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Well, That Was Quick:

The NRA reports that it filed its petition for certiorari in NRA v. City of Chicago today, the day after the Seventh Circuit handed down its decision. (The NRA had 90 days to file.)

UPDATE: I've uploaded the petition here.

melancton smith:
No rest for the wicked.
6.3.2009 6:17pm
Jon Roland (mail) (www):
Obviously he was ready with the application before the decision came down, which suggests he expected it, and may have gotten advance information from the judges.

Hopefully Gura will be better prepared for oral argument than he was in Heller. A lot of us gave him hell over that but he's a tad arrogant.

I see Easterbrook as deliberately setting it up for SC review. He is almost saying, "Please review this case. Stop us before we get another one!"
6.3.2009 6:21pm
DDG:
Odd that they didn't move for rehearing en banc.
6.3.2009 6:27pm
zippypinhead:
Wow, no moss growing under this one! Given the number of days between oral argument and the written opinion, and now the near-instantaneous cert. petition, the Chicago appeal is moving at a pace that makes your typical TRO proceeding seem slow...

although for some reason, I suspect the City is going to use the FULL time allotted in the rules for its response to the petition.
6.3.2009 6:28pm
J. Aldridge:
I hope it does go to the SCOTUS, and next time someone suggests Congress understood the 2A applying to the states during reconstruction someone with more than half of a brain will respond: But the rebel states were under the exclusive administration and military control of Congress at the time! Of course Congress would have to respect the 2A while administering unorganized states after the war.
6.3.2009 6:34pm
Brooks Lyman (mail):
Better to file early than late.

I was once involved in a suit (as one of several defendants), which had been postponed to the limits of the court's patience. The court put the case on a 24-hour telephone notice strangulation list (when they call you, show up in court or lose it). Our attorney, by total happenstance, called the Clerk to get some idea of when the case might be called and was told, "tomorrow at 2PM." The clerk had forgotten to notify the parties! Needless to say, our attorney was in court, the plaintiff's wasn't and the case was dismissed. There was a 30-day appeals period for this sort of thing; plaintiff's attorney filed an appeal (I believe that he should have filed for a relief from judgment or some such) on the 30th day, with the wrong court! End of story....

Interestingly, the plaintiff had an iron-clad case, but we defendants were basically judgment-proof, so plaintiff's attorney may have acted in his client's best interest (to minimize legal fees which would have brought a minimal/zero
award) if not according to his wishes.
6.3.2009 6:44pm
Steve:
Does this suggest an urgency to bring the case before the Court as quickly as possible, to minimize the possibility that Sotomayor and/or other Obama appointees will participate in the decision? Could that explain the strategic decision to skip en banc review as well?
6.3.2009 6:47pm
ShelbyC:

...on the 30th day, with the wrong court!


IANAL, so forgive if it's a dumb question, but does the client have a recourse against the lawyer in cases like that?
6.3.2009 6:59pm
DiverDan (mail):

Does this suggest an urgency to bring the case before the Court as quickly as possible, to minimize the possibility that Sotomayor and/or other Obama appointees will participate in the decision?


Since the Supreme Court is going on its summer recess, it won't even take up the Cert Petition until it reconvenes in October. Assuming it grants Cert almost immediately, there will be time for Merits Briefs (and the flood of Amici Briefs), so Argument really couldn't be scheduled much before February 2010. Sotomayor surely will be on the Court before then, unless hell freezes over or enough Dem Senators just fail to show up to invoke cloture. If another Justice resigns (or drops dead) over the Summer, it is even possible Obama could get a second Nominee on the Court by the time of argument, if the Dem Leadership pushes it.
6.3.2009 7:00pm
matt (mail):
steve: Sotomayor will be replacing Souter, who is probably a No vote on incorporation, so I doubt she entered into the equation.

-m@
6.3.2009 7:05pm
Just Dropping By (mail):
IANAL, so forgive if it's a dumb question, but does the client have a recourse against the lawyer in cases like that?

It should be a slamdunk malpractice case, although depending on the facts the damages might be limited to the amount of fees incurred in drafting and filing the appeal.
6.3.2009 7:26pm
Calderon:
I'm guessing they skipped en banc because they know they have an issue the Supreme Court may be interested in deciding, and they'd rather have an S Ct decision that binds every court than win in the 7th Circuit. I am sort of surprised they filed for cert so quickly though.

For ShelbyC, the answer is yes, but my understanding is for a case like (which doesn't involve breach of duty or self-dealing), damages are limited to amount that could have been recovered in the underlying lawsuit. If the client would not have been able to obtain a monetary recovery against the original defendent (as Brooks Lyman suggests), then he's not going to get anything from his attorney for screwing up.
6.3.2009 7:26pm
Regolith:
I'm not really surprised at the speed. The major purpose of taking on the Chicago gun ban was to get the 2nd Amendment incorporated, and the only body that can do that nation wide is the Supreme Court. This was all well planned out in advance. Hell, people were talking about it as soon as Heller was handed down, and it was assumed from the start by many (correctly, in this case) that the 7th Circuit wouldn't incorporate.
6.3.2009 7:53pm
BABH:
The Sotomayer nomination may in fact be part of the calculation in filing quickly: while she is the focus of media attention, her 2nd Circuit decision on incorporation will make a good fundraising tool for the NRA.
6.3.2009 8:23pm
Dave N (mail):
Better to file early than late.
I have a better story than yours--and it is sadly true.

A decade or so ago, my office lost a major death penalty case in the 9th Circuit. We figured we had a very good cert issue because, well, we're talking the Ninth Circuit going crazy in a death penalty case.

In any event, we drafted our cert petition and and had it printed in-house. The appropriate number of copies were prepared in the correct format, put in a box, sealed, and taken to the mailroom for shipment a day or two before the due date.

An idiot in the mailroom, attempting to save a few dollars in postage, made the executive decision to send our box to the Supreme Court "parcel post" instead of "first class."

Several days later we got a call from the Supreme Court Clerk's office, saying our petition had been submitted out-of-time and would not be filed.

Under Supreme Court Rules, if a cert petition is mailed first class, it is considered filed on mailing. If it is sent to the Supreme Court by any other means, including parcel post, it is filed when received.

Hard lesson learned.
6.3.2009 8:25pm
Ben S. (mail):

I have a better story than yours--and it is sadly true.

A decade or so ago, my office lost a major death penalty case in the 9th Circuit. We figured we had a very good cert issue because, well, we're talking the Ninth Circuit going crazy in a death penalty case.

In any event, we drafted our cert petition and and had it printed in-house. The appropriate number of copies were prepared in the correct format, put in a box, sealed, and taken to the mailroom for shipment a day or two before the due date.

An idiot in the mailroom, attempting to save a few dollars in postage, made the executive decision to send our box to the Supreme Court "parcel post" instead of "first class."

Several days later we got a call from the Supreme Court Clerk's office, saying our petition had been submitted out-of-time and would not be filed.

Under Supreme Court Rules, if a cert petition is mailed first class, it is considered filed on mailing. If it is sent to the Supreme Court by any other means, including parcel post, it is filed when received.

Hard lesson learned.


I'm afraid to ask: State or defense?
6.3.2009 8:57pm
byomtov (mail):
Dave N.,

Is it really clear that the relevant idiot was the guy in the mailroom? Whose job is it to know Supreme Court rules, after all?
6.3.2009 8:59pm
Dave N (mail):
Ben S.:

State. I mentioned the Ninth Circuit; that should have supplied the answer.

Byomotov:

I don't disagree (it wasn't my case). The guy who lost the case kicked himself for a month for not being explicitly clear with the mailroom people.
6.3.2009 9:23pm
Dave N (mail):
Byomtov,

Sorry for the typo in your name. Preview is my friend.
6.3.2009 9:24pm
arbitraryaardvark (mail) (www):
That beats my story. I was a day late filing a cert petition of a Posner decision, where I was right and he was wrong.
(Majors v Abell.) I'd been in jail and being tortured some of that time, and I was a bit disoriented on dates, and had spent money I'd earmarked for the brief printing, on bail and a lawyer to get the false charges dropped.
6.3.2009 9:36pm
arbitraryaardvark (mail) (www):
Got distracted, forgot my point. I found the question presented interesting. I wonder if, if the Court takes the case, they'll keep that language.

Whether the right of the people to keep and
bear arms guaranteed by the Second Amendment to
the United States Constitution is incorporated into
the Due Process Clause or the Privileges or
Immunities Clause of the Fourteenth Amendment so
as to be applicable to the States...

As far as I know, this would be the first P+I clause case in a long time. Let's all keep chanting, there is no constitution-in-exile movement.
6.3.2009 9:44pm
Soronel Haetir (mail):
I would think the speed would be prompted somewhat by the 2nd circuit case, in case the question is ducked by deciding that nunchuks aren't arms.

The Chucago case seems like a much better one from a clean set of facts standpoint. Plus it is not trying to challenge an existing conviction.
6.3.2009 10:39pm
J. Aldridge:
Whether the right of the people to keep and
bear arms guaranteed by the Second Amendment to
the United States Constitution is incorporated into
the Due Process Clause or the Privileges or
Immunities Clause of the Fourteenth Amendment so
as to be applicable to the States...

Neither incorporates the Second Amendment, or any amendment for that matter. P&I's of United States citizens doesn't touch citizens within their own state. John Bingham said twice in 1866 and 1870 that "This guarantee is of the privileges and immunities of citizens of the United States in, not of, the several States."

The 39th Congress passed a "bill to declare and protect all the privileges and immunities of citizens of the United States in the several States,” aka Civil Rights Bill, and it said nothing about any of the first eight amendments.

Due Process has nothing to do with the question because that was defined a half-dozen times as the words of Chapter 39 of the Magna Charta.

Congress in 1868 passed a bill to protect the liberty of person under the 5th amendment in the event any citizen was “unjustly deprived of his [personal] liberty by or under the authority of any foreign government.” Under the act, the President was required to demand the “reasons for such imprisonment, and if it appears to be wrongful, and in violation of the rights of American citizenship, the President shall forthwith demand the release of such citizen.”

Jefferson said personal liberty under due process secures "every one from imprisonment or other bodily restraint but by the laws of the land. This is effected by the well-know law of habeas corpus."

Incorporation is a pathetic crime supported by idiots.
6.3.2009 10:56pm
Hadur:
It's a race against time. Scalia, Thomas, and Kennedy aren't getting any younger. I'm sure that at least one of them, if not two, is going to die before 2017. It will be a very liberal court that Obama leaves us with.
6.3.2009 11:08pm
Jim at FSU (mail):
I'm most worried about Scalia in the short term. Every time I see him I think he is getting closer to eating himself into a heart attack.

Thomas and Kennedy both seemed pretty healthy.

Thomas is my favorite justice and the one I'm most worried about replacing in the long term. I'm doubtful that any conceivable president would nominate anything close to a direct replacement for him. We basically hit the jackpot with him.
6.4.2009 12:16am
Melancton Smith:
J. Aldridge wrote:

John Bingham said twice in 1866 and 1870 that "This guarantee is of the privileges and immunities of citizens of the United States in, not of, the several States."

The 39th Congress passed a "bill to declare and protect all the privileges and immunities of citizens of the United States in the several States,” aka Civil Rights Bill, and it said nothing about any of the first eight amendments.


Boiled down, that's the crux of your argument with respect to the legislative intent? That's what you are going with? Sure you don't want a moment to chew a Twix or something?
6.4.2009 12:38am
LTR:
Thomas is only 61, people think he's older than he is because he was confirmed at tender age of 43. Plus he's apperently in very good physical shape. Scalia, on the other hand, worries me a lot. I hope he's eating healthy and doing regular checkups. Possibility of Obama replacing him with one of his shortlisters is disturbing. Even Kennedy is irreplaceable at the moment.

One thing we have working for us is magical power SCOTUS seat has on your life expectancy. They all seem to live past 80. And there's always hope Clown-in-chief won't get reelected.
6.4.2009 2:46am
J. Aldridge:
Melancton Smith wrote: "Boiled down, that's the crux of your argument with respect to the legislative intent?"

Not my argument. If you notice it is either Bingham or the 39th congress collectively speaking, which I happen to agree with. And there is much more than just legislative intent involved - there is legislative acts, meaning and interpretation involved.

And then there is judicial history involved too (Bingham said every word of the first section can be found under the original constitution).
6.4.2009 3:41am
Ryan Waxx (mail):
Erm, either stand behind your thesis or don't. I'm pretty sure the 39th congress isn't posting comments on this blog.
6.4.2009 7:33am
Houston Lawyer:
As someone who deals with filing deadlines all the time, I'm amazed that anyone would trust the mail room with any important package. I worked until 5:00 a.m. to get a document on a same-day delivery flight to DC to be filed with the SEC. At 8:00, I got a call from the partner in charge to say that the plane had crashed on the runway. Fortunately, by that time the SEC was accepting fax signatures, so we faxed the 1,000 page document up to an office in DC and made the filing on time.
6.4.2009 9:59am
Jon Roland (mail) (www):
J. Aldridge:

John Bingham said twice in 1866 and 1870 that "This guarantee is of the privileges and immunities of citizens of the United States in, not of, the several States."

You seem to have trouble understanding what Bingham meant. Let's analyze those statements in the light of historical usage of the time.

The rights against actions by government officials that pre-exist the constitution of government are immunities. Those that are created by the constitution of government or statutes authorized by it are privileges. That would include things like voting and holding office.

For each government, union or state, there are associated privileges and immunities, and, even after the 14th, different citizenships and individuals who hold each type. The problem addressed by the 14th was that some states refused to recognize as citizens the people recognized as citizens by the Union. The 14th was intended to fix that, at least for persons who were residents of a state for some unspecified period of time.

But the states also recognized some persons as citizens who would have have been thus recognized by the Union, mostly immigrants that had not been naturalized by Union rules but were allowed by the states to vote and hold office.

So the rights of the native-born or Union-naturalized were to be recognized by the states after residency requirements were met.

However, this formulation was flawed in that the rights recognized in the Constitution and Bill of Rights were the rights of persons, not just citizens. Foreign visitors had rights, too, just not rights to vote and hold office. The problem arose from the attempt by Taney in Dred Scott to associate rights with citizenship rather than personhood. The Framers of the 14th were so focused on voting and holding office that they neglected to fully address rights of personhood. It is clear from the debates that that was their intent but their wording was imperfect, and we have had to struggle with that ever since.

Bingham's statememts quoted above illustrate that.
6.4.2009 10:20am
Jon Roland (mail) (www):
Correction -- should read:

But the states also recognized some persons as citizens who would not have have been thus recognized by the Union, mostly immigrants that had not been naturalized by Union rules but were allowed by the states to vote and hold office.
6.4.2009 10:25am
Zombie Schuyler Colfax:
Ryan Waxx, don't be so sure.
6.4.2009 10:40am
Sebastian (mail) (www):
Hopefully Gura will be better prepared for oral argument than he was in Heller. A lot of us gave him hell over that but he's a tad arrogant.

Very easy to say when you're not the one up there arguing. But we won the case didn't we? How many cases have you argued and won before the Supreme Court? Just curious.
6.4.2009 11:04am
More Importantly . . .:

Scalia, Thomas, and Kennedy aren't getting any younger. I'm sure that at least one of them, if not two, is going to die before 2017. It will be a very liberal court that Obama leaves us with.


Two terms? For Comrade Barry? Unlikely.
6.4.2009 11:46am
Jon Roland (mail) (www):
Sebastian:

Hopefully Gura will be better prepared for oral argument than he was in Heller. A lot of us gave him hell over that but he's a tad arrogant.

Very easy to say when you're not the one up there arguing. But we won the case didn't we? How many cases have you argued and won before the Supreme Court? Just curious.

Gura had a won case going in but made concessions in oral argument that may be rewsulted in some of the points of dicta that are going to troubling us for decades, perhaps fatally if we lose the present majority on the SC. I discuss this in my blog article on it.

The arrogance I cite is from personal conversations in which he resolutely refuses to listen any suggestions from anyone, even those who have been in the trenches since before he was a twinkle in his parents' eyes. Good lawyers need to be open to good advice.
6.4.2009 12:16pm
Jon Roland (mail) (www):
Correction: Should have been "may have resulted".
6.4.2009 12:17pm
cboldt (mail):
-- Gura had a won case going in but made concessions in oral argument that may be resulted in some of the points of dicta that are going to troubling us for decades, perhaps fatally if we lose the present majority on the SC. --
.
I think the points of dicta are effectively binding precedent, and the rights thereby lost are lost (fatally, as you put it) regardless of the composition of SCOTUS. See the majority turn Miller on its head for evidence. See 70 years of overlooking misreads of Miller and Presser, with no accountability. All it takes is "cert. denied."
I hope Gura gets a "cert. denied" in the Chicago cases.
6.4.2009 12:34pm
Sebastian (mail) (www):
I think Gura went in, correctly in my opinion, ready to address the machine gun issue the way he did. Because if the Justices had thought they were opening the door to legalizing machine guns, he probably would have lost somebody. He'll tell you he would have lost all of them on a machine gun argument.

That's not to say I like the result, but I don't blame Gura for that. The federal judiciary is just not prepared to consider machine gun rights as being part of the Second Amendment. Gura isn't the only 2nd Amendment attorney I've talked to who thinks that. It comes down to, you can have a Second Amendment that puts machine guns outside its protection, but still protects some degree of individual gun ownership and possession, or you can have no Second Amendment.
6.4.2009 1:26pm
cboldt (mail):
-- It comes down to, you can have a Second Amendment that puts machine guns outside its protection, but still protects some degree of individual gun ownership and possession, or you can have no Second Amendment. --
.
Two points. First, if SCOTUS is going to reverse the Miller case, it should do so openly, and not by lying about what Miller held. I have completely lost my respect for the Supreme Court majority. Completely. And I teach others to look at Miller, and look at the Majority in Heller, and decide if the Heller Court is acting in basic honesty. It is not. It is a kangaroo/banana-republic style of jurisrpudence. If that's what the country has come to, then the people deserve to be educated on the point.
.
Second, given the choice you set out, I'd pick the second one. NO Second amendment, per SCOTUS. I hope they deny cert to the Nordyke/Chicago/Maloney suite (and any others that might pop up).
.
Oh, a third point, as as afterthought. I have the same opinion of 2nd amendment lawyers who neglect to inform the public or their clients of what Miller and Presser actually say, in the same regard I hold SCOTUS.
6.4.2009 1:49pm
Redlands (mail):
It would be nice if the court, assuming it grants cert., accepts the Petitioners'invitation to reevalutate the privileges or immunities clause as a means of applying Heller to the states. Don't think it will happen, but I keep hoping.
6.4.2009 5:22pm
J. Aldridge:
Jon Roland said: "The Framers of the 14th were so focused on voting and holding office that they neglected to fully address rights of personhood."

"A bill to declare and protect all the privileges and immunities of citizens of the United States in the several States,” became law on April 9, 1866:
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.


What was that you were ranting on about again?
6.4.2009 6:09pm
PubliusFL:
More Importantly: Two terms? For Comrade Barry? Unlikely.

That's what I thought in early 1993 (replace "Barry" with "Bill").
6.4.2009 6:21pm
Tony Tutins (mail):
What an embarrassment of riches Halbrook had to draw upon when writing that petition. Hard to keep it short.

It reads fairly well. A couple of points: Quoting Howard was a double-edged sword for Scalia: his words could be taken either for legislative intent (bad) or original meaning (good).

"Non-textual" is a funny synonym for "unenumerated," while "explicitly-guaranteed" is a pretty good synonym for "enumerated."
6.4.2009 7:28pm
Tony Tutins (mail):

Incorporation is a pathetic crime supported by idiots.

Imagine a world without it. Religion classes in public schools, tax money going to the Church of Illinois, special taxes on tefillin and prayer rugs, while crosses are made free for the asking. State licenses for printing presses, including your laserjet. A Review Board of police widows to pass on all media before it can be sold at retail. Jaycees banned entirely. National Guard members sleeping on your couch.

Police ransacking your house and your person to see if you have anything you shouldn't. Prosecutors trying you over and over again till they find a judge who will convict you. Being locked up for years in the county hoosegow before a trial date is set.

Put me down as another idiot, please.
6.4.2009 7:44pm
J. Aldridge:
> Imagine a world without it.

I am. My grandparents and parents (pre-Warren) lived through such a time of no incorporation and life was just peachy.

People really are capable of governing themselves you know?
6.4.2009 7:59pm
Jon Roland (mail) (www):
J. Aldridge:

"A bill to declare and protect all the privileges and immunities of citizens of the United States in the several States,” became law on April 9, 1866

That Civil Rights Act was more coherently composed than was the 14th Amendment, which is what I was talking about.
6.4.2009 8:12pm
Tony Tutins (mail):

My grandparents and parents (pre-Warren) lived through such a time of no incorporation and life was just peachy.

I would have thought J. Aldridge cared about his free speech rights.
6.4.2009 8:26pm
J. Aldridge:
I would have thought J. Aldridge cared about his free speech rights.

They are protected just fine where they always have been protected. No laws here that says I cannot disagree with pro-incorporationists.
6.4.2009 10:26pm
J. Aldridge:
Jon Roland wrote: "That Civil Rights Act was more coherently composed than was the 14th Amendment, which is what I was talking about."

Why the 14th amendment was no more incoherent than Article IV, Sec II that it had copied.

Bingham, H.R. No. 22, January 30, 1871: "'No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,' does not, in the opinion of the committee, refer to privileges and immunities of citizens of the United States other than those privileges and immunities embraced in the original text of the Constitution, article four, section two."

Bingham: "It is to secure to the citizens of each State all the privileges and immunities of citizens of the United States in the several States. If the State laws do not interfere, those immunities follow under the Constitution."
6.4.2009 10:38pm
Jon Roland (mail) (www):
J. Aldridge:

Jon Roland wrote: "That Civil Rights Act was more coherently composed than was the 14th Amendment, which is what I was talking about."

Why the 14th amendment was no more incoherent than Article IV, Sec II that it had copied.


We can see the incoherence in the words of Art. IV Sec. 2:

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

That is not very specific, but seems to suggest that persons in each state that are citizens of any state have all the privileges and immunities of at least two states. However, in other debates and speeches Bingham stated it included the rights recognized in the original Constitution and Bill of Rights. See here.

It is incoherent in associating privileges and immunities with citizenship in one place yet making all natural-born or US-naturalized persons citizens, when the rights (privileges and immunities) in the original Constitution and Bill of Rights are associated with personhood. It neglects to cover foreign visitors and state-naturalized citizens.
6.5.2009 12:41pm
J. Aldridge:
However, in other debates and speeches Bingham stated it included the rights recognized in the original Constitution and Bill of Rights.

There was no bill of rights when Article IV, Sec. II was adopted and no court or scholar ever claimed the addition of the bill of rights added anything to the P&I's. Bingham was always pretty consistent in stating the rights secured were the same as described by Story, Webster, i.e., whatever those fundamental rights secured by state law to state citizens.
6.5.2009 6:42pm
David M. Nieporent (www):
First, please don't fall into Aldridge's trap of letting him pretend that what John Bingham said in a speech is somehow law. Second, he's simply not being honest about what Bingham said; Bingham repeatedly said that the 14th amendment was intended to incorporate the Bill of Rights.
6.5.2009 11:35pm
J. Aldridge:
Bingham repeatedly said that the 14th amendment was intended to incorporate the Bill of Rights.

Sure, but he also always qualified what bill of rights he was speaking of:
But I feel that I am justified in saying, in view of the text of the Constitution of my country, in view of all its past interpretations, in view of the manifest and declared intent of the men who framed it, the enforcement of the bill of rights, touching the life, liberty, and property of every citizen of the republic within every organized State of the Union…


Who can argue he did incorporate due process since those are the words we find incorporated? Who did you say was being dishonest again?
6.6.2009 10:41am

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