Counsel for the City of Chicago have responded [pdf] to the McDonald/NRA petitions to have their case heard before the Supreme Court next term. If you’re just tuning in, jump in here.
First off, it’s a mess. Seriously, as I parsed through this and took notes, I felt like I was grading a grammar-school book report rather than a legal argument.
They pounce very quickly on the fact that Nordyke is being reheard and that, in the meantime, it is not precedent. Therefore, there is no split among the Circuit courts. That removes one of our arguments for petitioning for cert.
Of course, that situation may change in the near future.
They seem to be trying their best to preclude incorporation under Privileges or Immunities clause. Their strategy seems to be to force the issue to be decided by the Due Process clause.
Why? Because they’re trying to prove that keeping and bearing arms is not a “natural” right, and therefore not subject to incorporation, I guess. They appear to be trying to push us into a corner, forcing us to prove that self-defense itself is a natural right. Plenty of precedent, from Locke and Blackstone to present day, says it is. So what are they thinking?
Limiting the argument to Due Process also skips the whole mess of revisiting Slaughterhouse, as Gura wants to do. If the Court reconsiders precedent (including Cruikshank, which they shockingly call “good law” on page 6), then the implications of this case could be larger than simply 2nd Amendment incorporation.
I’m not sure they’ve read Heller, as they make this claim on page 9:
If there is a due process right to arms for self-defense, it is preserved with arms suitable for that purpose, and does not extend to any particular weapon merely because it is in common use. (…) the ordinances at issue (…) allow residents to possess long guns, such as rifles and shotguns, for self-defense in the home.
and later:
Laws that do not make self-defense in the home impossible are valid, and the ordinances challneged here, which allow possession of rifles and shotguns, do not make self-defense in the home with firearms impossible. (pp. 15-16)
Didn’t this exact approach fail for Dellinger last year?
Then they go on to argue against incorporation because,
unlike other enumerated rights (…) the right to keep and bear arms carries an inherent risk of danger to the liberty and interests of others. (p. 11)
The “utility” argument doesn’t hold water, and no amount of “research” from the Violence Policy Center is going to help it. (*)
They make a rather tortured case that Hurtado backs up their argument, but Hurtado was concerned with the concept of a grand jury, which is a different matter. A grand jury is a parliamentary procedure; self defense is a natural right. Apples ≠oranges, gang.
If this is the best the opposition can do, I think we’re in good shape moving forward.
(*) Reading Ms. Solomon’s arguments that restrictions based on utility are acceptable, I’m reminded of how the Supreme Court reacted to similar ideas during the oral arguments in Heller:
Chief Justice Roberts: So how long does it take? If your interpretation is correct, how long does it take to remove the trigger lock and make the gun operable.
Mr. Dellinger: –You… you place a trigger lock on and it has… the version I have, a few… you can buy them at 17th Street Hardware… has a code, like a three-digit code. You turn to the code and you pull it apart. That’s all it takes. Even… it took me 3 seconds.
Justice Scalia: You turn on, you turn on the lamp next to your bed so you can… you can turn the knob at 3-22-95, and so somebody–
Mr. Dellinger: Well–
Chief Justice Roberts: Is it like that? Is it a numerical code?
Mr. Dellinger: –Yes, you can have one with a numerical code.
Chief Justice Roberts: So then you turn on the lamp, you pick up your reading glasses…
[Laughter]