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McDonald case - coming amicus briefs on behalf of Chicago


GarandFan

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Here is a little insight regarding who might file amicus briefs supporting Chicago (arguing that the 2A should not be incorporated).

 

http://www.pioneerlocal.com/skokie/news/19...1709-s1.article

 

• [skokie] Approved a resolution authorizing the village to join Winnetka and the Illinois Municipal League in a brief pertaining to the Second Amendment before the U.S. Supreme Court. There are several cases, jointly referred to as McDonald and National Rifle Association vs. Chicago and Oak Park pending before the U.S. Supreme Court. The cases challenge Chicago and Oak Park ordinances regulating firearms, especially handguns, within their municipalities.

 

I have heard from a "local" that Wilmette might also join that brief. These municipalities are, of course, worried that they might no longer be able to infringe the right of the people to own and carry arms.

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Ah, thanks. So does anyone know the deadline by which the court will cease admiting amici on behalf of Chicago?

 

I know that Chicago's merits brief (Respondent's Brief) is due 30 December, and the amici for Chicago due a week later.

 

ALEC ... a federalism group. I am all for state's authorities long as they don't violate fundamental rights, but I am surprised such a conservative group would oppose incorporation of the 2A. Perhaps their main argument will be against P or I incorporation.

 

From the Docket, it looks like the court took about 3 weeks to grant the ALEC leave to file a brief.

 

Nov 23 2009 Motion for leave to file amicus brief filed by American Legislative Exchange Council.

Nov 30 2009 SET FOR ARGUMENT ON Tuesday, March 2, 2010.

Dec 7 2009 CIRCULATED.

Dec 14 2009 Motion for leave to file amicus brief filed by American Legislative Exchange Council GRANTED.

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Never mind ... I also found this on the docket. Looks like Chicago is the most restrictive, requiring a 10 day notice of intent to file. I suppose that the Winnetka/Skokie group could write notice of intent to file 10 days before it's due to the court. Rough numbers put that at a filing date of 27 December. Under two weeks from now.

 

Honestly ... how many amici could Chicago hope to get in this case? (1) ALEC, (2) some various State AGs like HI, NJ, etc., (3) probably some gun control groups, (4) probably some cities with a history or inclination to ban guns. Whom else??

 

 

 

Oct 14 2009 Consent to the filing of amicus briefs, in support of either party or of neither party,conditioned on 7 day written notice of intent to file, received from counsel for the petitioner.

Oct 16 2009 Consent to the filing of amicus briefs. in support of either party or of neither party, conditioned on 7 day written notice of intent to file, received from counsel for respondents National Rifle Association of America, Inc., et al. in support of petitioners.

Oct 19 2009 Consent to the filing of amicus briefs, in support of either party or of neither party, conditioned on 10 notice of intent to file, received from counsel for respondents City of Chicago and Village of Oak Park.

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Ok, I was mistaken. The ALEC guys are attempting to file a late amicus in support of McDonald. This brief was mentioned by Gura on the site as being late and not of much consequence and likely to not be accepted.
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Honestly ... how many amici could Chicago hope to get in this case? (1) ALEC, (2) some various State AGs like HI, NJ, etc., (3) probably some gun control groups, (4) probably some cities with a history or inclination to ban guns. Whom else??

 

Perhaps a small bloc of anti-gun Congressmen (similar to the one filed on behalf of Mr. Heller)?

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Honestly ... how many amici could Chicago hope to get in this case? (1) ALEC, (2) some various State AGs like HI, NJ, etc., (3) probably some gun control groups, (4) probably some cities with a history or inclination to ban guns. Whom else??

 

Perhaps a small bloc of anti-gun Congressmen (similar to the one filed on behalf of Mr. Heller)?

 

Yes, McCarthy, Schumer, Durbin, who knows. But you are right ... I do anticipate a handful of those folks to file.

 

Note ... similar to the one filed on behalf of DC.

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Dec 14 2009 Motion for leave to file amicus brief filed by American Legislative Exchange Council GRANTED.

 

Looks like ALEC has been allowed to file their brief. I'm keeping an eye out on the guncase site for it.

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I predict it will focus on due process incorporation, and try to deflect arguments for P or I incorporation. Just a guess ... Seems that some conservatives are frightened to death over P or I, and ALEC is definitely a conservative group.

 

Yes, FF, please post a reply when you find the brief on the Chicago gun case site.

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I predict it will focus on due process incorporation, and try to deflect arguments for P or I incorporation. Just a guess ... Seems that some conservatives are frightened to death over P or I, and ALEC is definitely a conservative group.

 

Yes, FF, please post a reply when you find the brief on the Chicago gun case site.

 

Latest entry from Chicagoguncase.com.

 

Three quick items:

 

1. The Court has granted the American Legislative Exchange Council’s motion to file an amicus brief on our side. ALEC had given only two days notice of their amicus brief, and Chicago did not consent to the late filing, but neither did the Respondents file an opposition to that motion. The brief is now posted here.

 

2. Chicago and Oak Park did file an application with Justice Stevens to allow the filing of a combined oversize 22,500 word brief, which we did not oppose. After all, each respondent could have filed its own 15,000 word brief. That application was granted.

 

3. Finally, as it did in the Heller case, the State of Texas has sought leave to argue in McDonald, and as in the Heller case, I am not opposing that motion. It is significant that 38 states are on record supporting application of the right to arms against the states. Motions like this are very rarely granted and we would not consent to any others being filed on our side. I’m informed that Texas AG Greg Abbott would participate in the argument if the Texas motion were granted.

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  • 2 weeks later...

For those interested in McDonald and the Chicago handgun ban, the article should interest you. It's been out for a few days now. Note that Cato is arguing that the P or I clause of the 14th amendment be rejuvenated. More on Ilya here, but in summary, he works as senior fellow in constitutional studies at Cato, and has a JD from University of Chicago.

 

http://www.cato.org/people/ilya-shapiro

 

NOTE --- you should just go to the link below, as this article is hyper-linked throughout.

 

Properly Extending the Right to Keep and Bear Arms to the States

Posted by Ilya Shapiro

 

http://www.cato-at-liberty.org/2009/12/21/...-to-the-states/

 

I recently blogged about an interesting op-ed in which Ken Klukowski and Ken Blackwell of the American Civil Rights Union argue that the Supreme Court need not overturn The Slaughter-House Cases while “incorporating” the right to bear arms against the states. (Josh Blackman fisked the article in more depth here.) This piece was essentially a distillation of the ACRU’s amicus brief in McDonald v. City of Chicago, which ultimately argues, like Cato’s brief, that Chicago’s gun ban is unconstitutional.

 

It has come to my attention, however, that I mischaracterized one aspect of the Kens’ op-ed (sorry about that): while they are indeed against overturning Slaughter-House, the authors still seek to apply the Second Amendment right through the Privileges or Immunities Clause (like Cato and most libertarians), rather than through the Due Process Clause (like many conservatives and gun rights proponents). This is the ACRU’s main argument, and it is based largely on Ken Klukowski’s recent law review article – indeed, the brief’s body cites Klukowski article some 20 times, often for propositions that find no further support in case law or academic literature. (Josh has also provided a short critique of the ACRU brief/Klukowski article, so I won’t do that here.)

 

In any event, this clarification gives me an opportunity to name and outline the five possible ways a justice could come down in the McDonald case:

 

1. “Extreme Anti-Gun” — Affirm the lower court in its entirety, deciding that it correctly interpreted Supreme Court precedent, that reconsideration of this precedent is unwarranted, and therefore that neither the Second Amendment nor the right to bear arms it protects extends to people in the states (as opposed to in federal territories, like the District of Columbia). I can’t imagine that any justice will vote for this way; even those who dissented in Heller generally support the selective incorporation of rights against the states.

2. “Conventional Liberal” – Affirm the lower court in part but clarify that while the Second Amendment is indeed “incorporated” as against the states via the Due Process Clause, Chicago’s gun ban is still okay — possibly under a test weighing the individual right against the city’s interest in reducing gun violence. There may be one to four votes for this position: Justice Breyer likes balancing tests; Justice Stevens may feel that his hometown’s regulations are justified; and Justices Ginsburg and Sotomayor may feel the same way about New York.

3. “Conventional Conservative” — Reverse the lower court, “incorporate” the Second Amendment via the Due Process Clause — adopting an analysis akin to that of Ninth Circuit Judge Diarmuid O’Scannlain in the Nordyke case — and strike down Chicago’s gun ban. The NRA’s brief primarily advocates this position, as do many conservatives fearful of the Privileges or Immunities Clause. There may be one to eight votes for this position: The “minimalist” Chief Justice Roberts may be hesitant to overturn longstanding precedent; Justice Scalia may decide that the devil he knows (substantive due process) is better than the one he doesn’t (privileges or immunities); Justice Kennedy may feel vested in his own expansive “fundamental rights” jurisprudence under the Due Process Clause (see my review of a book analyzing that jurisprudence); Justice Alito may share one or more of the above sentiments; and one or more of the aforementioned liberals may decide to “bite the bullet” and go along with this position.

4. “Mend Slaughter-House, Don’t End It” — Reverse the lower court, overturn three old precedents — Cruikshank (1876), Presser (1886), and Miller (1894), which were decided at a time when none of the rights in the Bill of Rights was considered to apply to the states – “incorporate” the Second Amendment via the Privileges or Immunities Clause without touching Slaughter-House, and strike down Chicago’s gun ban. This is the ACRU position, and while I don’t think it’s textually or historically supportable – a scholarly consensus across ideological lines holds that Slaughter-House was both wrongly decided and forecloses any significant application of the Privileges or Immunities Clause — it could emerge as a political “compromise.” (If Justice O’Connor were still on the Court, I could maybe see her advancing this position.)

5. “Originalist/Libertarian” — Reverse the lower court, overturn Slaughter-House and the three aforementioned cases, extend the right to keep and bear arms to the states (which is technically distinct from “incorporating” the Second Amendment), and strike down Chicago’s gun ban. This is Cato’s position – as well as that of the liberal Constitutional Accountability Center on behalf of eight leading constitutional law professors from across the political spectrum – and there will be one and may be up to all nine of the justices here: Justice Thomas has long said that he’d like to revisit Slaughter-House in the appropriate case, and he surely led the push to grant a cert petition whose question presented called for briefing about the Privileges or Immunities Clause; any of the others who seriously grapple with the arguments in Alan Gura’s brilliant petitioners’ brief (and those of his amici, us included) will also have to go this way despite their various political qualms.

 

In short, I see at least five votes in favor of extending the right to keep and bear arms to the states, but it’s an open question as to whether the Court will do that via the Due Process of Privileges or Immunities Clause of the Fourteenth Amendment.

 

Now, you may ask why, if I’m so confident that the fifth option above is correct, don’t all conservatives qua self-professed “originalists” gravitate towards it (and, conversely, why some liberals qua “living constitutionalists” do). That’s an unlawyerly matter of policy preferences: as the Kens’ op-ed details, conservatives (and some libertarians), while wanting to extend Heller’s interpretation of the Second Amendment to the states, are wary of opening a Pandora’s Box of positive rights (health care, housing, welfare, etc.), as well as the perpetual culture-war bogeymen (abortion, gay marriage, pornography, etc.). Liberal intellectuals, meanwhile, are holding their nose at having to extend gun rights because they feel that’s the only concession they have to make to achieve their utopic constitutionalization of the entire progressive agenda.

 

While libertarians share the conservative concern about positive rights — as well as legal, if typically not policy, qualms about courts’ handling of social issues (e.g., that Roe v. Wade is bad law even if some libertarians are pro-choice; that Lawrence v. Texas is good law but achieved through Kennedy-esque hand-waving rather than sound legal reasoning) – many of us see the benefits of being able to protect economic liberties and other natural rights. For example, unlike conservatives, we generally like Lochner, the 1905 case that struck down on “liberty of contract” grounds a New York law limiting bakers’ hours.

 

Yes there’s a danger — particularly if President Obama gets to replace not only Justices Stevens and Ginsburg, but also Scalia and Kennedy – that overturning Slaughter-House will open the aforementioned Pandora’s Box, but: 1) that danger isn’t necessarily mitigated by somehow managing to use the Privileges or Immunities Clause without overturning Slaughter-House; 2) the danger is no different than under the current substantive due process doctrine; and 3) if we are to remain originalists not just in overturning Slaughter-House but in future jurisprudence, the progressives’ arguments fail, the danger is averted, and the Box stays sealed. Josh Blackman and I wrote our article, “Keeping Pandora’s Box Sealed: Privileges or Immunities, The Constitution in 2020, and Properly Extending the Right to Keep and Bear Arms,” in part to address the valid concerns (sketched in the Kens’ op-ed) about the consequences of truly reviving the Privileges or Immunities Clause.

 

While we won’t assuage the staunchest social conservatives – (adult) pornography is protected speech (but even more so is political advertising!) – we should mollify many faint-hearted originalists. Anyone who thinks the Constitution is a “dead” document, whose text is to be interpreted according to its original public meaning, has to admit that the Privileges or Immunities Clause protects something more than what Slaughter-House said it did.

 

To see how all this works in greater detail, read our Pandora’s Box article, which I’ve previously discussed here , here, and here. And again, Cato’s amicus brief is here; see also this law review article by its principal author, Cato adjunct scholar Timothy Sandefur.

 

Ilya Shapiro • December 21, 2009 @ 7:52 am

Filed under: Government and Politics; Law and Civil Liberties

Tags: ACRU, due process, Fourteenth Amendment, josh blackman, ken klukowski, mcdonald v. city of chicago, Privileges or Immunities, second amendment, substantive due process

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Great info... Can anyone explain, in layman's terms, the major difference between extending the right to keep & bear arms to the states and incorporating the Second Amendment? Thanks!

 

In layman's terms ... incorporating the Second Amendment is in fact what does extend the right to keep & bear arms to the states.

 

In reality, it's not exending the right to the states ... it's mandating that states also not infringe the right protected by the 2A. So technically, it doesn't extend the right so much as it limits the power of state and local government to regulate and restrict the right.

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as the Kens’ op-ed details, conservatives (and some libertarians), while wanting to extend Heller’s interpretation of the Second Amendment to the states, are wary of opening a Pandora’s Box of positive rights (health care, housing, welfare, etc.)

 

Yes, open the box! But even if those issues are classified as rights that would just limit the fed and the states from interfering with the pursuit of, not legislate, regulate and force it upon an individual under the threat of deprivation of life, liberty or property.

 

Fears of a reversal of Slaughter-House has proffered the fear of forced healthcare, housing or welfare. Two of which we already have forced upon us even under Slaughter-House. With rights you have a right not to exercise them. The governments role at all levels should protect the unlawful interference in the exercise of a right.

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Yes, open the box!

 

The box is already open ... I don't know how many US Senators, when speaking of this new health care initiative, discuss the "right of the people" to be given health care if they cannot afford it.

 

It's complete bull**** ... that people possess a right to be given anything ... but it's out there. The box is open.

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Chicago wrote:

 

Handgun restrictions can be an effective tool for

curbing criminal street gangs, a major source of

crime and violence in Chicago. When the police see

gang members suspected of carrying guns, they can

make an arrest and remove the gun from the street.1

This makes it riskier for gang members to ply their

trade outdoors, thus making the streets safer.

Criminal street gangs with the right to carry guns2

could use those guns to increase fear in their

communitie and violence used to control the drug

trade that is their lifeblood.

 

1. So lets just toss out the 4th Amendment as well.

2. This is absolutely ridiculous. No one is claiming criminals have the right to carry much less possess firearms in their homes.

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Chicago has filed their brief.

 

 

A quick review of it as I read it.

 

· They argue that there is no right to own a firearm for self defense – that was not the concept of the Second Amendment.

 

· “Second Amendment protects weapons regardless of whether they are useful for self-defense.” Pg 5 I guess they are arguing that machineguns are legal and against the Cook County and Chicago AW ban.

 

 

· Pg 14 because handguns are concealable they facilitate unlawful use.

 

 

· They are fearful of the court finding not only the right to own a handgun but the right to carry one they say: “Criminal street gangs with the right to carry guns could use those guns to increase fear in their communities and violence used to control the drug trade that is their lifeblood.” Pg 16

 

 

· Pg 17 they are terrified of right to carry – “For example, although Heller recognized that prohibitions on concealed carrying of firearms had been frequently upheld, the Court did not directly address the status under the Second Amendment of laws prohibiting or severely regulating any carrying of firearms. Nor did the Court comment on requirements that those who carry firearms be licensed. At least eight States condition the possession or carrying of handguns in many or all instances on a permit that generally issues only upon a showing of at least good cause or necessity.7 And these States generally have wide discretion in issuing them. The extent to which these requirements would be upheld under the Second Amendment is at present unclear. The Court noted that the term “bear” in the Second Amendment “refers to carrying for a particular purpose—confrontation.” Heller -- I’ve been saying this for the last year ! ! !

 

 

· Right to Carry is on the table and they are wetting their pants over it. “Of course, there may be many places in which a State would conclude that the unlicensed open or concealed carrying of weapons poses no concern. But surely there are others, such as gang-infested areas of major cities, in which such carrying could increase gangrelated domination and intimidation and cause the local community to prohibit it.” Pg 19

 

 

· They are so scareds of this stuff they now talk about banning bolt action hunting rifles. Footnote 9 –“ 9 For example, application of the Second Amendment’s protection for weapons in common use (see pp. 23, 26, 36, infra) would raise questions whether a weapon generally in common use for lawful purposes in one locale (such as a high-powered hunting rifle with precision sighting equipment popular in rural Illinois) must be allowed elsewhere, precluding a ban on use by Chicago gangs seeking to assassinate rivals.”

 

 

· Footnote 10 they are scared about 1 gun a month and mandatory storage laws.

 

 

· Pg 27 they get into the common use argument and no lament that AW bans may be challenged.

 

 

my head is swimming with this stuff more later.

In Summery they are re arguing Heller, scared whitless of "in common use" and terrified of "keep and carry in case of confrontation"

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Looks like they'll have James A. Feldman arguing for them, judging by the addition of his name to the brief.

 

He argued and lost to Halbrook in the US v Thompson Center Arms in 1991.

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Question - Whether the Second Amendment right to keep and bear arms is incorporated against the States by the Fourteenth Amendment’s Due Process or Privileges or Immunities Clause.

 

Chicago's answer - we don't like either one, is that an option? We have some Brady and LCAV studies to cite. We don't want criminals to have guns, never mind they are already barred from owning them. Open or concealed carry, oh schitz! :headbang1:

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Northshore communities already ban carrying concealed weapons by their own virtue and openly too. You'd be hard-pressed to find a town in Illinois that does NOT have a ban on carry some sort of weapon. It's intriguing that Chicago finally is going to be forced from a Federal standpoint (and Illinois at large) to recognize citizens' inalienable right to defense. If Chicago would have held it's nose and forced it's people to support passage of a CCW shall issue law, we would not even be reading these briefs. But hey, I'm glad the Fed's will be forcing states to recognize the 2nd (as it appears).
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Chicago asserts this, which to my reading invalidates their ban:

 

In United States v. Cruik-

shank, 92 U.S. 542 (1876), the Court held that the

Second Amendment does not apply to the States,

finding the right to bear arms is not “in any manner

dependent upon [the Constitution] for its existence.”

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Here they argue that overruling Slaughter-house to re-invigorate P+I will displace Due Process. Which is ridiculous.

 

Overruling Slaughter-House and its progeny would

create a chaotic situation in constitutional law. It

would immediately call into doubt the scope of consti-

tutional rights enforceable against the States by two

important classes: aliens and corporations. If the

Privileges or Immunities Clause were to displace the

Due Process Clause as the vehicle of incorporation,

then, according to petitioners, all of the first eight

Amendments (and additional rights besides) would

apply to the States. Pet. Br. 6, 7, 14, 15, 22, 26, 27,

33.

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Near the end they try to argue that concern over disarming of newly freedmen was due to the fact that it was not fairly applied to whites as well. This is ridiculous because anyone seriously trying to disarm white back in the 1870s would have been tarred and feathered.

 

In the separate debates over civil rights legislation,

Members of Congress who raised concerns about

disarmament mostly stressed the need to give freed-

men equal treatment with respect to arms.

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Page 34:

Nor does anything in Heller suggest (and there is otherwise no

reason to believe) that the right to keep and bear

arms would have been included in the Bill of Rights

were it not for this militia-related purpose.

 

"...the right of the people to keep and bear arms...".

 

I'm just a citizen, not a king or lawyer. But it seems the lawyers for Chicago are saying that the 2nd Amendment protects the Illinois National Guard from the USA Federal Government. This is settled law; the 2nd Amendment is an individual right, and the citizens militia is one of the reasons the Framers recognized it. But not the only reason. Why are the lawyers in Chicago still saying that the 2nd Amendment means the Fed's can't disarm the Illinois National Guard? It doesn't make an sense.

 

No American believes that the 2nd Amendment of the USA Constitution means that the Feds cannot take guns from the Illinois National Guard. The people are not stupid. The people know that that a phrase "...the right of the people..." refers to them as individuals.

 

Trash! That's the brief from the lawyers in Chicago. Internally inconsistent & illogical.

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Page 35:

...there is every reason to believe that the Framers

thought that the non-militia-related aspect of the

right—primarily, the desire to have arms available

for self-defense—would be adequately protected in

the political process (as the right was in England, see

128 S. Ct. at 2798) by the ordinary process of democratic

decisionmaking.19

 

The political process in Chicago has not protected the right to self-defense. Pffftttt !!. And that is why the judiciary must make the legislative branch respect the written Constitution.

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I do not believe it bodes well for their case that in the first two pages of the case summary they seem to take a contrary position to areas already laid out or argued in Heller.

 

The brief spends a lot of time arguing that incorporation would be contrary to the concept of "ordered liberty", but do not have any cites of explanation of why an incorporation argument would be contrary to or ordered liberty and assert that their position does fit ordered liberty without cites of proof, just take their word for it. Based on the arguments provide I ended up seeing ordered liberty as an evasive issue that can be argued either way and you never know where the road not taken would end up. Somehow Chicago leaves me with the impression that the road of ordered liberty leads to slavery.

 

FF, I agree, take some of Chicago's assertions about incorporation and reapply them to the bill of rights and the 1st,4th&5th amendments would fall into question regarding incorporation.

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It's gonna take me a few days to digest all of this. It's well written, poorly argued, poorley researched. Hollbrook should have a field day with this as far as the 14th amendment goes and historical context.

 

If you go back to my commentary about Heller after it was decided, they have keyed in on the very same things I have been talking about.

 

Keep and carry in case of confrontation. Notice they argue about may issue vs shall issue.

 

They bring in the in common use and get to the modern firearms. They even dance around machineguns tryign to scare the court.

 

They go back to the "militia" arguement even though Heller said did not change the 'right'.

 

All things considered, I read this as just how scared they are and how far they think this will go.

 

It bodes well for us. Now to wait and see what their Amici look like.

 

anybody want to bet that LCAV turns in a brief like the one they filed in MASS??

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Keep and carry in case of confrontation. Notice they argue about may issue vs shall issue.

 

They bring in the in common use and get to the modern firearms. They even dance around machineguns tryign to scare the court.

 

How scary can it realistically be considering 42 states allow possession of machine-guns and only 9 states are may issue.

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