Chicago Gun Case Incorporation Lawsuit

[Al Norris]

For those keeping track, there are 31 briefs in support of McDonald and 2 briefs in support of neither party (the earlier referenced ABA website has one more brief than the ChicagoGunCase website:

Amicus Briefs in Support of Petitioners

1. Brief of the Rutherford Institute in Support of Petitioners
2. Brief of the Paragon Foundation, Inc., in Support of Petitioners
3. Brief of the Heartland Institute in Support of Petitioners
4. Brief of the Appellants from the Ninth Circuit Incorporation Case of Nordyke v. King, Madison Society, and Golden State Second Amendment Council in Support of Reversal
5. Brief for the CATO Institute and Pacific Legal Foundation in Support of Petitioners
6. Brief for Buckeye Firearms Foundation Inc., in Support of Petitioners
7. Brief for State Legislators in Support of Petitioners
8. Brief for Professors of Philosophy, Criminology, Law, and Other Fields in Support of Petitioners
9. Brief for Senator Kay Bailey Hutchinson, Senator Jon Tester, Representative Mark Souder, Representative Mike Ross, and 56 Additional Members of the United States Senate and 249 Additional Members of the United States House of Representatives in Support of Petitioners
10. Brief for the Foundation for Moral Law in Support of Petitioners
11. Brief for the National Shooting Sports Foundation, Inc. in Support of Petitioners
12. Brief for Jews for the Preservation of Firearms Ownership (reprint)
13. Brief for Arms Keepers in Support of Petitioners
14. Brief for Academics for the Second Amendment in Support of Petitioners
15. Brief for the Center for Constitutional Jurisprudence in Support of Petitioners
16. Brief of the American Center for Law and Justice in Support of Petitioners
17. Brief for the Maryland Arms Collectors' Association, Inc. in Support of Petitioners
18. Brief for the Calguns Foundation, Inc. in Support of Petitioners
19. Brief for Thirty-Four California District Attorneys; Eight Nevada District Attorneys; Graham County, Arizona, Former Sheriff Richard Mack; Mendocino County, California, Sheriff Thomas D. Allman; Tehama County, California, Sheriff Clay D. Parker; California Rifle and Pistol Association Foundation; Long Beach Police Officers Association; San Francisco Veterans Police Officers Association; Arizona Citizens Defense League; Texas Concealed Handgun Association; Virginia Citizens Defense League; and Bloomfield Press in Support of Petitioners
20. Brief for the American Legislative Exchange Council in Support of Petitioners
21. Brief for the Goldwater Institute Scharf-Norton Center for Constitutional Government and Wyoming Liberty Group in Support of Petitioner (reprint)
22. Brief for the Institute for Justice in Support of Petitioners
23. Brief for the Safari Club International in Support of Petitioners
24. Brief for Gun Owners of America, Inc., Gun Owners Foundation, Gun Owners of California, Inc., Maryland Shall Issue, Inc., DownsizeDC.org, Conservative Legal Defense and Education Fund, the Lincoln Institute for Research and Education, U.S. Border Control, and U.S. Border Control Foundation in Support of Petitioners
25. Brief for Eagle Forum Education and Legal Defense in Support of Petitioners
26. Brief for the International Law Enforcement Educators and Trainers Association (ILEETA), International Association of Law Enforcement Firearms Instructors (IALEFI), Southern States Police Benevolent Association, Texas Police Chiefs Association, Law Enforcement Alliance of America, Congress of Racial Equality, the Claremont Institute, Professors Carlisle E. Moody, Roy T. Wortman, Raymond Kessler, Gary Mauser, Dr. Sterling Burnett, and the Independent Institute in Support of Petitioners
27. Brief for Women State Legislators and Academics in Support of Petitioners
28. Brief for the States of Texas, Ohio, Arkansas, Georgia, Alabama, Alaska, Arizona, Colorado, Florida, Idaho, Indiana, Kansas, Kentucky, Louisiana, Maine, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, North Carolina, North Dakota, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Virginia, Washington, West Virginia, Wisconsin, and Wyoming in Support of Petitioners (corrected)
29. Brief for Rocky Mountain Gun Owners and National Association for Gun Rights in Support of Petitioners
30. Brief for Constitutional Law Professors in Support of Petitioners
31. Brief for the American Civil Rights Union, Let Freedom Ring, Committee for Justice, and the Family Research Council in Support of Petitioners

Amicus Briefs in support of Neither Party

1. Brief for the NAACP Legal Defense and Educational Fund, Inc. in Support of Neither Party
2. Brief for the Brady Center to Prevent Gun Violence, the International Association of Chiefs of Police, the International Brotherhood of Police Officers, and the National Black Police Association in Support of Neither Party

[Tom Servo]

Assuming that anyone actually reads the brief, it will be ignored. Despite the filing for neither side, it is decidedly in Chicago's camp.

Just got an interesting email from someone in the loop that raised the question: why isn't Seth Waxman's name on this? Wilmer Cutler Pickering Hale and Dorr submitted the brief, and he's a partner there.

Waxman was Clinton's Solicitor General during our darkest hours in the late 1990's, and it's odd that his imprint is absent.

Another observation: every state that seceded from the Union signed on to the Texas Attorney General's brief.

After a good night's sleep and some Maalox, I've been rereading the NAACP brief, and one of their arguments against going the PorI route comes down to "judicial restraint." They suggest:

Against this backdrop, it is likely that a decision by the Court altering the textual source of incorporated rights would bring less, rather than more clarity, to Fourteenth Amendment law.

They suggest that a rereading of PorI could throw precedents based on Due Process into limbo, but there are ways in which the two could coexist.

Could we end up with two coeval doctrines, one based on PorI that specifically protects rights enumerated by the Constitution, and one based on Due Process that protects rights implied by its spirit?

He may have been an irascible, vain, racist coot, but McReynolds had a point about the merits of Due Process in Meyer v Nebraska:

Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.

It could be a way to avoid Bride of Lochner.

[publius42]

Think about it: if Brady had written a really powerful brief for the other side, they would stand to lose tax exemption and we would hang them with their arguments (which aren't popular with the public) for years. They took an obligatory lame swing and are hoping no one notices, and it was just lame enough that no one will.

The NAACP is terrified of Privileges and Immunities, but it may be something they should not fear so much. They're worried about all the due process law, but what happens to it if the 2a is decided on P&I grounds?

I was rereading the Stevens dissent in Heller last night. Much of it is now moot and will not be considered, unless the Court decides to overturn Heller. Not all of it. He makes a good point:

The centerpiece of the Court’s textual argument is its
insistence that the words “the people” as used in the Sec-
ond Amendment must have the same meaning, and pro-
tect the same class of individuals, as when they are used
in the First and Fourth Amendments. According to the
Court, in all three provisions—as well as the Constitu-
tion’s preamble, section 2 of Article I, and the Tenth
Amendment—“the term unambiguously refers to all mem-
bers of the political community, not an unspecified sub-
set.” Ante, at 6. But the Court itself reads the Second
Amendment to protect a “subset” significantly narrower
than the class of persons protected by the First and Fourth
Amendments; when it finally drills down on the substan-
tive meaning of the Second Amendment, the Court limits
the protected class to “law-abiding, responsible citizens,”
ante, at 63. But the class of persons protected by the First
and Fourth Amendments is not so limited; for even felons
(and presumably irresponsible citizens as well) may in-
voke the protections of those constitutional provisions.
The Court offers no way to harmonize its conflicting pro-
nouncements.

He's right, and how do you articulate a standard of scrutiny without harmonizing those conflicts? How do you do it without screwing with the prior due process decisions, as the NAACP fears?

Maybe by defining a privilege or immunity for the first time, and making clear it has a unique nature?

[KyJim]

This is hopefully only a small side trip as I certainly don't want to hijack this thread.

You'll perhaps forgive me, but didn't the Brady Campaign make a procedural faux pas?

In all the other briefs, if they were taking an approach that differed slightly from the Question Presented, they never mentioned the Question at all. That was assumed, in their briefs.

Here however, the Brady's pose an entirely new question that the Court never agreed to ask, let alone answer. . . .

I am aware of a recent oral argument where counsel argued a different question than that presented in the petition. Needless to say, the justices were not amused. Nevertheless, there is some thought that some of the justices might ignore the apparent procedural error.

When a state prisoner brings a federal habeas corpus petition, the federal court is directed by the Antiterrorism and Effective Death Penalty Act (AEDPA) to defer to state courts' decisions unless (1) they have unreasonably applied controlling federal precedent or (2) unreasonably determined the facts of the case. In Wood v. Allen, the petition for the state prisoner posed a question about unreasonable application and then proceeded to argue an unreasonable determination of the facts (intermeshed with unreasonable application). A fuller description is at http://www.crimeandconsequences.com/...-presente.html and a transcript can be found online.

The underlying question involved ineffective assistance of counsel in a death penalty case and, therefore, there is a possibility that some on the court might ignore the procedural faux pas. If so, then the Brady brief might make some tactical sense. Ignore what is likely to be a losing proposition and, instead, focus on the standard of review to emasculate the effect of a ruling incorporating the 2nd Amendment.

[RDak]

Publius, Stevens diatribe is a red herring IMHO.

The 19th Amendment allows women to vote. Yet, convicted felons cannot vote. So would it be ok for an area to totally prohibit someone from voting? Of course not, even though we would be carving out what Stevens weakly calls a limited protected class.

You could reverse Stevens statement and state that the 2nd Amendment carves out unprotected classes of people who happen to be felons.

In essence, IMHO, Stevens is grasping at straws to justify his weak position.

To call law abiding citizens a protected class when all it means is convicted felons do not fall under that right is a red herring with no logical "teeth" IMHO.

I mean, no logical thinking person would say prohibiting convicted felons (violent felons) from owning firearms creates, by its very prohibition, a protected law abiding class. That prohibition does not create a limited protected class of law abiding citizens. What the felon did was remove himself/herself from the citizenry at large by their serious criminal acts. They become the unprotected class. Stevens reverses this fact in support of his weak position IMHO.

In other words, it is a stupid analogy by Stevens IMHO. An analogy mentioned by Stevens because, at his core belief, firearms ownership should be prohibited for private individuals.

[Al Norris]

RDak, until the GCA of 1968, felons, violent or otherwise, had no Federal Firearms Disability. A mere 40 years ago, someone who had served their sentence could own just about any firearm they wanted. They were not bound by the State they lived in, as to where they purchased a firearm. There were no form 4473's, let alone NICS checks.

[RDak]

I understand Al.

My point was Stevens seems to say that carving out felons creates a law abiding protected class while, to me, everyone is protected until someone commits a felony. He has it in reverse IMHO.

To use Steven's analogy as justification for prohibiting a law abiding citizen from ever owning a firearm is a stretch of logic that, IMHO, is a very weak argument.

Stevens also states that by prohibiting felons (and the insane I assume) from firearms ownership this fact "significantly narrows the right to a narrow subset". This simply a red herring IMHO.

Normal ordinary folks are not convicted felons and/or insane. All the restriction does is remove those types of individuals from 2nd Amendment protection. It does not create a significantly narrow protected subset IMHO.

You are correct though about the 1968 GCA (and I don't agree with the 1968 GCA in many, many ways but Stevens overstates the effect of removing convicted felons and the insane to "insane" levels IMHO).

[ReelinRod]

RDak wrote:

My point was Stevens seems to say that carving out felons creates a law abiding protected class while, to me, everyone is protected until someone commits a felony. He has it in reverse IMHO.

To use Steven's analogy as justification for prohibiting a law abiding citizen from ever owning a firearm is a stretch of logic that, IMHO, is a very weak argument.

Isn't Steven's dissent position in Heller at odds with the majority opinion in Lewis (which Stevens joined)?

The Court, in inspecting the legislative history of § 1202(a)(1) quoted a framer as being instructional. Justice Blackmun wrote (emphasis added):

"What little legislative history there is that is relevant reflects an intent to impose a firearms disability on any felon based on the fact of conviction. Senator Long, who introduced and directed the passage of Title VII, repeatedly stressed conviction, not a "valid" conviction, and not a conviction not subject to constitutional challenge, as the criterion. For example, the Senator observed:

'So, under Title VII, every citizen could possess a gun until the commission of his first felony. Upon his conviction, however, Title VII would deny every assassin, murderer, thief and burglar of the right to possess a firearm in the future except where he has been pardoned by the President or a State Governor and had been expressedly authorized by his pardon to possess a firearm.' 114 Cong.Rec. 14773 (1968). See also id. at 13868, 14774. Inasmuch as Senator Long was the sponsor and floor manager of the bill, his statements are entitled to weight."

So yes, the felony conviction removed the felon from the general protected class that encompasses the mass of the citizenry which Scalia casually described as, “law-abiding, responsible citizens.”

Stevens is being disingenuous in his Heller dissent.

[Al Norris]

My bad, RDak. I don't know why I didn't see that the first time around ... Unless Justice Stevens has had a change of mind and wants to narrow the scope of which felonies should enable the disability? (not holding my breath on that meaning)

[RDak]

No problem Al. You've forgotten more of this stuff than I will ever know for pete's sake.

Al, just your opinion, how do you think McDonald will play out?

Reelin' Rod: EXCELLENT find!! Stevens does appear to be talking out of both sides of his mouth doesn't he?

[Al Norris]

RDak, my opinion is worth every bit of what you've paid for.

I agree with most pundits. We will get incorporation. It's the matter of which type of incorporation that my crystal ball is foggy about.

There are several other things I think the Court may do, depending upon how much consensus Justice Thomas and Scalia can build. If they go for a straight forward Due Process incorporation, striking down the Chicago laws, but still hanging back on the type of scrutiny (the recent 7th Circuit case - US v. Skoien - will be the factor here - rational basis is off the table, but intermediate and strict scrutiny will depend upon the case), then I foresee a 9-0 decision.

A lot depends upon the internal politics of the Court and what arguments Chicago (and friends) might bring to bear.

[htjyang]

The judgment will be 5-4 because the liberal justices will want to uphold the Chicago codes. The reasoning might enjoy a larger majority because some of the liberals might want an expansive PoI Clause. If it is the old fashioned Due Process incorporation then that will maintain the status quo and liberals have less of an incentive to join.

I've been thinking about the issue of scrutiny and Heller lately. Most commentators seem to assume that the reason why the Court did not decide on a scrutiny standard was because the majority was divided. An alternative theory came to me the other day and I would like to share with you all:

1. Perhaps the majority wish to divide the 2nd Amendment under 2 categories. Those rights that can be covered by originalism will get strict scrutiny protection. Those rights that cannot be justified by originalism and are of more recent development (such as issues involving silencers and machine guns) will get intermediate scrutiny protection.

Perhaps that's why the majority could not decide on a single standard. They don't want a single standard.

2. It may also be possible that the Court intends to give rational basis test some teeth. Generally, it is thought of as a blank check for the government. But the majority stated that an outright ban fails all levels of scrutiny. That suggests that it fails even the rational basis test.

The libertarian Institute of Justice is filing a constitutional challenge to the National Organ Transplant Act. (See part 1, part 2, part 3, part 4, and part 5) I know that this doesn't relate directly to firearms. But the argument being used is quite fascinating. If they prevail (which I seriously doubt), it will have significant impact on constitutional law in general and may indirectly impact future court rulings on gun control legislation. Their argument on rational basis test (see part 3) also seems tailored to encourage the courts to strengthen the rational basis test. Perhaps Heller is heralding an era in which the courts take rational basis test more seriously?

If so, it will be very interesting if decades from now when the 2nd Amendment is no longer being disputed, when the Bradyites have been reduced to a historical footnote, Heller might be less remembered for defining the 2nd Amendment and more remembered as the beginning of the courts' effort to enforce the rational basis test.

From this perspective, perhaps the foundation of the dispute between the majority and the minority lies in the fact that the minority foresaw the possibility of a strengthened rational basis test and recognized what it will mean for government legislation in general.

[ReelinRod]

htjyang wrote:

1. Perhaps the majority wish to divide the 2nd Amendment under 2 categories. Those rights that can be covered by originalism will get strict scrutiny protection. Those rights that cannot be justified by originalism and are of more recent development (such as issues involving silencers and machine guns) will get intermediate scrutiny protection.

The 7th just came out with a decision applying intermediate scrutiny to a § 922(g)(9) misdemeanor domestic violence conviction disability. Intermediate was chosen because the defendant was in possession of a shotgun (actually in his vehicle) after deer hunting. His claim then was not armed self defense as affirmed in Heller but a 2nd Amendment protected right to hunt.

The court explained this two tier scrutiny it thinks applies:

". . . we read Heller as establishing the following general approach to Second Amendment cases. First, some gun laws will be valid because they regulate conduct that falls outside the terms of the right as publicly understood when the Bill of Rights was ratified. If the government can establish this, then the analysis need go no further. If, however, a law regulates conduct falling within the scope of the right, then the law will be valid (or not) depending on the government’s ability to satisfy whatever level of means-end scrutiny is held to apply; the degree of fit required between the means and the end will depend on how closely the law comes to the core of the right and the severity of the law’s burden on the right.

So constitutional text and history come first, then (if necessary) an analysis of the public-benefits justification for the regulation follows.3 If the first inquiry into the founding-era scope of the right doesn’t resolve the case, then the second inquiry into the law’s contemporary means-end justification is required."

Interestingly (especially with the amount of attention it is getting from gun control advocates) the government apparently based its entire justification on Heller's "presumptively lawful" wording; a path not much accepted by the court.

"The government has approached this case as though all it had to do to defend the constitutionality of § 922(g)(9) is invoke Heller’s language about certain “presumptively lawful” gun regulations—notably, felon-dispossession laws. Not so. Heller held that the Second Amendment secures an individual natural right to possess firearms for self-defense; the opinion’s reference to exceptions cannot be read to relieve the government of its burden of justifying laws that restrict Second Amendment rights. Although Heller did not settle on a standard of review, it plainly ruled out the deferential rational basis test; this leaves either strict scrutiny or some form of “intermediate” review. On the facts of this case, we hold that intermediate scrutiny applies. In its usual formulation, this standard of review requires the government to establish that the challenged statute serves an important governmental interest and the means it employs are substantially related to the achievement of that interest. . . .

Under intermediate scrutiny, the government need not establish a close fit between the statute’s means and its end, but it must at least establish a reasonable fit. The government has done almost nothing to discharge this burden. Instead, it has premised its argument almost entirely on Heller’s reference to the presumptive validity of felon-dispossession laws and reasoned by analogy that § 922(g)(9) therefore passes constitutional muster. That’s not enough."

UNITED STATES OF AMERICA v. STEVEN M. SKOIEN

[Tom Servo]

Interestingly (especially with the amount of attention it is getting from gun control advocates) the government apparently based its entire justification on Heller's "presumptively lawful" wording; a path not much accepted by the court LOL.

The actual wording was,

Instead, it has premised its argument almost entirely on Heller’s reference to the presumptive validity of felon-dispossession laws and reasoned by analogy that § 922(g)(9) therefore passes constitutional muster. That’s not enough.

As the young people say, "pwned."

By Justice Syke's logic, laws infringing on the right to keep arms for self-defense would be subject to strict scrutiny. Stuff that falls outside original intent would receive intermediate scrutiny. Rational basis was taken off the table in Heller, and she confirms it here.

So, bans on "assault rifles" would fail, because those are militia weapons "in common use." Likewise, we could see the "sporting purpose" designation thrown out as well.

In terms of right-to-carry, things could get interesting. Open carry could be argued to deserve strict scrutiny, while concealed carry would have to survive intermediate scrutiny. Even in the second case, the burden lies on the government to prove "contemporary means-end justification."

Such justification can easily be dismantled by statistics.

It may also be possible that the Court intends to give rational basis test some teeth. Generally, it is thought of as a blank check for the government.

They tried that with Kelo (which the Brady brief cites as good law), and I'd hope they learned their lesson. In any case, I think rational basis is out of the question for the 2A from here out.

[RDak]

RDak, my opinion is worth every bit of what you've paid for.

I agree with most pundits. We will get incorporation. It's the matter of which type of incorporation that my crystal ball is foggy about.

There are several other things I think the Court may do, depending upon how much consensus Justice Thomas and Scalia can build. If they go for a straight forward Due Process incorporation, striking down the Chicago laws, but still hanging back on the type of scrutiny (the recent 7th Circuit case - US v. Skoien - will be the factor here - rational basis is off the table, but intermediate and strict scrutiny will depend upon the case), then I foresee a 9-0 decision.

A lot depends upon the internal politics of the Court and what arguments Chicago (and friends) might bring to bear.

Thanks for your opinion Al. All of it makes sense.

As for me, I think we'll get incorporation.

What will be the SCOTUS vote? I simply do not know. (I tried to predict Heller and thought it would go 7-2 at worst. I was TOTALLY wrong.)

I believe strict scrutiny will apply to the general right to own a firearm that is in common use and intermediate scrutiny will apply to all other firearm rights. But, once again, this is a WILD guess.

In the end, I simply don't know. But I am as excited as heck to eventually read McDonald since I, like all of you, have been waiting for the major portion of my adult life for cases like Heller and McDonald to make it to the SCOTUS.

ETA: I don't know if McDonald will even get into the scrutiny area?

[Tom Servo]

I, like all of you, have been waiting for the major portion of my adult life for cases like Heller and McDonald to make it to the SCOTUS.

After seeing things hit rock bottom in the 1990s, I didn't expect to see these kind of victories in our lifetime. I'd expected small, hard-fought, strictly specific and incremental challenges over a long period of time.

If you'd told me in 1995 that we'd win an individual-rights interpretation and incorporation in the space of two years, I would not have believed you.

Sometimes it's good to be proved wrong.

I don't know if McDonald will even get into the scrutiny area?

I don't see a way of incorporating without establishing a standard of scrutiny.

[Bartholomew Roberts]

ETA: I don't know if McDonald will even get into the scrutiny area?

The Court may decide to let the different lower courts develop their own standards and see what works best before stepping in; but I think most will be looking for some additional guidance on scrutiny.

The downside is while there may be widespread agreement on incorporation, I am betting that the standard of scrutiny is going to be hotly debated. Justice Kennedy is likely to once again end up in the driver's seat in determining what scrutiny applies.

[Yellowfin]

1. Perhaps the majority wish to divide the 2nd Amendment under 2 categories. Those rights that can be covered by originalism will get strict scrutiny protection. Those rights that cannot be justified by originalism and are of more recent development (such as issues involving silencers and machine guns) will get intermediate scrutiny protection.

Best result would be that they would do away with the altogether idiotic treatment of silencers entirely. They're hearing safety equipment, for goodness sake. You're required by law to have one on your car, and if I recall correctly, your lawnmower. Many countries either completely do not regulate them or even require them. If in more common use, they could resolve the problem of firing ranges getting shut down because of noise complaints. They would certainly make firearms more friendly to newcomers--we DESPERATELY need that in many states where the average age of firearm ownership is seriously too high.

The law attached to suppressors is arcane, archaic, irrational, and quite frankly stupid. I'm really hoping the courts can scrap it within a couple of years because it is the product of one of the worst laws in US history and maintained by nothing more than absurd and one sided misinformation and superstition.

[maestro pistolero]

No kidding, imagine if we all had to drive with ear muffs on. That would be quite a sight.

[Tom Servo]

The law attached to suppressors is arcane, archaic, irrational, and quite frankly stupid. I'm really hoping the courts can scrap it within a couple of years because it is the product of one of the worst laws in US history and maintained by nothing more than absurd and one sided misinformation and superstition

Agreed, but we're still in that one-step-at-a-time process. Heller laid a great deal of groundwork, and this case will help cement that.

Essentially, Heller acknowledged that the right to keep and bear arms was fundamental. The NFA is a tax on that right. If we apply prior precedent, the NFA is plainly unconstitutional. See Harper v. Virginia State Board of Elections, which ruled poll taxes unconstitutional, or Minneapolis Star v. Minnesota Commissioner of Revenue, a case that ruled a Minnesota tax on ink and paper to be an unfair abridgment of freedom of the press.

We'll get there.

Oh, and oral arguments are Tuesday, March 2, 2010 at 10:00 a.m.

[ilbob]

P&I seems inherently more limiting on the scope of rights that are protected, but protects them more fully.

DP seems to allow whatever justice can get 5 votes to make up any right he/she so chooses.

P&I would be nice because it logically leads to a requirement that states bring back grand jury and civil jury protections that have been eliminated in some states.

OTOH, the courts have somehow found it acceptable to emasculate the 4th and 5th amendments. They may well find ways to do the same to the second if they incorporate it.

[Al Norris]

For those of you following the threads over at the Volokh Conspiracy, Alan Gura has answered Prof. Kerr, late Sunday night:

We understand that not everyone will agree with our position in this case. For example, we expect that Chicago’s attorneys will present some alternative constitutional vision that supports their desired outcome. May the more persuasive argument (ours, I should hope) prevail.

But not everyone agrees that the case should or would be based upon the Supreme Court’s views of the law. Prior to the D.C. Circuit’s decision in Parker/Heller, that case was met by many rolled eyes and deep, knowing sighs by Very Smart People. The skepticism had nothing to do with the merits of the arguments on either side, which were entirely beside the point. Simply put, the Second Amendment wasn’t going to be revived because the courts wouldn’t feel like going there.

So I wasn’t too surprised to see this point of view pop up in reaction to the McDonald case. Prof. Kerr cynically predicted we’d get wiped out 8-1 on the Privileges or Immunities claim – that’s the one based on the actual text and original public meaning of the Fourteenth Amendment – because the justices wouldn’t feel like interpreting the Constitution. Prof. Barnett capably responded to that claim, so I didn’t see the need to do so here.

But now, Prof. Kerr has asked the following set of questions in a discussion thread about the Cato Institute’s amicus brief:

It’s interesting to me that the Cato brief is based on original intent originalism rather than original public meaning originalism. That is, it is based on what the drafters wanted the 14th Amendment to do, rather than what the 14th Amendment was understood by the public to mean (or perhaps more specifically, what the words of the 14th Amendment were understood to mean by the public at the time). Do we have any good historical sources on what the public understood the P or I clause to mean at the time? If so, what do they suggest? If not, do we have reason to believe that the public knew what the authors of the 14th Amendment intended? I don’t know how widely the debates over the meaning of P or I were distributed around the country at the time. Does anyone know?

Of course, had Prof. Kerr actually read our brief, he’d have seen that we devote a significant portion of it to answering just these questions.

Failure to read the pleadings carefully enough to grasp the points they seek to make leads to some frankly bizarre questions. I’d like to respond to two such questions about our approach in this case. First, some people wonder why our Privileges or Immunities argument needs to define that provision any broader than the actual Second Amendment right at issue. The answer is dictated by logic. While we cannot define the full scope of every right secured by the Fourteenth Amendment, and have no interest in doing so, neither can we show that the right to arms fits within the Privileges or Immunities Clause without first discussing what sort of rights are embodied by that provision. It’s worth mentioning that self-defense is a natural pre-existing right, and consequently the right to arms would be a Privilege or Immunity of American citizenship even if the Second Amendment did not exist.

Second, some have asked if we’re needlessly straying from our mission in seeking to have The SlaughterHouse Cases overturned. No. While overruling SlaughterHouse is a worthy goal in and of itself, doing so is necessary to secure meaningful Second Amendment rights against state infringement under the Privileges or Immunities Clause.

We believe that the Second Amendment guarantees a fundamental right rooted in the ancient right of self-defense and self-preservation. I’ve worked very hard advancing just that view in Heller. But if the Second Amendment is merely some construct of national citizenship, a claim upon the federal government that grows out of the government’s existence, a right conferred by the government which wouldn’t exist in the government’s absence and which looks an awful lot like a rule of pre-emption, it isn’t much of a right at all. The “Save SlaughterHouse” arguments are not merely untenable as a matter of law, they suggest a very weak Second Amendment right that does us no good. We don’t believe that self-defense is an interest at the level of visiting the sub-treasuries in Washington, D.C. Since SlaughterHouse has no positive value anyway, it is hardly inconsistent with the interests of organizations focused primarily on vindicating gun rights to seek that precedent’s demise. Indeed, it should not be surprising that any litigant whose interests are served by a faithful reading of the Constitution would seek to have overruled a decision widely acknowledged as defying the Constitution.

For those wondering why the P or I route, now you know.

[htjyang]

As much as I support Gura's effort to overturn Slaughterhouse, his explanation is not very persuasive. The Court in Heller already stated that the 2nd Amendment right is a pre-existing right that predated the ratification of the Constitution. That suggests the right can exist independent of the government's existence. In fact, the Heller majority specifically mentioned the traditional anti-tyranny rationale 3 times. That clearly contemplated the existence of the right even after the end of our constitutional arrangement. So I don't see why Gura is still concerned about a 2nd Amendment right that is revocable by the government.

That's the natural rights perspective. From a purely realistic perspective, government can indeed take away any right it wishes to revoke. The inherent dangerousness of arms is what makes any comparison to the 1st Amendment problematic. For the most part, prison inmates still retain the right to free speech. But nobody is arguing that prison inmates retain a right to keep and bear arms.

There is an inherent contradiction in Gura's position. He believes that the 2nd Amendment right exists independently of the government. Yet who is he asking to redeem that right? The government, of course. The judiciary is as much a part of government as the executive or the legislature. In fact, had Justice Kennedy woke up from the wrong side of his bed for Heller, there would've been a Justice Stevens majority opinion that upheld the DC codes.

I believe that Gura's argument for incorporation and overturning Slaughterhouse is persuasive. With all due respect to Prof. Kerr, I suspect that Justice Thomas may not be the only one who will support the revival of PoI. (I actually think there is a reasonable chance that Justice Kennedy might sign on.) Doing so can help bring some order to constitutional law. That is good enough for me.

[rwilson452]

I didn't see it posted so, arguments will be heard March 2nd.

[Tom Servo]

I suspect that Justice Thomas may not be the only one who will support the revival of PoI. (I actually think there is a reasonable chance that Justice Kennedy might sign on.) Doing so can help bring some order to constitutional law. That is good enough for me.

A few folks are casting lots on this one, and I've heard some interesting predictions.

Some hold out more hope for PorI invigoration from the liberal side of the court than from Scalia, Alito and Roberts. That would be unfortunate coming from so-called originalists, but we've got politics in the mix. Still, I think Kennedy may be the true wild card here.