Chicago Gun Cases

Off Topic Politics and World Issues
1

Everyone that follows Second Amendment issues has heard of Heller and knows that the US Supreme Court held that Washington DC handgun ban is unconstitutional. Some folks may also know that in the wake of Heller the NRA, the Second Amendment Foundation (“SAF”), and plaintiffs in Illinois filed suits against the City of Chicago, Morton Grove, Oak Park which had similar handgun gun bans. This is the SAF’s suit against Chicago:

http://www.chicagoguncase.com/wp-content/uploads/2008/06/complaint.pdf

Morton Grove repealed their handgun ban without a fight. The Chicago and Oak Park suits moved forward.

In response the the US Federal Court’s request, the SAF and NRA filed motions to narrow the legal issues in the case. The principal issues is incorporation, i.e., whether the Second Amendment applies to states and cities via the 14th Amendment. This is the SAF’s brief on incorporation:

http://www.chicagoguncase.com/wp-content/uploads/2008/10/motionnarrowlegalissues.pdf

On December 4, 2008, the court ruled against the SAF and the NRA on the issue of incorporation holding that regardless of the Supreme Court’s ruling in Heller, the court was bound by existing precedent that the Second Amendment does not apply to state and local governments. The existing precedent is [/i]Quilici v. Morton Grove[/i], a 1982 US Court of Appeals case upholding the Morton Grove handgun ban. This is Quilici:

http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/quilici.html

On January 28, 2009, the SAF filed its appeal. The sole issue is now whether the states and cities are bound by the Second Amendment via the 14th Amendment. This is the relevant portion of the 14th Amendment:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; …

So the Chicago gun cases are no longer principally about the Second Amendment, but rather the 14th Amendment, in particular whether the right to keep and bear arms is a privilege and immunity guaranteed by the 14th Amendment. This is the SAF’s brief:

http://www.chicagoguncase.com/wp-content/uploads/2009/01/appellants_brief_074244final.pdf

The city of Chicago and other interested groups (amici) will also file briefs. You can follow the progress of the Chicago gun cases here:

http://www.chicagoguncase.com/

2

Five amici curiae briefs (“friends of the court”) have been filed with the Appeals court hearing the NRA et al appeal. One of them is a Law Enforcement organization brief. The opening sentence of their argument: “Guns save lives”.

http://www.chicagoguncase.com/wp-content/uploads/2009/02/ileeta-chicago-amicus-final-brief-only.pdf

3

LT, have you followed up on D.C. since Heller? The results would be comical if they weren’t infringing upon our rights.

Apparently to register a gun with them it has to be one the California Safe Guns list which is set up by the state DOJ. Some of those guns not on the list:

XD45…in two tone colors.
Anything by Para because they used to be on the safe guns list but didn’t pay a fee to renew this year.

You stay classy D.C.

mike

4

[quote]Mikeyali wrote:
LT, have you followed up on D.C. since Heller? The results would be comical if they weren’t infringing upon our rights.[/quote]

Other than keep an eye on whether Heller successfully registered his revolver,

and note the Ensign amendment which would effectively repeal DC gun regulations and ultimately put a bullet through the heart of the DC Voting Rights Act,

I haven’t paid too much attention to DC gun issues. I was aware that they had abdicated responsibility to California to determine which handguns may be sold in DC. Sheesh. What retards.

5

[quote]Loose Tool wrote:
On December 4, 2008, the court ruled against the SAF and the NRA on the issue of incorporation holding that regardless of the Supreme Court’s ruling in Heller, the court was bound by existing precedent that the Second Amendment does not apply to state and local governments. The existing precedent is [/i]Quilici v. Morton Grove[/i], a 1982 US Court of Appeals case upholding the Morton Grove handgun ban. This is Quilici:

http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/quilici.html
[/quote]

Interesting. The first thing that I did was lookup the Illinois Constitution:

SECTION 22. RIGHT TO ARMS
Subject only to the police power, the right of the
individual citizen to keep and bear arms shall not be
infringed.
(Source: Illinois Constitution.)

“Local” governments (towns, cities, counties) are creatures of the state. At minimum, they are bound by their state constitution.

Note: As of this post I haven’t read the precedent case listed. Doing that next…

6

[quote]SteelyD wrote:
Loose Tool wrote:
On December 4, 2008, the court ruled against the SAF and the NRA on the issue of incorporation holding that regardless of the Supreme Court’s ruling in Heller, the court was bound by existing precedent that the Second Amendment does not apply to state and local governments. The existing precedent is [/i]Quilici v. Morton Grove[/i], a 1982 US Court of Appeals case upholding the Morton Grove handgun ban. This is Quilici:

http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/quilici.html

Interesting. The first thing that I did was lookup the Illinois Constitution:

SECTION 22. RIGHT TO ARMS
Subject only to the police power, the right of the
individual citizen to keep and bear arms shall not be
infringed.
(Source: Illinois Constitution.)

“Local” governments (towns, cities, counties) are creatures of the state. At minimum, they are bound by their state constitution.

Note: As of this post I haven’t read the precedent case listed. Doing that next…

[/quote]

I think the “Subject only to the police power…” is a exception wide enough to drive a semi through. And the Illinois Constitution provides for Home Rule:

http://www.ilga.gov/commission/lrb/con7.htm

And with Home Rule comes police powers.

7

[quote]Loose Tool wrote:
SteelyD wrote:
Loose Tool wrote:
On December 4, 2008, the court ruled against the SAF and the NRA on the issue of incorporation holding that regardless of the Supreme Court’s ruling in Heller, the court was bound by existing precedent that the Second Amendment does not apply to state and local governments.

The existing precedent is [/i]Quilici v. Morton Grove[/i], a 1982 US Court of Appeals case upholding the Morton Grove handgun ban. This is Quilici:

http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/quilici.html

Interesting. The first thing that I did was lookup the Illinois Constitution:

SECTION 22. RIGHT TO ARMS
Subject only to the police power, the right of the
individual citizen to keep and bear arms shall not be
infringed.
(Source: Illinois Constitution.)

“Local” governments (towns, cities, counties) are creatures of the state. At minimum, they are bound by their state constitution.

Note: As of this post I haven’t read the precedent case listed. Doing that next…

I think the “Subject only to the police power…” is a exception wide enough to drive a semi through. And the Illinois Constitution provides for Home Rule:

http://www.ilga.gov/commission/lrb/con7.htm

And with Home Rule comes police powers.

[/quote]

Maybe. And maybe not.
It seems Illinois has a history a’repeatin’ (Presser v. Illinois).
Here is one pushharder would like: the 14th Amendment comes to the rescue of the 2nd, despite the 10th:

8

[quote]DrSkeptix wrote:
Maybe. And maybe not.
[/quote]

I should have added, just because the Illinois Constitution confers upon Chicago police powers, it doesn’t (and can’t) confer Chicago hacks the brains to use that power prudently.

9

Today the 9th Circuit Court of Appeals has found in Nordyke v. King that the 2nd Amendment, through the 14th Amendment (incorporation) applies to states. Unfortunately, the 9th Circuit also found that a county statute prohibiting guns on county property did not violate Nordyke’s 2nd Amendment rights.

10

Yesterday, the 7th Court of Appeals ruled that the 2nd Amendment applies only to the federal government, not the states, and upheld the Chicago gun ban. The court found that it must follow existing Supreme Court, even if the precedent appears “fossilized” (i.e., the Supreme Court alone is allowed to overrule its own precedent).

http://www.chicagoguncase.com/wp-content/uploads/2009/06/appeals_court_decision.pdf

The plaintiffs (NRA) will be appealing the 7th Circuit Court of Appeals decision to the Supreme Court.

11

I wonder if the opinion is written such that there is an unintended implication that some (or even all) Constitutional amendments apply only at the federal level? For example, a state may censor speech, ban certain religions, or ban certain groups from assembling, but the federal government cannot?

Even if there isn’t such an implication, what makes the 2nd amendment different from any other?

Also, if constitutional amendments apply only at the federal level, do they mean “positive” amendments (So and so have the right to do this…) can be reversed at the state level, but “negative” amendments (such and such action is prohibited) can not be reversed by the states? Or is there no distinction made at all?

It seems like claiming an amendment only applies at the federal level opens up an awful big can of worms.

12

On the NY State front we’re looking at a pending “micro-stamping” bill similar to California that would effectively end the sale of any semi-automatic handgun not compliant. And of course, no one makes one that IS compliant, so the sale of semi-auto handguns would effectively be banned. It’s up for a vote at any time now.

I’m spending the next week in my home state of MT to soak up a little sanity, shoot the hell out of everything, and catch some bass and pike.

Demo Dick

14

[quote]pushharder wrote:
DrSkeptix wrote:
Loose Tool wrote:
SteelyD wrote:
Loose Tool wrote:
On December 4, 2008, the court ruled against the SAF and the NRA on the issue of incorporation holding that regardless of the Supreme Court’s ruling in Heller, the court was bound by existing precedent that the Second Amendment does not apply to state and local governments.

The existing precedent is [/i]Quilici v. Morton Grove[/i], a 1982 US Court of Appeals case upholding the Morton Grove handgun ban. This is Quilici:

http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/quilici.html

Interesting. The first thing that I did was lookup the Illinois Constitution:

SECTION 22. RIGHT TO ARMS
Subject only to the police power, the right of the
individual citizen to keep and bear arms shall not be
infringed.
(Source: Illinois Constitution.)

“Local” governments (towns, cities, counties) are creatures of the state. At minimum, they are bound by their state constitution.

Note: As of this post I haven’t read the precedent case listed. Doing that next…

I think the “Subject only to the police power…” is a exception wide enough to drive a semi through. And the Illinois Constitution provides for Home Rule:

http://www.ilga.gov/commission/lrb/con7.htm

And with Home Rule comes police powers.

Maybe. And maybe not.
It seems Illinois has a history a’repeatin’ (Presser v. Illinois).
Here is one pushharder would like: the 14th Amendment comes to the rescue of the 2nd, despite the 10th:

My opinion is the 2nd needs no help from the 14th. I hate that incorporation clause argument anyway. I think the original intent of the 14th was NOT to incorporate the B of R. I could be wrong and I’ll bet their is a legal mind out there that may be able to whip me on that. I dunno.

Anyway, back to the 14th “helping” the 2nd. The 2nd should not need help because the 2nd is not a direct limit on just Congress. I believe the enumerated rights in the Bill state where and when the limits apply to the federal government. For instance, look at the 1st, “Congress shall make no law…” Others such as the 2nd don’t include language that addresses Congress therefore their coverage should be much broader, i.e., the states and municipalities.

Savvy?

[/quote]

So, what about those amendments that do, by their terms, only apply limits to the federal government? Like the First Amendment. What would stop states legislatures from infringing on free speech if the amendment wasn’t read to apply to them to via incorporation?

16

I don’t think ANY of that Bill of Rights was actually designed to apply to states by the original Congress. I think this view is supported by the fact that Madison proposed Amendments that expressly purported to apply to the States and they were all rejected. I believe the Supreme Court also expressly held that the Bill of Rights did NOT apply to states before the Fourteenth Amendment was passed. I forget what case. Might be Barron v. Baltimore. Not sure that this means the intent in passing the 14th wasn’t EXACTLY to extend it to the states though. Haven’t looked at the issue enough.

17

[quote]pushharder wrote:
jsbrook wrote:
pushharder wrote:
DrSkeptix wrote:
Loose Tool wrote:
SteelyD wrote:
Loose Tool wrote:
On December 4, 2008, the court ruled against the SAF and the NRA on the issue of incorporation holding that regardless of the Supreme Court’s ruling in Heller, the court was bound by existing precedent that the Second Amendment does not apply to state and local governments.

The existing precedent is [/i]Quilici v. Morton Grove[/i], a 1982 US Court of Appeals case upholding the Morton Grove handgun ban. This is Quilici:

http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/quilici.html

Interesting. The first thing that I did was lookup the Illinois Constitution:

SECTION 22. RIGHT TO ARMS
Subject only to the police power, the right of the
individual citizen to keep and bear arms shall not be
infringed.
(Source: Illinois Constitution.)

“Local” governments (towns, cities, counties) are creatures of the state. At minimum, they are bound by their state constitution.

Note: As of this post I haven’t read the precedent case listed. Doing that next…

I think the “Subject only to the police power…” is a exception wide enough to drive a semi through. And the Illinois Constitution provides for Home Rule:

http://www.ilga.gov/commission/lrb/con7.htm

And with Home Rule comes police powers.

Maybe. And maybe not.
It seems Illinois has a history a’repeatin’ (Presser v. Illinois).
Here is one pushharder would like: the 14th Amendment comes to the rescue of the 2nd, despite the 10th:

My opinion is the 2nd needs no help from the 14th. I hate that incorporation clause argument anyway. I think the original intent of the 14th was NOT to incorporate the B of R. I could be wrong and I’ll bet their is a legal mind out there that may be able to whip me on that. I dunno.

Anyway, back to the 14th “helping” the 2nd. The 2nd should not need help because the 2nd is not a direct limit on just Congress. I believe the enumerated rights in the Bill state where and when the limits apply to the federal government. For instance, look at the 1st, “Congress shall make no law…” Others such as the 2nd don’t include language that addresses Congress therefore their coverage should be much broader, i.e., the states and municipalities.

Savvy?

So, what about those amendments that do, by their terms, only apply limits to the federal government? Like the First Amendment. What would stop states legislatures from infringing on free speech if the amendment wasn’t read to apply to them to via incorporation?

State constitutions.[/quote]

So, then you are fine if the state constiution does not address these issues? What if a state constitution makes private ownership of guns illegal?

20

[quote]pushharder wrote:
jsbrook wrote:
I don’t think ANY of that Bill of Rights was actually designed to apply to states by the original Congress. I think this view is supported by the fact that Madison proposed Amendments that expressly purported to apply to the States and they were all rejected. I believe the Supreme Court also expressly held that the Bill of Rights did NOT apply to states before the Fourteenth Amendment was passed. I forget what case. Might be Barron v. Baltimore. Not sure that this means the intent in passing the 14th wasn’t EXACTLY to extend it to the states though. Haven’t looked at the issue enough.

When I have looked at the history of the 14th it is evident that it was all about extending rights to emancipated slaves. If the intent of the 14th was that IT was to now trump the B of R, I think it would’ve more explicitly stated that. If the 1st was effectively being amended from “Congress shall make no law” to “No federal, state or municipal government shall make no law,” I think the authors of the 14th would have clarified or expanded on the language to make it so.[/quote]

Wiki says that Rep. John Bingham, the principal framer of the Fourteenth Amendment, advocated that the Fourteenth apply the first eight Amendments of the Bill of Rights to the States. I don’t particularly trust Wiki as an authoritative source, nor does this resolve the issue, but it’s a starting point. One I’d like to into if I ever have any real free time again. It’s an intersting isssue.