Chicago gun case - Appellate Brief Filed

[user]

There was one thing that seemed missing from the complaint, to me. There was no argument based on the Illinois Constitution; Article I, SECTION 22, "RIGHT TO ARMS", says:

Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed.

Seems to me that the actions taken by the City of Chicago violate the state's constitution and are therefore per se violations of the citizens' right to due process under the Fourteenth Amendment. Their rights under the state's constitution cannot be taken away without notice and hearing, at a minimum. An attempt to do so wholesale violates the rights of each citizen affected. And the language of the state's constitution is a lot clearer than that of the U.S., since it refers to individual citizens' rights.

[DefensiveCarry.com]

[SelfDefense]

If the Second Amendment to the Constitution were repealed (not advocating that, of course), and Congress were to pass a national law outlawing civilian ownership of firearms, would state constitutional provisions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?

No, the Supremacy clause would take effect.

Article VI

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
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It is interesting that many Court opinions have been inconclusive on most cases in this area. The threshhold is whether the state law is in conflict with Federal law. In your hypothetical, the Federal law would trump state laws (or a state constitution) and you would not be shielded.

Of course, even if the Second Amendment were repealed, the Federal government does not have the power to ban guns. The entire Bill of Rights is superfluous and adds nothing to the Constitution.

[dldeuce]

dldeuce, why don't Texans bring this up with the legislature and repeal these laws?
-B

They have. I know I have. They have also tried and lost in the state courts. From what I've read, it's worth trying again in the state courts, and in the legislature, appeasement of the anti-gun crowd makes unconstitutional infringement a certainty. I don't see the down side of having the avenue of seeking protection from either the federal or state government.

[dldeuce]

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?

That's an interesting question. To me, the issue is that it's a fundamental right of the people, independent of the government, whether or not the right is enumerated by the 2nd amendment. Hypothetically, even though not specifically enumerated, I would think the states and the people would look to the ninth and tenth amendments and conclude Congress is not empowered to regulate any fundamental right of the people.

[dldeuce]

There was one thing that seemed missing from the complaint, to me. There was no argument based on the Illinois Constitution; Article I, SECTION 22, "RIGHT TO ARMS", says:

Seems to me that the actions taken by the City of Chicago violate the state's constitution and are therefore per se violations of the citizens' right to due process under the Fourteenth Amendment. Their rights under the state's constitution cannot be taken away without notice and hearing, at a minimum. An attempt to do so wholesale violates the rights of each citizen affected. And the language of the state's constitution is a lot clearer than that of the U.S., since it refers to individual citizens' rights.

That's a good point. If the objective was only to repeal the law you'd think that argument would be made. Only that would be a win in only one city in one state. Like I said before, this is a national issue being led by national organizations. The objective is to change the interpretation of the 14th amendment as incorporating the 2nd amendment against the states. The objective is to win in all 50 states.

[falcon1]

No, the Supremacy clause would take effect.

Article VI

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
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It is interesting that many Court opinions have been inconclusive on most cases in this area. The threshhold is whether the state law is in conflict with Federal law. In your hypothetical, the Federal law would trump state laws (or a state constitution) and you would not be shielded.

Of course, even if the Second Amendment were repealed, the Federal government does not have the power to ban guns. The entire Bill of Rights is superfluous and adds nothing to the Constitution. [emphasis added]

I don't see any authority for the U.S. Department of Education in Article I, Section 8, of the Constitution either, and yet--there it is. Whether the national government has the authority to do something or not, it certainly seems to me that it is willing to use force to do it if it wants to do so, and the citizenry as currently constituted does not seem to have a problem with that usurpation. That worries me greatly.

That's an interesting question. To me, the issue is that it's a fundamental right of the people, independent of the government, whether or not the right is enumerated by the 2nd amendment. Hypothetically, even though not specifically enumerated, I would think the states and the people would look to the ninth and tenth amendments and conclude Congress is not empowered to regulate any fundamental right of the people.

Oyez: Garcia v. San Antonio Metro. Transit Authority, 469 U.S. 528 (1985), U.S. Supreme Court Case Summary & Oral Argument

Quoted from the page dealing with Garcia v. San Antonio Metro. Transit Authority:

Facts of the Case

The San Antonio Metropolitan Transit Authority (SAMTA), the main provider of transportation in the San Antonio metropolitan area, claimed it was exempt from the minimum-wage and overtime requirements of the Fair Labor Standards Act. SAMTA argued that it was providing a "traditional" governmental function, which exempted it from federal controls according to the doctrine of federalism established in National League of Cities v. Usery (1976). Joe G. Garcia, an employee of SAMTA, brought suit for overtime pay under Fair Labor Standards Act.

Question

Did principles of federalism make the San Antonio Metropolitan Transit Authority immune from the Fair Labor Standards Act?

Conclusion

In a 5-to-4 decision, the Court held that the guiding principles of federalism established in National League of Cities v. Usery were unworkable and that SAMTA was subject to Congressional legislation under the Commerce Clause. The Court found that rules based on the subjective determination of "integral" or "traditional" governmental functions provided little or no guidance in determining the boundaries of federal and state power. The Court argued that the structure of the federal system itself, rather than any "discrete limitations" on federal authority, protected state sovereignty. [emphasis added]

One of the ways I heard the outcome of this decision expressed (unsophisticated legally as it undoubtedly is) is that, basically, the Supreme Court said in this decision that the states had no protection from national government action anywhere in the Constitution. The states could only be protected through the election of legislators and chief executives that respected the federal division of powers. Name more than a handful of the current members of Congress who respect it (or even understand it). We all know how our current Chief Executive feels and many of our former ones have felt on this issue.

Gentlemen, the way I see it is this. We can dance around "how-many-angels-on-the-head-of-a-pin" arguments about national versus state power vis-a-vis the rights of the People until the cows come home. If the powers-that-be want to attempt to ban civilian ownership of firearms, they will use every means at their disposal to do so, authority or not...and not many of the People will lift a finger to stop them.

OMO, of course, but I fear we are living in dark times...and they will grow darker.

[dldeuce]

Gentlemen, the way I see it is this. We can dance around "how-many-angels-on-the-head-of-a-pin" arguments about national versus state power vis-a-vis the rights of the People until the cows come home. If the powers-that-be want to attempt to ban civilian ownership of firearms, they will use every means at their disposal to do so, authority or not...and not many of the People will lift a finger to stop them.

OMO, of course, but I fear we are living in dark times...and they will grow darker.

That's all true, and it's the way it's always been. I hope the states do more to restrain the federal government on governmental issues, and the federal government needs to do more to restrain the states on rights issues.

[SelfDefense]

I don't see any authority for the U.S. Department of Education in Article I, Section 8, of the Constitution either, and yet--there it is. Whether the national government has the authority to do something or not, it certainly seems to me that it is willing to use force to do it if it wants to do so, and the citizenry as currently constituted does not seem to have a problem with that usurpation. That worries me greatly.

That is exactly right. In fact, the citizens of the United States WANT a nanny state. We get the government we deserve. Decades of liberal indoctrination and historical distortions result in what we see today.

The missing piece of the 'European Socialist model,' which we are following closely, is that Europe always had a backstop miltarily and economically in the United States. We have no such backup. We are the last free society on Earth. Once we lose that, and the Obama administration is destined to immeasurably weaken our nation, we will fall prey to those nations and people who are committed to our destruction.

Liberals have enabled their own destruction.

As to the extra-constitutional powers that the Federal government has instituted, yes that is a major problem. Forget the Department of Education, I don't see Social Security/Medicare anywhere in the Constitution.

However, I will take issue with the Federal government domestic force thing. Only the illegal '60s infringement of state's rights was, in my memory (OK, maybe Waco) the only recent example of actual force. Mostly, it is state entitlements provided by the Federal government that coerce states to bow to their will.

One of the ways I heard the outcome of this decision expressed (unsophisticated legally as it undoubtedly is) is that, basically, the Supreme Court said in this decision that the states had no protection from national government action anywhere in the Constitution.

Obviously, this is backwards. The Federal government has no power to take action against the states with the exception of insurrection (the Civil War as an example.)

The states could only be protected through the election of legislators and chief executives that respected the federal division of powers.

Now, there's a thought!

[falcon1]

Obviously, this is backwards. The Federal government has no power to take action against the states with the exception of insurrection (the Civil War as an example.)

I agree with you that it is obviously backwards according to the Constitution--the national government indeed has no authority to do so, but lack of authority will not (in my opinion) stop it from doing so at will...and I do not know what else would have the capability of stopping it at this moment when it chooses to do so.

[Hopyard]

I hope the states do more to restrain the federal government on governmental issues, and the federal government needs to do more to restrain the states on rights issues.

That comment seems to me to be spot on, and summarizes where we need to be going as a nation.