As the Supreme Court prepares to hear oral arguments in a new Second Amendment case on March 2, an article from the Chicago Tribune has revealed some interesting details about how the lawsuit behind the case was framed to appeal to the broader public.
McDonald v. City of Chicago challenges the city's 28-year-old handgun ban, which remains standing after a similar law in the District of Columbia was overturned almost two years ago in the case of D.C. v. Heller. Virginia attorney Alan Gura--who previously argued the Heller case before the Supreme Court--selected the plaintiffs in McDonald through a meticulous process. With financial backing from the Second Amendment Foundation, Gura conducted e-mail, phone, and face-to-face interviews with about a dozen Chicagoans. "You want good people who can tell the story well and in a way that the public can connect with," Gura explained.
Gura eventually settled on Adam Orlov a white, 40-year-old libertarian; David Lawson, a white, 44-year-old resident who keeps a collection of old guns outside the city; Colleen Lawson, Lawson's 51-year-old wife who became interested in Second Amendment rights after an attempted burglary at their home in 2006; and lead plaintiff Otis McDonald.
McDonald, a 76 year-old African American, came to Gura's attention after he attended several gun rights rallies in Springfield, where he recalls he was one of the few people there from Chicago and "probably the only black person." For McDonald, self-defense was a primary motive for participating in the lawsuit. "I would like to have a handgun so I could keep it right by my bed, just in case somebody might want to come in my house," he says. McDonald notes that he has been physically threatened in his neighborhood and his house has been burglarized three times.
The loaded shotgun he keeps in his home has apparently not been sufficient to deter such crimes. In fact, criminals have tended to target McDonald's home when he is not present--they have stolen shotguns from the house on multiple occasions. McDonald shrugs at the suggestion that criminals would steal handguns from his home if he prevails before the Supreme Court. "They get all the guns they want anyway," he states equivocally, without explaining how he might limit his own role as a supplier.
Despite his dislike for trigger locks and gun safes, McDonald was an upgrade over Gura's previous lead plaintiff in the D.C. v. Heller case. Despite the best efforts of Gura and Cato Institute attorney Robert Levy to screen out "gun nuts" who would be seen as "looney tunes," they got one in lead plaintiff Dick Anthony Heller.
Heller was kept on a short leash with the media before the case was decided- the public knew only that he was a private security guard in the District who bristled at not being able to bring his handgun home from work. After the case was decided in June 2008, however, Heller made his extreme views about the Second Amendment known. On September 18 of that year, he testified before the D.C. Council's Committee on Public Safety and the Judiciary and stated that "law-abiding citizens" shouldn't be subject to burdensome gun laws like background checks and regulations concerning the safe storage of firearms around children. Heller also declared that "ARMED CITIZENS" in their "individual neighborhoods" should be the ones to protect D.C. in case "suicide terrorists DO attact [sic] our city." Heller saw himself as a frontline combatant in this fantasized "terrorist ground war in DC."
Still, plaintiffs like Heller and McDonald at least have clean criminal records, and that is Gura's first priority. The first time in history that a federal appellate court declared the Second Amendment was an "individual right" was in the Fifth Circuit Court of Appeals case of United States v. Emerson in 2001. The defendant in that case, Dr. Timothy Joe Emerson, was the subject of a restraining order. He had abused his wife and threatened to kill a friend of hers. During one heated argument, Emerson "cocked [a] pistol and pointed it at his wife and daughter." He was indicted in December 1998 for possessing a firearm while under a protective order, a violation of federal law. The appeals court eventually ruled that the law prohibiting Emerson from possessing firearms was constitutional. And although the court's "individual right" notation about the Second Amendment (in dicta) was a landmark legal win for the gun lobby, it was certainly not one the public could rally behind. Emerson was no poster boy for gun rights with his predilection for violent, unhinged behavior.
Without question, Gura and his colleagues have made significant strides in the past nine years in selecting plaintiffs who can sell their extreme view of the Second Amendment to the mainstream media and American public. This is not only the case with Otis McDonald, but also with the plaintiffs handpicked by Gura to challenge the District of Columbia's current ban on carrying guns in public.
The truth, however, is that even today Emerson remains more typical of plaintiffs seeking to expand the limits of the Second Amendment. Since the Heller decision was issued, there have been at least 190 challenges to gun laws and gun prosecutions on Second Amendment grounds. These challenges have included at least 59 cases involving a convicted felon in possession of a firearm, 17 cases of domestic abusers in possession of a firearm, and 22 cases of drug traffickers or substance abusers in possession of a firearm.
Thankfully, almost all of them have failed. Hopefully, the courts--and the American public--will continue to see through the gun lobby's carefully orchestrated PR offensive and draw sensible limits on the scope of the Second Amendment in the interest of public safety. As the author of the gun lobby's beloved amendment once stated, "Liberty may be endangered by the abuses of liberty as well as the abuses of power."
Follow Josh Horwitz on Twitter: www.twitter.com/CSGV
Why don't we smarten up? I believe we can.
Do you also find it troubeling that three symathetic black women were handpicked by Thurgood Marshall as plaintiffs to contest segregation in public transportation in a major civil rights action entitled Browder v. Gayle?
The first one choosen was a 15 year old school girl, Claudette Colvin... and, of course the coup de gras was the lead Plaintiff... a pregnant houswife named Aurelia Browder.
Funny, I have been in federal court plenty of times and hardly any of them were for purposes of seeking declaratory relief... let alone seeking an injunction.
Subversive wrote: "This is what the NRA was doing"
One more time... please cite the specific portion of the Brady Law which you claim the NRA was trying to have invalidated. I am waiting....
147 Brief Amicus Curiae of the National Rifle Association of America in Support of Petitioners, Printz v. United States, 521 U.S. 898 (1997) (Nos. 95-1478, 95-1503).
Are you suggesting that the actual laws would be weak or the enforcement of those laws would be weak.
Your hypothetical scenario begs the question.
Why don't you tell me how many convictions there have been for denied attempts to purchase (itself a crime) since the Brady bill went into effect?
Destruction of that evidence(NICS record) is already covered in other areas of law so any confusion would be quite laughable.
The question remains, why keep records of APPROVED NICS?
The record-keeping requirement of Brady was that there would be no record-keeping and that the records would be destroyed. 18 USC 922(t)(2).
Please cite the specific portion of the Brady Law which you claim the NRA was trying to invalidate and then explain how such an invalidation would adversely effect the application of the Brady Law...
still waiting.
Good night and good luck.
"The complaint and motion for preliminary injunction were filed November 30, 1998, the effective date of section 102 of the Brady Violence Prevention Act P.L. 103-159, 107 Stat. 1536 (1993). Plaintiffs [NRA] sought a declaration that 18 U.S.C. section 922(t)(2), [Brady Law] section 103(h) and section 103(i) of the Act, and section 621 of Title VI of P.L. 105-277 prohibited the FBI and State Points of Contact (POCs) from keeping records on persons who the NICS determined may lawfully receive firearms. Plaintiffs claimed that 28 CFR section 25.9(b), which allowed the FBI to keep such records for 6 months, and 28 CFR section 25.9(d), which allowed certain State POC's to keep such records indefinitely, were void and should be enjoined.
[The NRA argued] the regulation is void under section 103(i)(l) of the Act, which provides that no federal agency may 'require that any record' generated by NICS 'be recorded at or transferred to a facility owned, managed, or controlled by the United States . . ." The regulation is also void under section 103(i)(2), which prohibits any federal department from using NTECS 'to establish any system for the registration of firearms, firearm owners, or firearm transactions,' except regarding ineligible persons. The 'audit log' is a registration of firearm owners and transactions with a six-month duration.
Under Ashcroft, the NRA got the feds to destroy approved background check records after 24 hours. That has led to hundreds of cases per year where people who are mistakingly approved get to keep their guns.
S:d) that longstanding prohibitions are also permitted;
The actual wording:
"The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. "
So by the actual wording of the case, I support the longstanding prohibition on the possession of felons and the mentally ill.
Now subversive has yet to show where the NRA is trying to repeal that like he claimed there were.
They will to the extent that they do not violate the 2nd Amend.
As to the "level of review", your previous answers to other questions leads me to believe you do not know what this means. There are 3 levels of review. The Heller opinion specifically rejected one of those 3.
Name the level of review rejected by Heller and describe the two remaining levels of review. Then use the analogy of freedom of speech in which these two levels of review are both employed and which are still open pursuant to Heller to anticipate properly how they will be employed for 2nd Amend purposes.
I really do not expect you to be able to answer that question, as you seem to believe 28 CFR § 25.9(d) is a reference to some portion of the Brady Law.... Lets see if you can surprise me, K?
BZZT!! wrong.
Please state the exact provisions of the Brady Law did the NRA seek to have declared invalid. BE SPECIFIC! Cite the exact language of the supposed statute which the NRA, according to you, sought to be declared invalid.
Bet you can't do it... LOL
I will wait...
No he did not... try again. He cited 28 CFR § 25.9(d). That is not part of the Brady Law, and it isn't even a real statute.
Wanna try again?
COOL!
Subversive wrote: "The NRA sued Attorney General Janet Reno in NRA v. Reno (99-5270)"
Dang, I thought you might have something I did not already know.
"to overturn, or in the alternative, strike down part of Brady which mandated the NCIS to keep audit logs which kept background checks on individuals, namely felons and mentally ill individuals."
BZZT! wrong. The issue involved the keeping of audit logs on transactions which were APPROVED (ie did not involve felons or mentally ill persons). Those situations wherein the applicant failed the background check are subject to possibly criminal action and those records are not destroyed... The Brady law specifically prohibits the maintenance of records to establish a system of registration. The Brady law directs the agency to run checks to insure that the system is not being abused (ie someone using the sytem not in connection with the purchase of a firearm, but to check up on their next door neighbor). The Brady law also requires the destruction of this info relating to the background checks for APPROVED transactions so as to prevent the creation of a quasi gun registration system.
The issue involved the AG maintaining the audit logs for an extended period of time and not necessary to insure the "integrity" of the privacy protections of the NICS data base.
Wanna try again?
2. Enter a declaratory judgment that 28 CFR § 25.9(d) is invalid to the extent it purports to exempt state and local law enforcement units serving as POCs from destroying records generated by the NICS system on lawful transferees to the extent the records are "created and maintained pursuant to independent state law regarding firearms transactions."
'Lawful transferees'.
You receive an F because you do not know what you are talking about and can not understand plain english.
"Second, Brady set up background checks which would reveal felonies and mental illnesses, so has to keep these people from obtaining firearms"
And I never said anything different.
"You and I both know what would have happened had Brady or that specific provision been struck down"
You evidently do not. What it would mean is that records of approved transactions would have had to be destroyed.
"the logs being the vehicle by which the federal court could do so"
Do what? deny an already approved transaction? You really need to read the case, because you do not have a clue what you are talking about. Come back when you have read this and UNDERSTAND it:
http://pacer.cadc.uscourts.gov/common/opinions/200007/99-5270a.txt
Key provision:
"According to the NRA, the Brady Act requires immediate destruction of personal
information relating to lawful firearm transactions. The Attorney General interprets the statute differently, arguing that temporary retention of data for at most six months is necessary to audit the background check system to ensure both its
accuracy and privacy.
Do you understan what the words "lawful firearms transaction" means?"
Continued...
The Chicago area lawsuits were all consolidated and are now pending in front of SCOTUS as McDonald v Chicago.... all dealt with handgun bans by various municipalities in Illinois.
The SF case incolved a ban by the the public housing authority of the posession of all firearms by tenants. SF settled, removed the ban and paid attorney fees to the lawyers representing the NRA.
"The NRA then filed a suit in Seattle announced proudly by the NRA itself on its own website ."
The case involved washingtons ban on the sale of firearms to legal immigrants.
"The progeny of Heller McDonald v. Chicago, Nordyke v. King, Maloney v. Rice,"
Nordyke v King was initiated looooong before Heller. It has gone up and down from district to appeals and back again over several years... the most recent round involved the effect of Heller on the prior decison. The 9th Circ has put a hold on the case pending a decision on incorporation in McDonald. The case involves the ban on gun shows on county fair grounds. Maloney v Rice is not an NRA case... it involves a pro per litigant contesting the NY ban on certain martial arts equipment known as nunchucks (sp?).
[Please sign up for the re-take.]
We can all now accept that Heller is the supreme law of the land. That being the case, since Justice Antonin Scalia ruled:
a) the Second Amendment is not unlimited;
b) that the Amendment cannot be read to protect the right of citizens to carry arms for any sort of confrontation;
c) that only arms that have some reasonable relationship to the preservation of efficiency of a well regulated militia are permitted;
d) that longstanding prohibitions are also permitted;
e)and that dangerous and unusual weapons are also prohibited;
this raises the following question: Does the gun lobby consider these to be acceptable and commonsense restrictions allowing states and the feds to regulate firearms, or are these restrictions unacceptable, which would place you outside the mainstream of current Second Amendment jurisprudence?
[All answers must be written in ink, I do not grade on a curve, you have 3 hours, no glancing at the person next to you, you may begin.]
Agreed, no right is unlimited including the 2nd.
."b) that the Amendment cannot be read to protect the right of citizens to carry arms for any sort of confrontation;"
I think you may be misreading Heller somewhat... but maybe not. Heller indicates that the "bear right" is the right to carry arms in the case of confrontation. The verbage "cannot be read to protect the right of citizens to carry arms for any sort of confrontation" is quite similar to saying that the right is not unlimited and that some restrictions on carrying arms are permissable, just as the limitation upon the type of arms protected is not unlimited.
"c) that only arms that have some reasonable relationship to the preservation of efficiency of a well regulated militia are permitted;"
No problem there, but I hope you are familiar with the source of that language and the test to be employed with respect thereto. The language is from Miller and miller, in turn relied upon a case called Amyette v State. If you have read both cases you may continue, if not I will fill you in when you make a mistake.
"e)and that dangerous and unusual weapons are also prohibited;"
Depends upon what you mean by dangerous and unusual weapons
"d) that longstanding prohibitions are also permitted;"
Depends upon the longstanding prohibitions.
Continued...
When you are competing in a musical competition with Scott Joplin.
Yes, their editorials on gun issues often are hysterical nonsense, but they usually do a decent job of keeping their reporting fairly straight. This week's story may be an example:
http://www.nytimes.com/2010/02/24/us/24guns.html
In addition, I regularly find facts in the Times that refute the misinformation of gun control advocates -- facts I sometimes do not find in other papers.
The New York Times
June 12, 1991
Excerpts:
The rifle association has adamantly opposed any waiting period for buying handguns, but its lobbying efforts failed last month when the House passed a bill calling for a seven-day wait. Mr. Mitchell's compromise proposal combines a waiting period and a plan favored by the gun group that would require background checks of prospective gun buyers.
(Let's read that again): "a plan favored by the gun group that would require background checks of prospective gun buyers"
The House bill, called the Brady bill after James S. Brady, who was wounded in the assassination attempt on President Ronald Reagan, did not mandate background checks.
As part of the closed negotiations, the rifle association, the most formidable opponent of the crime package, is asking Senate Democrats for several concessions, including an amendment that would set a date -- perhaps within 18 months -- by which the provision for a waiting period would expire.
The rifle association has also enlisted the aid of Senator Ted Stevens, Republican of Alaska, to sponsor an alternative, still not laid out, that might mirror a measure it promoted heavily in the House. That bill, sponsored by Representative Harley O. Staggers Jr., Democrat of West Virginia, would have required instant background checks on prospective gun buyers at the point of sale.
http://www.nytimes.com/1991/06/12/us/senators-effort-on-gun-control-includes-nra.html?pagewanted=1
Of course, here is what they told gun owners in American Rifleman after the Brady Law was passed:
“The executioner’s tool is the Brady bill – now the Brady law. … [T]hey’ll go house to
house, kicking in the law-abiding gun owners’ doors….”
And then, in a fundraising letter, Wayne LaPierre of the NRA stated,“The Brady Law has become one more tool that government agents are using to deny the Constitutional rights of law abiding citizens."
The NRA they launched lawsuits in 9 different states that sought to have the entire Brady Law voided. They were unsuccessful in that attempt, but the courts did agree that the federal government couldn't compel the state to submit records to the FBI's NICS database. That has weakened the background check system significantly, to this day.
Finally, the NRA has spend the past 15 years since the Brady Law was enacted demonizing, vilifying and insulting the two Americans who WERE the force behind the bill, Jim and Sarah Brady.
The 1991 NY Timesarticle nonetheless decisively refutes the revisionist lies that gun control advocates have tried to spread about the NRA not having supported background checks.
The law did not pass for 3 more years -- why? Read the article: The Bradys vowed NOT to compromise -- and tried to depict the willingness of the NRA to compromise (the theme of the NY Times' article) as weakness. If you are looking for blame, look no further than the Bradys and their allies.
GritsJr: Finally, the NRA has spend the past 15 years since the Brady Law was enacted demonizing, vilifying and insulting the two Americans who WERE the force behind the bill, Jim and Sarah Brady.
And for those same 15 years, the Bradys have been pushing a mutitude of other ways to attack the right of gun ownership, AND the Bradys and others have been demonizing, vilifying and insulting (and lying about) the NRA and its members.
False. They were involved in several cases which addressed very specific parts of Brady and what was being done with it. For example, violations of the 10th Amendment.
The NRA has actuallytaken several steps to try to strengthen background checks but have been stymied by the ACLU and by the very people who lionize HCI.
There have been many cases where the background check system has been misused. Some states were even using it to go after people with unpaid traffic tickets.
As for demonizing Jim and Sarah Brady, the NRA has been demonizing Sarah for a long time, starting many years before the passage of the Brady Act and with good reason.
That seems to be contradicted by the NY Times:
http://www.nytimes.com/1991/06/12/us/senators-effort-on-gun-control-includes-nra.html?pagewanted=1
In1991 the NRA "adamantly opposed any waiting period" but did back "a plan favored by the gun group that would require background checks of prospective gun buyers" and had already "promoted heavily in the House" requiring "instant background checks on prospective gun buyers at the point of sale. "
Again, that was in 1991.
Because the waiting period was not dropped, the NRA opposed the bill and killed it for 3 more years -- so much for "knowing Brady had the votes to pass." The law did not pass for 3 more years because, as the Times reported, it was the Bradys who vowed NOT to compromise -- and who tried to depict the willingness of the NRA to compromise (which was the theme of the NY Times' article) as weakness. If you are looking for blame, look no further than the Bradys and their allies.
The NRA continued to oppose anything with a waiting period, but I liked the compromise put forth in 1994: a waiting period that sunsetted in favor of instant check. I disagreed with the NRA and supported that -- and the bill would not have passed without the sunset provision.
You pretty well struck out.