Don't You Just Love This Photo!

Alan Gottlieb is holding the check from the City of Chicago in payment for the attorney's fees from McDonald v. Chicago. It totals $399,950.

I just love seeing the signature of Rahm Emanuel on that check!

H/T ISRA

Heh! Chicago Has To Pay Up.

After the City of Chicago lost McDonald et al v. City of Chicago et al in the Supreme Court, they changed their gun ban ordinances. Because of this, they argued that the plaintiffs were not "prevailing parties" and thus weren't entitled to attorneys' fees. U.S. District Court Judge Milton Shadur agreed with them and denied Alan Gura and the attorneys for the National Rifle Association the attorneys' fees that should have been due them.

Today, the 7th Circuit Court of Appeals issued a decision overturning Judge Shadur and ordering "reasonable attorneys' fees under §1988." This decision applied both to the McDonald case and the cases brought by the NRA against the City of  Chicago and the Village of Oak Park, Illinois.

The Court of Appeals noted that Judge Shadur was correct in that the plaintiffs didn't receive a favorable judgment from the District Court. However, they continued:

But they did better: They won in the Supreme Court, which entered a judgment in their favor. When the Supreme Court rendered its decision, the controversy was live.

The Court goes on to add noting that Chicago and Oak Park changed their ordinances in response to the Supreme Court's McDonald decision:

Many a defendant gives up after a district court’s final decision and does not appeal; some other parties settle to avoid the risk of reversal. If a cessation of hostilities after a district court’s decision does not deprive the victor of prevailing party status, why should conceding defeat after a decision by the Supreme Court do so?

The attorneys for Chicago and Oak Park argued that the decision in McDonald only addressed a "preliminary legal issue" and didn't resolve the plaintiff's claims against the municipalities. Chief Judge Frank Easterbrook writing for the Court of Appeals didn't think much of that argument.

After the Supreme Court held that the second amendment applies to the municipalities’ ordinances, defendants’ position was untenable; neither Chicago nor Oak Park contends that the ordinance in force in 2008 could have been sustained under Heller’s substantive standards. This litigation was over except for the entry of an injunction by the district court. Chicago and Oak Park capitulated, which made the exercise unnecessary. By the time defendants bowed to the inevitable, plaintiffs had in hand a judgment of the Supreme Court that gave them everything they needed. If a favorable decision of the Supreme Court does not count as “the necessary judicial imprimatur” on the plaintiffs’ position (Buckhannon, 532 U.S. at 605), what would?

According to his Twitter feed, Alan Gura just happened to be in Chicago today. He notes it is a beautiful day. Indeed it is and it is good to see that the City of Chicago is going to have to shell out the big bucks for their obstinacy as well they should.

Indefensible Is Right

Judge Milton Shadur denied attorneys fees to the plaintiffs in McDonald v. Chicago saying that because Chicago changed their gun laws the case was moot. Since it was moot, then there was no prevailing party which, to be blunt, is utter bullshit. Chicago lost and McDonald won.

Dave Hardy has the whole ruling and his comments on it at Arms and the Law.

This ruling is, I'm sure, simply indefensible. They fought all the way to the U.S. Supremes, won there, Chicago (with no choices left) changed its ordinance ... and the court still rules McDonald was not the "prevailing party." I trust this is going to appealed, although it may be assigned to the same Seventh Circuit panel (which definitely did not like the McDonald result and thus may, like the District Court, let it show).

A Walk through the Amicus Briefs in McDonald v. Chicago

Ilya Shapiro, Senior Fellow in Constitutional Studies at the Cato Institute, and Editor-in-Chief of the Cato Supreme Court Review, has provided a very useful tool to any one who seeks a better understanding of how the Second Amendment and gun rights were incorporated to states and municipalities. In More Friends of the Second Amendment: A Walk through the Amicus Briefs in McDonald v. Chicago he has summarized each and every amicus brief that was submitted to the Supreme Court in the case of McDonald v. Chicago. Given that there were 32 briefs in favor of McDonald, 16 in favor of Chicago, and two that were ostensibly neutral, this was a major task.

Of the briefs and the question presented by the McDonald case, Shapiro has this to say:

And so, in the wake of Heller, legal scholars and lay people alike widely anticipated the Court’s rejection of Chicago’s far-reaching prohibition on private gun ownership but did not know how the Court would go about doing so. Would it resurrect the Privileges or Immunities Clause or continue using a suspect doctrine—one that Justice Antonin Scalia has called “babble”—for protecting individual rights against state infringement?

That was perhaps the most interesting question at issue in McDonald, but there were others too, with activists, think tanks, politicians, and concerned citizens of all stripes filing 50 amicus briefs (fourth all-time). Many focused on the Due Process versus Privileges or Immunities issue, while others discussed the incorporation of rights generally—treating the debate over Fourteenth Amendment clauses as an academic technicality.

The breadth of the amicus briefs provide an insight into the divisions between those who are pro-gun rights and those who were anti-rights. You had state attorneys general on both sides of the issue just as you had competing groups of Members of Congress. Some briefs, more or less, duplicated the arguments of other amicus briefs and were probably submitted as much as to say they did something (and to raise money) as anything else. That said, Shapiro notes "a not insignificant number of the briefs—even if they didn’t end up being cited—seemed to have genuinely helped the justices write their opinions."

This belongs in everyone's library of works on the Second Amendment. Think of it as serious Cliff Notes guide to the amicus briefs presented in McDonald. If you need to do more in-depth research on a brief, this compendium will point you in the right direction.


H/T Dave Hardy

Oral Arguments Released for McDonald v. Chicago

Unlike in the Heller case, the Supreme Court did not immediately release the oral arguments for the McDonald case to my dismay. However, they are now available.

The oral arguments can be heard or downloaded here.  This page also has the audio of Justice Alito reading the Court's decision in the case.

I think they are worth downloading and saving.

Another Critique of the Decsion in Skoien

Douglas Berman, the William B. Saxbe Designated Professor of Law at Ohio State, offers another critique of the decision in United States v. Skoien on his blog Sentencing Law and Policy.

Professor Berman says the opinion reinforces his belief that "Second Amendment jurisprudence is going to be very messy and very challenging in the months and years ahead" after the Heller and McDonald decisions. He then goes on to point out three areas in which the Skoien opinion by Chief Judge Easterbrook highlights this reality.

First, there is uncertainty about the standard of review. Should it be intermediate scrutiny, strict scrutiny, or what? The opinion cites Heller but then goes on say that they are not going to get into the scrutiny "quagmire."

Skoien foreshadows a "quagmire" if (and when?) Second Amendment jurisprudence has to start sorting through levels of scrutiny, and its seeks to avoid this quagmire by positing that (any and all?) gun regulations are substantially related to an important governmental objective. But given that gun regulations are always aimed at improving public safety and that the creators of such regulations surely see their restrictions as substantially related to this goal, it is unclear how much more real bite is being given to a standard of review here in Skoien.

Second, the 7th Circuit is too ready to accept the government's justification for gun control.

If preventing gun violence (i.e., "armed mayhem") is always going to qualify as an important governmental objective, and if "logic and data" of the sort set out in Skoien is adequate to justify a very broad criminal prohibition on gun possession by a large class of persons, it seem very unlikely that many (or really any) partial gun bans will be struck down.

Finally, the 7th Circuit used questionable analogies to the First Amendment and sex offender registration in their opinion.

As the dissent notes, there are no categories of persons who are subject to criminal prosecution just for seeking to exercise a freedom to speak. (There are categories of speech not subject to constitutional protection, but this is analgous to arms like bazookas and bombs that I assume are categorically excluded from coverage by the Second Amendment.) Similarly questionable is the suggestion in Skoien that allowing registration and zoning rules for convicted sex offenders makes "generally proper" a categorical exclusion of certain misdemeanant from a fundamental right expressly protected by the Bill of Rights.

 Berman concludes by saying that while he found the opinion not convincing his goal was not to criticize the opinion but to point out how hard it will be for courts going forward "to sort through all the challenging constitutional issues implicated by modern gun restrictions and the new constitutional gun rights set out in Heller and McDonald."

H/T to Instapundit who notes that he and Brannon Denning are writing a post-McDonald law review article. 

I'll Side with John Bingham, Thank You Very Much

Dave Hardy has an interesting observation on the dissenters on the McDonald and Heller cases. He notes that taken as a whole, their position is closer to that of Jefferson Davis.

Combined with McDonald.... the "liberal" wing embraces Jefferson Davis, the "conservative" wing embraces John Bingham.

Perhaps we could suggest that in the future, the dissenters refer to 1861-65 as The War of Northern Aggression and the majority refer to it as The War of the Rebellion.

John Bingham, a 19th Century Republican Congressman from Ohio, is known for his role as the principal framer of the Fourteenth Amendment. It is thought that he intended the first eight amendments of the Bill of Rights to apply to the states under the Fourteenth Amendment.

Race Cases Win Gun Rights

Clarence Page, a columnist for the Chicago Tribune, offers a surprisingly sympathetic review of the McDonald case in yesterday's Tribune. Usually, Mr. Page is a reliable proponent of more gun control and "sensible" gun regulations.

Lobbyists for gun rights owe black Americans a historical debt of gratitude.

The U.S. Supreme Court reminds us of this debt in its recent decision to overturn Chicago's sweeping prohibition against handgun possession. That decision rests on more than the Second Amendment. It also rests on the 14th Amendment, which brought equal protection to freed slaves after the Civil War.

How times change. An amendment that helped blacks protect themselves from Ku Klux Klan terrorists now is being used to help protect a black Chicago man from gangbangers.

Page then goes on to review how the African-American community often had to resort to firearms for protection from racist groups such as the KKK and others of their ilk.

Yet, armed self-defense is a long-running theme in African-American history. As recently as the 1960s, for example, the Deacons for Defense and Justice was a popular and powerful self-defense group in the last days of Jim Crow. Yet, news media paid much more attention to the Rev. Martin Luther King Jr. and his non-violent side of the civil rights movement.

Those days came to mind as I read Justice Clarence Thomas' separate opinion in McDonald's case. With the emotional force of a man raised in rural Georgia during the last days of legal segregation, he recounted, page after page, of terror spread by "militias such as the Ku Klux Klan, the Knights of the White Camellia, the White Brotherhood, the Pale Faces and the '76 Association" and how "firearms for self-defense was often the only way black citizens could protect themselves from mob violence."

He concludes with this.

Chicago and the District of Columbia already have fought back with new laws that restrict the purchase, possession or use of guns without an outright ban.

But this country has too long and too deep of a tradition of gun ownership — and way too many guns already in circulation — for the tide to be turned in the foreseeable future by city gun ordinances, no matter how well-intentioned.

I think Mr. Page gets it. He may not like it but he gets it. It is all about winning civil rights.

Clayton Cramer on the Lessons of McDonald v. Chicago

Clayton Cramer, historian and Second Amendment advocate, finds two essential lessons in the McDonald decision. The lessons he finds do not come from the decision itself but rather from the events necessary to build a majority that would find for the Second Amendment and from a body of both legal and historical scholarship used to support that decision.

The first lesson is that elections have consequences. He notes that the election of George W. Bush in 2000 and then the reelection in 2004 allowed Bush to appoint Chief Justice Roberts and Justice Alito to the Court.

Does anyone seriously think that President Gore’s appointments to the Supreme Court would have been part of 5-4 majorities in support of the Second Amendment? No matter how strong the arguments, Gore’s appointees would simply not have considered the Second Amendment an individual right.

The second lesson is that conservative scholarly research and support for it is just as important.

Scholarly research is important; even justices that are sympathetic to our perspective needed something to point to as evidence in support of the individual right. Quite a number of us have been researching the history of the right to arms for many years now, and the results of our work provided something that the justices could support without embarrassment.

Both are necessary. Winning presidential elections means sympathetic justices, and scholarly research means arguments that stand up well at oral arguments and in decisions. You can’t do just one and expect victory. You have to do both.

Unlike winning elections, building support for conservative social, legal, and historical research is a long-term proposition. If we don't start to support these scholars now, it may just be too late.

What Now for Nordyke v. King?

Legal blogger Josh Blackman wonders what the 9th Circuit will do in the Nordyke case. They have already vacated the 3 judge decision on the case in anticipation of an en banc hearing. However, this en banc hearing was deferred until after the McDonald decision. Will they still hear the case or will they remand it back to the District Court?

I posted last week on Sayre Weaver, one of the attorneys for Alameda County (King et al), and her thoughts on McDonald here.

McDonald Decision: It's Not Just About Guns Anymore

Glenn Reynolds, the Instapundit, thinks that Tea Party activists, libertarians, and conservatives should look to the Supreme Court's decision in McDonald v. Chicago as inspiration.

let me offer a positive lesson from this experience, one with relevance for today's motivated Tea Party activists and depressed conservatives and libertarians alike. Because the story of the Second Amendment, and of gun rights generally, over the past two decades is a story that offers hope for those interested in protecting and restoring liberty in all sorts of areas.

Read the whole article here.

His conclusion -

So in little more than 15 years, we've seen an amazing turnaround on an issue where the "establishment" side had broad support from politicians (in both parties, really) and almost universal support from the media. Gun control now is nearly dead as an issue, and the "establishment" view that the Second Amendment didn't protect any sort of individual right, but merely a right of states to have national guards, did not get the support of a single Supreme Court justice.

So what's the lesson for today? It's that activism matters.

Now the issue on which activists differ from the establishment is the size of government. Politicians (in both parties, really) are pretty happy with big government. In this, they have the near-universal support of the media (now using covert e-mail lists to agree on how to slant their stories).

But if people care about shrinking government as much as gun rights activists care about protecting the Second Amendment, then this situation, too, can see a turnaround.

For the sake of the country, it had better.

McDonald and the New England Journal of Medicine

From Sebastian at Snowflakes in Hell we have this:

McDonald Freaking Out the Medical Establishment

His characterization of them as condescending assholes is spot-on!

Clogging the Courts?

From the Legal Community Against Violence:

LCAV anticipates a substantial increase in the volume of Second Amendment litigation already clogging the nation’s courts, despite the fact that most, if not all, state and local firearms laws do not prevent a law-abiding citizen from possessing a firearm in the home for self-defense, and thus, would satisfy the holdings in Heller and McDonald.

They have a strange view of civil rights if they think that free citizens seeking to uphold the protections afforded them through the Second and Fourteenth Amendments should be considered "clogging" the courts.

Reality Bites

Sayre Weaver is one of the leading legal lights of the gun control movement in California. She is one of the lead attorneys for the County of Alameda in the Nordyke case and she helped the City of West Hollywood develop their law prohibiting the sale of "junk guns"(sic). She has won awards from Women Against Gun Violence and the California Wellness Foundation for her work on gun control. The LA Times writes glowing articles about her that characterize her "as the California gun lobby's Public Enemy No. 1." So, when she says the McDonald decision is likely to spawn lawsuits challenging local gun control laws, I listen.

Weaver released her analysis on the impact of McDonald v. Chicago on Monday. Her analysis centers on the likely immediate impact that McDonald will have for local governments in California.

• Local ordinances regulating firearm possession and sale are now more open to challenge on Second Amendment grounds

It appears likely that McDonald will generate challenges to a wide range of local firearms regulations, as well as ammunition regulations.....Because the Court has given little guidance on what standard a firearms regulation must meet to survive challenge under the Second Amendment, we anticipate that the decision will embolden individual litigants to challenge a wide range of firearms laws, including long standing laws that have previously survived challenge in the courts.

• Local firearms ordinances must now meet a more rigorous constitutional standard to survive legal challenge

Because any restriction on firearms possession or sale might be argued to create some burden on the right to possess a firearm for self-defense in the home, local governments should anticipate numerous lawsuits challenging a wide range of firearms laws. There are already a number of such challenges in the California courts, which were stayed while those courts waited for McDonald.

• Local ordinances regulating possession of handguns or prohibiting certain types of handguns are more vulnerable to challenge under the Second Amendment

Because the Second Amendment right articulated by the Court pertains to possession of handguns, which the Court characterizes as the most popular weapon among Americans for self-defense, it is likely that local regulations of handguns will be challenged under the Second Amendment.

• Successful Second Amendment challenges to local laws may result in the award of attorney fees against a city and to the challenging party

While she doesn't come out and say it, if a city loses a challenge to a firearm restriction in court, they will end up paying the costs for both the defense and the plaintiffs. In case-strapped California, this should make some municipalities think twice.

• Local governments considering adopting new firearms ordinances may wish to consult with their City Attorneys

...ordinances will now be subject to a stricter test in the courts, and the legislative findings that may be needed for a given law to pass muster under the Second Amendment will be of particular importance.

The bottom line for Weaver is that the world as she knew it has changed with McDonald.

Hypocrisy from the Dissenters

Jacob Sullum writes a very perceptive piece on the McDonald dissents of Justices Stevens, Breyer, Ginsburg, and Sotomayor. He notes that these Justices worry that overturning the Chicago gun ban would "undermine democracy." However, these same Justices would never let local prejudices stand in the way of other rights guaranteed in the Bill of Rights.

Ah, but the Second Amendment is different, they say:

Second Amendment rights are different, Breyer says, because "determining the constitutionality of a particular state gun law requires finding answers to complex empirically based questions." So does weighing the claims in favor of banning child pornography or depictions of animal cruelty, relaxing the Miranda rule, admitting illegally obtained evidence, or allowing warrantless pat-downs, dog sniffs, or infrared surveillance.

When they decide whether a law or practice violates a constitutional right, courts cannot avoid empirical questions. In cases involving racial discrimination or content-based speech restrictions, for example, they ask whether the challenged law is "narrowly tailored to serve a compelling state interest" and is the "least restrictive means" of doing so.

Sullum saves his strongest scorn for their claims that it will invite more litigation:

The dissenters' most frivolous objection is that making states obey the Second Amendment "invites an avalanche of litigation," as Stevens puts it. Every day we hear about cases in which people argue that the government has violated their rights under the First, Fourth, Fifth, Sixth, or Eighth amendment. Neither Stevens nor Breyer wants to stop this "avalanche." Only when the Second Amendment is added to the mix do they recoil in horror at the prospect that Americans will use the courts to vindicate their rights.

Read the whole article.

H/T Instapundit

A McDonald Decision Round-up

Two years and two days ago, the Supreme Court found that Dick Heller had the right to own a handgun to protect his family in his home in the Federal enclave of the District of Columbia. The Court held that the Second Amendment was an individual - not collective - right. Today, the Supreme Court held that Otis McDonald had that same individual right and that the Second Amendment was incorporated through the Fourteenth Amendment to the states. A plurality thought the Second Amendment was incorporated through the Due Process Clause while Justice Thomas thought the Privileges or Immunities Clause incorporated this right.

The Decision

The full opinion of the Court, the concurring opinions, and the dissents cover 214 pages. You can order a paper copy for FREE directly from the Supreme Court. It is called a slip decision. Just call 202-479-3211 ext. 1 and ask for the slip opinion in Case 08-1521. This makes a nice memento!


Reaction of the participants



And now Hizzoner Mayor Daley.



Reaction from the Second Amendment Foundation. 

And the Illinois State Rifle Association.

Both the Second Amendment Foundation and the Illinois State Rifle Association were instrumental in bringing this case.

The NRA, which was given time to argue as a respondent on behalf of the plaintiff but were not a part of the McDonald case, issued this statement.

From the Gun Bloggers

Sebastian of Snowflakes in Hell Blog has spent most of the day reading and analyzing the decision.

Live Blog - The Decision

Scalia’s Concurrence

Reactions

Thomas’ Privileges or Immunities Opinion

Says Uncle has some interesting posts in his quick and to the point manner.

VPC on McDonald.  And if you have the Violence Policy Center, then you have to have Brady.

Breda of The Breda Fallacy has this reminder, Congratulations, Chicago

And in a short post Michael Bane has this to say, SCOTUS Rules! Second is Fully Incorporated....

The great Dave Hardy in his Of Arms and the Law Blog notes the number of citations of many of the Second Amendment scholars in the decision.

The Law Bloggers were not to be outdone

The Instapundit, Glenn Reynolds, a law professor at the University of Tennessee, has a number of posts.

Very interesting to see both the majority and Justice Thomas reference the racist roots of gun control so strongly. Also, while Alan Gura didn’t win on the privileges and immunities argument, he did better than he might have. And by arguing that way, he made due-process incorporation of the Second Amendment, which looked radical not too long ago, look moderate by comparison!

He offers his first impressions here. And he links to this interesting post on the power of paradox.

Reynolds and other bloggers are featured in a discussion on the case in the New York Times.  And as a sidebar here, I'd love to have the gun collection pictured in the New York Times story!

The lovely Professor Ann Althouse weighs in here.

The Volokh Conspiracy has a number of important posts from their collection of law professors on the case.

Predicting the Impact of McDonald

What Now for Limits on Gun Possession by 18-to-20-Year-Olds?

McDonald v. City of Chicago and the Standard of Review for Gun Control Laws

Why Not the Privileges Or Immunities Clause?

And finally, the SCOTUS Blog has a number of posts on the case.

McDonald: big victory for liberty

McDonald impact: slew of new legal challenges

Still fighting the last war on the blog is Professor Jack Rakove of Stanford, A challenge of Heller’s historical interpretations

Thomas’ concurrence on the Privileges or Immunities Clause

Privileges or Immunities Clause alive again

Analysis: Gun rights go national McDonald, et al., v. City of Chicago, Opinion recap

And that sums it up for the evening. While there are a ton more posts opining on the case, I'm whupped!

Wait - just one more! The Law Blog in the Wall Street Journal calls Clarence Thomas's concurrence potentially his finest hour.