Chicago gun case - Appellate Brief Filed

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; See here. Some of the most compelling arguments yet for incorporation of the 2nd amendment have been filed. The Constitutional Accountability Center filed an amicus ...

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Thread: Chicago gun case - Appellate Brief Filed

  1. #1
    Senior Member Array dldeuce's Avatar
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    Chicago gun case - Appellate Brief Filed

    See here.

    Some of the most compelling arguments yet for incorporation of the 2nd amendment have been filed. The Constitutional Accountability Center filed an amicus brief arguing the 2nd amendment should be incorporated under the privileges and immunities of the fourteenth. That's a very compelling and interesting argument. There's an amicus from law enforcement with an in depth analysis of crime statistics. There's an amicus from state legislators that makes the strongest argument yet for incorporation under due process. Then they have the two appellant's briefs as well.

    Take the time to read all of these briefs. You won't be disappointed!


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    BAC
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    Quote Originally Posted by dldeuce View Post
    See here.

    Some of the most compelling arguments yet for incorporation of the 2nd amendment have been filed.
    Then I hope it fails, because I'm tired of all judicial activism, not just the kind I don't like. Challenge Chicago laws against the Illinois Constitution and you will win.

    I'll read the brief anyway.


    -B
    RIP, Jeff Dorr: 1964 - July 17, 2009. You will be missed.


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    Senior Member Array dldeuce's Avatar
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    Quote Originally Posted by BAC View Post
    Then I hope it fails, because I'm tired of all judicial activism, not just the kind I don't like. Challenge Chicago laws against the Illinois Constitution and you will win.

    I'll read the brief anyway.
    -B
    I'm curious to hear yours and SelfDefense' response particularly to the law professor's brief on the privileges and immunities argument.

    Judicial activism probably boils down to how you interpret the fourteenth amendment. From what I've read about the history and from my own reading of the 14th amendment, these arguments for incorporation make the better argument.

    It also just makes sense to me that it's best for our country for everyone to be guaranteed our basic rights. Without that guarantee, states could theoretically fall, step by step or all at once, into all sorts of totalitarianism. I can't see that any step down that road is tolerable for the country.

    Particularly with respect to gun rights, I feel that any state that infringes on gun rights, endangers my own rights. We have a national political movement to deny all citizens in the country of their gun rights. Every state that falls to their efforts makes it all that much more difficult to maintain my rights in my state. Every state that gives up their guns makes our country as a people less able to restrain the federal government and defend our country from foreign governments. I just don't think it's a good idea for the country to allow the states to deny basic rights. It's clear to me that's why the 14th amendment was passed.

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    BAC
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    Quote Originally Posted by dldeuce View Post
    I'm curious to hear yours and SelfDefense' response particularly to the law professor's brief on the privileges and immunities argument.
    I've skimmed it over, and I still maintain my position. His reference to Barron v. Baltimore was interesting, and the first I've heard mention of it, but there is more historical support that the wording of the 14th Amendment was meant to refute Dred Scott. Either way, Barron, Cruikshank, and Dred Scott were never overturned, and future cases on the subject avoided the issue by using the first clause of the 14th Amendment. In fact, the majority of the cases involving "incorporation" look a lot like Everson v. Board of Education, wherein the subject of states bound by the Bill of Rights is either not mentioned or is brought up without precedent of thought (not "precedent" in the legal sense).

    When I get the chance I'll read it over completely. Maybe I'm missing a few gems in there. No matter what conclusion I come to, I will still maintain that it was damn stupid to challenge on harder, longer-taking federal constitutional grounds than state constitutional grounds. Banking on incorporation is a gamble no matter how you shake it. Holding the laws in place to the Illinois State Constitution is a guaranteed win.


    Particularly with respect to gun rights, I feel that any state that infringes on gun rights, endangers my own rights. We have a national political movement to deny all citizens in the country of their gun rights. Every state that falls to their efforts makes it all that much more difficult to maintain my rights in my state. Every state that gives up their guns makes our country as a people less able to restrain the federal government and defend our country from foreign governments.
    How many states is that, exactly that has "fallen to their efforts" or "given up their guns"? You realize that, nationally, the trend has been toward more laws favoring gun ownership rather than assaulting it, right? I mean laws, not bills. That national political movement to deny all citizens in the country their rights to keep and bear arms has not been succeeding...


    -B
    RIP, Jeff Dorr: 1964 - July 17, 2009. You will be missed.


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    Senior Member Array press1280's Avatar
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    I wondered this myself, as IL does have a RKBA amendment in its constitution "subject to the police power."
    I read the original briefs and I don't recall seeing anything about the state amendment. Obviously, this is about incorporation more than the Chicago gun law.
    "The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree..."
    Nunn v. State GA 1848

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    Quote Originally Posted by BAC View Post
    Then I hope it fails, because I'm tired of all judicial activism, not just the kind I don't like. Challenge Chicago laws against the Illinois Constitution and you will win.

    I'll read the brief anyway.


    -B
    I don't see how the extension of the Bill of Rights vis-a-vis the states is judicial activism, when it is exactly what the 14th Amendment was intended to do, as its author even explicitly stated. The states voluntarily gave up a portion of their sovereignty by ratifying the 14th Amendment. What's the issue?

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    Senior Member Array dldeuce's Avatar
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    Quote Originally Posted by BAC View Post
    I've skimmed it over, and I still maintain my position.
    I figured you would. There are however a lot of good arguments and evidence referenced in these briefs. You may be able to skim over it, but I think the court is going to have to give it quite a bit more consideration.

    No matter what conclusion I come to, I will still maintain that it was damn stupid to challenge on harder, longer-taking federal constitutional grounds than state constitutional grounds. Banking on incorporation is a gamble no matter how you shake it. Holding the laws in place to the Illinois State Constitution is a guaranteed win.
    I disagree. This is a national issue being waged by national organizations. I don't think it's an advantage for gun rights advocates to have to fight that issue at the federal level and in every state court and legislature. What is the down side of incorporation of our basic rights against the states? You might be able to give me some food for thought with a good answer to that question.

    How many states is that, exactly that has "fallen to their efforts" or "given up their guns"? You realize that, nationally, the trend has been toward more laws favoring gun ownership rather than assaulting it, right? I mean laws, not bills. That national political movement to deny all citizens in the country their rights to keep and bear arms has not been succeeding...
    We have over a hundred years of history to think about, not to mention the future. In Texas, after the civil war, they amended our constitution to allow the legislature to regulate gun rights at their whim. We got a despot reconstructionist governor, marshal law, legalized government murder, and a ban on hand guns and the Bowie knife that is still on the books. All over the south, they had substantial restrictions on all our freedoms as referenced in these briefs we're discussing. In Louisiana, they confiscated guns in the aftermath of the hurricane. In Illinois, they have the gun ban at issue in this case, etc, etc. So much for trusting the states to respect our basic rights. History shows me I shouldn't put a lot of faith in it for the future. That's my take on it.

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    BAC
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    Quote Originally Posted by dldeuce View Post
    I figured you would. There are however a lot of good arguments and evidence referenced in these briefs. You may be able to skim over it, but I think the court is going to have to give it quite a bit more consideration.
    If you want to write my papers for me, I'd gladly sit down and actually scour the brief.


    I disagree. This is a national issue being waged by national organizations. I don't think it's an advantage for gun rights advocates to have to fight that issue at the federal level and in every state court and legislature. What is the down side of incorporation of our basic rights against the states? You might be able to give me some food for thought with a good answer to that question.
    National in the sense that it's a movement occurring in most states in the nation, yes. National in the sense that it's related to every state... no. Given the context of that statement you quoted, you will win if you challenge Chicago laws against the Illinois Constitution. You might win if you aim for 'incorporation.' I never mentioned there being an "advantage" for the "movement" in question. Quite frankly, I don't give a crap about what the movement states, provided my State of Florida continues to accurately represent me and my fellow Floridians and not have policies pushed on it by others. I'm one of those sad sorry lots who believes that we are a republic of sovereign states (evidenced by just about 50 different state constitutions). If you do not believe in the sovereignty of the states, then no, you likely will not agree.

    We have over a hundred years of history to think about, not to mention the future. In Texas, after the civil war, they amended our constitution to allow the legislature to regulate gun rights at their whim. We got a despot reconstructionist governor, marshal law, legalized government murder, and a ban on hand guns and the Bowie knife that is still on the books. All over the south, they had substantial restrictions on all our freedoms as referenced in these briefs we're discussing. In Louisiana, they confiscated guns in the aftermath of the hurricane. In Illinois, they have the gun ban at issue in this case, etc, etc. So much for trusting the states to respect our basic rights. History shows me I shouldn't put a lot of faith in it for the future. That's my take on it.
    And yet, in spite of all of that, it was the individual states that repealed much of the laws that were contrary to the subject of this discussion (the right to keep and bear arms) without any pressure generated from the 14th Amendment. In Texas, are firearms being legislated against? If not, why not? In the South as a region, laws have been consistently (for more than half a century) been moving toward more protection for gun owners and gun ownership. Louisiana committed a legal crime by permitting the confiscation of firearms after Katrina, and a moral crime by not prosecuting its perpetrators. They did, however, along with a number of other states, pass legislation preventing it from ever happening again. In Illinois, you have an entire city whose laws are contrary to their own state constitution in exactly the same manner as the District of Columbia's laws clashed with the US Constitution.

    You reference a handful of incidents where bad things happened, but fail to also mention that by and large these are rare incidents and frequently provoke a legislative response to prevent these incidents from happening again.

    Illinoisans are more than capable of overturning the Chicago gun laws. They just need to actually challenge them against the standards those laws are directly beholden to: Article 1, Section 2 of the Illinois Constitution.


    -B
    RIP, Jeff Dorr: 1964 - July 17, 2009. You will be missed.


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    Restricted Member Array SelfDefense's Avatar
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    Quote Originally Posted by XDFender View Post
    I don't see how the extension of the Bill of Rights vis-a-vis the states is judicial activism, when it is exactly what the 14th Amendment was intended to do, as its author even explicitly stated. The states voluntarily gave up a portion of their sovereignty by ratifying the 14th Amendment. What's the issue?
    BAC did a great job explaining the issue. I will only point out in response to this that the 14th Amendment neither by word or intent had anything to do with the Bill of Rights. I suggest the poster review Charles Fairman's Stanford Law Review article to get a complete and thorough understanding of the issues and history.

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    I attempted to post that I was going to get the popcorn and stay out of this, but the computer gods made my post disappear into the nether world of cyberspace.

    So, anyhow, I took a look at the " Law Professors/Constitutional Accountability Center" amicus brief.

    Many thanks to dldeuce for that nice link.

    Now, I'll get my popcorn.

    The past perfidy of some states against citizen both black and white, as documented in the brief, pretty well puts the lie to the idea that the BOR should not apply to the states--because, the damage done when our courts hold that position has been, and will be, incalculable, and will include (if the present goofy situation continues) lost gun rights. Again, that's the part I don't get about the folks here who take an ultra or radical conservative viewpoint on this issue. You are arguing against your own best interests and the interest of this group as a whole, if not of the country as a whole.

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    BAC
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    Quote Originally Posted by Hopyard View Post
    The past perfidy of some states against citizen both black and white, as documented in the brief, pretty well puts the lie to the idea that the BOR should not apply to the states--because, the damage done when our courts hold that position has been, and will be, incalculable, and will include (if the present goofy situation continues) lost gun rights.
    And what evidence do you have to show for that argument? That the many states have been moving towards more and more friendly laws and policies towards gun owners and gun ownership? The states correcting their own past misdeeds without any pretended 14th Amendment incorporation?


    -B
    RIP, Jeff Dorr: 1964 - July 17, 2009. You will be missed.


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    Restricted Member Array SelfDefense's Avatar
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    Quote Originally Posted by Hopyard View Post
    IThe past perfidy of some states against citizen both black and white, as documented in the brief, pretty well puts the lie to the idea that the BOR should not apply to the states--because, the damage done when our courts hold that position has been, and will be, incalculable, and will include...
    This is the same failed living constitution argument. Yes, the Constitution is imperfect. But we must adhere to it despite its warts and flaws. Obama thinks it should mandate wealth redistribution. You want to erase the state sovereignty and ignore the 10th Amendment. I oppose the perversion of intent caused by the Seventeenth Amendment.

    However, the consequences of adhering to the Constitution are far superior than the alternative. The perverse idea that the Constitution should be manipulated at the political whim of non elected appointees is antithetical to the principles on which this nation was founded. There is a specific mechanism for changing the Constitution. Judicial activsim is not one of them.

    Again, that's the part I don't get about the folks here who take an ultra or radical conservative viewpoint on this issue. You are arguing against your own best interests and the interest of this group as a whole, if not of the country as a whole.
    It is not in America's best interest to pervert the intent of the Founders to promote ANY political agenda. You want to change the law? Then change the law. Whining to judges is inappropriate and will never be successful in a republic governed by the People. Especially when you don't have a Constitutional leg to stand on.

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    Quote Originally Posted by SelfDefense View Post
    BAC did a great job explaining the issue. I will only point out in response to this that the 14th Amendment neither by word or intent had anything to do with the Bill of Rights. I suggest the poster review Charles Fairman's Stanford Law Review article to get a complete and thorough understanding of the issues and history.


    The drafter of the 14th Amendment himself explicitly stated that the intent of the Amendment was to extend the protections of the Bill of Rights against the states. To repeat what I stated in another thread on this subject: The author and principal sponsor of the 14th Amendment, Congressman John Bingham, made direct reference to this fact during the debate on the Amendment, stating that the Amendment would ensure “the enforcement of the bill of rights, touching the life, liberty, and property of every citizen of the republic within every organized State of the Union….” (Emphasis added.) Congressman Bingham further stated, “that the scope and meaning of the limitations imposed by the first section, Fourteenth Amendment of the constitution may be more fully understood, permit me to say that the privileges and immunities of citizens of the United States…are chiefly defined in the first Eight Amendments to the Constitution of the United States.... These eight articles…never were limitations upon the power of the States, until made so by the fourteenth amendment.” (Emphasis added).

    In addition to that bit of legislative history, there are numerous cases that have gone counter to your holy grail of Cruikshank, etc. and refute your arguments re: the 14th Amendment vis-a-vis the states.

    No matter how strongly or adamantly you wish the Constitution means what you want it to mean, it still doesn't.

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    Restricted Member Array SelfDefense's Avatar
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    Quote Originally Posted by XDFender View Post

    The drafter of the 14th Amendment himself explicitly stated that the intent of the Amendment was to extend the protections of the Bill of Rights against the states.

    No matter how strongly or adamantly you wish the Constitution means what you want it to mean, it still doesn't.

    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.

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    Restricted Member Array SelfDefense's Avatar
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    Quote Originally Posted by XDFender View Post
    The author and principal sponsor of the 14th Amendment, Congressman John Bingham, made direct reference to this fact during the debate on the Amendment, stating that the Amendment would ensure “the enforcement of the bill of rights, touching the life, liberty, and property of every citizen of the republic within every organized State of the Union….” (Emphasis added.) Congressman Bingham further stated, “that the scope and meaning of the limitations imposed by the first section, Fourteenth Amendment of the constitution may be more fully understood, permit me to say that the privileges and immunities of citizens of the United States…are chiefly defined in the first Eight Amendments to the Constitution of the United States.... These eight articles…never were limitations upon the power of the States, until made so by the fourteenth amendment.” (Emphasis added).
    I am not denying that the discredited Bingham believed what you quoted. However, as I explained to you last time, the words of the Amendment do not in any way reflect that. I'm certain you could author a simple sentence that would actually address that issue. There is not any ambiguity in the Fourteenth. It has nothing to do with the Bill of Rights. The states ratified the Amendment as written, which was to address the newly freed slaves, not the single sentence of argument (as part of days of lengthy debate) that you rely upon for your argument.

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