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Chicago Gun Case Incorporation Lawsuit
- Thread starter Al Norris
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Yes, I realize the Palmer case is centered on bearing arms. My concern is that most people don't care about keeping firearms, but the issue of the "average joe" carrying one still freaks out at large amount of people (sadly). I'm worried the SCOTUS will decide "Keep and Bear" doesn't really mean what it says, considering only 5 judges acknowledged the "keep" part.
Perhaps that view is too simplistic, but it's what I'm sensing in quite a few areas. "Fine to own, but don't carry" would be a terrible thing.
Perhaps that view is too simplistic, but it's what I'm sensing in quite a few areas. "Fine to own, but don't carry" would be a terrible thing.
maestro pistolero
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I would seem that, having plunged into the historical 2A pool, that the justices would have to begin swimming in it now. There is little question in my mind that since keep means keep, that they will now determine bear to mean bear.
Under what restriction or regulations, who can say? But it is doubtful to me that restrictions whose primary purpose is to dissuade or make the exercise of the right unnecessarily burdensome cannot, and should not, survive any standard of review.
Under what restriction or regulations, who can say? But it is doubtful to me that restrictions whose primary purpose is to dissuade or make the exercise of the right unnecessarily burdensome cannot, and should not, survive any standard of review.
At the time of the passage of the Fourteenth Amendment, the states recognized that the Amendment would bestow on Blacks the right to keep and bear arms. The arguments hoisted against the passage of the Fourteenth Amendment had much to do with the right to keep and bear arms for Blacks. States passed Black Codes specifically to address this fact.
If the understanding was that the Fourteenth Amendment would incorporate the right to keep and bear arms at the time of its passage, why would that same fact not apply now? Why would that fact be well understood at the time of the writing of the Amendment and so misunderstood now?
Ref. The Racist Roots of Gun Control, Clayton E. Cramer, (Kan. J.L. & Pub. Pol'y, Winter 1995, at 17)
If the understanding was that the Fourteenth Amendment would incorporate the right to keep and bear arms at the time of its passage, why would that same fact not apply now? Why would that fact be well understood at the time of the writing of the Amendment and so misunderstood now?
Ref. The Racist Roots of Gun Control, Clayton E. Cramer, (Kan. J.L. & Pub. Pol'y, Winter 1995, at 17)
NightSight
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I have a question to those of you that are smarter than I. I have read that it is a good thing, for gun owners at least, that Gura is arguing the case through the Privileges and Immunities Clause instead of Due Process. I have not read why. Could someone please explain how this would be better for gun rights advocates??
A good question, NightSight. The reason is that so matters that require licensing and approval can be required to be equal, like CCW's and NFA items. The Slaughterhouse cases which destroyed the P&I clause involved a license to do business as a butcher, and if the P&I clause had been upheld then those licenses would have had to been "shall issue", you could say, that they would have had to have been available on a fair and equitable basis. But of course the entire case hinged upon them not being so, that it was an insider deal involving corruption and favoritism, and the ruling went against the plaintiffs. Right now the carry license practices of the states of New Jersey, California, New York, Maryland, Massachusetts, and Hawaii are all horribly unequal, and because a state issued license is a state matter, with no P&I clause of the 14th Amendment the states can continue being as unfair as they want to be, giving out carry licenses to Ben Affleck, Donald Trump, Bill Gates, Theresa Heinz, Sly Stallone, and the lawyers' and judges' wives and daughters but not you and me for no other reason than because they said so. You and I not being mega millionaires cannot get a New Jersey or New York City or Los Angeles carry permit, but those who are the right person or know the right people or donate money in sufficient amounts to the right campaigns can.
The laws of California and New York are nothing more than Jim Crow laws which have withstood the times because they hadn't been attacked as such and the precedent upholding them is deeply entrenched. 2nd Amendment advocacy law was held back for decades by lack of a Heller type decision by SCOTUS; the combination of Slaughterhouse, Cruikshank, Presser, and Miller has formed a mile wide moat around ugly state laws that state and lower federal courts have used to drown virtually all attempts at squashing them.
The laws of California and New York are nothing more than Jim Crow laws which have withstood the times because they hadn't been attacked as such and the precedent upholding them is deeply entrenched. 2nd Amendment advocacy law was held back for decades by lack of a Heller type decision by SCOTUS; the combination of Slaughterhouse, Cruikshank, Presser, and Miller has formed a mile wide moat around ugly state laws that state and lower federal courts have used to drown virtually all attempts at squashing them.
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The "P&I" clause does much more than what Yellowfin said, although for us, that is a good thing.
Consider the fact that many liberals are behind this case, and you have to ask yourself, Why?
Because reinvigorating the "P&I" clause gives constitutional protection to the right to privacy (and Roe v. Wade), instead of those "emanations of penumbras" crap that several other cases have relied upon. There's a lot more at stake then just gun rights, and the liberals know this. So they're willing to give guns a pass, in order to get what they what.
Finally, a compromise that's really a compromise.
Suppose the Supreme Court looks at the Slaughterhouse Cases and overturns them. That overturns Cruikshank, Presser and Miller. All they have to do then is send the case back to the District court for a ruling consistent with that opinion (that the 2A is incorporated via the P&I clause. The Chicago laws fall, because of the precedent set in Heller, without the Court having to specifically say this). We win, big time. The liberals also win, big time.
That could very well see a 9-0 decision.
Consider the fact that many liberals are behind this case, and you have to ask yourself, Why?
Because reinvigorating the "P&I" clause gives constitutional protection to the right to privacy (and Roe v. Wade), instead of those "emanations of penumbras" crap that several other cases have relied upon. There's a lot more at stake then just gun rights, and the liberals know this. So they're willing to give guns a pass, in order to get what they what.
Finally, a compromise that's really a compromise.
Suppose the Supreme Court looks at the Slaughterhouse Cases and overturns them. That overturns Cruikshank, Presser and Miller. All they have to do then is send the case back to the District court for a ruling consistent with that opinion (that the 2A is incorporated via the P&I clause. The Chicago laws fall, because of the precedent set in Heller, without the Court having to specifically say this). We win, big time. The liberals also win, big time.
That could very well see a 9-0 decision.
Finally!
The official orders are here.
The official orders are here.
08-1521 MCDONALD V. CHICAGO
DECISION BELOW:
LOWER COURT CASE NUMBER: 08-4241, 08-4243, 08-4244
QUESTIONS PRESENTED:
Whether the Second Amendment right to keep and bear arms is incorporated as
against the States by the Fourteenth Amendment's Privileges or Immunities or Due
Process Clauses.
CERT. GRANTED 9/30/2009
That last bit's a little odd: Gura's case eschewed the Due Process argument as being weaker and narrower.QUESTIONS PRESENTED:
Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment's Privileges or Immunities or Due Process Clauses.
Still, notice the phrase
as being an accepted fact.the Second Amendment right to keep and bear arms
NightSight, to elaborate, we had two (actually three) methods of incorporation. Total incorporation assumes that the BoR protects individual rights, and that the 14th Amendment, through the Priviliges/Immunities clause, automatically incorporates them against the states.
Due Process involves incorporating rights on a case-by-case basis as the issue rises. Due Process is usually used to incorporate unenumerated rights.
Not odd at all, when you have read all the briefs Gura has written in regards the McDonald case.
A quick summary would be that Due Process incorporation was never a valid approach. It should have been the P&I clause all along.
Due Process Doctrine was invented by the Court to allow incorporation without having to overturn Barron v. Baltimore, and its progeny (Slaughterhouse (1873), et al). An 1833 decision that held the BOR was intended only to affect the Federal government.
The problem being that the 14th directly addressed Barron. However, the Court in Slaughterhouse refused to accept that with the 14th, federalism had changed in a dramatic manner, in as much as the 14th commanded the States to recognize individual liberties as stated in the BOR. The amendment gave the Congress the power to pass laws against those States that refused to recognize the privileges and immunities of the BOR. Justice Miller, writing for the majority in Slaughterhouse, point blank said that the Court could not and would not accept this change of nature in federalism. Therefore, the P&I clause could not have meant what the Congress had thought it meant.
It wasn't until Gitlow v. New York (1925) (although some say it started with Chicago, Burlington and Quincy Railroad (1897)), that the Supreme Court began to incorporate substantial rights against the States.
So, with Gura's question being the one that will be answered by the Court, he has invited the Court to look at Slaughterhouse, and find that the P&I clause does mean what it says. If the Court decides not to overturn Slaughterhouse they can always fall back and incorporate via their Due Process Doctrine. Hence the double sided question.
The mere fact that the Court has granted cert to McDonald and not NRA, means that at least 4 Justices are willing to look at Slaughterhouse. This is even more evident, because the Court has not modified the Question at all. It is the Question as presented in Gura's petition for certiorari.
While Heller was big; While incorporation of the 2A will be big as well; This case has the potential to be the biggest case of the last 150 years, should Slaughterhouse be overturned and the P&I clause be reinvigorated.
A quick summary would be that Due Process incorporation was never a valid approach. It should have been the P&I clause all along.
Due Process Doctrine was invented by the Court to allow incorporation without having to overturn Barron v. Baltimore, and its progeny (Slaughterhouse (1873), et al). An 1833 decision that held the BOR was intended only to affect the Federal government.
The problem being that the 14th directly addressed Barron. However, the Court in Slaughterhouse refused to accept that with the 14th, federalism had changed in a dramatic manner, in as much as the 14th commanded the States to recognize individual liberties as stated in the BOR. The amendment gave the Congress the power to pass laws against those States that refused to recognize the privileges and immunities of the BOR. Justice Miller, writing for the majority in Slaughterhouse, point blank said that the Court could not and would not accept this change of nature in federalism. Therefore, the P&I clause could not have meant what the Congress had thought it meant.
It wasn't until Gitlow v. New York (1925) (although some say it started with Chicago, Burlington and Quincy Railroad (1897)), that the Supreme Court began to incorporate substantial rights against the States.
So, with Gura's question being the one that will be answered by the Court, he has invited the Court to look at Slaughterhouse, and find that the P&I clause does mean what it says. If the Court decides not to overturn Slaughterhouse they can always fall back and incorporate via their Due Process Doctrine. Hence the double sided question.
The mere fact that the Court has granted cert to McDonald and not NRA, means that at least 4 Justices are willing to look at Slaughterhouse. This is even more evident, because the Court has not modified the Question at all. It is the Question as presented in Gura's petition for certiorari.
While Heller was big; While incorporation of the 2A will be big as well; This case has the potential to be the biggest case of the last 150 years, should Slaughterhouse be overturned and the P&I clause be reinvigorated.
Would you believe I glossed completely over the first page and jumped into the meat of the thing when I read it? D'oh!Not odd at all, when you have read all the briefs Gura has written in regards the McDonald case.
So, with Gura's question being the one that will be answered by the Court, he has invited the Court to look at Slaughterhouse, and find that the P&I clause does mean what it says.
Hugo Black, in Duncan,
In response to this I can say only that the words "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States" seem to me an eminently reasonable way of expressing the idea that henceforth the Bill of Rights shall apply to the States. What more precious privilege" of American citizenship could there be than that privilege to claim the protections of our great Bill of Rights? I suggest that any reading of "privileges or immunities of citizens of the United States" which excludes the Bill of Rights' safeguards renders the words of this section of the Fourteenth Amendment meaningless. Senator Howard, who introduced the Fourteenth Amendment for passage in the Senate, certainly read the words this way.
Hoping it doesn't come to that. We shouldn't have to prove the "quality and character" of the right, nor should it be considered an "emanation" of any sort.If the Court decides not to overturn Slaughterhouse they can always fall back and incorporate via their Due Process Doctrine. Hence the double sided question.
I think we can expect Kennedy to be warm to the idea as well, which would give us a simple majority. Stevens invoked Privileges or Immunities in Saenz v. Roe. How the other Justices rule...well, it'll be a litmus test for their beliefs on issues above and beyond the 2nd Amendment.The mere fact that the Court has granted cert to McDonald and not NRA, means that at least 4 Justices are willing to look at Slaughterhouse. This is even more evident, because the Court has not modified the Question at all. It is the Question as presented in Gura's petition for certiorari.
So far, the liberal Constitutional Accountability Center is behind the case, stating, "there are very important progressive values at stake in the outcome." John Payton of the NAACP has endorsed it as well.
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Bartholomew Roberts
Moderator
The other bonus to adding the P&I argument is it may win you more votes. If 3 Justices vote to reverse the 7th Circuit because the Second is incorporated through due process and 3 Justices vote to reverse the 7th Circuit because the Second is incoporated through the P&I clause, that is a 6-3 win for us even though neither point of law managed to get more than 3 votes.
I think another important point will be the numerous states passing "Firearms Freedoms Acts". The only real argument that the antis will have against incorporation is that the individual right to bear arms was made with the purpose of preserving the ability of the states to raise a militia and that as such, the states should be able to regulate firearms without the Second Amendment applying to them. However, if the antis make that argument successfully, then they just opened a HUGE can of worms with regards to the litigation over the Firearms Freedom Acts.
From a "which mess will be easier for the Court to clean up" perspective, incorporation through due process should be a clear winner.
I think another important point will be the numerous states passing "Firearms Freedoms Acts". The only real argument that the antis will have against incorporation is that the individual right to bear arms was made with the purpose of preserving the ability of the states to raise a militia and that as such, the states should be able to regulate firearms without the Second Amendment applying to them. However, if the antis make that argument successfully, then they just opened a HUGE can of worms with regards to the litigation over the Firearms Freedom Acts.
From a "which mess will be easier for the Court to clean up" perspective, incorporation through due process should be a clear winner.
Tom,
While I agree with Justice Black's opinion, remember that the court claimed that the "privileges or immunities of citizens of the United States" had nothing to do with the a citizen's rights within a State. They also claimed that the BoR protected "pre-existing rights" (prior to the Constitution) and could not, thus be "privileges or immunities" which would be granted by the government.
While I agree with Justice Black's opinion, remember that the court claimed that the "privileges or immunities of citizens of the United States" had nothing to do with the a citizen's rights within a State. They also claimed that the BoR protected "pre-existing rights" (prior to the Constitution) and could not, thus be "privileges or immunities" which would be granted by the government.
—Slaughterhouse Cases: 83 U.S. 36, 73-74 (1873)It is quite clear, then, that there is a citizenship of the United States, and a citizenship of a state, which are distinct from each other, and which depend upon different characteristics or circumstances in the individual.
We think this distinction and its explicit recognition in this Amendment of great weight in this argument, because the next paragraph of this same section, which is the one mainly relied on by the plaintiffs in error, speaks only of privileges and immunities of citizens of the United States, and does not speak of those of citizens of the several states. The argument, however, in favor of the plaintiffs, rests wholly on the assumption that the citizenship is the same and the privileges and immunities guaranteed by the clause are the same.”
armoredman
New member
Question, if Slaughterhouse was a basis of Miller, as presented earlier, and it is overturned, what possible effect does this have on Miller and NFA of 1934?
Black was, unfortunately, a voice in the wilderness on that front. The Court rolled ahead with the discretionary Due Process approach, but the question remains: was that the acceptable and right course?While I agree with Justice Black's opinion, remember that the court claimed that the "privileges or immunities of citizens of the United States" had nothing to do with the a citizen's rights within a State.
Gura's case argues that it was not. There's a great deal of credible authority on both sides of the political spectrum that agrees with him.
Regardless of Miller's (or any other Justice's) interpretations, the original meaning of the framers was quite clear:They also claimed that the BoR protected "pre-existing rights" (prior to the Constitution) and could not, thus be "privileges or immunities" which would be granted by the government.
Such is the character of the privileges and immunities spoken of in the second section of the fourth article of the Constitution. To these privileges and immunities, whatever they may be—for they are not and cannot be fully defined in their entire extent and precise nature —to these should be added the personal rights guarantied and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining to each and all the people; the right to keep and to bear arms (...)
(39th Congressional Session, p. 2765)
Miller wasn't really based on very much at all, really. It's an odd ruling with very little to go on. They didn't have to really justify it much since it wasn't really argued as Miller's side didn't submit briefs and Miller himself was dead before it got to the Supreme Court. It was really a worst case scenario and the political pressure by King FDR was largely responsible for it going the way it did. The NFA should never have stood.
Armoredman, when discussing incorporation, the Miller case everyone is should be referencing is Miller v. Texas, 153 U.S. 535 (1894), not United States v. Miller, 307 U.S. 174 (1939).
Yeah, it can get confusing sometimes.
Edited to add: The Miller case we are referencing is here, and it's real short. The relevant portion is the last paragraph.
Yeah, it can get confusing sometimes.
Edited to add: The Miller case we are referencing is here, and it's real short. The relevant portion is the last paragraph.
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Hugh Damright
New member
I disagree. I don't think that Howard's comment was representative. He was not "the Framer", but rather (IIRC) the amendment came from a committee of fifteen, and that committee never discussed the 14th making the USBOR binding upon the States. Howard only introduced the 14th because the chairman of the joint committee was sick that day. And when Howard sat down, several people then stood and said that the scope of the 14th was the same as the Civil Rights Act. It is one thing to say that a couple of radicals like Bingham and Howard wanted the 14th to make the USBOR binding against the States, but quite another to call them "the Framers" and then conclude that the 39th Congress intended incorporation. The great body of evidence seems to be that the 39th Congress intended the 14th to cover the same ground as the Civil Rights Act.the original meaning of the framers was quite clear ... "to these privileges and immunities ... should be added the personal rights guaranteed and secured by the first eight amendments"
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