The Smallest Minority

I fear it's too soon. I think maybe the incorporation case should have waited until after the heller case has some time to "burn in", maybe file some more lawsuits against the inevitable stonewalling by the DC government, etc.

Had Heller come back 6-3 or 7-2, i'd feel differently, but 5-4 was a little too close for comfort.

On the other hand, I'd rather have Gura running the incorporation case rather than some gangbanger's public defender, so ... I dunno.

-m@

So, Kevin, are you feelin' better this afternoon?

This is good stuff...

I'm getting tired of Illinois, but this has been a truly landmark year...

I'm going to disagree with Matt. I think this is good strategy. We need to take the chance and go after incorporation immediately. Right now we have the upper hand, but that may not last.

We'll never make any headway if we don't fight, and now is a good a time as any. If we wait we run the risk of an Obama Presidency and / or the makeup of the Court changing.

I read the complaint. It looks very good. They have already a set of natural persons as plaintiffs who have tried to register handguns and other guns and have been refused.

Challenging the the Chicago and New York seems like the obvious next step but wouldn't it be better strategically to find a ban to challenge in a circuit that is likely to be friendly to to 2nd amendment concerns?

I'd hate to have a court similar to the 9th Circuit get the first shot at deciding incorporation.

We've waited 216 years for this decision. I don't see any benefit from waiting to finish the job, and I don't see any way to estimate the risks of trying now vs. trying later. What better time to kick an enemy that needs kicking than when he's down?

Now, consider a simple question. Why should a free citizen of this country need a license, i.e. permission from the gubmint, to exercise a RIGHT that shall not be infringed?

If I can be denied the exercise of that right because I am a convicted felon or because I have been adjudicated mentally incompetent, then such results from the gubmint taking a direct action, i.e. due process of law, to so decide and to so prevent. Absent such due process, decision, and denial, then why they hell should I have to request the gubmint to take direct action to affirm that I may exercise it before I can do so?

Consider further: I have a Constitutional right to [blank]. For [blank], substitute any of the following, all of which are rights that I possess under the Constitution: 1) write/publish something; 2) speak something; 3) assemble, peacably, with others; 4) keep and bear arms. Why should I need a license for #4, but not for #1, #2, or #3?

I think that this decision, given Justice Scalia's careful wording, sets the stage for a challenge to the notion that one cannot keep and bear arms unless one is licensed to do so. Consider the Illinois FOID card, for example. Illinois, in effect, infringes 100% on a resident's right to keep and bear arms, instead allowing the resident to keep and bear arms as a privilege, and only if it decides to grant that privilege. It seems to me that, absent a decision which, under the law, allows the denial of exercise of the right, and (of course) provided I otherwise obey the law when exercising that right, then the gubmint has no say in the matter.

One does not need a license to exercise a RIGHT, and keeping and bearing arms is a right, not a privilege.

Now, consider further.

Vermont allows keeping and bearing arms, even concealed carry by anyone, without a license. Illinois requires a license to keep and bear arms by everyone who wishes to do so, and denies any right to concealed carry. So, the residents of Illinois are denied equal protection of their Constitutional rights under the laws, as their right to keep and bear arms is treated not as a right, but as a privilege that is subject to the whims of an unelected bureaucracy. Thus, a direct challenge to the laws of Illinois under the 14th Amendment is in order.

Where better to start than Chicago?

Please note the 5-4 was largely about whether to send the case back to the lower court to decide if DC went too far in "regulating" with its outright handgun ban: the re-affirmation of an individual right was 9-0!

Not great, with the court once again (as in Kelo) weakly hoping non-Federal governing bodies will alter their egregious laws instead of forcing all to go along (as in Brown v Board of Education and numerous others).

I don't know what decision you read, but the dissents in Heller disagree with you.

I'm very glad to hear the Gura is involved with Chicago. The strategy of bringing a variety of sympathetic plaintiffs in the DC case was a huge part of the successful outcome. I agree with the above poster who said much better Gura and co than some public defender.

Gura's oral arguments were utter crap. He was conciliatory and went out of his way to construct wild strawmen that he could agree with the liberals should be torn down, in order to distance himself from gun nuts with extremist views.

MR. GURA: Well, my response is that the government can ban arms that are not appropriate for civilian use. There is no question of that.
JUSTICE KENNEDY: That are not appropriate
MR. GURA: That are not appropriate to civilian use.
JUSTICE GINSBURG: For example?
MR. GURA: For example, I think machine guns: It's difficult to imagine a construction of Miller, or a construction of the lower court's opinion, that would sanction machine guns or the plastic, undetectable handguns that the Solicitor General spoke of.


Scalia even calls him on it in the majority opinion:

"Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement."


I hope that his future efforts are less pusillanimous.

Skeptic,

Given how close the decision was, I can forgive a little tactical weaseling if that's what it takes to get Kennedy on board.

I agree.

"the re-affirmation of an individual right was 9-0!"

The only "individual right" that 9 Justices supported was one that wouldn't be 'violated' even by a complete and utter ban. IOW, the minority wanted to call their total denial of the right a "right".

Kevin;

When you talk to one of these lawyers, could you put a bug in their ear -- or, at least ask them why not -- about applying 28USC 241-242 to some of these GFW public officials.

I'd think Nurse Bloomberg to be particularly vulnerable, since he's shown a particularly scofflaw-ly pattern of behavior with his ultra vires activities outside his jurisdiction.

M

Chicago is not and has not been made safer as a result of this ban. I am a grassroot organizer and I see the destruction daily of individuals who could not protect themselves while elected officials has the right to arm themselves.

I've said this elsewhere. It's a damn good start. This is a really big rock we're rolling up hill, push and brace, push and brace. Eventually we will crest the hill, and gravity will be to our advantage.