It may be of little historic relevance to many people, but the 2008 Supreme Court ruling in District of Columbia v. Dick Anthony Heller was issued on June 26, the closing day of the 1876 Battle of the Little Bighorn, popularly identified as “Custer’s Last Stand.”
The two-day battle began on June 25, the day on which Lt. Col. George Armstrong Custer and five companies under his command were wiped out on the grassy eastern slopes overlooking the Little Bighorn River in south-central Montana. Elements of the 7th Cavalry under command of Maj. Marcus Reno and Capt. Frederick Benteen held out overnight on a bluff a couple of miles to the south, until they were relieved by a column under the command of Brig. Gen. Alfred Terry.
While the 2008 Heller ruling that defined the Second Amendment as protective of an individual civil right to keep and bear arms regardless of service in a militia was a devastating loss for gun prohibitionists, the impending Supreme Court ruling in another case – argued by the same attorney who represented Mr. Heller – could have far greater implications. The anticipated ruling could come, again, at about the same time history marks Custer’s defeat.
Winning firearms freedom one lawsuit at a time."--Second Amendment Foundation's new slogan
Only this time, if the high court strikes down Chicago’s handgun ban and incorporates the Second Amendment to the states – as court prognosticators are predicting – they’ll be sounding “Taps” over a cornerstone of Chicago Mayor Richard Daley’s regime, rather than the monument at the Little Bighorn National Battlefield.
Briefly in review, about an hour after the Heller ruling was handed down two years ago, crack Chicago-area attorney David Sigale, working with newly-victorious Heller attorney Alan Gura – representing the Second Amendment Foundation (SAF) and Illinois State Rifle Association (ISRA), and four Chicago residents including Otis McDonald, for whom the case, McDonald v. City of Chicago, is named – filed a lawsuit in federal court in Chicago.
The following day, the National Rifle Association filed a separate case – NRA v. City of Chicago and Village of Oak Park – in the same court. This must have seemed to Daley like one of his worst nightmares, considering what SAF and NRA had done in recent years, working jointly against New Orleans and San Francisco. To have them now independently lining up to kick his ass (hey, if Barack Obama can say it, so can we!) from both sides could delight Daley only if he is a masochist.
The Second Amendment Foundation appealed to the U.S. Supreme Court for certiorari on behalf of their plaintiffs. Certiorari for McDonald was granted on September 30, 2009.[8] The NRA has separately filed on behalf of their plaintiffs, and on January 25, 2010 the Supreme Court granted the NRA's motion for divided argument.--Wikipedia
At one point, during the appeals process at the 7th Circuit Court of Appeals, the two cases were combined, thus creating the impression that they are today one and the same (watch reporters screw this one up when they write and talk about the upcoming ruling), which they are not, as noted by a Wikipedia account of the cases.
Following an adverse ruling by the 7th District Court of Appeals that found in favor of Chicago’s ban, the two cases were appealed separately to the high court. For whatever reason, as noted by this column previously, the Supreme Court accepted the McDonald case for review, but left the NRA case essentially on hold. Further confusing the situation, the high court granted a motion by NRA to allow its attorney, former Solicitor General Paul Clement, to present argument during the March 2 oral arguments. Ten minutes of Gura’s time were granted to Clement. Their combined arguments appear to have clearly demolished Chicago’s case, but that can only be confirmed with the McDonald ruling, due shortly. That's Gura, above, in a video produced by the Heritage Foundation, offering his perspective on how the oral arguments went, and explaining his strategy in making the argument for his SAF/ISRA clients.
Despite being consolidated at the U.S. Court of Appeals for the 7th Circuit, the cases are different in scope in terms of the specific regulations challenged and the legal argument for applying the Second Amendment against state and local governments. The cases were appealed separately to the U.S. Supreme Court.-Wikipedia
Presumably, if SAF and ISRA are victorious, the high court may then agree to hear the NRA case, and/or vacate the 7th Circuit’s ruling and remand it back to the appeals court for further action under the new parameters detailed in the McDonald ruling.
The 7th District Court of Appeals is not the 7th Cavalry, but the outcome of this case for Mayor Daley – a fanatical anti-gun demagogue – and other like-minded public officials across the nation could be nothing short of Custer’s disaster 134 years ago. For the gun prohibition movement, Second Amendment incorporation would be poison with no antidote. Henceforth, every state statute and local ordinance and regulation would be subject to the same level of scrutiny that federal gun legislation must now face. It is a safe wager that a SAF/ISRA victory in the McDonald case will unleash a torrent of legal challenges to onerous laws that have systematically eroded Second Amendment and state constitutional firearms freedoms for decades.
As noted here the other day, Second Amendment incorporation should automatically have implications for a ruling earlier this year by Federal Judge Marsha Pechman in the Seattle parks gun ban challenge, the case that she rejected. It would also bolster the state-level lawsuit filed against the city by SAF and NRA on state preemption grounds; a lawsuit they won, and which the city is now appealing.
The Second Amendment right to bear arms applies to the states through the due process clause of the Fourteenth Amendment.—Justice Richard Sanders, Washington State Supreme Court
It will affirm State Supreme Court Justice Richard Sanders’ majority opinion in State v. Sieyes, issued earlier this year, which found that the Second Amendment does apply to the states.
And it will certainly add credence to SAF’s catchy new slogan “Winning firearms freedom, one lawsuit at a time.”
For more info: Second Amendment Foundation. Illinois State Rifle Association. National Rifle Association.
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Comments
I really do not want to get over excited as yet, but I am in hopes that the SCOTUS will rule that the 2nd Amendment does in fact apply to the states.
Personally I do not see how it could not, as supposedly the State Laws are not supposed to exceed or bypass the Federal Laws.
But in this case the Second Amendment is not actually a LAW it is an instruction to the Central Government that the People have the Right to Keep and Bear Arms, and they are not to infringe upon that right.
Which they and the States both have done just that.
As an old country boy, let me say we shouldn't count our chickens before the eggs hatch. At the same time, listening to the oral arguments, it was clear that the hen had laid, and that we did indeed have a fertile egg. Whether this egg will producea robust and healthy rooster that will crow of our freedom each morning, or if the offspring of Heller will be a scrawny hen hardly worth the water and fire to scald, pluck and boil her is at this moment yet to be seen.
You analogy to Custer is quite keen. 20 years ago, the popular wisdom in political circles was that the 2nd was dead. Heller has certainly proved them wrong. But let us remember that winning the battle of Greasy Grass proved to be the undoing of the Lakota. That was 1876. By 1892, the Lakota were all dancing an aberration of the Ghost Dance. No mysterious clouds came and wiped the white men out. The world did not revert to a pre-European heaven. We will not see the firearms freedom of 1787 again. We might come close tho.
Dave I applaud the SAF and the ISRA for their/your work on McDonald but at the same time I’m confused.
The ISRA/NRA tells us that gun control is a disease and that we gun owners are the cure.
7,000 gun owners showed up in Springfield for IGOLD to tell the General Assembly NO to any new gun control laws.
On March 12 the Illinois House passed HB5832 a law that mandates 1-3 yrs in prison for having a loaded firearm in your possession without a valid FOID card.
The ISRA/NRA now claims they were neutral but I’m told by Representative aids that the NRA/ISRA let the bill slide; in other words another compromise stunt.
How are we ever going to restore the 2A if gun groups keep making deals
In another bill the ISRA/NRA stepped in and made a deal that will allow the State to seek federal grant money to upgrade the State police background check system.
WHY!!!!!
That was a chance to dump the FOID card instead the ISRA/NRA strengthened the law when they had a chance to we
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WHY!!!!!
That was a chance to dump the FOID card instead the ISRA/NRA strengthened the law when they had a chance to weaken it or end it.
How can I continue to support any group that is willing to cut deals with my GOD given rights?
After the battle of Little Big Horn, Custer was dead and his thoughts, tactics, and ego died with him. After a favorable McDonald decision, Daley will still be breathing and will sit down with his cohorts and determine all sorts of avenues to circumvent and revise the SCOTUS’s determination. People in Daley’s position do not take kindly to being told they’re wrong and that their draconian rules are out of line.
Daley will respond to McDonald in the same manner D.C. did to Heller and in the same manner school systems over the US responded to Brown v Board of Education. It’s going to take years for us to regain our rights supposedly protected by the Constitutional and even then, we’ll only get them back a nibble at a time.
No matter what the Court decides, it's still going to be a long hard battle.
[W3]
Dave, I'll pose this question to you, as I did your Examiner colleague Kurt Hoffmann:
If SCOTUS incorporates the 2A in McDonald, will the Sullivan Act be challenged next? Kurt didn't think so, because he said Sullivan Act is less restrictive than Chicago's ban.
By the way, the 1982 Chicago ban was promulgated under Jane Byrne - even though Daley the Younger is most closely associated with it. She was voted in as the "anti-machine" candidate (in 1979). The handgun ban was a carrot tossed at the inner-city communities where gun deaths were soaring (same neighborhoods as today); so Byrne vied for their support since she'd be up for re-election in 1983. She was concerned a black would run against her - which did happen, of course.
WWWoodward: Daley may respond in the fashion you suggest, but, he'll be up for re-election in 2011. The question is, can someone oppose him, running on a "freedom" platform?
Dave, Luis makes a good point will someone oppose Daley running a on a “freedom ticket” and will the NRA/ISRA/SAF endorse that candidate?
Daley needs to pay a political price for what he has done. Sadly too many people are afraid to lock horns with the Chicago machine.
Several yrs ago the head of the Republican Party for Cook County criticized Daley, a phone call was made and the man was fired from his insurance job.
I think now however the Chicago machine is vulnerable. Chicago leads the nation in unemployment claims in the last 12 months, people are angry.
We need to find true pro-gun candidates to run for office in Illinois and not continue to give weak candidates a pass like the NRA has been doing for years with their endorsements.
Example… the recent endorsement of Kirk Dillard for governor by the NRA/ISRA
madashell: You've been making unsubstantiated claimes for years that ISRA and the NRA have supported gun control. Where is your proof, AKA documentation? I remain a member and financial supporter of both. We need a large central pro-2nd amendment organization. ISRA and the NRA fills the need. (No, I will not waste my time by going on a snipe hunt for such documentation you my claim, either provide exact details, or expect me, and I hope others, to not believe you.)
(Typo: "claimes" should be "claims".)
(2nd typo: strike out "my" in the last line.)
BTW I understand from Todd V.'s comment, ISRA and the NRA supported Kirk Dillard because he supports the 2nd Amendment and can win the election. Todd stated his belief that Bill Brady could not win due to Chicago voters. I support Bill Brady.
Luis: I'm not sure where New York and the Sullivan Law fall in the scheme of things, but one can only suspect that it is somewhere "on the to-do list."
Madashell: SAF does not endorse candidates because it is a tax exempt org. BTW: Just because some group may endorse someone you don't like doesn't make them traitorous or whatever.
This is a very good article Dave it has struck a nerve at least in me.
The idea that McDonald is Daley’s last stand I believe is a misunderstanding of the power structure of Illinois.
Daley is the facade of the Chicago Machine, Yes Daley is powerful but he is not the Machine.
The only way you will restore a strong 2A culture in Illinois is when people over come their fear and support true pro-gun, pro-liberty candidates.
I want to repeal laws like the FOID card that’s my view of restoring our 2A rights and Kirk Dillard is not going to do that. (“shall not be infringed” to me means “shall not be infringed”)
Todd believes that Dillard was the best choice to defeat the machine and is pro-gun.
Dillard was the Senator that allowed SB1195 the total semi-auto ban out of committee several yrs ago that almost became law thanks to Dillard and Todd wanted to reward this guy?
The NRA is now endorsing John McCain and Harry Reid for re-election. How are those endorsements
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The NRA is now endorsing John McCain and Harry Reid for re-election. How are those endorsements going to restore the 2A?
I know that the SAF is a tax exempt organization, but I associate the SAF/CCRKBA as one in the same. My comment should have referenced CCRKBA instead of SAF.
As far as my unsubstantiated claims against the NRA/ISRA, I remember the meetings held across Illinois over the gun control issue and how they pressured gun owners to except the FOID card. I also remember the march 1968 article in the American rifleman in which the NRA claimed they were created to support reasonable gun control laws.
The best article on the issue is “NRA betrayal of trust, How the NRA Bargains Away Our Second Amendment” By Nicki Fellenzer
This is a good article Dave my difference in opinion is that we need to support strong 2A people instead of white washing candidates like Dillard, McCain and Reid
1968 was 42 years ago. Surely the NRA of today isn't responsible for a mistake then, in hindsight? No organization is perfect.
Harry Reid is pro gun. He may be a socialist twit otherwise, but he is pro gun, to the extent he voted against the AWB and for several 2A friendly laws. Likewise McCain. As that is the only issue the NRA cares about, they get the endorsement.
I've come to the conclusion that no one is pro-2A enough to suit GOA, and that they're all or nothing people. The problem with being all or nothing, is that you can never have it all, so you get nothing. If you demand 100% and they offer 5%, you take the 5% and come back for another 100% later. Saying, "No deal!" might make for good headlines for the true believers, and work as a fundraising tactic, but it doesn't actually accomplish anything.
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