Chicago

9 posts

Illinois v. Aguilar

The Illinois Supreme Court has ruled [pdf] that the state cannot ban the carry of firearms. If this sounds familiar, it’s because the 7th Circuit issued a similar opinion in December. This one supplements the Moore decision.

After reviewing these two lines of authority–the Illinois cases holding that section 24-1.6(a)(1) is constitutional, and the Seventh Circuit’s decision holding that it is not–we are convinced that the Seventh Circuit’s analysis is the correct one. As the Seventh Circuit correctly noted, neither Heller nor McDonald expressly limits the second amendment’s protections to the home. On the contrary, both decisions contain language strongly suggesting if not outright confirming that the second amendment right to keep and bear arms extends beyond the home. Moreover, if Heller means what it says, and “individual self-defense” is indeed “the central component” of the second amendment right to keep and bear arms, then it would make little sense to restrict that right to the home, as “[c]onfrontations are not limited to the home.”

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Civil Rights

Illinois Gets CCW

Today, the Illinois Senate voted 41-17 to override Governor Quinn’s veto, and they become the last state in the Union to allow civilians to carry firearms. This was a long, hard road for them, but the political maneuvering leaves Illinois residents with a problematic law.

The ball really got rolling with a 7th Circuit opinion last year, in which it was found that the state’s total ban on carry was unconstitutional. Attorney General Madigan was left in a delicate position. She could appeal the case to the Supreme Court, in which case Illinois would have likely suffered its third loss on 2nd Amendment issues (McDonald and Ezell were the other two). She applied for a stay and it was granted, but Wednesday would have been the cutoff. Had the legislature not passed a law, there would have been no statewide regulation on the carry of firearms, and Illinois would be like Arizona, Alaska, and Vermont.

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Civil Rights

The Softer Name of Revenue

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1903 Krag

Cook County Illinois recently debated the idea of a 1¢ tax per bullet on ammunition. The proposal failed, but it’s going to be replaced with a $25 “transfer” fee on all firearms sold within the county.

It’s offensive and futile, and it’s unlikely to serve its intended purpose. The Illinois State Rifle Association is claiming that the funds will actually be funneled to anti-gun groups, though no attribution is given to the claim.

It’s a sneaky brand of gun control, and the constitutionality of the measure is questionable at best, and the law might find Chicago in court yet again on 2nd Amendment grounds. In the McDonald case, the Supreme Court referred to the right to keep and bear arms as “fundamental,” and as such, it should be protected under the same scrutiny as freedom of the press.

In the end, the only people affected by this tax will be gun stores in Cook County, as buyers will likely choose to purchase guns elsewhere in order to avoid the tax.

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Civil Rights

McDonald gets Cert

The Supreme Court has chosen to hear McDonald v. Chicago next session. Neither NRA v. Chicago or Maloney v. Rice have been consolidated with it. As it stands, we’re left with Gura’s case, which is the strongest and, potentially, the most wide-reaching.

According to Gura, opening briefs are due November 16, and we can expect oral arguments in February. A decision will be reached by June.

The scuttlebutt is that we’ll win. This will be an interesting test for Justice Sotomayor, as she chose in Maloney to refuse incorporation based on precedent. The only problem with the Supreme Court doing so is that the precedents against incorporation are incomptetent, morally loathsome and generally indefensible. It will take a huge intellectual stretch for the Court to deny incorporation based on precedent.

As a Supreme Court Justice, Sotomayor no longer has the option of waffling. She’ll have to take a stand one way or the other, and what she decides here will tell us more about her character and judicial philosophy than the Congressional hearings did.

Civil Rights

Pesky Originalism

The Constitutional Accountability Center has filed an amicus curiae brief [pdf] on behalf of certiorari in the McDonald case. It spends a great deal of time looking into the history of the ratification of the 14th Amendment, emphasizing just what the the Privileges or Immunities clause was meant to protect.

The brief quotes Senator Jacob M. Howard, who was instrumental in drafting both the 13th and 14th Amendments. Howard’s testimony during the 39th Congressional Session (page 2765) is eloquent and clear and leaves absolutely no ambiguity as to the question of what should be incorporated by the Privileges and Immunities clause of the 14th Amendment.

The inquiry is, what are the privileges and immunities of citizens in the several States? We feel no hesitation in confining these expressions to those privileges and immunities which are in their nature fundamental, which belong of right to the citizens of all free Governments, and which have at all times been enjoyed by the citizens of the several States which compose this Union from the time of their becoming free, independent, and sovereign.

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Civil Rights

First Briefs for NRA/SAF v. Chicago

California Attorney General and former Presidential Candidate Edmund “Jerry” Brown has submitted an Amicus Curiae brief (pdf), asking the Supreme Court to hear the joint NRA and SAF suits against Chicago. At first, it seems surprising and perhaps a bit heartening, but don’t worry, Brown’s got an agenda here.

It opens with the pronoucement:

(…) unlike many states, California has no state constitutional counterpart to the Second Amendment. Unless the protections of the Second Amendment extend to citizens living in the States as well as to those living in federal enclaves, California citizens could be deprived of the constitutional right to possess handguns in their homes as affirmed in District of Columbia v. Heller.

He points out that the Heller ruling failed, “to establish a standard of review applicable to asserted Second-Amendment infringements,” which is correct. He also concurs with Halbrook and Gura that the current schism between the 9th Circuit and other circuit courts on the matter of incorporation can only be settled by the Supreme Court.

Civil Rights

Maloney v. Rice

Today’s the one-year anniversary of the Supreme Court’s decision in Heller v. District of Columbia. James Maloney, appellant in Maloney v. Cuomo, has filed a petition for his case to be heard before the Supreme Court next session. The case is now Maloney v. Rice (pdf). Kathleen Rice is the current District Attorney for Nassau County.

The petition follows and supplements the 14th Amendment claim Mr. Maloney made before the 2nd Circuit in February. It points out that the Circuit Courts are now divided three ways on the question of 14th Amendment incorporation, which would demand that the Supreme Court rectify this discrepancy. It’s worth noting that 7th Circuit Justice Easterbrook also acknowledged this disparity in NRA v. Chicago.

Maloney also recognizes the existence of the pending petitions from Alan Gura and the NRA, and he suggests consolidating all three:

Either or both of the pending petitions for certiorari on the Second Amendment incorporation issues arising out of National Rife Association would be fitting for this Court to grant because those cases present the same Fourteenth Amendment issues concerning applicability of the Second Amendment to the States invoked in this petition.

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Civil Rights

I love Mondays

This week, 23 state Attorney Generals signed off on a letter (pdf) to Attorney General Eric Holder, in which they advised against any sort of renewal of the 1994 Assault Weapons Ban. Part of the letter reads,

As Attorneys General, we are committed to defending our constituents’ constitutional rights —including their constitutionally-protected right to keep and bear arms. This duty is particuarly important in light of the United States Supreme Court’s recent Heller decision, which held that the Second Amendment “elevated above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” The high court’s landmark decision affirmed that individual Americans have a constitutionally-protected right to keep and bear arms. We, the undersigned Attorneys General, are staunch defenders of that right and believe that it should not be encroached upon without sound justification — and a clear law enforcement purpose. (…) we believe that additional gun control laws are unnecessary.

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Civil Rights

NRA v. Chicago, up the ladder

It took less than a week, but the 7th Circuit has passed down their judgement in National Rifle Association of America v. City of Chicago [pdf]. They disagree with Nordyke and find that the 14th Amendment does not incorporate the 2nd Amendment against state and local governments.

I fully expected this. What I didn’t expect was for the 7th to so gleefully and eagerly hand the ball off to the Supreme Court, which is what they’re doing here.

Presiding Judge Easterbrook argues,

Cruikshank, Presser, and Miller rejected arguments that depended on the privileges and immunities clause of the fourteenth amendment. The Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873), holds that the privileges and immunities clause does not apply the Bill of Rights, en bloc, to the states. [p. 2]

There’s just one little problem with that logic: this isn’t about the privileges and immunities clause, and it never was.

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