:21 AM
I was also thinking about how CA won't let you buy a new car out of state and then bring it back to CA with you.

Huh? sorry for the hijack, but whats the deal with that?

Untamed1972
11-19-2009, 9:34 AM
Huh? sorry for the hijack, but whats the deal with that?

If I recall correctly you can not register a car in CA that was bought out of state that has less than 7500 miles on it. Just another way CA libs try to control your life and jack you for state fees and higher sales tax.

liketoshoot
11-19-2009, 9:36 AM
Ca. smog regs for one.

Quser.619
11-19-2009, 12:00 PM
God it would be nice to be able to purchase a rifle in another state & have the same rights as those that live in that state. Couldn't this completely affect the role of FFL's throughout the US?

7x57
11-19-2009, 12:13 PM
If I recall correctly you can not register a car in CA that was bought out of state that has less than 7500 miles on it. Just another way CA libs try to control your life and jack you for state fees and higher sales tax.

Yes, and as someone hinted at least one reason is so that you can't buy a new car that isn't CA-legal.

I believe there is/was a thriving grey market for "used" cars that come into California with about 7501 miles on them and no apparent wear at all. Only a low and suspicious mind would see anything more there than a large number of car buyers who like to buy a new car take exquisite care of it for a month or two, and sell it so they can buy a new car. Plus, they particularly enjoy selling their cars in California.

Nothing to see here, regulators. Move along. :D

7x57

Sgt Raven
11-19-2009, 12:24 PM
If I recall correctly you can not register a car in CA that was bought out of state that has less than 7500 miles on it. Just another way CA libs try to control your life and jack you for state fees and higher sales tax.

The law is you can't bring in a new/used car with less than 7500 miles if it doesn't meet Ca smog laws. You can bring in all the 50 state cars you want. :rolleyes: It's just the 49 state cars that have to have over 7500 miles. ;)

M. D. Van Norman
11-19-2009, 12:30 PM
Incorporating via the P or I clause will turn a “usual” gun case into something historic. The right to keep and bear arms will be central to the two most important SCOTUS cases of the young century.

The game may be about to change.

Our struggle for the right to arms has been only one front in a larger war on civil rights that has been waged since the founding of the republic. However, it is now set to be the decisive battle in that war. I could not have foreseen this just five years ago.

Victory on Mr. Gura’s terms will change everything.

ilbob
11-19-2009, 12:36 PM
The same reason we don't have LOC anymore in California, they were afraid of armed Black men. :eek: ;)

Not just armed black men. Armed black men associated with a terrorist organization with a long history of violence.

Untamed1972
11-19-2009, 12:37 PM
The law is you can't bring in a new/used car with less than 7500 miles if it doesn't meet Ca smog laws. You can bring in all the 50 state cars you want. :rolleyes: It's just the 49 state cars that have to have over 7500 miles. ;)


But that's the kinda stuff that kills me.....what changed about the 49 state car from when it 7000 miles on it (7 miles for that matter) to when it has 7500 that makes it ok to bring in now? Seems rather arbitrary and limits my ability to shop the widest possible market to find the best deal.

xrMike
11-19-2009, 12:48 PM
Link in OP not working for me... Darn.

7x57
11-19-2009, 12:58 PM
Not just armed black men. Armed black men associated with a terrorist organization with a long history of violence.

I believe that is the same reason why all of us should have our guns taken away because of idiots hiding out in Northern Idaho or murderers who shoot up victim disarmament zones.


No free man shall ever be debarred the use of arms.



the legitimate powers of the government reach actions only, and not opinions.



The only way Governments can induce citizens to surrender their rights is convincing them that by doing so, they will gain a measure of safety in exchange.


I trust the point is obvious.

7x57

Sgt Raven
11-19-2009, 1:17 PM
Not just armed black men. Armed black men associated with a terrorist organization with a long history of violence.

In 1967 what was the long history of the Black Panther Party? Go on and think on that for a while as the Black Panther Party was formed in Oct. '66.

In 1967 there was a bunch of old white guys scared of young black men with guns. :rolleyes:

hoffmang
11-19-2009, 2:00 PM
It may be I don't use the term correctly, but the above is in fact what I mean. It seems to me that selective incorporation was designed to do whatever little bit of the P&I clause the justices could stomach at the time. Say, something short of arming black men.

It seems the history of the 14th amendment is in fact all about guns from start to finish.


We agree at the bottom line but my point was a bit more about judicial process.

Due process rights (and selective incorporation) did make sense when you turn to the second part of the 14A, "nor shall any State deprive any person of life, liberty, or property, without due process of law." If a state takes property of a railroad without compensation, it's really a due process violation and not a P or I violation. Same thing when you're talking about Juries, cruel punishment, or unreasonable searches. However, the types of things that the 1A or 2A protect really aren't a deprivation of due process of law. The stretch was incorporating the 1A via Substantive Due Process instead of via P or I.

I hope that subtle distinction makes sense. Either way it was basically an incremental implementation of P or I instead of following the actual law of the 14A.

-Gene

Liberty1
11-19-2009, 2:40 PM
Link in OP not working for me... Darn.

Go to the main site

http://www.chicagoguncase.com/

7x57
11-19-2009, 4:26 PM
We agree at the bottom line but my point was a bit more about judicial process.


That's how I learn. :D


Due process rights (and selective incorporation) did make sense when you turn to the second part of the 14A, "nor shall any State deprive any person of life, liberty, or property, without due process of law." If a state takes property of a railroad without compensation, it's really a due process violation and not a P or I violation. Same thing when you're talking about Juries, cruel punishment, or unreasonable searches.


Agreed. Those can hardly be innate, metaphysical human rights, as juries are somewhat peculiar to English law. But they are procedural rights required to make the basic framework of English law protect the metaphysical rights as well as possible. Presumably there is a (somewhat) different set of procedural rights necessary to the just functioning of Roman Law, but ex hypothesi they must be designed to protect the same set of metaphysical rights.


The stretch was incorporating the 1A via Substantive Due Process instead of via P or I.

I hope that subtle distinction makes sense.


It does, and thanks for it. From your discussion I think I had worked out the basic distinction, but had incorrectly deduced the precise meaning of "substantive due process." It appeared to mean metaphysical right like the 1A, as opposed to a procedural right like jury trial--presumably that came from the limited contexts that I actually read legal documents. I believe you are telling me that it really means a certain class of procedural rights, and the irrationality was in extending that existing meaning beyond anything that can reasonably be called procedural.

I'm quite happy to understand the technical terms better.


Either way it was basically an incremental implementation of P or I instead of following the actual law of the 14A.


That was my strong sense. You can practically smell the fear of the 2A right off the pages of the opinions, and easily deduce the imperative to find a way to do some of what the P&I clause really does without having to deal with scary, scary guns. Your sentence above appears to describe the situation completely.

I felt a pointless rant coming on about the systemic damage done to law and society by the radical Republicans giving up on Reconstruction, but I have decided to suppress it.

Ya gotta finish what you start, guys, and not make promises you're not going to keep. :nono:

7x57

Purple K
11-19-2009, 4:58 PM
Yes!!! There is a light at the end of the tunnel. No.... It's not a train, it's Halie Berry with a flashlight

JackOfClubs
11-19-2009, 5:44 PM
This is a nit, but it's beginning to bother me. We're asking the court to incorporate the 2A by reinstating the "Privileges OR Immunities" clause, yet people always abbreviate it 'P&I'. That leads to the ill-informed calling it the "Privileges AND Immunities" clause.

Though not a lawyer, I've come to appreciate that where constitutional rights are concerned, we really do need to be precise about those 'ORs' and 'ANDs'.

Maybe we should therefore be abbreviating it 'P|I' or possibly 'P||I'.

The distinction between "P&I" and "P or I" basically depends on which part of the Constitution is being quoted. But the underlying rights in question include both Privileges and Immunities so it makes sense to abbreviate the abstract concept as P&I. The only reason the 14a uses the word "or" is that it is framed in a negative sense and the negation of a conjunction is a disjunction of negations.

In other words, when Article IV section 2 states, "The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states," the assertion is that all citizens have these basic rights. But, if a state wanted to abridge these rights they could do it by either violating the privileges or the immunities (or both). Thus to prevent that, the 14th amendment needs to deny the ability of states to make such an abridgment and it accordingly says "No state shall ... abridge the privileges or immunities of citizens of the United States."

If they had wanted to keep the "and" in there, they could have said "No state shall ... abridge the privileges and no state shall ... abridge the immunities...," but that would have sounded awkward.

yellowfin
11-19-2009, 6:07 PM
Due process rights (and selective incorporation) did make sense when you turn to the second part of the 14A, "nor shall any State deprive any person of life, liberty, or property, without due process of law." If a state takes property of a railroad without compensation, it's really a due process violation and not a P or I violation. Same thing when you're talking about Juries, cruel punishment, or unreasonable searches. However, the types of things that the 1A or 2A protect really aren't a deprivation of due process of law. The stretch was incorporating the 1A via Substantive Due Process instead of via P or I. There's where all the mischief lays if we didn't ask for and/or don't get P/I restored: what we have thanks to Plessy not being completely erased is the "process" of permits for firearms, be it CCW, NFA (CA's "Dangerous Weapons" permit), or even NYC's long gun permits, (YUCK!) which can be as convoluted, expensive, etc. as they want it to be. If they can say you have the opportunity to go through the process and you're at least given a chance, however infinitesimal that may be, and given the same review as ostensibly everyone else is, they can still either outrightly deny RKBA or wait for you to go away. Thanks to Plessy if they can make it seem fair at least on paper they can at least stall in the courts that will go along with it. They can say you got the process which was due you by law and you lost fair and square. We say differently, of course, but NY/NJ/CA/MD are basically fat redneck sheriff J.W. Pepper with a toothpick in one side of their mouth and a wad of tobacco in the other saying "Rights? Well boy, you've got whatever rights the law says you've got. Guess what? I'm the law."

Oh yes, that ruling in Plessy DID NOT go away. Brown v. Board only said governments couldn't do it by race. They can classify and discriminate against people in other ways if they can come up with a reason to do so and make it look kosher by saying it's "equal" as far as they see it. Occupation, education, zip code, hobby, type of dog you own, or anything else that isn't race, gender, or religion they can arbitrarily decide to use as a reason to treat you as badly as they can get away with.

Mulay El Raisuli
11-20-2009, 6:12 AM
There's where all the mischief lays if we didn't ask for and/or don't get P/I restored: what we have thanks to Plessy not being completely erased is the "process" of permits for firearms, be it CCW, NFA (CA's "Dangerous Weapons" permit), or even NYC's long gun permits, (YUCK!) which can be as convoluted, expensive, etc. as they want it to be. If they can say you have the opportunity to go through the process and you're at least given a chance, however infinitesimal that may be, and given the same review as ostensibly everyone else is, they can still either outrightly deny RKBA or wait for you to go away. Thanks to Plessy if they can make it seem fair at least on paper they can at least stall in the courts that will go along with it. They can say you got the process which was due you by law and you lost fair and square. We say differently, of course, but NY/NJ/CA/MD are basically fat redneck sheriff J.W. Pepper with a toothpick in one side of their mouth and a wad of tobacco in the other saying "Rights? Well boy, you've got whatever rights the law says you've got. Guess what? I'm the law."


Yes, I'm sure that at least some of that will be the case when it comes to CCW (but not LOC). But I don't think it'll be as bad as you think. See next.


Oh yes, that ruling in Plessy DID NOT go away. Brown v. Board only said governments couldn't do it by race. They can classify and discriminate against people in other ways if they can come up with a reason to do so and make it look kosher by saying it's "equal" as far as they see it. Occupation, education, zip code, hobby, type of dog you own, or anything else that isn't race, gender, or religion they can arbitrarily decide to use as a reason to treat you as badly as they can get away with.


True only as far as it goes. There's been a lot of legal water under the bridge since 1954 though. Once those subsequent Rulings apply to the 2A, that stuff will be knocked down fairly easily.

The Raisuli

press1280
11-21-2009, 4:04 AM
"arbitrary and capricious" comes to mind with the discretionary CCW issue. Remember in Heller how the licensing was briefly brought up? Gura didn't challenge the licensing as long as it wasn't arbitrary or capricious, meaning DC couldn't turn around and decide that they would now register handguns, but Heller had to prove a "justifiable need", which literally could mean whatever DC wanted it to mean, and the city could basically re-impose the handgun ban under another name.
I don't see that system as anything but dead on arrival to SCOTUS.