pageok
pageok
pageok
Argument for Incorporation of the Second Amendment Against the States

is foreclosed by Seventh Circuit precedent, and late 1800s Supreme Court precedent, rules the district judge in NRA v. City of Oak Park & City of Chicago:

In this instance our Court of Appeals has squarely upheld the constitutionality of a ban on handguns a quarter century ago in Quilici v. Village of Morton Grove, 695 F. 2d 261 (7th Cir. 1982). And in reaching that conclusion, Quilici relied on the Supreme Court's decision in Presser v. Illinois, 116 U.S. 252, 265 (1886):

It is difficult to understand how appellants can assert that Presser supports the theory that the second amendment right to keep and bear arms is a fundamental right which the state cannot regulate when the Presser decision plainly states that "(t)he Second Amendment declares that it shall not be infringed, but this ... means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the National government...."

In doing so, Quilici rejected arguments (1) that later Supreme Court decisions that had incorporated other Bill of Rights provisions into the Fourteenth Amendment had effectively overruled Presser and (2) that the entire Bill of Rights had been implicitly incorporated into the Fourteenth Amendment to apply to the states.

To be sure, as the just-quoted language reflects, both Cruikshank [an 1876 Supreme Court case] and Presser long antedated the more modern jurisprudence of implied incorporation that began with the initial suggestion in Gitlow v. New York, 268 U.S. 652 (1925), that the First Amendment was brought into play against the states via the Fourteenth Amendment, and then continued with selective incorporation thereafter. But Heller deliberately and properly did not opine on the subject of incorporation [or non-incorporation] of the Second Amendment (after all, that question was not before the Court)....

This Court should not be misunderstood as either rejecting or endorsing the logic of plaintiffs' argument — it may well carry the day before a court that is unconstrained by the obligation to follow the unreversed precedent of a court that occupies a higher position in the judicial firmament.

This is an eminently plausible position for the district judge to take, in light of the Supreme Court's old precedent but especially the Seventh Circuit's much newer precedent. We'll see what the Seventh Circuit does, and in particular whether it too thinks the Supreme Court late 1800s cases are binding or whether it agrees with Nelson Lund's Anticipating the Second Amendment Incorporation: The Role of the Inferior Courts that they foreclose only incorporation via the Privileges or Immunities Clause, but do not foreclose incorporation via the Due Process Clause:

I conclude that the lower courts, though not the Supreme Court, are probably barred by precedent from finding that the right to keep and bear arms is protected by the Fourteenth Amendment's Privileges or Immunities Clause. Part III shows that existing Supreme Court precedent points very strongly in favor of incorporation under substantive due process. Part IV argues, on the basis of existing precedent, that the inferior courts need not wait for the Supreme Court to reach this conclusion. They can best perform their role in our hierarchical judicial system by treating the Supreme Court's modern incorporation jurisprudence as law. If they do, they should conclude that the right to keep and bear arms is protected against infringement by the state governments, just as it is protected against the federal government.

We'll also see what the Ninth Circuit does in Nordyke v. King, which will be argued on January 15. And of course we might also see in due time what the Supreme Court does with this, given that it is of course free to reexamine its old precedents. I think the Court should hold that the Second Amendment applies to the states, but it might be quite a while before the Court gets the case.

Thanks to Gene Hoffman for the pointer.

einhverfr (mail) (www):
I guess the questions that come to my mind are:

1) What exactly are the ordinances in question?

2) Are they aimed at keeping guns out of the hands of all citizens or just those who are unusually likely to be irresponsible?

I don't think the Supreme Court has to overrule Presser in order to apply a similar standard to the states (and I think a minimalist court under Roberts is unlikely to do so). I think one could argue fairly simply that although the states own the right to keep and bear arms as a unit, that they must orchestrate such control in line with the militia interest, and that gun elimination is thus excluded from being a compelling interest of government.
12.4.2008 4:58pm
Don Kilmer (mail):
Here is the rule in the Ninth Circuit:


An appellate panel has authority to overturn prior panel interpretations of the law that have been undermined by intervening Supreme Court precedent. See E.E.O.C. v. Luce, Forward, Hamilton &Scripps, 345 F.3d 742, 744 n.1 (2003) (en banc); Miller v. Gammie, 335 F.3d 889, 899-900 (2003) (en banc); See also Nitco Holding Corp. v. Boujikian, 491 F.3d 1086, 1090 (Nev. 2007).

"[T]he issues decided by the higher court need not be identical in order to be controlling. Rather, the [Supreme Court] must have undercut the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable.” Gammie, 335 F.3d at 900 (emphasis and brackets added).

The circuit courts are also bound by the “mode of analysis” of the holdings of Supreme Court decisions. See In re Stern, 345 F.3d 1036, 1043 (2003).


So the trial court may be correct, but this order only delays the inevitable.
12.4.2008 5:07pm
Junior Assoc.:
einhvrfr: What do the particular details of the statute have to do with whether the rights protected by the 2nd amendment have been incorporated? Wouldn't the ordinance details only be relevant to the question of whether the ordinance violates the right established in Heller (and not whether such right has been incorporated)?
12.4.2008 5:08pm
Cornellian (mail):
Seems like the right decision for a district court to make. If Presser is to be overturned, that's not a district court's call to make.

I'm inclined towards a full incorporation approach such that the entire bill of rights (including the 2A) applies against the states but I can't say that I've ever looked at this all that closely in the context of the 2A.
12.4.2008 5:16pm
Junior Assoc.:
Cornellian:

Full incorporation?! Next I suppose you'll be suggesting that State Governments should be prohibited from quartering troops in private residences.
12.4.2008 5:18pm
Arkady:

I think the Court should hold that the Second Amendment applies to the states


As a matter of law or inclination?
12.4.2008 5:20pm
einhverfr (mail) (www):
Junior Assoc. You are correct.

However, thus far I have not seen SCOTUS revisit Presser despite numerous opportunities to do so. If you closely read the summary of Presser in Heller, it seems to my mind that the Heller court did not mean to revisit Presser in its decision.

However after reviewing the decisions, it may be the case that an argument can be made that reading Presser and Heller together the specific ordinances are unconstitutional.
12.4.2008 5:24pm
einhverfr (mail) (www):
Junior Associate:

I thought the state quartering troops in private residences was settled in Engblom v. Carey. Was I wrong?
12.4.2008 5:28pm
Junior Assoc.:
einhverfr:

Hah, I hadn't heard of that case. I was drawing on some vague recollection of my conlaw prof rattling off the handful of rights that haven't been incorporated. Although my brief reading of the wikipedia entry makes it look like it's only been incorporated in the second district, does that sound right?
12.4.2008 5:31pm
Lior:
Doesn't the Presser argument applies with greater force to the First Amendment? If the literal text "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" serves to limit the States, then surely Presser has already been determined to be wrong long ago.
12.4.2008 5:41pm
Tony Tutins (mail):

1) What exactly are the ordinances in question?

2) Are they aimed at keeping guns out of the hands of all citizens or just those who are unusually likely to be irresponsible?


Basically:

1. Handguns in Chicago must be registered; Chicago quit taking registrations in the early 80's.

2. They're aimed at keeping guns out of the hands of citizens who moved to Chicago or came of age after 1982 or so. Also out of the hands of citizens who failed to timely renew their registration in the meantime. Unless you just bought one on the street.
12.4.2008 5:54pm
einhverfr (mail) (www):
Tony Tutins:

As I mentioned, after reviewing the ordinances in question they seem inseparable from those at issue in Hellar. I am not sure incorporation is the only way to strike them down though, since the Heller court did not seem to intend for Heller to be read in a way inconsistent with Presser.

These aim at gun elimination. This is inconsistent with the militia interest. Therefore they should be struck down.
12.4.2008 6:03pm
einhverfr (mail) (www):
Junior Assoc:

From the Engblom decision:

We first address the novel claim based on the Third Amendment, a provision rarely invoked in the federal courts. We agree with the district court's conclusion that the National Guardsmen are "Soldiers" within the meaning of the Third Amendment. Moreover, we agree with the district court that the Third Amendment is incorporated into the Fourteenth Amendment for application to the states.


Interestingly this case was decided in 1982 and is the only case I can think of resting solely on 3A....
12.4.2008 6:06pm
Gino:
The Second Amendment inures to the benefit of the federal government. Indeed, it is necessary to its security. That's what the prefacatory language (“A well regulated militia, being necessary to the security of a free State ...”) of the amendment says. How can the states regulate away the security of the federal government? They can’t. All of this talk of incorporation is a moot point.
12.4.2008 6:09pm
einhverfr (mail) (www):
Just a follow-up on Engblom---

The court in that case held reversed the summary dismissal of the claim of injury through a 3A violation despite:

1) This involved National Guardsmen, not soldiers of the federal government.

2) This involved tenants in state-provided housing, not owners of their own houses, and

3) The tenants, who were prison guards, had gone on strike, and the national guardsmen were being brought in to keep order in the prisons during the course of the strike.

Engblom provided very, very strong 3A protections probably in excess of what anyone would have expected.
12.4.2008 6:13pm
Dave N (mail):
It is always great to see a judge make a ruling that the judge does not want to make but feels constrained to make. It gives me renewed faith in the judiciary.
12.4.2008 6:17pm
Dilan Esper (mail) (www):
Doesn't the Presser argument applies with greater force to the First Amendment? If the literal text "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" serves to limit the States, then surely Presser has already been determined to be wrong long ago.

That's not what happened, though. Rather freedom of speech was found to be a crucial component of "liberty" protected against state infringement by the Due Process Clause. Thus, the more precise state First Amendment cases will talk about the freedom of speech "protected by the First and Fourteenth Amendments". (You saw this more in the past than you do now.)

Nothing in this post should be construed as denying that, before the proper tribunal, the argument that Heller should be extended to the states is a very strong one.
12.4.2008 6:20pm
Gene Hoffman (mail) (www):

It is always great to see a judge make a ruling that the judge does not want to make but feels constrained to make. It gives me renewed faith in the judiciary.

I think you may be assuming something that isn't correct. I suspect this Judge wanted to rule this way but realizes that the legal reality is that he should not. This was the easiest path for him not to do what stare decisis really requires here.

-Gene
12.4.2008 7:03pm
FWB (mail):
Thank God, scientists are not bound by precedent. We continually question and test all laws, theories, etc. Accept nothing. Just because the law is precedent does not have any bearing on its validity.

ONLY states had Militia not the federal government so the inapplicability of the 2nd to the states and its sole applicability to the fed is highly questionable. It was not federal security in the preamble clause, it was individual state security.

Barron was bad precedent when decided and remains so today.
12.4.2008 7:06pm
Oren:

Thank God, scientists are not bound by precedent. We continually question and test all laws, theories, etc. Accept nothing. Just because the law is precedent does not have any bearing on its validity.

As a scientist, I can see emphatically say that's not how it's done. The burden of extraordinary proof attends anyone that wants to reverse longstanding scientific precedent.

Of course, most of the time the experiment provides the proof that the current theory is wrong before anyone steps up with a replacement theory so the point is completely moot anyway. In other words, the competition is not between those that hold the old theory and the new, everyone knows the old theory can't explain the data (or has some other flaw). Rather, it's between the proponents of competing new theories that would supplant the old.
12.4.2008 7:13pm
Cornellian (mail):
Just because the law is precedent does not have any bearing on its validity.

But in the law, unlike in science, it is sometimes better to have a known and stable, but imperfect rule, then to be in a continuous state of flux searching for the perfect rule.
12.4.2008 7:27pm
einhverfr (mail) (www):
Dilan:

My only point is that I don't think extending Heller to the states necessarily means overturning the long-standing precedents that 2A as a whole is not incorporated in 14A. I think one could conclude in 2A (as my reading of Heller in context with the cases they cite), the collective right cannot exist without an individual right, and that individual right is entitled to some consideration where state law is concerned.

One doesn't have to conclude that Presser was wrongly decided to conclude that the Chicago ordinance is unconstitutional. One simply has to show how the cases are different enough that the precedent does not apply.

I expect a decision which re-affirms Presser but clarifies the ruling in the same way that Grokster did Betamax.
12.4.2008 7:41pm
pintler:
I am finding the whole selective incorporation concept baffling. What is the legal reasoning behind saying that amendment 1, 4, and 7 apply to the states but 3, 5, and
the last half of 8 don't (I'm just picking numbers, not saying that's the actual state of incorporation)?

I'd be grateful for an explanation, book title or link.

My due diligence googling of 'selective incorporation' wasn't
productive. The selective incorporation wiki page led me to Rochin v. California and Hurtado v. California, but the reasons for incorporation in one and non-incorporation in the other don't seem well articulated.
12.4.2008 7:45pm
cboldt (mail):
Here is an excerpt from Presser v. Illinois:
It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government. But, as already stated, we think it clear that the sections under consideration do not have this effect.


And here is the District Court Judge in the instant case, who apparently has cherry-picked through Presser for a different outcome:

It is difficult to understand how appellants can assert that Presser supports the theory that the second amendment right to keep and bear arms is a fundamental right which the state cannot regulate ...
12.4.2008 8:00pm
J. Aldridge:
Who ever heard of liberty of person having anything to do with a right to own a weapon. Besides, wasn't the Gitlow court just "assuming" for purposes of the case before them and had no intention of making precedent?

I suppose I will need to wear tin-foil hat to understand the arguments for incorporation.
12.4.2008 8:04pm
einhverfr (mail) (www):

It is difficult to understand how appellants can assert that Presser supports the theory that the second amendment right to keep and bear arms is a fundamental right which the state cannot regulate.


That much is an accurate reading of Presser, IMO. The state can regulate gun ownership, but not seek to eliminate it. The problem with the statutes is that they actually run counter to the state's requirements in Presser in the same way that racially discriminatory segregation ran counter to the equality requirement in Plessy. There needs to be a new test here.
12.4.2008 8:26pm
Allan Walstad (mail):

Here is an excerpt from Presser v. Illinois:
It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government. But, as already stated, we think it clear that the sections under consideration do not have this effect.

Wow. So, the Presser decision says that the right of the people to keep and bear arms really has to do with maintaining a POWER of the feds and a DUTY of citizens under that power? That's pretty damned twisted.

pintler:
I am finding the whole selective incorporation concept baffling.

I'm with you, buddy.
12.4.2008 8:30pm
cboldt (mail):
-- That much is an accurate reading of Presser, IMO. The state can regulate gun ownership --
.
Presser was a case about "marching private armies in public without a license from the governor." It was about a form of "bearing" arms in a group, not about regulation of ownership.
.
What's ironic in the instant case is turning to what is supposed to be a weak federal government for assistance against a state government that aims to dilute "self government in a republican form," by limiting which citizens may keep and bear arms. Put into overly harsh terms, I don't think the founders foresaw the phenomenon of tyrannical state governments.
.
Anybody have a "time of composition" read on what the Illinois constitution means by "subject to the police power."?
12.4.2008 8:36pm
Perseus (mail):
I am finding the whole selective incorporation concept baffling.

I'd be grateful for an explanation, book title or link.


Me too.
12.4.2008 8:49pm
J. Aldridge:
Did anyone notice Ill. did not have an arms bearing right?
12.4.2008 8:52pm
cboldt (mail):
-- So, the Presser decision says that the right of the people to keep and bear arms really has to do with maintaining a POWER of the feds and a DUTY of citizens under that power? --
.

That's a narrowing read of the actual words. The duty of the people is to the general government, which comprises local, state and federal.
.
Our form of government is radical at a fundamental level, where (only in theory) all power originates with and is answerable to "the free people" and certain parts of that power are granted to a subordinate government to cover common interests, e.g., the power to form an Army per Article 8. A government of enumerated powers. Under the US Constitution, the people retain the right to keep and bear arms, "Even laying the 2nd amendment aside." In practice, this flow of power is reversed. The state and the feds have bigger guns, and one is well advised to never forget that.
12.4.2008 8:56pm
cboldt (mail):
-- Did anyone notice Ill. did not have an arms bearing right? --
.
That's where my question about "subject to the police power" comes from. The Ill Constitution says "Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed."
.
I doubt that's a completely hollow "right," in that the state of Illinois can legally ban all firearms by an enactment of its police power (although I'm sure some putz will argue that's exactly what the phrase means), or if the language is meant to cover situations where an individual can be disarmed (under arrest); or to cover laws regulating military parade (see, e.g. Presser), etc.
12.4.2008 9:02pm
J. Aldridge:
cboldt, Ill. Constitution said nothing about a right to bear arms at the time of Presser. Only mentions bearing arms in the service of the militia:

1. The militia of the State of Illinois shall consist of all ablebodied male persons, resident in the State, between the ages of eighteen and forty-five, except such persons as now are or hereafter may be exempted by the laws of the United States or of this State.

2. The general assembly, in providing for the organization, equipment and discipline of the militia, shall conform as nearly as practicable to the regulations for the government of the armies of the United States.

3. All militia officers shall be commissioned by the governor, and may hold their commissions for such time as the general assembly may provide.

4. The militia shall, in all cases except treason, felony, or breach of the peace, be privileged from arrest during their attendance at musters and elections, and in going to and returning from the same.

5. The military records, banners and relics of the State shall be preserved as an enduring memorial of the patriotism and valor of Illinois, and it shall be the duty of the general assembly to provide by law for the safe-keeping of the same.

6. No person having conscientious scruples against bearing arms shall be compelled to do militia duty in time of peace: Provided, such person shall pay an equivalent for such exemption.
12.4.2008 9:28pm
ReaderY:
I think the district court is correct. Several clauses of the Bill of Rights, including the right to indictment by grand jury and the right to a jury trial for civil damages in excess of $25, have never been incorporated against the states. The standards for determining what rights should be incorporated are particularly unclear and not at all readily ascertainable. After all, the Court's definition of "fundamental rights" covers many matters never mentioned in the Constitution while leaving specifically mentioned matters outside.

The muddle of precedents and standards makes it very unclear what standard should apply or even what each standard means (what the heck is "implicit in the concept of ordered liberty," after all?)

Moreover, Adarand Constructors held that when the Supreme Court decides a specific question, lower courts are bound by it until reversed even if disfavor might be inferred from decisions on other matters. And the Supreme Court's affirmative action jurisprudence of the time, while muddled, was far less muddled than its substantive due process jurisprudence is, and by a long shot.
12.4.2008 9:56pm
ReaderY:
I think the district court is correct. Several clauses of the Bill of Rights, including the right to indictment by grand jury and the right to a jury trial for civil damages in excess of $25, have never been incorporated against the states. The standards for determining what rights should be incorporated are particularly unclear and not at all readily ascertainable. After all, the Court's definition of "fundamental rights" covers many matters never mentioned in the Constitution while leaving specifically mentioned matters outside.

The muddle of precedents and standards makes it very unclear what standard should apply or even what each standard means (what the heck is "implicit in the concept of ordered liberty," after all?)

Moreover, Adarand Constructors held that when the Supreme Court decides a specific question, lower courts are bound by it until reversed even if disfavor might be inferred from decisions on other matters. And the Supreme Court's affirmative action jurisprudence of the time, while muddled, was far less muddled than its substantive due process jurisprudence is, and by a long shot.
12.4.2008 9:56pm
Cornellian (mail):
I am finding the whole selective incorporation concept baffling.

I'd be grateful for an explanation, book title or link.

Me too.


Part of it is simply judicial reluctance to go out on a limb. Cases come before the courts claiming Amendment X applies against the states via the 14th Amendment and on these facts, the state's action is contrary to Amendment X. A court accepting or rejecting that proposition isn't going to be making a decision about everything else in the Bill of Rights and you'll never get a case where incorporation of the entire Bill of Rights is squarely at issue. Ergo, selective incorporation is partly a function of the fact that courts have to deal with the facts as they're presented. They can't wrap it all up at once the way a legislature can.
12.4.2008 10:01pm
Dilan Esper (mail) (www):
Cornellian's got half of it.

The other reason for selective incorporation is the reluctance to disturb longstanding state and local traditions where such traditions aren't seen as doing any harm. Thus, free speech and search warrants get incorporated; 12 people on a jury and the prohibition on criminal trials upon information don't.
12.4.2008 10:41pm
Oren:

the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms

I fear that this dicta will be lost, just as Alito and Kennedy's dicta in "Bong Hits" has already be violated.


The muddle of precedents and standards makes it very unclear what standard should apply or even what each standard means (what the heck is "implicit in the concept of ordered liberty," after all?)

No better or worse than "reasonable expectation of privacy", or "appeals to the prurient interest". Is your complaint general or specific?
12.4.2008 10:47pm
J. Aldridge:
--> I am finding the whole selective incorporation concept baffling.

It is baffling because the court treats liberty of person as no longer meaning what it had always meant under Constitutions. Refer to an apple as an orange and you will call into question both your honesty and intellect.
12.4.2008 11:02pm
einhverfr (mail) (www):
ReaderY:

I think the district court is incorrect because I think the judge misreads both Heller an Presser.

I can't see ANY reason to incorporate the second amendment except for simplicity of argument. Under existing precedents (both Presser and Heller) the 2nd Amendment, though a collective right, is based on a widespread but not universal individual right. This stands without incorporation so the only reason to incorporate IMO is to make a big show of overturning past precedent even if the decisions haven't changed (which doesn't seem very judicious).

In short, reading Presser, Miller, and Heller together, it is difficult to see (absent from taking parts of Presser out of context) how abolishing gun ownership can be a valid goal of statute under ANY let along all three of the decisions....
12.5.2008 12:34am
George Mocsary:
Odd circumstances, but even NY State courts on Long Island are taking heed of Heller.


Charges Dropped Against 9/11 Rescue Worker due to Hero Status
Mark Fass
New York Law Journal
December 3, 2008

A Long Island judge has dismissed charges of driving under the influence and illegally possessing a weapon against a 9/11 rescue worker, citing the man's status as an "American hero."

"The Court notes with admiration the Defendant's lengthy service to his country and to his community, and acknowledges the many letters and documents concerning his outstanding service on September 11, 2001 and his injuries," District Court Judge Paul M. Hensley of Suffolk County wrote in People v. McCormack, 06SU51940.

"[T]he Court finds that the Defendant has demonstrated the existence of compelling factors, considerations or circumstances which show that his prosecution or conviction upon the accusatory instruments herein would constitute an injustice."

Shortly after the planes hit the World Trade Center, defendant Michael McCormack, a major in the National Guard, was called to the scene. At home in Suffolk County while on Workers' Compensation following a construction accident, he arrived at Ground Zero around noon, about three hours after the second crash.

McCormack later told reporters that he spent the next eight days futilely looking for survivors. On his final day, McCormack came across a red piece of cloth buried under the rubble. As he tells it, he lifted the rocks, believing the fabric to be a woman's dress. Rather, the red was a stripe on the flag that came to be known as the "World Trade Center flag." (Other accounts, including a Congressional Record report cited by Hensley, state that the flag was found four days earlier, on Sept. 14.)

McCormack toured the country with the now-iconic flag. He also became a frequently quoted critic of the government, suggesting that the 9/11 attack might have been an "inside job" and comparing the Bush administration to Nazi Germany.

McCormack suffered a range of injuries, including asbestosis, damaged sinus cavities and post traumatic stress disorder. He also inhaled a five-inch piece of shrapnel, which remains lodged in his lung.
Five years later, in September 2006, McCormack was arrested in two separate incidents.

On Sept. 12, a police investigation of his house uncovered an unlicensed firearm. The reasons for the investigation remain murky, though McCormack told one reporter that the officers were responding to complaints of a "chemical smell" emanating from his house.

Twelve days later, McCormack was pulled over for driving erratically. He later tested positive for Alprazolam, the anti-anxiety drug most commonly marketed as Xanax.

In separate informations, prosecutors charged McCormack with fourth-degree criminal possession of a weapon and operating a motor vehicle while under the influence of drugs.

He moved to dismiss the charges in the interest of justice.
Judge Hensley, citing McCormack's work at Ground Zero and the symbolic significance of the flag he uncovered, has granted the motion.

The judge listed the 10 factors a court must consider when determining a motion to dismiss in the interest of justice under CPL §170.40, including "the history, character and condition of the defendant" and "any other relevant fact indicating that a judgment of conviction would have no useful purpose."

The judge also cited District of Columbia v. Heller, 128 S.Ct. 2783, the 2008 U.S. Supreme Court decision finding that "the Second Amendment conferred an individual the right to keep and bear arms."

Noting that a court "need not recite an analysis of each of the factors in reaching its determination," Hensley dismissed the gun charges, citing "the totality of the circumstances presented."

"Captain (Michael) McCormack was digging through the rubble of Tower One when he noticed a bright red cloth amid the debris, assisted by four men the American flag was recovered," Hensley wrote. "Since its recovery, this flag has become an important symbol of that day, and has been treated with reverence wherever it has been displayed by the Port Authority of New York and New Jersey, which now has possession of the flag, a symbol of national strength and pride."

The judge also dismissed the Vehicle and Traffic Law violation, without explanation.

Calls to Hensley's chambers, McCormack and his attorney. A spokesman for the Suffolk County District Attorney's Office declined to comment, noting that the files were automatically sealed following the judge's dismissal.






_______
http://ssrn.com/abstract=1102860
12.5.2008 1:16am
James Gibson (mail):
George, when I hear that the football player who shot himself in the leg with an unlicensed handgun gets let-off I'll believe Heller is effecting New York gun laws. And "NO" I'll not except him getting off by giving Bloomberg season long clubhouse tickets.
12.5.2008 3:15am
cboldt (mail):
A Long Island judge has dismissed charges of driving under the influence and illegally possessing a weapon against a 9/11 rescue worker, citing the man's status as an "American hero." ... The judge also dismissed the Vehicle and Traffic Law violation, without explanation.


Favoritism, cronyism, or some other form of deliberate uneven application of rules, pure and simple. Laws for thee, or at least those of thee that the government and judge decide are lessers (or not part of "the club"). My hunch is that a number of offenders are let off at the charging stage, as well.
.
The sort of decision noted in your post isn't a useful data point for probing what laws will apply to the bulk of the public, nor how strictly those laws will be enforced.
.
-- reading Presser, Miller, and Heller together, it is difficult to see (absent from taking parts of Presser out of context) how abolishing gun ownership can be a valid goal of statute under ANY let along all three of the decisions. --
.
There sits the 7th Circuit decision, Quilici v. Village of Morton Grove, 695 F. 2d 261 (7th Cir. 1982), illustrating that misconstruction of binding precedent isn't difficult at all. As you note, all it takes is rank dishonesty, e.g. taking parts out of context.
.
It's illuminating at least (I think essential, to come to understand how the game of law works) to read cited cases to ascertain whether or not they actually stand for the proposition stated by a later court. The lessons learned are that any side can be argued; intellectual honesty is not required or even expected (in the universe of legal briefs, misrepresenting cases is common -- errors are supposed to be corrected via the "adversarial process"), and a skilled lawyer will find myriad widgets for advocating desired outcomes. In handling social issues, Courts are, for the most part, engines of political outcome.
12.5.2008 5:17am
Richard Riley (mail):
A prediction: Dave Kopel will soon post on why the Republic is crumbling around us because this district judge refused to extend Heller to the horizons, circuit precedent be damned.
12.5.2008 8:27am
Enki:
I think the biggest impediment to incorporation of the 2A is the prefatory clause. It's difficult to reconcile an amendment that, at least plausibly, grants a right to the state (the right to have a militia to maintain the security of a free state) and simultaneously incorporate an individual right, presumably with few limits, against that state. Despite the fact that Heller may have diminished the importance of the prefatory clause, the language is still in the amendment.

that language distinguishes it from the language of the other bill of rights amendments. In essence, rights have been incorporated via the "liberty" protected by the 14th amendment, and the libert protected by the 2A is a little bit mixed. even if it does protect an individual right, that right is tied to the states' right to have a militia. it's pretty generally recognized that states may regulate firearms, and a pretty fair reading of Heller limits federal regulations to those that are "reasonable".
12.5.2008 10:46am
Tony Tutins (mail):

Ill. Constitution said nothing about a right to bear arms at the time of Presser.

Why would it? The Illinois Constitution only goes back to 1970.

the District Court Judge in the instant case, who apparently has cherry-picked through Presser for a different outcome:

Overturning Quilici was a task above the judge's pay grade.
12.5.2008 10:48am
Carl in Chicago (mail):
J. Aldridge said (12.4.2008 8:04pm):

Who ever heard of liberty of person having anything to do with a right to own a weapon.

I suppose I will need to wear tin-foil hat to understand the arguments for incorporation.


Who ever heard? How about the founders, George Tucker, Blackstone, our current justices? Owning and carrying arms ... the ability to wield deadly force, and the wisdom and restraint to judge use of that force, is certainly fundamental to my own sense of liberty, my authority as an independent being, and my relations and inter-dependence among my fellow human beings. Many things are fundamental to my sense of liberty, arms being among them.

"This may be considered as the true palladium of liberty ... The right of self defence is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction."
St. George Tucker, 1803 (in Blackstone's Commentaries, on the Second Amendment to the Constitution); also quoted in DC v. Heller

You won't need a "tin-foil" hat ... just your thinking cap.
12.5.2008 2:45pm
KeithK (mail):

Part of it is simply judicial reluctance to go out on a limb. Cases come before the courts claiming Amendment X applies against the states via the 14th Amendment and on these facts, the state's action is contrary to Amendment X.


Nah Cornellian, that can't be right. How could a court incorporate Amendment X against the states? Amendment X explicitly reserves power to the states or the people.
12.5.2008 2:54pm
J. Aldridge:
Carl in Chicago, the "liberty" the court relies on is the liberty spoken of under the 5th Amendment. That "liberty" has always been the "liberty of person." This liberty of person has always been guarded by the writ of habeas corpus.


What Blackstone and Tucker is talking about is not the liberty of person under the 5th amendment, but the liberty through law to form armed resistance through a well organized militia!
12.5.2008 3:28pm
Tony Tutins (mail):

What Blackstone and Tucker is talking about...

...Was the right of the Englishman to arm himself, as part of his natural right of resistance and self-preservation.

Blackstone 1:139, 140:

5. THE fifth and laft auxiliary right of the fubject, that I fhall at prefent mention, is that of having arms for their defence, fuitable to their condition and degree, and fuch as are allowed by law. Which is alfo declared by the fame ftatute 1 W. &M. ft. 2. c. 2. and is indeed a public allowance, under due reftrictions, of the natural right of refiftance and felf-prefervation, when the fanctions of fociety and laws are found infufficient to reftrain the violence of oppreffion.

IN thefe feveral articles confift the rights, or, as they are frequently termed, the liberties of Englifhmen : liberties more generally talked of, than thoroughly underftood ; and yet highly neceffary to be perfectly known and confidered by every man of rank or property, left his ignorance of the points whereon it is founded fhould hurry him into faction and licentioufnefs on the one hand, or a pufillanimous indifference and criminal fubmiffion on the other. And we have feen that thefe rights confift, primarily, in the free enjoyment of perfonal fecurity, of perfonal liberty, and of private property. So long as thefe remain inviolate, the fubject is perfectly free ; for every fpecies of compulfive tyranny and oppreffion muft act in oppofition to one or other of thefe rights, having no other object upon which it can poffibly be employed. To preferve thefe from violation, it is neceffary that the conftitution of parliaments be fupported in it's full vigor ; and limits certainly known, be fet to the royal prerogative. And, laftly, to vindicate thefe rights, when actually violated or attacked, the fubjects of England are entitled, in the firft place, to the regular adminiftration and free courfe of juftice in the courts of law ; next to the right of petitioning the king and parliament for redrefs of grievances ; and laftly to the right of having and ufing arms for felf-prefervation and defence.
12.5.2008 5:07pm
J. Aldridge:
Tony Tutins said: "...Was the right of the Englishman to arm himself, as part of his natural right of resistance and self-preservation."

Only trouble with that, Tony, is that there was NO RIGHT of the Englishman to arm himself outside of the lawful organization of a militia!

Not Blackstone says "public allowance, under due restrictions."
12.5.2008 6:31pm
J. Aldridge:
^^ Not = Note
12.5.2008 11:57pm
PCO (mail):

1) What exactly are the ordinances in question?

2) Are they aimed at keeping guns out of the hands of all citizens or just those who are unusually likely to be irresponsible?



In Oak Park, handguns are completely banned. If somebody breaks into your house, and you pull out a handgun, you go to jail.

Oak Park is also a "nuclear weapon free zone" as per the sign by the expressway, so if you pull out a nuclear weapon, you go to jail also.
12.6.2008 12:14pm
Andy Freeman (mail):
> It's difficult to reconcile an amendment that, at least plausibly, grants a right to the state (the right to have a militia to maintain the security of a free state)

Huh? Why would "a free state" be a state govt?

Of course, if you really believe that the 2nd protects state militias from federal control, you're arguing that the 2nd overturns some other clauses in the constitution and you're arguing that ID can decide that its militia members can have NFA weapons without Fed approval. And since it's ID, its militia is rather universal.
12.7.2008 10:04pm
Oren:

Oak Park is also a "nuclear weapon free zone" as per the sign by the expressway, so if you pull out a nuclear weapon, you go to jail also.

I'm sure the Soviets were well aware of this particular limitation and planned around it.
12.8.2008 12:41am
einhverfr (mail) (www):
Tony: You may want to take a look at your transcription.... All of the s's seem to have changed to f's. Whoever did the transcription seems to know nothing about old scripts and typeface fonts!

Also, despite the fact that the English Bill of Rights more or less prevents the disarming of the Protestants, we have all seen how that has turned out (even without other Constitutional documents, gun ownership is severely restricted). Note that the European Free Speech Treaty uses similar language in outlining free speech (though that is somewhat off topic here), and this may be seen as condoning laws that would be unconstitutional here (such as hate speech laws).

I think the real rationale for the 2nd Amendment was to prevent gun elimination in order to allow for on-demand civil defence. I.e. the early US had just come through 2 wars (one against France, and one against Britain), and there was a real fear of foreign invasion, specifically by European powers. I think the defence against tyrrany was secondary.

The thing is that, even without incorporation (as I think the Heller court makes clear, but so did the courts in Miller and Presser) there is an individual right which must lie behind the collective right.

I personally think that the incorporation argument is moot, and that 2A by itself (and even prior to 14A) provides a reasonable right to own a firearm which the states may reasonably restrict but not eliminate.
12.8.2008 2:42pm

Post as: [Register] [Log In]

Account:
Password:
Remember info?

If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.

Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.

We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.

And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.