Chicago Gun Case
Plaintiffs’ Motions to Strike Answer, and for Summary Judgment, Filed
As a non-lawyer, I don’t know what that means.
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August 1st, 2008 at 11:44 am
As a non-lawyer having just read those two documents I get this. The Motion to Strike Answer is saying that Chicago’s filed answer to the suit is full of sh*t and should be removed from the case documents. The Motion for Summary Judgement is saying the facts are pretty freakin’ obvious just tell Chicago that they’re full of it and rule in our favor.
August 1st, 2008 at 12:03 pm
David, Phoenix, AZ Says:
August 1st, 2008 at 11:44 am
As a non-lawyer having just read those two documents I get this. The Motion to Strike Answer is saying that Chicago’s filed answer to the suit is full of sh*t and should be removed from the case documents. The Motion for Summary Judgement is saying the facts are pretty freakin’ obvious just tell Chicago that they’re full of it and rule in our favor.
So why cant these over-educated but still stupid lawyers just say that instead of this legalese BS?
August 1st, 2008 at 12:07 pm
As a nonlawyer myself, I interpret the documents to be taking a swing at a pitch, hitting it deep over the center fielder’s head towards the center
field wall, and watching to see if the ball goes over the wall or not.
The City of Chicago basically failed to dispute the factual claims in the lawsuit, essentially ceding the facts in the case to be exactly as stated by the plaintiffs. Based on that, the plaintiffs are saying, “Hey, since the facts of the case are as we stated, and the City of Chicago agrees, how about the court just agree with us also and end this lawsuit in our favor without any further ado.”
I suspect that even if summary judgement is granted, the City of Chicago will appeal on the basis of “Hey, we want to keep our gun laws, no matter what the Constitution says!” This is essentially what the DC City Council did after LOSING at the Supreme Court, so why should Chicago act any differently?
August 1st, 2008 at 12:11 pm
Legalese BS is indeed a wonderful language, but its point is that every word in the law has a pre-defined and previously agreed upon meaning, and that every law should thus be understood in a fairly exact way by all who try to interpret it. That of course works only on any one side of a case, and why an adversarial system controlled by precedent and adjudicated by judges to try law and juries to determine facts works so well to decide who is right and who is wrong regarding their interpretation of the law.
August 1st, 2008 at 12:16 pm
As a lawyer, but not the kind y’all like, I have to say that Mikee is pretty close. Here’s the way it works: Judges decide law and juries decide facts, unless it is a bench trial, in which case the judge decides both. To win a motion for summary judgment (MSJ) you have to show that NO material facts are in dispute and that based on the undisputed material facts, the law requires that you win. To defeat a MSJ, you only have to show that at least ONE material fact is in dispute. An MSJ is just a means of bypassing all the stuff that takes forever and even skipping the trial.
MSJs seldom succeed, but in cases like this where the facts really are agreed to by all, then it is the perfect vehicle to reach a quick answer. Here, the facts are clear. Both sides agree that Chicago bans guns. The question is whether or not the Second Amendment is incorporated into the Fourteenth and therefore applies to states. There is not a much more clear question of law out there, and that is what judges decide.
August 1st, 2008 at 12:18 pm
It all boils down to tyranny which is great for officialdom when it comes to the basic right to keep AND CARRY arms. Any right is subject to being trampled when it comes to disarming citizens and keeping them that way!
That’s always been the historical discrimination between free people and SLAVERY. They SAY they support “civil rights” and they may even favor reparations for slavery done by other people in the past…but they favor denying civil rights and imposing the slavery NOW!
August 1st, 2008 at 12:49 pm
The defendant (Chicago) made no effort to confirm or deny the facts of the allegations. Facts and records of which are in their control, therefore the Plaintiffs rightly remind the court of settled law that this does not rise to level of denial and hence there are no questions of fact in dispute. The court is asked to disregard the defendant’s response (or non-response as is actually the case) in accordance with law and precedent.
Further they ask for a judgment from the bench in their favor as they have shown the lack of dispute of the facts and provide heavy evidence of the appropriateness of incorporation under fourteenth amendment application of the strictures against infringement of the rights protected under second amendment.
Oddly, this should not even require adjudication as the fourteenth was ratified to assure that all constitutional rights were to observed by all levels of government. While all the other rights are assumed to be covered by the fourteenth, the lack of a ruling specifically stating the 2nd amendment was incorporated has somehow for years been assumed that it was not.
It would seem the court would have no choice to but to rule in favor of the plaintiffs and declare the defendant’s actions unconstitutional and that the second amendment is, in fact, incorporated under the fourteenth amendment. I can’t wait to see what gymnastics the court performs to avoid doing so. I have confidence they will find a way. I sincerely hope I am wrong.
August 1st, 2008 at 1:20 pm
No way they’ll grant the summary judgement. The slaughterhouse precedents, flawed as they are, will provide enough of a fig leaf to at least require going to trial.
-m@
August 1st, 2008 at 4:10 pm
IANAL, but it looks like Chicago not only stepped, but stomped on their **** here.
Of course, they had to know they couldn’t actually dispute the facts without inviting sanctions.
August 1st, 2008 at 6:41 pm
Nazzofast, Guido. That would be true if incorporation of the Second Amendment had never been addressed by the Supreme Court or any Circuit Court of Appeals, but the problem is that there are two post-bellum Supreme Court decisions that state in no uncertain terms that the Second Amendment is explicitly NOT incorporated; those being U.S. v. Cruikshank and Presser v. Illinois. And, unfortunately due to stare decisis, lower courts are not permitted to tell the Supreme Court that it was out to lunch on precedent-setting cases (even when it obviously was.)
So what happens is that the lower courts are required by precedent to deny Incorporation, and the cases must make their way through appeal to the Supreme Court which is the ONLY court that can overturn Cruikshank and Presser.
IANAL, but that’s how I understand the system to work.
August 1st, 2008 at 9:52 pm
Kevin, I’d say one case, not two. Cruikshank provided the unfortunate language that the RKBA means only that the RKBA shall not be infringed by Congress, but IIRC the point of that decision was only Congress, as opposed to private parties, not only Congress as opposed to the states. If memory serves there is also language in Presser suggesting that state bans on gun ownership would be impermissible on other grounds. There are links to both cases at xrlq.com/cases.
It’s also worth noting that both cases predate the incorporation doctrine, so it’s not clear whether the incorporation cases have implicitly reversed them (or, as it were, Presser). Certainly some of the appellate cases, e.g, Silveira, suggested otherwise.
August 2nd, 2008 at 1:58 am
Xrlq, you’re saying this in the face of the fact that numerous Circuit Courts of Appeal read Miller to say that the Second Amendment protected only a collective right! That language wasn’t there! In Cruikshank the language specifically stating that the right is protected only against infringement by the Federal government IS.
Yes, there is language in Presser that counters this – I’ve quoted it myself on numerous occasions, but we’re dealing with gun control here. (I am reminded of the New Jersey Superior Court in Pelleteri:
I repeat: this is going to have to go all the way up to SCOTUS – again. No lower court is going to overturn. Not in Illinois, and not in California.
August 2nd, 2008 at 11:19 am
I’m not saying you’re wrong about that, only that it’s not clear that you’re right. The Ninth Circuit in Silveira certainly acted as though it thought that the Second Amendment, such as it was, applied to the states. Otherwise, it would have been a much shorter opinion: “Is California the federal government? No. The end.”
August 2nd, 2008 at 4:30 pm
Kevin, I agree that this of some such similar case will have to go to the Supreme Court to be settled as to the reach of incorporation.
However, stare decisis be damned. The language of the 14th says otherwise from Cruikshank or Presser. A lower court is not bound to a faulty decision because one was previously made by a higher court. It can rule opposite and let an apellant take it to the higher court. This is what should be done in this case.
A look at the fifth circuit and the ninth circuit as regards cases like Emerson, can’t recall the name of the ninth’s case holding opposite the fifth’s, right now, but at least one of them ruled contrary to stare decisis as they rendered opposite rulings on the same question. Their job is not to buttress another court, but to determine the law. Their duty is to rule according to the constitution even if someone else got it wrong.
August 2nd, 2008 at 4:31 pm
Having stated the above, I know how “the good ole boy” system works and I don’t expect it to happen, but that doesn’t mean they have fulfilled their obligation because they protected the status quo.
August 2nd, 2008 at 5:03 pm
Straightarrow, you’re wrong, this time on two levels. First, lower courts are indeed bound by a decisions rendered by higher court, whether they consider such decisions “faulty” or not. The closest thing an ethical judge can do to overruling a higher court’s bad precedent is to write an opinion that begs to be reversed, e.g., “Anyone who has read the Xth Amendment and isn’t a retard knows I ought to be ruling in favor of A rather than B right now, but I’m going to rule for B anyway since that asstastically stupid Supreme Court decision in Smith v. Jones leaves me no other choice. Here’s hoping the non-idiots who currently occupy the Supreme Court will re-visit Smith v. Jones and reverse my ruling, please.” Such opinions are never written in quite such crass terms as that, but they do exist. Second, there is no stare decisis between circuits. The Ninth Circuit, along with several others, nullified the Second Amendment long before the Emerson case ever went to trial. Thus, if federal circuits were bound by each other’s precedents, the Emerson case would have had to have been decided the same way.
August 2nd, 2008 at 8:33 pm
I concur with Xrlq. The two cases you refer to are Emerson (in the 5th) and Hickman v. Block (in the 9th). The 9th also had two subsequent cases, Nordyke v. King and Silveira v. Lockyer. It was in Silveira (post Emerson) that the 9th attempted their version of an “original understanding” analysis. One judge’s concurring opinion said, in essence, “Why did you bother with all of that? We set the precedent with Hickman. That was enough.”
The difference here is that the 5th looked at U.S. v. Miller and concluded that its sister circuits – which it is co-equal to – misinterpreted Miller. The 5th Circuit is not bound to follow precedent from other Circuits, else there’d be no “circuit splits” for the Supreme Court to decide.
In the en banc appeal denial of Silveira v. Lockyer, judge Kozinski made the point that Hickman had been wrongly decided (illustrated by the 5th Circuit’s analysis in Emerson) by stating:
Not even if the Supreme court was.
The Courts traditionally have avoided using Cruikshank as precedent precisely because it is so obviously racist and wrong. But it is precedent. Instead they chose to misinterpret Miller and now (to use the popular metaphor) that chicken has come home to roost.
Sorry, but incorporation – if it is to be done – must be done by the Supreme Court in overturning Cruikshank.
August 3rd, 2008 at 9:16 pm
I was not suggesting that stare decisis between circuits was at play. What I may not have made clear is that for them each to rule differently on the same question, one of them had to have been in opposition to stare decisis as settled by a higher court, else they would have both ruled the same, they did not.
If it is possible for them to reach opposite conclusion by basing their respective opinions on different precedent, it is still possible to do so and stand for the law. Either way, service to the law and constitution is possible and should be pursued.
As for my first point, tradition of obsequiousness to a higher court does not mean they have fulfilled their obligation to the law, despite all the precedent saying otherwise.
It is this inability to stand for the law that has made this whole damn thing a dog and pony show, subject to the whims of popular opinion.
Until very recently it was possible to predict with 100% accuracy which way the SC would rule by just watching the polls from main street America.
That ain’t the way it is supposed to work.
August 3rd, 2008 at 10:18 pm
The reason the circuits ruled differently is because there was no clear precedent set by the higher court. Both were bound by Miller, of course, but Miller was clear as mud, so it wasn’t hard for the circuits to rule inconsistently with each other, without either running afoul of what little precedent Miller had set.
I’m not sure it’s as clear as Kevin thinks that Cruikshank needs to be reversed rather than simply clarified, but Presser clearly does. Some circuits seem to think the Supreme Court has effectively reversed it already via the incorporation doctrine, which did not exist at the time of Presser. However, the Seventh Circuit is not among them, having ruled in Quilici v. Morton Grove that the Second Amendment is not incorporated. So whether or not a circuit court can incorporate the Second Amendment, it strikes me as a fairly safe bet that the Seventh Circuit won’t. In the unlikely event that it did, it would be reversing its own precedent from Quilici, unaffected by Heller. I’m pretty sure they could only do that en banc, so plan on losing the first two rounds, regardless.
That said, the idea that “the law” requires or even allows lower courts to flout higher court precedents solely because they disagree with them is, for want of a better word, nuts. If that were the rule, why have appellate courts at all?
August 4th, 2008 at 6:22 pm
If that were the rule, why have appellate courts at all?
If it’s not the case, why have them?
August 5th, 2008 at 7:41 am
Because appellate judges generally know the law a lot better than your average trial/district court judge does, and the Supreme Court is more elite, still. But also because we as a society benefit from having a system of laws that is uniform and, to a reasonable extent, predictable. When the next gun case comes before the courts, do you really want the lower court judges or even a state supreme court to rule that individuals have no right to bear arms (as most federal circuits did rule until the Supreme Court settled the question in Heller? Or is your real opposition to stare decisis really just an opposition to keeping precedents you think were decided wrong in the first place?
August 5th, 2008 at 12:21 pm
Gee, I don’t know why anyone wouldn’t want to keep rulings that were contrary to the constitution.
You left the real questions unanswered. If two different courts can rule opposite each other on the same issue and point to precedent and stare decisis, as we know has happened. Why can’t it be done again? Why would that be a bad thing if it forced a proper review and resolution of the issue?
August 5th, 2008 at 6:01 pm
No one wants to keep rulings that are contrary to the Constitution. The question is who decides. You seem to assume that the rogue courts would rule according to your interpretation of the Constitution, when in fact, they’re equally likely if not more so to rule against it.
As I mentioned earlier in the thread, there is a proper way for a lower court to signal to higher courts that the existing precedent is wrong: write an opinion that begs to be reversed. But there is no stare decisis between sister circuits, and nothing prevents a higher court from re-thinking its own rulings if warranted.