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In War on Gun Rights, Chicago’s Firing Blanks

11:01 AM, Jun 3, 2011 • By ADAM J. WHITE
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Judge Frank Easterbrook, of the U.S. Court of Appeals for the Seventh Circuit, is known for two things: First, he writes some of the crispest, liveliest opinions that the federal bench has seen in decades. Second, he has absolutely no tolerance for nonsense. Both of these traits were on display yesterday, in the Seventh Circuit's newest opinion in NRA v. Chicago.

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Previously, the Supreme Court confirmed that the Second and Fourteenth Amendments prohibit state or local laws from infringing on the right to keep and bear arms, wholly rejecting Chicago's attempt to preserve its gun possession law. That decision, issued by the Supreme Court, was an irrevocable loss for Chicago. And the city plainly recognized that: just four days after the Court's issued its decision, Chicago repealed its gun law, yet replaced it with another one.

After Chicago's loss in the Supreme Court, the parties returned to the trial court, to decide whether Chicago would have to pay for the plaintiffs' legal fees.  A federal statute requires state and local officials who have violated federal civil rights to pay the "prevailing party's" legal fees, in order to remove the financial barrier that would otherwise thwart many civil rights plaintiffs.  And in that fight, Chicago took a remarkably bold position: It argued that the gun rights’ plaintiffs were not "prevailing parties" in the case -- and thus not entitled to attorney's fees -- because Chicago erased the challenged law before a the trial court issued a final judgment putting the Supreme Court’s decision into effect.

Yesterday’s Seventh Circuit opinion dispatched that argument with characteristic bluntness. Chicago had relied on cases in which the defendant changed his conduct before the trial court issued a final judgment, but it had cited no case in which the court refused to recognize the plaintiffs as "prevailing parties" after an appellate court – let alone the Supreme Court – had decided a case's single dispositive issue in favor of the plaintiffs. As Judge Easterbrook explained for the court, "[t]his litigation was over except for the  entry of an injunction by the district court. Chicago and Oak Park capitulated, which made the exercise unnecessary.... If a favorable decision of the Supreme Court does not count as 'the necessary judicial imprimatur' on the plaintiffs’ position ... what would?"

This is not the only fee dispute arising from the last several years' gun rights’ litigation. Two years before handing these attorneys a win in the Chicago case, the Supreme Court ruled in their favor in District of Columbia v. Heller, which confirmed the underlying Second Amendment right to keep and bear arms. In that case, the District of Columbia, like Chicago, has done everything within its power to resist paying the plaintiffs' attorneys fees.  

The irony is palpable: liberal legal activists have long extolled the fee shifting statute as a bedrock protection against state and local infringement of federal rights. None have put it better than recent memory's three iconic liberal judges, Justices Brennan, Marshall, and Stevens, quoting the law's legislative history:

In many cases arising under our civil rights laws, the citizen who must sue to enforce the law has little or no money with which to hire a lawyer. If private citizens are to be able to assert their civil rights, and if those who violate the Nation's fundamental laws are not to proceed with impunity, then citizens must have the opportunity to recover what it costs them to vindicate these rights in court.

Too bad for Chicago and D.C., no one thought to limit this rule only to the constitutional amendments that liberals like.

Adam J. White is a lawyer in Washington, D.C. 

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