Embarrassingly Bad Amicus Briefs in the Chicago Case

Embarrassingly Bad Amicus Brief in the Chicago Case

I just finished reading carefully this amicus brief filed in the case now before the Seventh Circuit concerning Chicago's ban on new registration of handguns (which effectively bans buying a handgun in Chicago, or moving into Chicago with a handgun). The ordinance being challenged is a ban not on carrying (which is not legal in Chicago), but on possession in one's own home. I'm astonished at how poorly researched and thought out it is.

Now remember: the claim that our side is making here is that the Second Amendment applies to the states, and thus a general state or local ban on handgun possession in one's home is unconstitutional. We're not arguing (in this case) that there is a right to carry a gun outside your home. Nor are we arguing that the government may not regulate convicted felons, the mentally ill, or minors, from acquiring or possessing firearms. (I'm sure the ACLU will make that argument, at some point, because it's discriminatory.)

1. They claim on p. 4, "The country has a history of prohibiting under the police power classes of firearms, including nonmilitary-use pistols that are concealable and prevalent in the commission of crime." In some states, in some regions, there is such a history, but certainly not in all states, or even most. And many of these laws have been struck down, sometimes for violating the Second Amendment, sometimes for violating a state RKBA provision.

2. They quote Cooley on p. 8 that the right to keep and bear arms

extends no further than to keep and bear those arms which are suited and proper for the general defense of the community against invasion and oppression, and it does not include the carrying of such weapons as are specially suited for deadly individual encounters, and therefore the carrying of these, concealed, may be prohibited.

But Cooley's statement, even it was an accurate statement of the laws for the nation as a whole (and it was not accurate when Cooley wrote it in 1884), specifically refers to concealed carry outside of one's home--not possession in one's home.

3. They cite Andrews v. State (Tenn. 1871) on pp. 8-9 in defense of their possession ban--but that decision only upheld a ban on concealed carry, and specifically denied that the Second Amendment applied to the states. The Tennessee Constitution's arms provision had "for their common defence" in it, and this was construed more narrowly by the Tennessee Supreme Court than the U.S. Supreme Court has construed the Second Amendment in Heller. More importantly with respect to the question before the Tennessee Supreme Court, the Andrews decision recognized that possession in one's home was protected:

The keeping of arms is protected, but that right is not infringed by this law. The citizen may keep arms in his house, may carry them about his own premises, may buy and carry them home, may take them to have them repaired.

4. They add emphasis to the words "or privately" in quoting from Andrews:

the Act of the legislature in question, so far as it prohibits the citizen ‘either publicly or privately to carry a dirk, sword cane, Spanish stiletto, belt or pocket pistol,’ is constitutional.

The implication of this emphasis is that Andrews was referring to carrying such weapons in one's home. Reading the entire decision suggests that "publicly or privately" refers to open or concealed carry outside one's home. And the sentence in Andrews that follows the one that they quote acknowledges that only pocket pistols could be prohibited:

The prohibition against keeping pistols extended to revolvers, and was upheld as constitutional to the extent it applied to non-military revolvers, but could not be upheld if it applied to military revolvers.

At most, citing Andrews as an authority would allow Chicago to ban pistols that were not military service sidearms.

5. On p. 9, they cite English v. State (Tex. 1872)--but the law in question was only a ban on carrying of pistols, and did not prohibit their possession at home. And the quote from the English decision claiming "almost every state in the union" had a similar law, was simply incorrect. California, for example, had no such ban, having repealed their existing concealed carry ban in 1870. Vermont had no such law, as did a number of Midwestern states. (Such laws typically only appear when black populations swell after the turn of the century.) If I dig a little, I could probably find first dates of concealed carry bans for other states as well that would prove my point. Oh, and English blames this whole gun problem on...Mexicans:

We will not say to what extent the early customs and habits of the people of this state should be respected and accommodated, where they may come in conflict with the ideas of intelligent and well-meaning legislators. A portion of our system of laws, as well as our public morality, is derived from a people to most peculiar perhaps of any other in the history and derivation of its own system. Spain, at different periods of the world, was dominated over by the Carthagenians, the Romans, the Vandals, the Snevi, the Allani, the Visigoths, and Arabs; and to this day there are found in the Spanish codes traces of the laws and customs of teach of these nations blended together into a system by no means to be compared with the sound philosophy and pure morality of the common law.

And the English decision has some other language that sounds like Moral Majority on steroids (except Moral Majority didn't try to disarm Mexicans):

It is useless to talk about personal liberty being infringed by laws such as that under consideration. The world has seen too much licentiousness cloaked under the name of natural or personal liberty; natural and personal liberty are exchanged, under the social compact of states, for civil liberty.

6. On p. 9, they cite In re Cheney, 90 Cal. 617 (1891). The case is actually Ex parte Cheney, 90 Cal. 617 (1891). Again, this was a San Francisco County ordinance banning concealed carry outside one's home--not possession in one's home, or even open carry. And their characterization of the decision as saying that when it comes to public safety that a city has "great latitude" is a bit short of what the decision actually said. The decision is actually far stronger and completely contrary to current judicial thinking. The California Supreme Court ruled that police regulations were

subject to some limitations, and must be reasonable, except when such ordinances
are intended for the prevention of crime and the preservation of the public peace, and in reference to which the legislative body of the city is vested with a discretion that is not reviewable by the courts.

Love that: "not reviewable by the courts." In addition, the Second Amendment was not raised in this case, making its relevance to a case where the Second Amendment is in play quite silly.

7. On p. 10, they cite People Ex Rel. Darling v. Warden of City Prison, a 1913 New York State case. But that decision specifically denied that any part of the Bill of Rights applied to the states. My book For the Defense of Themselves and the State on pp. 158-9 goes into considerable detail about the many factual and logical errors in this decision. But even the Sullivan Law, which Darling upheld, was not a complete ban on new registration of handguns.

8. A number of their citations, such as to Andrews and English, are built on the "handguns aren't the arms of the militiaman" but then they cite on pp. 10-11 decisions upholding bans on assault weapons. Which is it? If handguns that aren't military arms can be banned because they aren't military arms, then what about assault weapons, which are banned because they are too much like military arms?

9. Does there come a point where a brief's citation of cases qualifies as something punishable by a court for deception? I notice that they cite State v. Rupe (Wash. 1984) n. 9 in defense of the claim:

Regulating arms under the police power to prevent crime and protect the safety of the broader community is in fact pervasive, and has been subject only to “reasonableness” review in virtually every state to consider the question.

But Rupe found that the possession of a CAR-15 and a riot shotgun were constitutionally protected by the Washington Constitution's arms provision, ordering retrial of the penalty phase of Rupe's capital murder case. And this was the only basis for appeal on which the Washington Supreme Court ruled in Rupe's favor. Even assuming that the authors of this brief have properly quoted note 9 concerning "reasonableness review" (I don't have a copy of the case anymore), the overall decision utterly rejects the "assault weapon bans" argument used elsewhere in this brief by finding that such weapons are constitutionally protected!

10. Similarly, another of the cases that they cite as evidence for this "reasonableness review" claim is City of Princeton v. Buckner (W.Va. 1988). This decision did indeed acknowledge a reasonableness standard with respect to regulation of the carrying of arms, but the language makes it clear that the West Virginia's Supreme Court's definition of "reasonable" is pretty far removed from what Chicago's ban does:

We stress, however, that the legitimate governmental purpose in regulating the right to bear arms cannot be pursued by means that broadly stifle the exercise of this right where the governmental purpose can be more narrowly achieved. [City of Princeton v. Buckner, 377 S.E.2d 139, 146, 149 (W.Va. 1988]

The Buckner decision effectively struck down the state's discretionary concealed carry
permit law, because it ruled that a complete prohibition on carrying a pistol without a permit was unconstitutional, and made it clear that discretionary permit process was not reasonable. It is hard to see how this supports Chicago's ordinance that effectively bans everyone from legally obtaining a handgun for home possession.

11. I notice that many of the cases that this brief cites in support of this "reasonableness" rule are pretty far afield from the Chicago ordinance: Carfield v. State (Wyo. 1982), and State v. Ricehill (N.D. 1987) are felon in possession cases. State v. Hamlin (La. 1986) is a statute prohibiting unregistered possession of a sawed-off shotgun; it was not simply a ban on possession in one's home. And as with the rest of this piece of dreck, this brief keeps citing cases concerning concealed carry regulation such as Matthews v. State (Ind. 1958). And most of these cases were challenged under state arms provisions, not the Second Amendment.

It is astonishing how poorly researched this brief is--perhaps competent gun control advocate lawyers realized how hopeless the task was, and decided to put their energies into briefs for cases easier to win, such as repealing the law of gravity.