No. 08-1521
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In The
Supreme Court of the United States
-----------------♦----------------OTIS MCDONALD, ADAM ORLOV, COLLEEN LAWSON, DAVID LAWSON, SECOND
AMENDMENT FOUNDATION, INC., AND ILLINOIS STATE RIFLE ASSOCIATION,
Petitioners,
v. CITY OF CHICAGO, ILLINOIS, et al.,
Respondents.
-----------------♦----------------On Writ Of Certiorari To The United States Court Of Appeals For The Seventh Circuit
-----------------♦----------------- BRIEF AMICUS CURIAE OF THE HEARTLAND
INSTITUTE IN SUPPORT OF PETITIONERS
-----------------♦----------------MAUREEN MARTIN W3643 Judy Lane Green Lake, Wisconsin 54941 (920) 295-6032
Counsel for the Amicus Curiae The Heartland Institute
NANCY LEE CARLSON* 726 Braeburn Road Inverness, Illinois 60067 (847) 962-1775
*Counsel of Record
================================================================ COCKLE LAW BRIEF
PRINTING CO. (800) 225-6964 OR CALL COLLECT (402) 342-2831
-----------------♦----------------- SUMMARY OF ARGUMENT
In this case, Otis McDonald and the other Petitioners seek the right to possess handguns within
their homes for the purpose of self-defense. They need handguns.
In the 25 full years since Chicago passed its handgun ban, handgun murder rates have soared, as
have murders by young people in the city. Chicago schools have launched a $30 million social
program to deter violence by public school students, but this program has literally just begun. In
the meantime, Petitioners have no right to possess handguns to defend themselves, and police
have no legal or constitutional duty to rescue citizens from violence.
The Chicago handgun ban has been completely ineffective in reducing handgun murders.
Therefore, it does not advance the public interest, and it ought to be found unconstitutional by
this Court.
III. The Police Have No Legal or Constitutional Duty to Protect Citizens from Crime.
Under well-established Illinois law, the police have no legal duty to protect individual citizens.
DeSmet v. The County of Rock Island, 219 Ill. 2d 497, 507, 848 N.E.2d 1030, 1037 (2006),
citing with approval Schaffrath v. Village of Buffalo Grove, 160 Ill.App.3d 999, 1003, 513
N.E.2d 1026, 1028 (1st Dist. 1987). In Schaffrath, the court stated:
Id.
Generally, law enforcement officials have no duty to protect individual citizens from criminal
acts. Their responsibility is to the general public. The duty of the police to preserve the wellbeing of the community is owed to the public at large rather than to specific members of the
community. This rule rests upon public policy considerations that a police department’s
negligence, oversights, blunders or omissions are not the proximate or legal cause of harms
committed by others. A general duty would put the police in the position of guaranteeing the
personal safety of every member of the community.
Nor do police have any federal constitutional duty to protect particular individual citizens:
Consistent with these principles, our cases have recognized that the Due Process Clauses
generally confer no affirmative right to governmental aid, even where such aid may be necessary
to secure life, liberty, or property interests of which the government itself may not deprive the
individual.
Schaffrath v. Village of Buffalo Grove, 160 Ill.App.3d 999, 1003, 513 N.E.2d 1026, 1028 (1st
Dist. 1987). See also Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir. 1982) (“The Con- stitution
is a charter of negative liberties; it tells the state to let people alone; it does not require the
federal government or the state to provide services”).
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IV. The Police Have No Practical Ability to Protect All Citizens from Every Crime.
Approximately 83% of Americans “will be victims of violent crime at some point in their lives”
and “in any given year serious crime touches 25 percent of all households.” Daniel D. Polsby &
Dennis Brennen, Taking Aim at Gun Control at 4, The Heartland Institute (1995).8
In the past decade, the number of Chicago Police Department sworn and exempt personnel has
de- creased slightly, from 13,484 in 1998 to 13,354 in 2008. (Chicago Police Department, 1998
Annual Re- port at 34; Chicago Police Department, 2008 Annual Report at 68.) In that same
decade, the number of calls to 911 has skyrocketed. There were 3,770,795 calls to 911 in 1998.
1998 Annual Report, supra, at 31. There were 5,076,219 calls made to 911 in 2007 and
4,704,590 such calls in 2008. Chicago Police Department, 2008 Annual Report at 70. Apart from
any legal duty, the Chicago Police Department has no practical ability to protect everyone at all
times.
In most instances, and despite best efforts, police rarely arrive in time to prevent or interrupt a
crime:
Apart from the Second Amendment’s role in deterring government oppression, the right to arms
has another purpose that is every bit as important and urgent today as it was in
Available at http://www.heartland.org/policybot/results/9486/
No_69_Taking_Aim_at_Gun_Control_Executive_Summary.html.
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the eighteenth century. That purpose is to enable American citizens to defend them- selves, not
against direct oppression by the government, but against oppression from which the government
fails to protect them. The principal source of such oppression today is violent criminals.
***
[T]he police do not and cannot protect law- abiding citizens from criminal violence. The
impotence of our governments in the face of criminal violence is so obvious that it is simply
preposterous to maintain that those individuals with the means and the will to arm themselves are
not thereby enhancing their ability to exercise their natural right of self-defense.
NELSON LUND, A PRIMER ON THE CONSTITUTIONAL RIGHT TO KEEP AND BEAR ARMS, Virginia
Institute for Public Policy (2002) at 13.
While Chicago struggles to deter youthful gun crime, all McDonald and the other Petitioners ask
is that this Court recognize their right to keep and bear arms under the Second Amendment, as
incorporated against the States by the Fourteenth Amendment’s Privileges or Immunities Clause
or its Due Process Clause.
Surely, that is not too much to ask. -----------------♦----------------CONCLUSION
The founder of modern criminology, Cesare Beccaria, knew two centuries ago what Chicago is
only now finding out: that gun bans cause murders:
False is the idea of utility that sacrifices a thousand real advantages for one imaginary or trifling
inconvenience; that would take fire from men because it burns, and water because one may
drown in it; that has no remedy for evils, except destruction. The laws that forbid the carrying of
arms are laws of such a nature. They disarm those only who are neither inclined nor determined
to commit crimes. . . . Such laws make things worse for the assaulted and better for the
assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be
attacked with greater confi- dence than an armed man.
allegiance, in political terms, the tie that binds an individual to another individual or
institution. The term usually refers to a person's legal obligation of obedience to a
government in return for the
protection of that government, although it may have
reference to any institution that one is bound to support. In the United States allegiance is
required of both citizens and resident aliens. In ordinary speech, the term may include
supplemental emotional ties that make it loosely synonymous with loyalty.
Over a century ago, the Supreme Court appropriately confirmed this restricted
interpretation of citizenship in the so-called "Slaughter-House cases" [83 US 36 (1873)
and 112 US 94 (1884)]13. In the 1884 Elk v.Wilkins case12, the phrase "subject to its
jurisdiction" was interpreted to exclude "children of ministers, consuls, and citizens of
foreign states born within the United States." In Elk, the American Indian claimant was
considered not an American citizen because the law required him to be "not merely
subject in some respect or degree to the jurisdiction of the United States, but completely
subject to their political jurisdiction and owing them direct and immediate allegiance."
The Court essentially stated that the status of the parents determines the citizenship of
the child. To qualify children for birthright citizenship, based on the 14th Amendment,
parents must owe "direct and immediate allegiance" to the U.S. and be "completely
subject" to its jurisdiction. In other words, they must be United States citizens.
Warren v. District of Columbia[1] (444 A.2d. 1, D.C. Ct. of Ap. 1981) is a U.S. Court of Appeals case in which three
rape victims sued the District of Columbia because of negligence on the part of the police. The police had lost track of
the repeated calls for assistance. DC's
highest court ruled that the police do not have a legal
responsibility to provide personal protection to individuals, and absolved the police and the city
of any liability.[2]
Decision
By a 4-3 decision the court decided that Warren was not entitled to remedy at the bar despite
the demonstrable abuse and ineptitude on the part of the police. The court held that official
police personnel and the government employing them are not generally liable to victims of
criminal acts for a failure to provide adequate police protection.
ARTICLE II
Bill of Rights of the 1870 illinois constitution
§ 1. All men are by nature free and independent, and have certain inherent and
inalienable rights — among these are life, liberty and the pursuit of happiness. To
secure these rights and the protection of property, governments are instituted among
men, deriving their just powers from the consent of the governed .
body politic
n
(Government, Politics & Diplomacy) the. the people of a nation or the nation itself considered as
a political entity; the state
body politic - a politically organized body of people under a single government
gov·ern·ment [guhv-ern-muh nt, ‐er-muh nt]–noun
1.
the political direction and control exercised over the actions of the members, citizens, or
inhabitants of communities, societies, and states; direction of the affairs of a state,
community, etc.; political administration: Government is necessary to the existence of
civilized society.
they tell us all day long there is NO DUTY TO PROTECT therefore there is NO duty of
obedience owed.
therefore there is no citizenship status by their own confession.
no political citizens = no body politic
no body politic = no political state
no political state = no political united states
their house of cards crumbles from the words “NO DUTY TO PROTECT “