Oral Argument in Chicago Gun Case

[Phatty]

The question of whether the 2A is incorporated against the states was argued in the 7th Circuit this morning. The judge panel included Easterbrook, Posner and Bauer. Although all three are considered conservative, I am unaware of their positions relating to gun rights (and conservative does not equal pro gun, especially in the Chicago area).

Judge Easterbrook and Judge Posner did not hide their view that they are bound by prior Supreme Court cases that held the 2A does not apply to the states, and they criticized the 9th Circuit's opinion in Nordyke. Judge Easterbrook came right out and told Gura,

"I actually don't know why you're so upset about the prospect that Judge Posner and I have raised with you [that only the Supreme Court can decide that the 2A is incorporated against the states]. It doesn't matter what we say; we're not going to resolve this issue. You've got yourself a conflict among the circuits. Why don't you just say, 'Our arguments are preserved, thank you very much'?"​

There's no question that Easterbrook and Posner had made up their mind prior to oral argument that they were going to affirm the District Court's ruling. The only good thing about this is that it shouldn't take very long for an order to be issued, which means that it will be in front of the Supreme Court sooner.

 

[cloudedice]

According to Gura's appeal, the previous Supreme Court rulings were based on the "privileges or immunities" clause of the 14th amendment. By ruling solely on the "due process" clause's applicability to the 2nd they would not be bound by previous precedent because there isn't one. Sounds reasonable to me.

Anyone have a link to the transcript of the proceedings?

 

[Phatty]

According to Gura's appeal, the previous Supreme Court rulings were based on the "privileges or immunities" clause of the 14th amendment. By ruling solely on the "due process" clause's applicability to the 2nd they would not be bound by previous precedent because there isn't one. Sounds reasonable to me.

You're correct; that is what they argued. And the 7th Circuit flatly rejected the argument. Posner reasoned that no matter what the basis used by the Supreme Court for coming to its holding that the 2A is not incorporated against the states, the holding still controls.

There is no transcript available (that I know of) but here is a link to a mp3 audio file of the argument: http://www.ca7.uscourts.gov/fdocs/docs.fwx?submit=showbr&shofile=08-4241_001.mp3

 

[Jeff White]

I'm not surprised, I can't think of a single pro 2A decision coming out of the 7th.

 

[cloudedice]

There is no transcript available (that I know of) but here is a link to a mp3 audio file of the argument

Even better! I can listen to it on my way home from work.

 

[Sebastian the Ibis]

I listened to the whole thing at work today. I loved hearing Chicago's Attorney get slaughtered at the end.

Posner and Easterbrook basically ignored Gura and Holbrook saying that SCOTUS is going to decide the incorportation issue, so they may as well affirm and move on since it isnt worth their time.

Chicago's attorney jibber jabbers about all sorts of stuff that Posner and Easterbrook dont care about, since they've already made up their mind, however she can't resist drifting into super-liberal constituational interpretation and the they slam her.

Gura saved time for rebuttal, and hopefully set the record straight on the reconstruction era. One of the Judges (Easterbrook?) just couldn't understand how Northerners would support the second ammendment when Blacks were being disarmed and slaughtered.

 

[ilbob]

I listened to the recording. I got the impression the judges thought it did not matter much what they thought because it was not their place to undo a previous supreme court ruling. I am not so sure they are wrong.

If this goes our way eventually, it could change a lot of other things down the road that have nothing to do with the 2A.

 

[Phatty]

If this goes our way eventually, it could change a lot of other things down the road that have nothing to do with the 2A.

Such as?

 

[RDak]

Thanks for the info. Phatty.

 

[ilbob]

If this goes our way eventually, it could change a lot of other things down the road that have nothing to do with the 2A.

Such as?

Well, that is not a simple thing. But if the court were to say the 2A was incorporated, why would not the same reasoning apply to all the other amendments?

It could bring back the requirement that only a grand jury could indict someone, which could be a big deal.

Or as one of the judges mentioned, it could eliminate the administrative systems a lot of places use for parking tickets and similar offenses.

There is no telling where it might lead.

Mostly the things that it might bring unrelated to the 2a seem like good things, but you never know what else might sneak in.

 

[Phatty]

But if the court were to say the 2A was incorporated, why would not the same reasoning apply to all the other amendments?

Most of the other amendments have already been incorporated. The few that have been held not incorporated (such as civil right to a jury trial) were based on a finding that they were not fundamental rights, which is the key question to answer in deciding whether the particular right applies to the states.

 

[Kim]

I believe ( I may be wrong) but Posner does not agree with Heller. I belive I have read some of his statements like this in the past on Volokh Conspiracy blog. He is not THAT conservative.