Second Amendment Litigant is Unlikely Handgun Advocate

Otis McDonald grew tired of the pattern of intimidation brought to bear upon him by some of the drug-dealing urban youth of his Chicagoland neighborhood.  At times, they would curse him and brandish their weapons just a few feet from his porch in Chicago's Morgan Park.  According to McDonald, some of these "punks" even threatened to "put him down."

Consequently, McDonald sought to even the odds by acquiring a gun, even if it meant he had to violate Chicago's anti-handgun ordinance to do it.

The 76-year old South-side Democrat, a retired grandfather and journeyman building engineer, who spent his career at the University of Chicago after serving in the military, is the petitioner in a case up for oral argument today at the United States Supreme Court.

An unlikely advocate for the right to "bear arms", at least in the organized sense, McDonald is not a card-carrying member of the NRA.  That group, however, will join him today in addressing the High Court and requesting that the handgun ban be struck down as unconstitutional.

This Blog has been tracking the case, as some of the high-crime issues underpinning Chicago's handgun ban are relevant to the communities of Southeast Michigan.  One of our earlier posts covered the lawyers arguing the case today.

There seems to be a consensus among legal professionals that Chicago's ordinance is likely to be declared unconstitutional.  Today, the City of Chicago, through it's retained Washington D.C. appellate lawyer, is expected to argue the safety interests such a ban serves in high-crime areas.

The consensus among High Court watchers that the handgun ordinance will be struck is based on the Court's recent decision striking-down a similar anti-gun law in the nation's capital.  The Supreme Court's decision in District of Columbia vs Heller, however, does not apply to the states since it arose in the District.

There are many reasons Americans feel a deep-rooted sense of righteousness when it comes to our right to possess and carry firearms.  It's in our historic genes; our national tradition.  Otis McDonald, on the other hand, acquired his taste for the right to bear arms out of good old-fashioned necessity.  In order to feel safe in his own crime-ridden neighborhood and to protect his family from local thugs, he armed himself in transgression of Chicago's gun ordinance.

As a result, Law Professor Nicholas Johnson of Fordham University claims that Otis McDonald will be immortalized as a litigant in one of the rare cases that becomes common knowledge among our citizenry and stands for a single proposition; in this case, the right to bear arms.

Local Connection:  Michigan Attorney General Mike Cox joined the NRA in filing an amicus brief in Otis McDonald's case.

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Posted in: Mark J. Konkol,Michigan Attorney General Mike Cox,NRA,Otis McDonald,SCOTUS,Second Amendment,U.S. Supreme Court

Second Amendment May Gain Some Ground

Nearly a decade post-9/11, the forgotten amendment of the U.S. Constitution, the Second Amendment's right to bear arms, may gain some ground here at the beginning of the 21st Century.  Several state attempts to erode this right have been subjected to successful constitutional challenges.

The United States Court of Appeals for the District of Columbia, in Robert Ord -v- District of Columbia, reversed a trial court's dismissal of one such gun owner's challenge, remanding the case back to the lower court for further proceedings.

Robert Ord, a licensed investigator, also licensed to carry a weapon in Virginia, will now be able to develop his case; a case that asserts that the mere threat of prosecution in nearby District of Columbia, where he frequently works, constitutes damages.  One interesting aspect of this case is that Ord was never arrested, nor were his weapons seized.  He claims the objectionable government action was the issuance of a warrant; a warrant Ord claims was obtained by the police in bad faith.

This spring (March 2010), the United States Supreme Court will hear oral argument in a gun-ordinance case from Illinois, McDonald -v- Chicago.   Michigan's Attorney General recently filed an amicus brief in the case.  In the Chicago gun case, the issue for determination by the Supreme Court is whether the Second Amendment is incorporated (thus applicable) to the states through the Fourteenth Amendment's Due Process clause such that Chicago's gun-ordinance banning guns in private homes is unconstitutional. 

A good primer on this age-old issue can be found on the official blog of the U.S. Supreme Court; known as SCOTUS.  The high court's blog post surveys the historical context of the Second Amendment with a focus on the modern ordinances and state laws that attempt to limit gun possession due to it's correlation with violent crime.

The high-court petitioner(s) in these gun cases are citizens claiming a constitutionally-protected right to bear arms. They assert that the state cannot unreasonably restrict this right with its laws or ordinances.

These cases pit the power of the government against the fundamental liberty interests of the individual.  The tension between the two continues to be the glue of our Democracy, just as it was in colonial times when these concepts were debated in Philadelphia, Boston and Washington.

In the decade since 9/11, various powers of the federal government have expanded under President Bush. At the state level, however, the individual right to bear arms may hold ground. The McDonald and the Ord cases are crucial milestones for the highly revered Second Amendment.

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Posted in: District of Columbia,McDonald,Robert Ord,Second Amendment,U.S. Court of Appeals,U.S. Supreme Court

U.S. Supreme Court to Decide Juvenile Lifer Cases from Florida

On Monday, the U.S. Supreme Court heard oral arguments in two consolidated cases from Florida involving life sentences for juvenile offenders: Graham v Florida and Sullivan v Florida. What makes these cases interesting, and thus important, is that the victims in the cases were not killed, yet the offenders received life sentences without parole. A published decision will follow soon.

Here in Michigan, pursuant to a network of statutes, a juvenile may be tried as an adult. Michigan also has a variety of offenses which call for life sentences. There are no juvenile offenders, however, serving life sentences for non-leathal offenses in Michigan.

The question before the Supreme Court this week was whether a life sentence should be flat-out banned for non-lethal juvenile offenders. Chief Justice Roberts seemed to be lobbying his fellow-justices to provide the juvenile offender the opportunity to emphasize his "youth" under an 8th Amendment "cruel and unusual punishment" analysis. Roberts' approach was an alternative to the outright ban sought by the attorneys for the youths. He seemed to favor a "proportionality" analysis.

Full analysis of Justice Roberts' approach to the argument in this case is found on the SCOTUS blog.

There are about 100 such youth sitting in prisons on life sentences for non-lethal convictions; most of them in Florida, which has approximately three quarters. A recent NYT article suggests that tourism in the state may have been a factor in so many harsh sentences handed down to youths committing serious crimes in Florida.

Professional court watchers sensed sympathy for the youthful convicts from some of the Justices. A few seemed to favor a constitutional prohibition of such sentences. The rationale for the ban is cruel and unusual punishment. A secondary argument is that such youthful offenders could benefit from habilitation.

Other (more conservative) Justices seemed less sympathetic, wondering where the age line should be drawn.

Without a clear majority on this issue, our prediction is that the court will decide the case down ideological lines, resulting in a plurality decision (i.e. no clear majority in the opinion, with several justices writing separately from their colleagues).

The case also calls into question the age-old tension between states' rights to define their own criminal laws in accord with local mores and sentiments, and the constitutionally guaranteed rights of all citizens, regardless of the criminal code of the state in which they are convicted.

We will await the high court's decision and keep you posted on the result along with some of the other cases we are following. In the meantime, if a juvenile member of your family has been accused of a serious crime, contact our firm to discuss your options.

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Posted in: Chief Justice Roberts,Florida,juvenile law,sentencing,U.S. Supreme Court

Chief Justice Roberts to Attend Notre Dame Game at Big House

According to the Michigan Daily, the on-campus newspaper at the University of Michigan, U.S. Supreme Court Chief Justice John Roberts will speak today at Hill Auditorium as part of the events surrounding the UM Law School's 150-year anniversary; he will also attend the football game tomorrow versus Notre Dame.

In accepting the invite from the Law School, Justice Roberts apparently turned-down a $15,000 honorarium which UM says it never expected him to accept in the first place.  Talk about Ivory Tower politics...

Most of the impressive Law School events are “sold-out”.  Nevertheless, for the 100,000 plus fans expected to attend the classic fall matchup at the Big House, it’s nice to know you’re in supreme company.

Go Blue!

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Posted in: Go Blue,Justice John Roberts,Notre Dame,U.S. Supreme Court,University of Michigan Law School

U.S. Supreme Court to Re-Hear Argument on the "Hillary Movie" Case

On September 9th, the nine Justices of the United States Supreme Court will end their summer recess early to return to Washington for a rare re-argument in what has turned out to be a momentus case: Citizens United vs Federal Election Commission.

The case involves federal regulation of the political documentary titled, "Hillary, The Movie", which took a critical look at the character and career of Ms Clinton back in her pre-presidential candidate days. The documentary was produced by a conservative advocacy group; Citizens United. The issue in the case arose when the group was denied permission from the FEC to distribute the short film via "on-demand" cable services.

Re-arguments at the high court are very rare, giving rise to speculation that the Supreme Court may be getting ready to issue a momentus decision. Such a decision comes at a critical time in our history relative to government control and influence over private business.

The chief issue in the case concerns application of the McCain-Feingold law which bans the use of corporate money in elections. Some argue this restriction puts a stake in the heart of free speech; others assert that the ban is necessary to avoid a flood of corporate election funding which would corrupt and pollute our democratic process. The FEC banned the Clinton documentary on the basis it was produced, in part, with corporate profits. Direct corporate-funding of political campaigns has been banned for more than 100-years in America (Tillman Act 1907).

The case also has a Michigan connection in that it could overturn a 1990 decision of the high court, Austin vs Michigan Chamber of Commerce, which upheld restrictions on corporate spending in election campaigns.

The Supreme Court's decision to re-hear oral argument has prompted the filing of more than 40 "amicus" briefs from such disparate groups as the NRA and the ACLU. Stay tuned.

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Posted in: federal election commission,Hillary Clinton,McCain-Feingold,U.S. Supreme Court