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View Full Version : 5 takes on McDonald by Instapundit & Brannon Dunning


Quser.619
04-01-2011, 10:39 AM
Via Instapundit.com, Professor Reynolds of University of Tennessee & Professor Brannon Dunning of Cumberland School of Law have produced a paper about 5 possible outcomes of the McDonald v. Chicago decision.

I've downloaded it & am reading it now.

Thought others might be interested in reading it as well. Here's the link (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1799480).

It appears to be in .PDF form & requires downloading & about 324k in size.

Don29palms
04-01-2011, 12:32 PM
Very interesting and good reading.

yellowfin
04-01-2011, 1:12 PM
It's good reading, for sure, and it highlights the entire problem of having only two cases so far from the Supreme Court: they mean very little in practice and to date have not remedied the full effects of the problem. Sure, it removes the invincibility of DC and Chicago, but to date hasn't dismantled the offending systems nor the judicial bias they hide behind. The 2nd and 7th Circuits have openly said "Yeah? So what?"

RKV
04-03-2011, 1:41 PM
Instapundit and fellow professor on McDonald v. Chicago (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1799480)

I'm particularly interested in my fellow members comments on the last section (V. Take five: McDonald in the lower courts). Namely, what do we need to do strategically to ensure that 2nd Amendment rights do not exist in name only. From my non-lawyers perspective the case law to date (and I have read the motions, decisions, etc. in some detail and thanks to Calguns for keeping tabs at the wiki CalGuns Litigation Past and Present Wiki (http://wiki.calgunsfoundation.org/index.php/Litigation_Past_and_Present)) indicate the lower courts are out to nullify Heller and McDonald. The three pronged approach that has been taken is to delay (a la Nordyke which should have been decided not long after McDonald), deny standing as in the various AB962 related cases and complete deference to legislation inconsistent with the McDonald holding of the 2nd Amendment encompassing a "fundamental right." Obviously we've got litigation in progress, but we just can't seem to get the lower level courts to take the hints that the Supes have dropped on them. :confused:

wildhawker
04-03-2011, 2:03 PM
There was no standing issues in CGF's AB962 case (OOIDA v. Lindley), but the court found issues of ripeness which were not worth appealing as the case could simply have been refiled on Feb. 1 had CRPA's state challenge failed.

I disagree that Nordyke is being "delayed" per se. In light of Chester, it's my view that the panel recognized the potential for a circuit split and is diligently considering the questions before it.

There is some reason to believe that the Second Amendment will be incorrectly applied at the district court level as, to this time, decisions have viewed much of the Heller decision as dicta rather than an intrinsic component of the overall holding. The Seventh Circuit has dared the USSC to speak more plainly on the Second Amendment and its meaning for any rights we have have outside the home, and I am confident that the Court will do just that. It's imprudent, in my view, to state that "the lower courts are out to nullify Heller and McDonald"; more appropriate, I think, would be to say that lower courts are demanding more clear instruction from the USSC if, indeed, the Second Amendment is to apply [in any way, if not robustly] beyond the reach of "in the home for self-defense".

This is not a game played for district court rulings, but for [at least] 5 Justices of the Supreme Court. Let's consider the goal of our litigation rather than focus so much of our attention on the decisions of the lower courts, regardless of their outcome.

RKV
04-03-2011, 3:06 PM
Any judge that wants that can read Heller and McDonald. They're just looking for excuses. Sorry to be negative, but when you read the words "fundamental right" in McDonald, that means strict scrutiny. Period.

Even the judge in Heller II had it figured (though the ruling was prior to McDonald) "As many courts have recognized, the Supreme Court did not explicitly hold that the Second Amendment right is a fundamental right [in Heller]," "United States v. Darrington, 351 F.3d 632, 635 (5th Cir. 2003) (stating that “if [a court] intended to recognize that the individual right to keep and bear arms is a ‘fundamental right,’ in the sense that restrictions on this right are subject to ‘strict scrutiny’ by the courts and require a ‘compelling state interest,’ it would have used these constitutional terms of art”))."

When you read "sensitive places" there judges need to also read DeShaney v. Winnebago County...

” The affirmative duty to protect arises not from the State’s knowledge of the individual’s predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf. See Estelle v. Gamble, supra, 429 U.S., at 103, 97 S.Ct., at 290. ... In the substantive due process analysis, it is the State’s affirmative act of restraining the individual’s freedom to act on his own behalf — through incarceration, institutionalization, or other similar restraint of personal liberty–which is the “deprivation of liberty” triggering the protections of the Due Process Clause, not its failure to act to protect his liberty interests against harms inflicted by other means.”

Sorry, but this looks like playing for time waiting for Slaughter House part duex.

wildhawker
04-03-2011, 3:12 PM
Were you really "particularly interested in [your] fellow members comments on the last section" or did you just expect everyone to agree with you?

-Brandon

Any judge that wants that can read Heller and McDonald. They're just looking for excuses. Sorry to be negative, but when you read the words "fundamental right" in McDonald, that means strict scrutiny. Period.

Even the judge in Heller II had it figured (though the ruling was prior to McDonald) "As many courts have recognized, the Supreme Court did not explicitly hold that the Second Amendment right is a fundamental right [in Heller]," "United States v. Darrington, 351 F.3d 632, 635 (5th Cir. 2003) (stating that “if [a court] intended to recognize that the individual right to keep and bear arms is a ‘fundamental right,’ in the sense that restrictions on this right are subject to ‘strict scrutiny’ by the courts and require a ‘compelling state interest,’ it would have used these constitutional terms of art”))."

When you read "sensitive places" there judges need to also read DeShaney v. Winnebago County...

” The affirmative duty to protect arises not from the State’s knowledge of the individual’s predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf. See Estelle v. Gamble, supra, 429 U.S., at 103, 97 S.Ct., at 290. ... In the substantive due process analysis, it is the State’s affirmative act of restraining the individual’s freedom to act on his own behalf — through incarceration, institutionalization, or other similar restraint of personal liberty–which is the “deprivation of liberty” triggering the protections of the Due Process Clause, not its failure to act to protect his liberty interests against harms inflicted by other means.”

Sorry, but this looks like playing for time waiting for Slaughter House part duex.

RKV
04-03-2011, 3:41 PM
was some logic to differing opinions. Apparently that is beyond you.

wildhawker
04-03-2011, 3:45 PM
was some logic to differing opinions. Apparently that is beyond you.

Heh.

-Brandon

freonr22
04-03-2011, 3:48 PM
:lurk5:

BigDogatPlay
04-03-2011, 4:29 PM
I wouldn't think Nordyke is being delayed at all. Given the decade plus that the case has been in process and SCOTUS, through McDonald, agreeing with the Ninth Circuit panel in Nordyke relative to incorporation, it occurs to me that the panel is being exceptionally deliberative and making sure that the decision they render is sound.

There is a lot of litigation to come before even some of the fundamental questions are resolved. The gist of the paper, while hopeful, seems to go to that.

Quser.619
04-03-2011, 5:33 PM
Since Heller it seems to me that they are indeed dragging their feet. Washington & Chicago have both shown that they'd prefer to drag their feet rather then acknowledge the rulings. The lower courts seem to be playing the same game. It reminds me of children testing the boundaries to see what they can & cannot get away with.

wildhawker
04-03-2011, 5:53 PM
Since Heller it seems to me that they are indeed dragging their feet. Washington & Chicago have both shown that they'd prefer to drag their feet rather then acknowledge the rulings. The lower courts seem to be playing the same game. It reminds me of children testing the boundaries to see what they can & cannot get away with.

That is a function of our system of jurisprudence. The limits of any given range are informed by actions and tests against them.

MP301
04-04-2011, 2:09 AM
Just finished the report. Interesting reading.