Western Rifle Shooters Association

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Thursday, October 1, 2009

2A Litigation Update -- The Case Against the City of Chicago

Here's the lead attorney's press release:

WASHINGTON, D.C. – The U.S. Supreme Court announced today that it will hear the case of McDonald v. City of Chicago, and decide whether the right to keep and bear arms secured by the Second Amendment protects Americans from overreaching state and local governments.

At issue is a 27-year-old Chicago law banning handguns, requiring the annual taxation of firearms, and otherwise interfering with the right of law-abiding individuals to keep guns at home for self-defense. The case was brought on behalf of four Chicago residents, the Second Amendment Foundation, and the Illinois State Rifle Association.

Last year, in the landmark case of District of Columbia v. Heller, the Supreme Court held that the Second Amendment guarantees an individual right to keep and bear arms. However, as that case concerned the actions of the District of Columbia government, a federal entity, the high court was not called upon to decide whether the right bound states and local governments. Over the years, almost the entire Bill of Rights has been held to apply to state and local governments by operation of the Fourteenth Amendment.

“The freedoms we enjoy as Americans are secured to us against violation by all levels of government,” noted Alan Gura, of Gura & Possessky, PLLC, lead counsel for the McDonald plaintiffs. “State and local politicians should be on notice: the Second Amendment is a normal part of the Bill of Rights, and it is coming to your town.”

Otis McDonald, a Chicago resident since 1952 who led the fight to integrate his union local in the 1960s and is a plaintiff in the case, welcomed the news.

“I am grateful the Supreme Court has agreed to hear this case,” McDonald said. “I now pray that the Court secures me and all other law-abiding citizens the right to defend ourselves and our families.”

SAF founder Alan Gottlieb said the case is of paramount importance to American citizens, to see that their constitutional rights are respected not only by the Congress, but by state and local governments.

“SAF was delighted to bring this case in cooperation with the Illinois State Rifle Association and the four local plaintiffs because a gun ban is no less onerous to civil rights in Chicago than it was in the District of Columbia,” Gottlieb observed. “Such a law cannot be allowed to stand unchallenged.”

Chicago attorney David Sigale commented, “The City of Chicago cannot take from millions of Americans the fundamental freedom of self-defense in one’s own home. We are confident the Court will stand on the side of the law-abiding citizens and the Bill of Rights.”

“We’re pleased to hear that the Supreme Court has decided to take a look at Chicago’s gun laws,” added ISRA President Don Moran. “In this time of economic uncertainty and increasing lawlessness, the good people of Chicago ought not have to choose between violating Chicago’s gun ban, and protecting themselves and their loved ones.”

The Chicago gun ban challenge will likely be among the most closely watched constitutional law cases in decades. At stake is not just the question of whether the Second Amendment secures the right to arms against state and local governments, but also the extent to which the Supreme Court preserves individual liberty against encroachment by state and local governments.

Oral argument will possibly be scheduled early this coming winter, with a decision expected by June 2010. Gura will argue the case on behalf of the McDonald plaintiffs.

Additional background comes from David Kopel at the Volokh Conspiracy lawprofblog:

Background reading for Supreme Court’s new 14th/2d Amendment case

David Kopel • September 30, 2009 8:27 am

The website for all the Chicago case filings is here. For 19th century history, Stephen Halbrook is by far the most important scholar. His articles include: The Freedmen’s Bureau Act and the Conundrum Over Whether the Fourteenth Amendment Incorporates the Second Amendment, Northern Kentucky Law Review (2002); Personal Security, Personal Liberty, and The Constitutional Right to Bear Arms: Visions of the Framers of the Fourteenth Amendment, Seton Hall Constitutional Journal (1995); The Right of Workers to Assemble and to Bear Arms: Presser v. Illinois, One of the Last Holdouts Against Application of the Bill of Rights to the States, University of Detroit Mercy Law Review (1999); and (co-authored with Cynthia Leonardatos and me), Miller versus Texas: Plice Violence, Race Relations, Capital Punishment, and Gun-Toting in Texas in the Nineteenth Century–and Today, Journal of Law and Policy (2001).

The lead attorney in the Supreme Court case of McDonald v. Chicago is Alan Gura. He did an excellent job in District of Columbia v. Heller, so the new case is in very good hands.

My two cents: does anybody really think that the Supremes are going to say that the Second Amendment, and especially its "shall not be infringed" phrasing, means exactly what it says?

Especially after the Heller debacle, as described here and here and here and here and here and here?


Anonymous Larry said...

The supreme court does not secure our rights, we do.

October 1, 2009 at 10:34 AM  
Anonymous ebd10 said...

I wonder if the NRA will try to hog the credit for this one?

October 1, 2009 at 4:19 PM  
Anonymous Davidwhitewolf said...

In a word: no. In more than one word: you've asked a straw-man question. It's not the Supreme Court's job to say in one case the precise scope of a fundamental right. That just doesn't happen in Constitutional jurisprudence. Rather, a win in this case opens up the ability for us to develop a bunch of subsequent wins at the state and federal level, each of which will define some aspect of the 2A. Most of those won't ever make it to the Supreme Court level for review, but they'll be binding law just the same. For example: you want to have a definitive ruling that a California-style "assault weapons" ban is unconstitutional? Then first you need a win in this case to let us bring that suit against California. Same with specific suits about shall-issue concealed carry, all the way to suppressors and the rest. They're in the pipeline, but unless we get a win in this case, all those other cases won't go anywhere. And the Justices and their clerks know very well that flood of civil-rights cases is exactly what's coming if they rule the right way in this case.

October 1, 2009 at 10:26 PM  
Anonymous spitnyri said...

Since SCOTUS, as the judiciary, is limited by the Constitution to interpreting that laws are in compliance with constitutional limitations, especially concerning the Bill of Rights, this whole dog and pony show is an illegal power grab by the SCOTUS and their accomplices.
Nowhere does the constitution or article 2 give them the right to interpret the only laws the restrict their power and authority.. not congress nor the executive can give them this authority.. what would be the point of a Constitution ? Ponder that thought..
..the founders werent stupid, we are, though.

October 2, 2009 at 1:03 AM  
Blogger Concerned American said...


You said:

...It's not the Supreme Court's job to say in one case the precise scope of a fundamental right. That just doesn't happen in Constitutional jurisprudence...

I am intimately familiar with how so-called "Constitutional jurisprudence" operates.

Remember this classic from Griswold:

...The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance....

It's known colloquially as the "we can make up whatever shit we want to reach the desired result, for we are the robed elite" clause.

Remember the intellectual heights of Korematsu?

...It is said that we are dealing here with the case of imprisonment of a citizen in a concentration camp solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. Our task would be simple, our duty clear, were this a case involving the imprisonment of a loyal citizen in a concentration camp because of racial prejudice. Regardless of the true nature of the assembly and relocation centers -- and we deem it unjustifiable to call them concentration camps with all the ugly connotations that term implies -- we are dealing specifically with nothing but an exclusion order. To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and finally, because Congress, reposing its confidence in this time of war in our military leaders -- as inevitably it must -- determined that they should have the power to do just this. There was evidence of disloyalty on the part of some, the military authorities considered that the need for action was great, and time was short. We cannot -- by availing ourselves of the calm perspective of hindsight -- now say that at that time these actions were unjustified...

Remember Hamdi?

Remember the plethora of judge-made "warrantless search" exceptions to the Fourth Amendment?

Remember McConnell?

Balls on "constitutional jurisprudence" and balls to the Supremes.

Knowing, as you acknowledge, that a pro-incorporation decision would invalidate long-standing gun laws in major metroplitan areas, do you really expect a majority of the Supremes to have the intellectual honesty to treat the 2A as they have other enumerated rights in the BoR?


October 2, 2009 at 2:52 AM  
Blogger sofa said...

When the Supremes nullify 2A -
Is that cause for more court cases, etc?

Are they inalienable rights?

Or are we now begging the crown,
errr - a branch of gov't ?

October 2, 2009 at 3:24 AM  
Blogger Concerned American said...


You mean "continue to nullify 2A", didn't you?

Doubters should re-read Section III at pp. 54-56 of Heller. Scalia, writing for the majority, was just making shit up -- whether "to get the fifth vote" or just to be the statist pig that he is doesn't really matter.

Anyone looking to these 8 turds (Thomas is OK) for anything freedom-related is freaking delusional.

"Shall not be infringed" is the precise language.

Does the statute at issue infringe upon a citizen's RKBA?

There endeth the intellectually-honest analysis. End of story.

Y'all want to mentally masturbate with the Robed Elite and their sycophants -- go right ahead.

Me? I am going to be an American.

October 2, 2009 at 5:09 AM  

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