Final Brief Filed in the Chicago Gun Case

Alan Gura filed his clients' reply brief (.pdf) today with the Supreme Court for the upcoming gun rights case McDonald v. Chicago. This is the final brief to be filed by either side and it's a definitive piece of work. In fact, it makes Chicago's efforts look a little amateurish by comparison. There's plenty to quote from, though I think this one sentence sums up nicely:

Unable to articulate the correct standard for substantive due process incorporation, or interpret the Privileges or Immunities Clause, Respondents [Chicago and Oak Park, Illinois] offer irrelevant political arguments against application of the right to keep and bear arms against the States, failing to accept that the decision to secure the right in our Constitution has already been made.

Next up are the oral arguments on March 2. For Reason's coverage of the case so far, see here.

Comments

[Fluffy]

A week ago I would have said that precisely because it was a really good argument it was destined to fail before the Bizarro Supreme Court, but Citizens United has raised my hopes a bit. This one might be a win.

[Paul]

I caution against over exuberance.

[John]

I think it will get applied. It will be a dark day for liberals.

[B]

But what if it doesn't? Christ, that would be a fucking disaster of epic proportion, and it really has me worried.

[Phil]

That is an absolutely and abysmally terrible sentence. If this brief makes Chicago's brief look amateurish, Chicago's brief must have been written by 2nd graders.

[A Different Bill]

You obviously have not seen much legal writing. Gura's writing generally is excellent.

[A Different Bill]

And Chicago's brief was not written by second graders. It was written by chimps with crayons.

[The Gobbler]

"crayons"

I think he speels his name without an "s" at the end.

[General Zaius]

Gorillas, not chimps. Chimps and Orangutans all believe in "freedom". We Gorillas understand that the state must rule with an iron hand, or the humans will overrun us!

[Charleton Heston]

Get your hands off my gun, you stinking ape!

[Marc]

That is an absolutely and abysmally terrible sentence.

With all due respect, I thought it was nevertheless better than this one...

[Marc]

P.S. Here's hoping I can soon keep my guns at home. I feel like kind of a half-assed libertarian without them.

[Episiarch]

MARC NOT COMPOSE LIKE STEVE SMITH! STEVE ELEGANT BEYOND SENSE OF MEANING WORD! STEVE POETRY LOCAL BEARS MAKE CRY! STEVE SO LONELY! GO RAPE MOOSE NOW!

[Marc]

This reminds me... someone please explain the Steve Smith thing to me--I think it predates my presence here.

A link would be fine as long as it is free of goatse.

And don't tell me that you can't discuss Steve Smith without goatse...

[John]

Steve Smith is some liberal troll who showed up on here. I don't have the link to his website. But if you go there, you see his picture. They guy looks like a bigfoot. I mean seriously, a shaved down bigfoot.

[Marc]

Found it. Wow, there's both fully-shaved bigfoot and partially-shaved bigfoot versions.

Was he posting for a while as "concerned observer"?

[heller]

link please? I forgot what his website is and I must remind myself that Sasquatch really does exist.

[Marc]

Click here for retardation, except that I don't mean to thereby insult the retarded.

[Almanian]

The ass bead picture is nice.

[Episiarch]

STEVE SMITH was a way of making fun of Steve Smith, and then grew into a complete character in its own right. They now have nothing to do with one another.

If you really want to know details, ask Warty.

[Marc]

I summon thee, Warty.

(Is that enough? Do I have to make blood sacrifice? He's not like Shub-Niggurath, is he?)

[Episiarch]

He is Shub-Niggurath.

[BakedPenguin]

I believe to summon Warty / Shub-Niggurath, you must make offerings of metal.

Or porn. Porn's good, too.

[Marc]

Ghost Reveries wrapped in a Cheri. Got it.

[heller]

Shub-RACIST!

[Warty]

What's up, faggots?

Steve Smith's career as a poster ended right around the time his career as a joke began. Funny, that. I wonder if he ever comes around here, all set to post some devastating bit of liberal wit, only to find his name being taken in (r)ape. I bet he balls his hands into big hairy fists of rape and goes off on a giant rape bender every time it happens.

Here, who wants some jazz death metal?

[Warty]

It seems Atheist was warning us about Steve Smith back in 1993. Creepy, yo.

Survival below the forest line
Becomes what can't be taken away
Trip through the vines of the food chain
He who doesn't stumble remains the
Dominant of the jungle
The leader of the wooded domain

[Marc]

I shudder to think what would have materialized if I'd offered a Swank shoved through the center hole of a Cynic CD.

[Steve Smith]

FWIW, I still post the occasional comment here and elsewhere, and I find the whole, "Steve Smith as Sasquatch" meme amusing in a 6th grade sort of way. I have reduced my trolling when Mr. Welch is posting, since he's a nice-enough guy, and there is only so much eye-rolling one can do when he's off on one of his loopy obsessions (ie., "net spending cuts").

[Warty]

STEVE SMITH AMUSED BY MAKE FUN OF! NOT HURT AT ALL ARRRRRRRRRR

[Warty]

We should probably start spamming the comments on his blog, by the way. I can't stand when sasquatches put on airs.

[Episiarch]

STEVE NOT GET ANGRY, USE SELF-CONTROL! STEVE CHANT "SERENITY NOW" LIKE FRANK!

[toxic]

Phil, it might be a terrible sentence in english, but in legalese it's pretty tight.

[John]

Actually as legal writting goes, that is a pretty clear sentence. Sad but true.

[John]

Because 'privileges' and 'immunities' had
more than one meaning, it cannot be concluded that
the public would have understood those words to invoke
[fundamental civil rights]." Respondents Br. 58.

WTF? Did they really argue that?

[John]

REading the reply is like hearing one half of a phone conversation. I would advise going to chicagoguncase.org and reading the filings from the begining.

[John]

From the original petition. The media portrays the Chicago law as a "handgun ban". It is really much worse than that.

Firearm registrants must immediately notify police of any changes in their registration information, including the loss or other disposition of
a gun or registration certificate. Chi. Mun. Code ?8- 20-140. However, Respondent requires annual registration
of firearms, initiated at least sixty days
prior to the registration's expiration. Chi. Mun. Code
?8-20-200. Re-registration requires the payment of
additional fees and re-submission of all initial
registration materials. Id.
If the annual re-registration process is not timely
completed, the particular gun whose registration
lapses becomes "unregisterable" and thus illegal to
possess in Chicago. Id. An identical penalty befalls
any firearm (and by extension, any owner of that
firearm) that is acquired prior to its registration. Chi.
Mun. Code ?8-20-090.
On June 11, 2008, Respondent enacted a 120-day
amnesty period allowing the re-registration of firearms
whose registration had lapsed. The amnesty
ordinance was sponsored by a city alderman who had
neglected to timely re-register his firearms. App. 53.
A first violation of Chicago's ban on the ownership
or possession of unregistered firearms within the
home is punishable either by a fine ranging from
$300 to $500, incarceration ranging from ten to
3
ninety days, or both. Chi. Mun. Code ?8-20-250.
Subsequent violations are punishable by a fine of
$500 and incarceration ranging from ninety days to
six months. Id.

[Marc]

Which is why I don't bother keeping my non-hand guns in Chicago, either. At one point I looked into what I'd have to do to comply with registration requirements, or even whether it was legal to possess them where I live if I did comply with the registration requirements, and found that nobody had any f---ing idea.

It looked like one of those laws that's impossible to obey, the real purpose of which is to have an excuse to charge you with a crime when necessary.

[TrickyVic]

I think you can replace the word necessary with desired.

[Marc]

Yes, but then Our Benevolent Overlords make no distinction between wants and needs.

[RM]

They don't anyways.

[TrickyVic]

Heller entertained the idea that restrictions, in and of themselves, are not unconstitutional. At some point, the definition of infringment will be debated.

Chicago could replace their ban with required registration. No registration and you're in unlawful possession. Criminals won't register guns, and the city would have a roster for everyone else. The penalty could be 5 years in prison. Officers responding to a house could check to see if guns are registered to the owner and plan their approach accordingly. SCOTUS wouldn't have a problem with that.

Assuming McDonald wins, some may call it a step in the right direction. I can't disagree, but I don't think a couple of drops of water in a gallon sized container is very impressive.

IMO, there a long way to go before the people's right to bear arms is void of infringment.

[wayne]

Amen.

[JeremyS]

It has been said before that once this case is won, we we at the end of the beginning.

After the SCOTUS gives their opinion at the end of June, we will be able to move on to the middle part of the battle, and really start regaining our Rights.

[John Thacker]

Orin Kerr notes an unusual sentence from that brief:

NRA's novel theory, at 40, that Cruikshank did not bar the Second Amendment's application to the States, contradicts over a century of understanding. See, e.g., Heller, 128 S. Ct. at 2813 ("States, we said, were free to restrict or protect the right under their police powers"). Erroneous precedent should be overruled, not tortured further to achieve politically desirable results.

IANAL, but it certainly sounds like Gura's brief is saying "We don't want to win the case under the wrong theory."

The NRA claims that the Second Amendment can be incorporated through Due Process despite Cruikshank, but Gura isn't having that.

He's basically begging Justices who love stare decisis and try to torture precedent to avoid overruling them to vote against him.

[C Hoy]

Instead of reading Orin Kerr's analysis of the brief, please read the brief itself. You will see that it answers Chicago's arguements regarding due process quite handily. This is what it is supposed to do. The best method is to read Chicago's brief, Petitioners' Response to it and Respondent's Repsonse to it as a whole. The lawyers did a superb job. Hats off to Gura and Poss.

[John Thacker]

Instead of reading Orin Kerr's analysis of the brief, please read the brief itself.

I did read all the briefs themselves, and the NRA brief and those of several other amicus curiae.

You will see that it answers Chicago's arguements regarding due process quite handily. This is what it is supposed to do.

Incorrect. The brief is supposed to make all possible winning arguments in an attempt to win the case, not just to answer the brief from Chicago.

Chicago's brief could be laughable and too many Justices refuse to overturn Slaughterhouse and Cruikshank based on stare decisis.

The Justices could reject the main arguments in both the Petitioners' and Respondent's briefs and seek a third theory, in which case it is useful to discuss a third theory.

It doesn't matter if Gura's brief destroyed the Chicago arguments if the Justices want to examine the case from a different angle, and Gura has said, in effect, "we don't want to win if we have to win that way."

[Carl from Chicago]

Chicago's arguments are roundly laughable. But they didn't have much to work with.

One of their primary arguments was that the 14A endeavored not to protect people's civil liberties, but to ensure that governments would trample them in a non-discriminatory fashion. Laughable.

[Michael Ejercito]

One of their primary arguments was that the 14A endeavored not to protect people's civil liberties, but to ensure that governments would trample them in a non-discriminatory fashion

How would these arguments apply to restrictions on speech? Or a prohibition on same-sex "marriage"?

[R C Dean]

The sentence at issue can be vastly improved in two ways. First, split it into two sentences. Second, put the strongest sentence first. Watch and learn:

The Respondents refuse to accept that this Court's decision to secure the individual's Constitutional right to keep and bear arms. Instead, they offer irrelevant political arguments against application of the right to keep and bear arms against the States, and demonstrate an inability to articulate the correct standard for substantive due process incorporation or interpret the Privileges or Immunities Clause.

[pmp]

Damon Root, quoting Alan Gura:

Unable to articulate the correct standard for substantive due process incorporation, or interpret the Privileges or Immunities Clause, Respondents [Chicago and Oak Park, Illinois] offer irrelevant political arguments against application of the right to keep and bear arms against the States, failing to accept that the decision to secure the right in our Constitution has already been made.

I think this quote is 180 degrees wrong. We saw from the President's public condemnation of the Citizens United result that the Court is a completely political institution. They can claim no principled fidelity to the law as written. They are no check against clear popular majorities on issues that engage the public imagination.

That is why I believe that the plaintiffs will prevail against Chicago and Oak Park, but they will prevail on the NRA's weak sauce "due process" arguments, not on Gura's radical case for the dead letter for the "Privileges and Immunities" clause.

Welcome to the hideous, oozing, diseased reality that is Constitutional Law In the Real World...

[Guy1138]

Although, if his comment pissed the justices off enough, maybe we will see a more radical ruling.

[?????]

thanks