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California 2nd Amend. Political Discussion & Activism Discuss gun rights activism and 2A related political topics here. All advice given is NOT legal counsel.

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  #1  
Old 11-16-2009, 12:40 PM
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Default Petitioner's brief filed in McDonald v. Chicago

The Petitioner's brief for Incorporation of the Second Amendment was filed today in the Supreme Court.

http://www.chicagoguncase.com/wp-con.../08-1521ts.pdf

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Old 11-16-2009, 12:55 PM
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Quote:
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.

Quote:
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!
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Old 11-16-2009, 1:05 PM
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Thank you!
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Old 11-16-2009, 1:08 PM
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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!!
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Old 11-16-2009, 1:47 PM
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Originally Posted by IrishPirate View Post
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.
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Old 11-16-2009, 1:52 PM
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Brilliant, Absolutely brilliant
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Old 11-16-2009, 2:18 PM
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Another tour de force of legal scholarship.

And Alan Gura's only 38 years old! This is a landmark career in the making.
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Old 11-16-2009, 2:28 PM
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Originally Posted by RP1911 View Post
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).
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Old 11-16-2009, 2:43 PM
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Originally Posted by hoffmang View Post
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?
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Old 11-16-2009, 3:14 PM
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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.
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Old 11-16-2009, 3:20 PM
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...I wish I could be there in person for the beginning of arguments. This will be an epic case.
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Old 11-16-2009, 3:29 PM
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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
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Old 11-16-2009, 3:33 PM
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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'.
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Old 11-16-2009, 3:52 PM
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How ironic. Let the Libs defend Slaughterhouse and hang by their contradictions.
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Old 11-16-2009, 3:55 PM
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Wow, Great stuff. A history lesson in and of itself, and an excellent argument on top of it!
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Old 11-16-2009, 3:59 PM
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Damn exciting times......
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Old 11-16-2009, 4:13 PM
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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.
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Old 11-16-2009, 4:18 PM
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Originally Posted by Fjold View Post
How ironic. Let the Libs defend Slaughterhouse and hang by their contradictions.
"Make them live up to their own ideals." -- Saul Alinsky

7x57
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Old 11-16-2009, 4:19 PM
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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.

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Old 11-16-2009, 4:25 PM
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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?
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Old 11-16-2009, 4:47 PM
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Scotusblog weighs in:

Quote:
History lesson on 2nd Amendment’s 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 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.”
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Old 11-16-2009, 4:55 PM
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Quote:
Originally Posted by hoffmang View Post
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.

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You make me all warm and tingly when you talk like that Gene
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Old 11-16-2009, 4:56 PM
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Old 11-16-2009, 5:06 PM
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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.
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Old 11-16-2009, 7:01 PM
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It will be interesting to see if JB files an Amicus Brief.
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Old 11-16-2009, 7:58 PM
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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.
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Old 11-16-2009, 8:54 PM
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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?
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Old 11-16-2009, 9:55 PM
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Quote:
Originally Posted by hoffmang View Post
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.

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Originally Posted by bulgron View Post
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.
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Old 11-16-2009, 11:47 PM
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Can someone PM me what this means, in english that is.... lol
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Old 11-16-2009, 11:48 PM
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Quote:
Originally Posted by Lone_Gunman View Post
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
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Old 11-16-2009, 11:55 PM
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Quote:
Originally Posted by hoffmang View Post
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.
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Old 11-17-2009, 12:37 AM
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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
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Old 11-17-2009, 1:32 AM
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Gene, try not to sleep in this time


When will the date of the hearing be known?
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Old 11-17-2009, 7:04 AM
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Originally Posted by Futurecollector View Post
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.

Dave Hardy posts the link to the NRA brief in support of Gura et al.
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There is no value at all complaining or analyzing or reading tea leaves to decide what these bills really mean or actually do; any bill with a chance to pass will be bad for gun owners.

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Old 11-17-2009, 8:53 AM
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Default NRA Brief

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).
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Old 11-17-2009, 9:20 AM
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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.
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They don't believe it's possible, but then Alison didn't believe there'd be 350K - 400K OLLs in CA either.
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Old 11-17-2009, 10:10 AM
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Originally Posted by Sgt Raven View Post
It will be interesting to see if JB files an Amicus Brief.

I thought Jerry Brown had filed briefs in support of incorporation.
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Old 11-17-2009, 10:24 AM
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I thought Jerry Brown had filed briefs in support of incorporation.
It can be found here:

http://www.scotuswiki.com/index.php?...ity_of_Chicago

-- Michael
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Old 11-17-2009, 10:30 AM
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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.
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Old 11-17-2009, 11:30 AM
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Originally Posted by Chicago View Post
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.

7x57
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I know every chance I get I'm going to accuse 7x57 of being a shill for LCAV. Because I can.
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