Second Amendment Arms v. Chicago was the second case filed challenging the new Chicago Gun Law. This case since it wasn’t brought by either the National Rifle Association or the Second Amendment Foundation has generated a lot less scrutiny and news. The plaintiffs’ attorney, Walter Maksym, is best known for representing Drew Peterson and not for his expertise in Second Amendment law.
An amended complaint was filed at the beginning of October which added the Illinois gun rights group, ICarry, as an organizational plaintiff and Shaun Kranish as an individual plaintiff.
On November 24th, the City of Chicago filed a motion to dismiss this case on Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) grounds. The city argues that the complaint and the plaintiff’s First Claim for Relief fail to state a claim. They also challenge the standing of Second Amendment Arms and ICarry as they argue that “the Second Amendment only confers an individual right, and they are not individuals.” Chicago also is challenging the standing of the individual plaintiffs for failure to identify an injury under the Ordinance. Finally, it asks that among other things that Mayor Daley, Police Superintendent Wies, Miguel Del Valle, and Corporation Counsel Mara Georges be dismissed as defendants.
A joint status report was filed on Monday and a status hearing was held on Wednesday. The status report indicated the principal legal issues as a violation of the 1st, 2nd, 4th, and 14th Amendments to the U.S. Constitution as well as other violations of the Illinois Constitution. The factual issues are up in the air due to the lack of discovery and because Chicago has moved to dismiss the case. Finally no settlement discussions have been held.
In the status hearing yesterday, Judge Robert Dow advised that he is taking Chicago’s Motion to Dismiss under advisement, that the plaintiffs have until January 21, 2011 to file a 20-page response to dismissal motion, and that Chicago has until February 16th to file their reply to the response. He also said that he will rule on the Motion to Dismiss by mail.
Of the three challenges in Federal court to the new Chicago Gun Law, this is probably the weakest legally and, in my opinion, should never have been filed. As Alan Gura has noted many times, there is a proper strategic way to go about Second Amendment litigation and then there are all the other ways. Unfortunately, both ways can set precedent and we are stuck with it. If Second Amendment jurisprudence was settled law, anyone could do it. It isn’t settled law and not everyone should be doing it.
So it is with this case. The complaint was not tightly written, errors were made in procedure by the plaintiffs’ attorney, and even the service of the original complaint took months. Robert Zieman will never get compensated for the firearms taken under the old law and I sincerely doubt that this case will ever be allowed to granted class action status. The best thing that could happen – which probably won’t – is that this case be voluntarily withdrawn. I hate to sound so negative but I don’t think this is the case to pin any hope on.