Chicago gun case - Appellate Brief Filed - Page 2

Chicago gun case - Appellate Brief Filed

This is a discussion on Chicago gun case - Appellate Brief Filed within the The Second Amendment & Gun Legislation Discussion forums, part of the Related Topics category; I know your mind can't be changed, but please read the Law Professors/Constitutional Accountability Center amicus brief at the link provided by the op of ...

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  1. #16
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    I know your mind can't be changed, but please read the
    Law Professors/Constitutional Accountability Center amicus brief at the link provided by the op of this thread.

    It is quite an enlightening read, and if nothing else, it demonstrates that the issue is nowhere nearly as one sided as you seem to believe it to be.

    Now, eventually, we will find out as this stuff is surely going to wend its way upward through the judicial system. My fear frankly, is that the conservative justices on the SC are as activist as any there have ever been, and as reactionary as any in the past, and will follow your interpretation to our country's detriment.

    We have been down this path of unbridled states rights before, and it has been a disaster-- as well outlined in the brief I just mentioned.


  2. #17
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    Quote Originally Posted by Hopyard View Post
    I know your mind can't be changed, but please read the
    Law Professors/Constitutional Accountability Center amicus brief at the link provided by the op of this thread.

    It is quite an enlightening read, and if nothing else, it demonstrates that the issue is nowhere nearly as one sided as you seem to believe it to be.
    It is important to read and understand WHY the courts always discard your extreme view of dismantling the states.

    VICTOR D. QUILICI vs. VILLAGE OF MORTON GROVE
    **********************UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
    ************************************************** **December 6, 1982, Decided
    ****BAUER, Circuit Judge.

    ****This appeal concerns the constitutionality of the Village of Morton Grove's Ordinance No. 81-11, n1 which prohibits the possession of handguns within the Village's borders.The district court held that the Ordinance was constitutional. We affirm.


    ...
    ****While we recognize that this case raises controversial issues which engender strong emotions, our task is to apply the law as it has been interpreted by the Supreme Court, regardless of whether that Court's interpretation comports with various personal views of what the law should be....

    ****We next consider whether Ordinance No. 81-11 violates the second amendment to the United States Constitution. While appellants all contend that Ordinance No. 81-11 is invalid under the second amendment, they offer slightly different arguments to substantiate this contention. All argue, however, that the second amendment applies to state and local governments and that the second amendment guarantee of the right to keep and bear arms exists, not only to assist in the common defense, but also to protect the individual. While reluctantly conceding that Presser v. Illinois, 116 U.S. 252 (1886), held that the second amendment applied only to action by the federal government, they nevertheless assert that Presser also held that the right to keep and bear arms is an attribute of national citizenship which is not subject to state restriction. Reichert br. at 36. Finally, apparently responding to the district court's comments that "plaintiffs . . . have not suggested that the Morton Grove Ordinance in any way interferes with the ability of the United States to maintain public security . . ." Quilici and Reichert argue in this court that the Morton Grove Ordinance interferes with the federal government's ability to maintain public security by preventing individuals from defending themselves and the community from "external or internal armed threats." These are the same arguments made in the district court. Accordingly, we comment only briefly on the points already fully analyzed in that court's decision.

    ****As we have noted, the parties agree that Presser is controlling, but disagree as to what Presser held. It is difficult to understand how appellants can assert that Presser supports the theory that the second amendment right to keep and bear arms is a fundamental right which the state cannot regulate when the Presser decision plainly states that "the Second Amendment declares that it shall not be infringed, but this . . . means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the National government. . . ."* As the district court explained in detail, appellants' claim that Presser supports the proposition that the second amendment guarantee of the right to keep and bear arms is not subject to state restriction is based on dicta quoted out of context.* This argument borders on the frivolous and does not warrant any further consideration.

    ****Apparently recognizing the inherent weakness of their reliance on Presser , appellants urge three additional arguments to buttress their claim that the second amendment applies to the states. They contend that: (1) Presser is no longer good law because later Supreme Court cases incorporating other amendments into the fourteenth amendment have effectively overruled Presser,* (2) Presser is illogical, and (3) the entire Bill of Rights has been implicitly incorporated into the fourteenth amendment to apply to the states..

    ****None of these arguments has merit. First, appellants offer no authority, other than their own opinions, to support their arguments that Presser is no longer good law or would have been decided differently today. Indeed, the fact that the Supreme Court continues to cite Presser leads to the opposite conclusion. Second, regardless of whether appellants agree with the Presser analysis, it is the law of the land and we are bound by it. Their assertion that Presser is illogical is a policy matter for the Supreme Court to address. Finally, their theory of implicit incorporation is wholly unsupported. The Supreme Court has specifically rejected the proposition that the entire Bill of Rights applies to the states through the fourteenth amendment.

    ****Since we hold that the second amendment does not apply to the states, we need not consider the scope of its guarantee of the right to bear arms.
    ...

    ****Because the second amendment is not applicable to Morton Grove and because possession of handguns by individuals is not part of the right to keep and bear arms, Ordinance No. 81-11 does not violate the second amendment.
    ***
    *Finally, we consider whether Ordinance No. 81-11 violates the ninth amendment. Appellants argue that, although the right to use commonly-owned arms for self-defense is not explicitly listed in the Bill of Rights, it is a fundamental right protected by the ninth amendment. Citing no authority which directly supports their contention, they rely on the debates in the First Congress and the writings of legal philosophers to establish that the right of an individual to own and possess firearms for self-defense is an absolute and inalienable right which cannot be impinged.

    ****Since appellants do not cite, and our research has not revealed, any Supreme Court case holding that any specific right is protected by the ninth amendment, appellants' argument has no legal significance. Appellants may believe the ninth amendment should be read to recognize an unwritten, fundamental, individual right to own or possess firearms; the fact remains that the Supreme Court has never embraced this theory.

    ****Accordingly, the decision of the district court is AFFIRMED.
    Back to Hopyard's post:

    Now, eventually, we will find out as this stuff is surely going to wend its way upward through the judicial system. My fear frankly, is that the conservative justices on the SC are as activist as any there have ever been, and as reactionary as any in the past, and will follow your interpretation to our country's detriment.
    First, our nation is stronger, much stronger when we adhere to the Founders intent of independent, sovereign states. Second, what yu consider an activist judge is bizarre in the extreme. Scalia, Roberts, Thomas (and perhaps Alito) are EXACTLY the jurists best equipped to undersatnd the intent and the plain words of the Consitution. They RESPECT the Constitution. The hare brains like Ginsberg treat the Constitution as something that should randomly change based on political winds. And you think the former defines activism?

    We have been down this path of unbridled states rights before, and it has been a disaster-- as well outlined in the brief I just mentioned.
    Yes, we have gone down the states rights road before. It is called the founding of this nation and the brilliant government created by Adams, Madison, Jay, and Hamilton. You want to throw away their masterpiece.

  3. #18
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    Quote Originally Posted by SelfDefense View Post
    As usual, on issues of Constitutional law you are wrong.

    Though it is an argument flaw of call to authority, I will defer to the arguments of Charles Fairman and Justice Frankfurter over a message board poster who simply repeats a refuted argument.

    No matter how much you want to change the plain words of the Fourteenth Amendment its obvious intent of addressing citizenship of the newly freed slaves, the Court opinions of Cruikshank and Adamson repudiate your view.

    I strongly urge you to read Fairman's Stanford Law Review article. It will answer the questions that you are struggling with.
    Per your usual tact, you continue to cite your holy grail of Cruikshank which has been widely repudiated in subsequent cases--but I know, you are in love with Justice Frankfurter and just cannot bear to think that he might have been in error. So, of course, you also like to reject the actually highly-relevant statement of the legislative drafter and sponsor as to the intent of the Amendment as if it is meaningless, when any first-year law student can tell you that legislative history is vital to interpreting legislation when questions arise as to its meaning--it is, after all, the legislative intent that is determinative in such cases. Oh, but of course a law professor's journal article is more persuasive...

    Might I suggest that, before you continue to embarass yourself with your uneducated and misinformed interpretations of the law, you actually go to law school and educate yourself on how law is made and interpreted? Legal interpretation is not a layman's activity--that's why we attorneys spend three years (minimum) learning how to do it before the states will allow us to actually enter the practice of doing so. Your statements about the role of the courts and the relevance of legislative history, etc. on here would get you laughed out of most 101 level classes.

  4. #19
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    Quote Originally Posted by XDFender View Post
    Per your usual tact, you continue to cite your holy grail of Cruikshank which has been widely repudiated in subsequent cases--but I know, you are in love with Justice Frankfurter and just cannot bear to think that he might have been in error.
    Why do you continue with your misguided and unsupported attacks against a Supreme Court Justice? I would expect that a competent law school would require reading and understanding significant Court cases. It is fascinating that you think EVERY Court decision from Barron, to Cruikshank, to Slaughterhouse, to Adamson are all in error. You must be the finest legal mind of our time.

    Did they even assign those cases for you or was Constitutional law skipped in favor of international contracts?

    So, of course, you also like to reject the actually highly-relevant statement of the legislative drafter and sponsor as to the intent of the Amendment as if it is meaningless, when any first-year law student can tell you that legislative history is vital to interpreting legislation when questions arise as to its meaning--it is, after all, the legislative intent that is determinative in such cases. Oh, but of course a law professor's journal article is more persuasive...
    It seems you haven't read Fairman's well researched and unassailable article. It isn't atypical for liberal institutions to not assign relevant reading to promote an agenda. I assume you are a big fan of Aynes.

    Legal interpretation is not a layman's activity
    Yes, the words are so complicated. I realize you think that a few years of schooling is a compelling argument. The fact is that Constitutional law is a small part of the curriculum. I guess that logical argument was not a required course (an elective perhaps?) Promoting background rather than providing argument is an elementary logic flaw.

    Your statements about the role of the courts and the relevance of legislative history, etc. on here would get you laughed out of most 101 level classes.
    Sometimes history is a difficult subject for law students. Is that why you think students would laugh when confronted with facts?

    Since you refuse to read Fairman, I will now suggest you read the Court opinion in Adamson as well as the concurrent opinion. You will learn a lot. Perhaps you could summarize their findngs for us here.

  5. #20
    BAC
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    Guys, this is getting pretty personal.

    XD, what cases have repudiated Cruikshank? So far as I recall, Cruikshank has not been overturned, and was even referenced alongside Miller and Presser in the recent Heller case as maintaining that the Second Amendment still only applies to the federal government (straight from the Supreme Court, but I can dig up a quote if you want it).


    -B
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  6. #21
    BAC
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    Quote Originally Posted by XDFender View Post
    And to BAC--Cruikshank's premise has been repudiated in case after case applying BOR provisions vis-a-vis the states, and was not addressed directly in Heller; but it's continuing validity relative to the 2A was questioned by Justice Scalia. It has only not been overturned because the question has not been presented directly to SCOTUS.

    If and when the 2A/14A question is presented directly to SCOTUS, Cruikshank will be overturned.
    Come on, that's pure conjecture and you know it. The court mentioned only that opinions have generally changed, not that there was any likelihood Cruikshank/Presser/Miller would be overturned. Given that the "method of incorporation" is selective, on a case-by-case basis, and that it has been held in court that the right to keep and bear arms is pre-existing and not dependent on the Constitution for its existence, I think it would be very difficult to argue that it's a sure thing it will be "incorporated".


    -B
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  7. #22
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    First and last warning Play nice and keep civil or the thread is locked as well as more points issued.
    "In matters of style, swim with the current; in matters of principle, stand like a rock." Thomas Jefferson


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  8. #23
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    Quote Originally Posted by BAC View Post
    In Texas, are firearms being legislated against?
    Yes, as a matter of fact they are, and not just firearms. The famous Bowie knife, the handgun, the tomahawk, and many others are not only regulated, they have been prohibited from public possession since 1871. Under the leadership of federal intervention after the civil war, Texas amended it's constitution to allow the legislature to regulate our right to keep and bear arms at their whim. That gave us a police state, a despot governor, a loss of many other of our fundamental freedoms, a disarming of the people, and a widespread and flagrant abuse of power by the state government.

    The 1871 gun ban and grievances over these gross abuses of power became the basis for Democratic election campaigns in 1873. The Democrats defeated the despot Governor Davis, yet armed citizens had to remove him from the state capital after he tried to keep in office by armed force. As a result of this recent history, the constitution was amended in 1876 to limit the legislature to only regulate, not prohibit, the wearing of arms. It was intended to prevent a recurrence of such abuses and to repeal the 1871 gun ban. Subsequent court cases failed to acknowledge the legislative history of the constitutional amendment and upheld the 1871 law. That 1871 gun ban still remains on the books today. Texas citizens are regularly being incarcerated over this law.

    See one of my favorite papers by Stephen Halbrook.

    It seems reasonable to me that Texans in particular have a firm basis for seeking federal protection of our rights under the fourteenth amendment.

  9. #24
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    Quote Originally Posted by dldeuce View Post
    The 1871 gun ban and grievances over these gross abuses of power became the basis for Democratic election campaigns in 1873. The Democrats defeated the despot Governor Davis, yet armed citizens had to remove him from the state capital after he tried to keep in office by armed force. As a result of this recent history, the constitution was amended in 1876 to limit the legislature to only regulate, not prohibit, the wearing of arms. It was intended to prevent a recurrence of such abuses and to repeal the 1871 gun ban. Subsequent court cases failed to acknowledge the legislative history of the constitutional amendment and upheld the 1871 law.
    Just curious, but why don't the people of Texas repeal the law you find offensive? It seems the people defeated the governor in an election. Yet, they chose not to repeal the law over which the governor was ousted? Interesting.

    Is it your contention that the whim of a judge overrided the Texas constitution? And you want another judge to decide your future?

    That 1871 gun ban still remains on the books today. Texas citizens are regularly being incarcerated over this law.
    I thought Texas approved concealed carry and supports ownership of guns and generous castle doctrine laws. Why do you think guns are banned?

    People should be incarcerated for violating the law. Right?

  10. #25
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    Quote Originally Posted by BAC View Post
    Come on, that's pure conjecture and you know it. The court mentioned only that opinions have generally changed, not that there was any likelihood Cruikshank/Presser/Miller would be overturned. Given that the "method of incorporation" is selective, on a case-by-case basis, and that it has been held in court that the right to keep and bear arms is pre-existing and not dependent on the Constitution for its existence, I think it would be very difficult to argue that it's a sure thing it will be "incorporated".


    -B

    I guess we'll just have to see, if and when the issue is directly in front of SCOTUS. But, while it is conjecture on my part at this point, it is hardly "pure" conjecture. It is well-informed and educated conjecture, based on real 14th Amendment jurisprudence down here on terra firma (as opposed to the high-in-the-sky jurisprudence that some "experts" promote).

  11. #26
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    Quote Originally Posted by SelfDefense View Post
    Just curious, but why don't the people of Texas repeal the law you find offensive? It seems the people defeated the governor in an election. Yet, they chose not to repeal the law over which the governor was ousted? Interesting.
    That's a good question. Let's presume for a moment that only a small minority of Texas citizens have wanted to repeal that law over the last hundred and forty years. Let's presume that this minority has been unable to lobby the legislature or to elect judges that will uphold the constitution. We are still left without the protection guaranteed by the state constitution. We are still left without our fundamental right. I don't see anything fundamentally wrong with seeking that protection through the federal government or by any other means available to us.

    Is it your contention that the whim of a judge overrided the Texas constitution? And you want another judge to decide your future?
    Yes, that's right. I can't think of any action I wouldn't support that will keep my state government and my fellow state citizens from infringing my fundamental rights. If I, as even a minority of one, can get Oklahoma to force Texas to respect my rights, I'm all for it. Texas has a proud history of accepting help from any quarter to fight for our right to keep and bear arms. That's how we won our independence and kept our guns from Santa Anna. I don't see why we should turn down any help we can get from the rest of the nation now.

    I thought Texas approved concealed carry and supports ownership of guns and generous castle doctrine laws. Why do you think guns are banned?
    Texas did not approve concealed carry or open carry for all Texas citizens. The 1871 gun ban remains on the books today for almost all of it's citizens.

    The 1871 act:

    Any person carrying on or about his person, saddle, or in his saddle-bags, any pistol, dirk, dagger, sling-shot, sword-cane, spear, brass knuckles, bowie knife, or any other kind of knife, manufactured or sold, for the purpose of offense or defense,

    except except except..... shall be guilty of a misdemeanor and a maximum of 60 days in jail.


    Section 46.02 of today's penal code:

    Sec. 46.02. UNLAWFUL CARRYING WEAPONS. (a) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun, illegal knife, or club


    except except except..... shall be guilty of up to a third degree felony and up to 10 years in jail and a $10,000 fine.



    People should be incarcerated for violating the law. Right?
    People should never be denied their fundamental freedoms by any government regardless of what their laws say.

  12. #27
    BAC
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    dldeuce, why don't Texans bring this up with the legislature and repeal these laws?


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  13. #28
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    Questions

    If the Second Amendment to the Constitution were repealed (not advocating that, of course), and Congress were to pass a national law outlawing civilian ownership of firearms, would state constitutional provisions allowing civilian ownership of firearms shield citizens of those states in their continued ownership of firearms from national action?

    Would state law enforcement agencies be required to assist national law enforcement agencies in the enforcement of that law?
    If the public are bound to yield obedience to laws to which they cannot give their approbation, they are slaves to those who make such laws and enforce them.--Samuel Adams as Candidus, Boston Gazette 20 Jan. 1772

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  14. #29
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    rights can't be left to whims of legislatures

    Quote Originally Posted by BAC View Post
    dldeuce, why don't Texans bring this up with the legislature and repeal these laws?


    -B
    There should be no need to do so. It is under the unfortunate interpretations that the BOR must be individually incorporated that this sort of problem is able to exist. Wouldn't it be better if 2A were in fact the basic law and fully protected all the people against the states?

    Texas is quite peculiar in that the Texas Constitution is readily altered. It is nice to wish that our rights would always be preserved by the free will decisions of the voters*, but our founders actually doubted the collective wisdom of ordinary folks,and with some good reason.

    The BOR should protect against the excesses that often can and do get perpetrated--such as the earlier mentioned restrictions against writing editorials against slavery. Or, maybe in modern times, the infamous Oprah beef liable case--another example of a state restricting free speech.

    The BOR is the basic protection, must be the basic protection, and we should accept nothing less from those who interpret our founding document.

    _____________________________________________

    *Off topic, but an excellent example of how money and power can misshape law: For a century of so Texans were well protected against losing their homes in bankruptcy and foreclosure. The laws protecting debtors were stringent because of 19th century abuses that resulted in land theft.

    About a decade ago the big national banks went on a campaign to get the law changed, so for the first time it would allow equity loans to be taken out secured by home value. The outcome was of course both inevitable and predictable.

    While this issue didn't involve grand US Constitutional issues, the underlying problem with not applying the BOR in a very liberal way to all, can be seen. You can't necessarily trust the state legislatures (or Congress) to do the right thing. Those who think you can are living in an ideal stylized world in which there are no evil doers and everyone acts with pure motive.

  15. #30
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    300,000 chl holders can be ignored

    Quote Originally Posted by SelfDefense View Post
    Just curious, but why don't the people of Texas repeal the law you find offensive?
    In a state with a population of 25 million or so, 300,000 chl holders can be readily ignored. Most folks simply couldn't care one way or the other about these issues (gun rights). Even among gun owners, many will never seek a carry license or ever take their gun to the field or to a range.

    And therein lies the fundamental problem with your world view. It affords no protection to minority rights. All that counts in your view of things the momentary will of a majority.

    The BOR is there as a protection of rights, and it is only accident of history having to do with the desire of some states to enslave or to continually persecute a minority, that we get a dreadful case like Cruishank. It is prejudice against us scary gun owners which keeps 2A from being incorporated. Cruishank becomes a convenient excuse for allowing continued suppression of our rights. The lack of incorporation has nothing to do with original intent; just prejudice against gun owners and particularly those of us who would carry.

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