Here's the audio download page from the 7th Circuit court. The arguments run about half an hour. Two judges were extremely hostile to the idea of analyzing the merits of the case, and the third seemed to ask questions relevant to that issue; we may see an interesting dissent. I can't predict where that dissent might go, but at least one of the judges has a very audible sense of humor.
Speaking for our side, Stephan Halbrook and Alan Gura. For the city, the only name I caught was "Miss Sullivan" (?). Judges Posner and Bauer were the names I caught.
The bulk of the time was spent with the judges arguing that they are bound by Supreme Court precedent and can't do anything about it. At least two of the judges were not even interested in hearing arguments on the merits. One practically dictated to Alan Gura what the entirety of his argument should be: "I actually don't know why you are so upset by the prospect that Judge Posner and I have raised with you. it doesn't matter what we say, we're not going to resolve this issue, why don't you just say 'Our arguments are preserved, and thank you very much.'" Alan said exactly that, and the judge responded, "This will be resolved elsewhere."
One of the worst bits of sniping: "Do you believe there is a Constitutional right of revenge?" Another: "The position you are taking, as well as the position the 9th Circuit took, is that as long as the court of appeals can think up an argument that is not explicitly rejected by the Supreme Court, decisions of the Supreme Court are just not binding in the Court of Appeals. That may be the attitude of the 9th Circuit, but it's not ours."
It should be noted here that our argument is that the Supreme Court's ruling in Heller basically cleared the way for incorporation through the due process clause, and that it's not necessary to wait for the Supreme Court to incorporate the amendment before engaging in analysis of the issue.
Argument from the City's attorney was somewhat broader, covering the merits of their law and reinforcing the precedent argument. There were some truly awful quotes:
"The precise 2nd Amendment right recognized in Heller... namely, the categorical right to a handgun
The risk of misuse of handguns by criminals outweighs whatever benefits handguns provide to law abiding people. The categorical right to a handgun as recognized in Heller is therefore not incorporated under the due process clause.
"Due process is a flexible concept, of course, and is intended to change with the times."
(From a judge) "One potential consequence of the line you are taking is that the Court will overrule Slaughterhouse, and incorporate everything, and then all of Chicago's administrative tribunals for handling parking tickets will become unconstitutional under the 7th Amendment."
(From a judge) "Do you really think the outcome of this case turns on whether John Lott was right in More Guns, Less Crime?"
(From a judge) "One can handle this kind of Constitutional adjudication without tired slogans."
Alan Gura handled rebuttal with some good quotes, too:
"We are before a court of law, not a court of social policy."
A definition of "ordered liberty" that basically boils down to the right to live under the control of the state: "The ability of people to live together in society considering the rights of all of them in the way that the legislature determines it to be most appropriate at any given time."
The only significant point that I noticed was the question of whether the 14th Amendment should be analyzed in the context of its passage (original intent -- 1868) or in modern times. Alan made some excellent historical arguments that the 14th was originally passed to ensure the right of freedmen in the occupied South to defend themselves with firearms.
It was noted that the 9th Circuit's Nordyke case creates a circuit split.
UPDATE: The three judges were Posner, Bauer, and Easterbrook.
This entry was published Wed May 27 09:48:01 CDT 2009 by TriggerFinger
and last updated 2009-05-27 09:48:01.0.