Chicago Gun Case Incorporation Lawsuit

[poptime]

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.

Is this correct? Do prison officials not censor inmates mail and allow them to publish newspapers, tv and radio broadcasts?

[armoredman]

Inmates have rights granted under CRIPA, Consitutiional Rights for Incarcerated Persons Act. Free speech is not a generally allowed item under certain guidelines. Talking about committing crimes or acts against the institution, staff, or other inmates will bring consequences. Just talking to each other, no issues, and the may read any newspapers, watch the news if they have a TV, get magazines that aren't restricted, (pornographic materials and such), but they do not publish anything. They may not hold meetings, (other than religous, with state civilian contractors and staff observing), rallies, or any other gatherings we have not thoroughly vetted far in advance.
We go through thier mail by law, and remove contraband coming in, but outgoing mail is not censored, per se. It may be held if there is something suspicious, i.e., giving orders for hits on the outside, etc.
But they can write whatever they want in those letters...and some are lurid enough to make Larry Flynt blush. Gah.

[maestro pistolero]

As much as I support Gura's effort to overturn Slaughterhouse, his explanation is not very persuasive. . . . .

Then in the same post:

I believe that Gura's argument for incorporation and overturning Slaughterhouse is persuasive.

is one of those statement a typo?

[Bartholomew Roberts]

Quick question: If you wanted to overturn Slaughterhouse, is there a better vehicle for it than a Second Amendment challenge? I ask because off the top of my head, I cannot think of one.

It seems to me that the Second Amendment is almost the perfect vehicle to challenge Slaughterhouse, particularly in light of the precedent like Cruikshank. Are there better issues that would be more suitable if overturning Slaughterhouse was your primary goal?

[Al Norris]

Originally Posted by htjyang

As much as I support Gura's effort to overturn Slaughterhouse, his explanation is not very persuasive.

In what manner?

In his brief for certiorari, Gura laid out the foundation. That foundation was persuasive enough to get the attention of at least 4 Justices. In his merits brief, he fleshed it all out.

Gura discussed why it was important not just for the Court (in future rights litigation) but for the country as a whole to reinvigorate the P or I clause. He also discussed the how and why the 2A necessarily belonged to the Privileges or Immunities of all citizens. Gura discussed why Slaughter-House was wrong and how that wrong decision led to the infamous Cruikshank decision.

The audience of these briefs were the Judiciary, not the common man.

In his blog, which I copied, he tries to give the common man his reasoning's.

Based upon your later remarks, it is this "common-man view" that you don't find persuasive, yes?

Not everyone is a Jurist; a Law Professor; a Scholar. Recognizing this, Gura attempted to distill it down to that level. You think it wasn't done very well. That's fine. I personally think he did as good a job as anyone could do, given the technical nature of the arguments.

Originally Posted by htjyang

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.

Since it was the Government (in the form of the Judiciary) that took away this (and other) right(s), who would you expect one to ask for its reinstatement?

The easiest avenue was to ask the branch (of government) that took them away, to restore them.

And in that manner, the hardest form was not to take every possible concept and throw it against the wall to see what would stick, but to pick a single concept and thrust it down the throats of the Court.

The former method is a tried and true form of litigation. The latter method is the most risky. But it is the latter method that obtains the greatest reward, because a decision from that method is more pure.

We see that in Heller. Despite the dicta by Scalia, the right is now enshrined as a personal and individual right, forever destroying the competing theories.

Heller did one more thing. It utterly destroyed the idea that the US Government could again ban an entire class of arms.

When McDonald is decided and incorporation a reality, State AWB's may become a thing of the past. I say "may," because it matters which form of incorporation the Court decides to take.

That's the bigger question Alan Gura is asking the Court. Will they side for the liberties of the people, or will they side for the continued usurpation of power by the government.

[htjyang]

I agree with Gura's PoI argument, but not his latest argument for making the challenge in the first place. To me, restoring the original public understanding of the PoI is sufficient. But Gura's latest argument for doing so is based upon his concern that the government might arbitrarily take away 2nd Amendment rights.

I agree with Bartholomew Roberts that the 2nd Amendment is a very good vehicle for overturning Slaughterhouse, especially since most other rights have already been incorporated. But again, that's not the argument made by Gura on his web site. Let me quote him:

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.

Gura's concern is that the 2nd Amendment right remains weak. In fact, his point about preemption suggests that he is concerned that the federal government may even use some of the escape clauses in Heller and transform the 2nd Amendment from a grant of individual rights to a grant of federal power.

I'm not convinced that is possible after Heller, assuming that the philosophical balance on the Court remains the same or changes to a conservative majority. On the other hand, if it changes to a liberal majority, then even if Gura wins the PoI argument, it will be of no help to gun owners. The liberals have made clear in Heller that the 2nd Amendment exists, but it has no practical application. I have no doubt that is the approach they will take in McDonald.

As for my comparison of the free speech right and the 2nd Amendment rights in prison, let me just note that the former is simply restricted whereas the latter is banned altogether. The Court in Heller suggested that such a ban is legal even for felons who have served their time and have been released. Contrast that position with the Court's assertion that a ban will fail even rational basis test. What this means is that the Court believes the 2nd Amendment right is for the general, non-felon public.

[htjyang]

To Antipitas,

You separated Gura's arguments into one that is for the judiciary and one that is for the general public. It may very well be the case that was what he intended and I should not have judged his latest argument from the perspective of the judiciary. But I'm not sure that's what he intended. If it is, then expansion of 2nd Amendment rights to the states via incorporation is sufficient. Among the Chicago codes he challenged is the re-registration requirement, something that was not present during the Heller challenge. I'm not sure it really matters to the common man whether incorporation is done through DP or PoI.

Second, it's the legislatures that take away 2nd Amendment rights, not the judiciary. It was not the judiciary that passed NFA, GCA, Hughes Amendment,...etc. From Heller to McDonald, and no doubt future cases, gun rights supporters are battling various federal, state, and local legislatures, and they are doing so with the aid of the judiciary. Fair enough, that's how our system is structured. But it's unfair to suggest that the judiciary is responsible for imposing a gun control regime in the first place.

Let me put it another way. Suppose if Heller came out with Stevens writing the majority opinion. Suppose if every legislature in the country repealed all the gun control legislation of the land. In that case, the Stevens opinion becomes irrelevant. As much as we may be offended by Stevens's opinion, nowhere does it say that the DC codes are required by the Constitution.

That's a distinction that not many people appreciate, the difference between what is constitutionally permissible and what is constitutionally required. Interestingly enough, Gura appreciates that distinction. In a widely circulated e-mail of his that he wrote after Heller argument, he dealt with complaints about his position on machine guns by advising people to change public opinion. If public opinion is changed, then the legislature will repeal the Hughes Amendment. In fact, if gun rights supporters can change public opinion in Chicago, then McDonald would not have been necessary in the first place. The city council would have repealed those codes.

Therefore, this litigation is anti-majoritarian, at least for certain localities. Now, one can argue that the 2nd Amendment right, as incorporated to the states, is supposed to be anti-majoritarian and I actually agree with that view. But the anti-majoritarian nature of this litigation should not be ignored. This litigation is about redeeming individual rights against the majoritarian right to govern.

Some gun rights supporters characterize such litigation as "liberating" people living in such localities. I always found such triumphalism curious. If the people of DC, Chicago, NYC,...etc. really want their 2nd Amendment rights, why don't they stage public demonstrations by the hundreds of thousands demanding their rights? Why haven't I heard of mobs storming city halls demanding their rights back?

That hasn't happened because most people in those localities are either:

a) In favor of gun control,
b) indifferent, or
c) rank gun rights as a low priority.

It may very well be the case that after the restoration of their rights, they might grow to become dependent on them and thus become much more attached to them than they are now. (though this does bring up the question of why they allowed such regulations in the first place) My hope is that the gun rights movement does not become too attached to the litigation strategy, which is inherently anti-majoritarian. It seems to me that a strategy focused on growing the grassroots by educating the public is the one more likely to guarantee that the 2nd Amendment will forever remain alive.

[USAFNoDak]

Article VI
All debts contracted and engagements entered into, before the adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.

To me, this looks as if the Bill of Rights, being a part of the Constitution, would be the supreme law of the land and all state judges as well as state legislators, state executives, etc. would be bound to abide by all of the ammendments in the Bill of Rights. This is very confusing as to how, then, our own government can argue that the Second Amendment doesn't apply to the states or local governments. Can someone please explain to me how article VI allows states and local governments to trample upon our rights protected by the Second Amendment to keep and bear arms?

I'm not a legal scholar or an expert on constitutional law, but it seems to me that Article VI settles the McDonald vs Chicago case without even being heard by the USSC. I'd like to hear an explanation by someone who is knowledgeable on this issue.

Thanks in advance.

[maestro pistolero]

and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land;

Well, that part is a little worriesome, considering the armament treaties that are afoot.

[gc70]

Can someone please explain to me how article VI allows states and local governments to trample upon our rights protected by the Second Amendment to keep and bear arms?

Well, that part is a little worriesome, considering the armament treaties that are afoot.

Article VI establishes the order of precedence of laws when laws of different types are in conflict. That order is:

.. The US Constitution
.... Federal laws and treaties
...... State Constitutions
........ State laws

Article 1, Section 9, Clause 6 of the US Constitution say:

No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another; nor shall Vessels bound to, or from, one State, be obliged to enter, clear or pay Duties in another.

If New York passed a law that ships passing through New York waters to dock in Jersey City had to pay New York a duty, that New York law would be in conflict with A1,S9,C6 of the US Constitution. In that conflict of laws, the US Constitution would win and the New York law would be invalid.

Foreign treaties have the same precedence as federal laws and both fall under the US Constitution. Just as a federal law that conflicts with the Constitution can be found to be unconstitutional, so can a treaty.

As to the Second Amendment and state laws, Barron v Baltimore held that the Bill of Rights applied to the federal government alone and not the states. Most of the provisions in the Bill of Rights have subsequently been applied to the states by incorporation through the due process clause of the 14th Amendment. That incorporation process did not invalidate Barron v Baltimore, but selectively circumvented it. The Second Amendment has not yet been incorporated through the 14th Amendment, so it only applies to the US government at this time.

[maestro pistolero]

Thanks for that.

[USAFNoDak]

Taking the last two paragraphs of Article VI:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.

Paragraph #2 of Article VI: One could eliminate some of the statement and it would still be grammatically correct, since we have the conjuction "AND" in play.

This Constitution, ....., shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.


If I say, the speed limit law, and other traffic laws, will be enforced to the full extent, I can still say that the speed limit law will be enforced to the full extent, even if I don't mention the other traffic laws.

Paragraph #3 of Article VI:The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution;

So, how can one be bound by oath or affirmation to support a constitution which doesn't affect them if all of the Bill of Rights are not incorporated against the states? Is the Bill of Rights a part of the Constitution? I would guess the USSC would affirm that it is. If one amendment of the bill of rights does not apply to the states, then how can we logically and legally demand that the state legislatures, along with the state executives and judicial officers, be bound by oath or affirmation to support the US Constitution?

I know there are USSC cases which question whether all amendments contained in the Bill of Rights apply to the states or not. However, the language in the Bill of Rights combined with Article VI, would seem to make the whole constitution, including each and every one of the amendments in the B of R, binding upon the states. Am I being too logical here?

[Yellowfin]

Some gun rights supporters characterize such litigation as "liberating" people living in such localities. I always found such triumphalism curious. If the people of DC, Chicago, NYC,...etc. really want their 2nd Amendment rights, why don't they stage public demonstrations by the hundreds of thousands demanding their rights? Why haven't I heard of mobs storming city halls demanding their rights back?

That hasn't happened because most people in those localities are either:

a) In favor of gun control,
b) indifferent, or
c) rank gun rights as a low priority.

It may very well be the case that after the restoration of their rights, they might grow to become dependent on them and thus become much more attached to them than they are now. (though this does bring up the question of why they allowed such regulations in the first place)

A very astute question, and there is a very logical answer. Because of the gun laws of Chicago, NYC, DC, etc. there has been a segregation of sorts. They do not have an established "gun culture" because of lack of opportunity for lifelong residents and tremendous deterrence of those coming from elsewhere to bring it with them if to move there at all. The anti gun laws, ideology, and mentality is spread and maintained through intense and deliberate marketing of identity politics, basically the idea that city people inherently don't own guns (legally, at any rate) and there's nothing in it for them because they don't hunt, aren't in the country, etc. Then they make it nasty by making the gun culture outcast using much of the same rhetoric as racial segregation.

They play EVERY possible issue against us that way, saying to the urbanized population that since they don't hunt, they must be against gun rights since that's a hunter thing. And because as far as they know, they don't see gun ownership as part of any life they recognize, as they've only seen guns in the hands of cops, criminals, and movie characters and they're not any of those either. With no equally competing information on a personal level, the anti gun politicians, media, and activist groups can tell them anything they want, and the ideas have become culturally entrenched:

* Since they live in a city, they must be against gun rights because that's a country thing, and they're not in the country. Legal gun ownership doesn't happen where they live or in the world they live in or for people like them. It happens in other states they're taught to dislike, like Texas or Montana, which are really more like fictional places in their minds not real places where real people like them live. Their teachers and the news media tells them so.

* If they're not Protestant, they must be against gun rights, because that's a Protestant thing, not for Catholics. Or Jews. Or atheists. Their religious leaders and friends they identify with of the same religion or lack thereof said so.

* If they're not Caucasian, they must be against gun rights, because that's a Caucasian thing, not for blacks, Hispanics, or Asians. Their ethnic group advocates said so.

* If they're female, they must be against gun rights because it's all about hunting and that's a guy thing, particularly a redneck, sexist guy thing. The culturally prominent outspoken rich liberal women in media and entertainment said so.

* If they're for abortion, they must be against gun rights because that's something only pro life people from rural America "Jesus Land" believe in. The politicians they keep reelecting for 20 years said so.

* If they're afraid of crime in the city, they must be anti gun because the only guns they know of are in the hands of cops and criminals, and the cops are anti gun there and are very vocal on the matter. Guess what the news media says about it too.

* If they're not chauvanists or misogynists, they must be against gun rights because that's not something for feminists or even people who merely believe in equal rights for both genders--so they are told.

* If they have gay friends or are themselves, or just like the idea of equal rights, they must be anti gun because only homophobic people who hate everyone like guns. The art and entertainment community says so.

* If they're educated, they must be against gun rights because all kinds of academic people with PhD's are anti gun. All through college all they heard was that guns are bad, and they heard that from supposedly very smart people. During that time nobody stood up and said otherwise, for fear that they would be labeled as not very smart, or fail the class, or lose their tenure--and have the cops called on them.

Since there aren't many gun owners in cities, none that they know at any rate, they believe it. Since that's what they're used to, they believe it, and they want it to stay that way because they don't know anything else. And since people who are like them who know differently don't want to be verbally abused, ostracized, fired from their jobs or not hired for a new one, penalized in school, or have their property vandalized or even their lives threatened, they stay silent and just go along with it. We have been so culturally maligned it's harder for someone to stand up for gun rights than just about anything. Most people get stage fright just to sing karaoke in front of a bunch of drunk friends--standing up for something you believe in that 99.9% of all printed published words and content of the airwaves are slanted to hate and 45% of the population believes every bit of it? Might as well ask them to brush a lion's teeth! For much too long the vast majority of visible promotion of gun ownership was centered around rural outdoors "sportsman" stuff, so an effective counter of equal magnitude to this misinformation and cultural slander has not been in place. We haven't even really begun to try.

Do you know the reason racist laws like segregation, Jim Crow laws, etc. had to be struck down in the Supreme Court? Racism worked GREAT for politicians. Politicians LOVED racist laws and politics. They could use fear of a little understood and submissive minority whom they could associate with crime, immorality, poverty, and other societal ills and blame it all on them so they could be the heroes who would shield society from it. They could make their majority voting base feel good about themselves and unify them under the banner of race. It worked! They won elections EVERY TIME! Exactly like today's anti gun politicians, who since the race card has been taken away from them, they simply shift the hate to gun owners and do the exact same thing. Keep us out of cities, keep us out of schools, keep us out of restaurants, keep us out of sporting events, keep us off public transportation, make us pay fees and go through complicated procedures, and we're all that's bad in the world today. Ever notice that? Oh, and it's all to protect the children, too. They didn't even bother to change the words on the laws or the arguments, just substitute guns, gun owners, and the NRA for the N word.

Need I even mention that anti gun laws were almost always originally designed and intended as racist laws in the first place.

Hence you read me saying on this gun board that we need to kick the anti gun political complex out of the country. Not play nicey nicey, not say "Oh, that's ok, I disagree but it's all politics", but absolutely remove it from political office, education, and all facets of life that it controls. As you see that's exactly what they've tried doing to us, and unless we do so to them they're going to eventually win as cities, divorce and illegitimacy, ethnic demographic shift, and pop culture try to drive us into cultural extinction. We cannot continue being content to try to stall their efforts or play penny ante win some lose some, we've got to fight as hard, as long, as deep, and as no-holds-barred as they do and drive for absolute and permanent victory.

[Al Norris]

Darn good summation, Yellowfin.

[gc70]

So, how can one be bound by oath or affirmation to support a constitution which doesn't affect them if all of the Bill of Rights are not incorporated against the states?

Some parts of the Constitution apply only to the federal government, some parts apply only to the states, and some parts apply to both. As an example, the US Constitution sets minimum ages of 25 for Representatives (A1,S2,C2) and 30 for Senators (A1, S3, C3). Those requirements apply to members of the US Congress and not to state legislatures.

The Supreme Court has ruled that the amendments that make up the Bill of Rights were written to apply only to the federal government. The 14th Amendment was written to apply to the states. In various cases after the adoption of the 14th Amendment, the Supreme Court has ruled that the 14th Amendment's due process clause covers specific fundamental rights, some (but not all) of which also happen to be mentioned in the Bill of Rights.

Today, the 2nd Amendment, as written, only applies to the federal government. Hopefully, the Supreme Court will rule in the Chicago case that the right to keep and bear arms is the type of fundamental right that the 14th Amendment applies to the states.

[RDak]

I completely agree Yellowfin. Good post!

[Tom Servo]

Finally reading through the Arms Keepers brief. They argue for an odd model of "selective" incorporation through PorI, while preserving Slaughterhouse.

It occurs to me that I've never heard of this organization, and there's not much information, but the brief describes them as,

(...) a volunteer organization that supports reasonable regulation of handguns and rifles, instead of prohibition.

Anyone know anything about them?

[Bartholomew Roberts]

Anyone know anything about them?

Their website is www.armskeepers.org and it is registered to a lawyer in Monroe, CT named Andrew Hyman. If you google '"Andrew Hyman" guns', you'll get a bunch of comments on the Heller case from a poster named Andrew Hyman at Scotusblog and the Volokh Conspiracy.

[Tom Servo]

He seems to be pretty pro-2A, but the phrase "reasonable regulation" turns my blood cold. I could just be getting twitchy, though.

[htjyang]

Yellowfin,

1. Your argument appears to be that the vast majority in such anti-gun localities have been hoodwinked by an anti-gun elite. Fair enough, I accept such a possibility. But even assuming that is the case, it still does not change the fact that the people vote in those elites. That the people are easily deceived is not an argument against majoritarianism. If it is, then we might as well overthrow the Constitution and adopt some form of authoritarian rule. The fantasy of a highly educated and intelligent population that cannot be deceived remains just that, a fantasy. (Though one can argue that a written constitution is specifically designed to prevent such things, and I would agree with that argument.*) So the possibility that the people of Chicago have been deceived doesn't change the fact that its gun control regime is a result of majoritarian rule.

2. Your explanation may explain how the city maintains its gun control regime. But it doesn't explain how the city got that way in the first place.

The town of Chicago was founded in 1833. I have been assured by an army of 2nd Amendment scholars that in the early days of the Republic, most of the population was friendly toward the idea of firearms ownership. So how did it come to pass between then and recent decades for there to grow a clique who are in favor of gun control? I see many gun owners today who take their firearms with them whenever they move. I think it is reasonable to assume that people in the early 19th century did the same. If the general population back then was more friendly toward firearms than now, then where would that gun control clique come from? How did they get elected in the first place?

* The theory of constitution that I'm representing here is as follows: The Framers required super majorities in both Congress and the states to amend the constitution precisely because they wanted to make sure that a proposed change is truly wise and enjoys broad based support. If something is popular enough to garner a super majority, then chances are, it is also a wise decision. Therefore, it should be codified in the constitution so that it will remain immortal for darker days when such past wisdom may be forgotten.

From this perspective, the right to keep and bear arms is simply one of those ancient wisdom which some people have forgotten or, according to Yellowfin, have been deceived to distrust.

[Gadsdenflag]

New guy here, just wanted to say hello and say this is a great forum!

My question is what do you guys see post-Chicago gun case? So SCOTUS incorporates through either due process, or P&I, "we" win, done. But is it? What happens with the tens of thousands of gun laws in place in states, counties, and municipalities all over this nation of ours? Sure, some may be stricken right away because the government body will see they are clearly over-reaching, but I suspect most shall not.

So do we file thousands suits across the nation? Do we do what the constitution and courts say we can and wait to get arrested and fight them that way? Do we simply e-mail our representatives and implore them to change their laws? All of the above?

My personal favorite target would be Wisconsin's 1,000 foot school zone law. I live within 1,000 feet of a school and therefore cannot possess a firearm except on my own private property, unless it's unloaded and encased. Now, Wisconsin is also 1 of the 2 states that does not allow any CCW unless you are a police officer. So my question is how do I get a gun into or out of my home?
I cannot openly carry it from the street to my property without committing a felony by violating the school zone law. If I unload and encase it and step out of my car I am violating the CCW statute and would be committing a misdemeanor. And what about those people that do what the left tells them and takes public transportation everywhere? How the heck are they getting around with a gun?

I do not believe the 1,000 foot law would pass any form of scrutiny, where are the studies to show your dangerous at 1,000, but okay at 1,001? Who pulled this number out of left field and decided to use it? The fact that I cannot carry around my home, or in about 50% of my city because school zones over lap or come within a block or two of overlapping is not a reasonable infringements on my rights. I think the courts would agree. But how can we challenge all these gun laws? I don't think the 2 Amendment Foundation has enough money or Alan Guras to do it all!!

[KyJim]

My personal favorite target would be Wisconsin's 1,000 foot school zone law. I live within 1,000 feet of a school and therefore cannot possess a firearm except on my own private property, unless it's unloaded and encased.

Worse is the federal law, 18 USC 922(q)(2) which makes possession of a firearm within 1,000 feet of a school punishable by up to 5 years. There are a few exemptions but it is quite possible for completely innocent persons to become felons by simply driving down a public highway with a firearm otherwise legally possessed and carried.

[Tom Servo]

Regarding the brief from Armskeepers, Gura has a few notes on the matter. Apparently, Orin Kerr was one of the co-authors of the brief, and although he seems open to the idea of visiting PorI, he cast some grim predictions about its revitalization.

Was this steely pragmatism or perhaps wishful thinking on Kerr's part? He's stated that,

Most Supreme Court briefs focus on trying to win the case, whereas this brief seems to treat that as an afterthought and instead is trying to use this case to achieve a long-time goal of the libertarian legal movement. You don’t see that very often.

Which brings us to an interesting question: what defines a "libertarian" these days? When I was growing my political fangs, a libertarian believed that the one of the few legitimate roles of the government involved protecting the rights of its citizens. In that sense, the 14th Amendment makes perfect sense to libertarian sensibilities.

Apparently the definition has changed. We've got a divide (which even appears in this thread) among libertarian-leaning folks, in which some claim that the 14th Amendment gave the government a blank check to trample all over state sovereignty.

Take Ron Paul. His signature is missing from the Congressional brief. Why? According to Howard Nemerov:

Congressman Paul’s DC office said he didn’t sign the brief because he believes that it interferes with state’s rights, whose policies shouldn’t be dictated by the federal government.

Never mind that states don't have rights. We've had a bit of an anti-federalist movement over the last few years (Kelo threw grease on that fire), and in many respects I agree that the Federal government has been over-reaching in its authority.

But what does that really have to do with the 14th Amendment? One objection I've heard is that a resuscitated PorI clause would codify "rights" such as housing, employment and health care through an overly broad re-reading of the 9th Amendment.

According to Ken Klukowski, who authored the ACRU brief:

It also could completely change American culture, with the court having a new basis upon which to declare constitutional rights to abortion, same-sex marriage, obscene material or a child's "right" to a public-school education over his parents' objections. (...) Although it should be about the Second Amendment, this gun rights case is, instead, a Trojan horse for everything except guns. It could remake America's economy and culture.

This seems incredibly unlikely.

First off, the Court isn't going to roll in a Trojan horse of any sort. We're going to hear a great deal about "reliance interests," and though they may allow a peek into Pandora's box, they're not going to throw the lid wide open. Such action would be a logistical nightmare.

They'll be reviewing original intent, which, according to Senator Howard was to protect, "the personal rights guaranteed by the first eight amendments of the United States Constitution." The potential minefield of the 9th Amendment issue can thus be deftly avoided if they so choose.*

In this case, the parameters become clearer and more workable. We're dealing with enumerated rights, many of which are already incorporated anyway. Sure, we get 2nd Amendment protections, jury trials and grand juries in all 50 states under a clearer reading of PorI, but I'm not going to receive the right to marry an armadillo (please note that I have no such intentions) as a result.

Slaughterhouse can be overruled without opening the floodgates to Big Nasty Gubbmint. If anything, a true and clear reading of PorI will simplify incorporation doctrine to some extent.

The point? State-sovereignty folks are really worked up about this. Some of that sentiment seems to have found its way into several of the amicus briefs, which actually oppose Gura's philosophy and approach. It's unfounded, since the worst fears some have are very unlikely to happen.

This is an important case for the 2nd Amendment, and it sets the stage for further challenges. This is no time for infighting without good reason.

* Unenumerated rights may be an issue for future cases. Selective incorporation may still have a role where such issues are concerned.

[RDak]

I agree Tom. The first eight amendments is what McDonald wants under the P&I clause.

[publius42]

Killing Slaughterhouse has a pretty good summary of the PoI vs DP controversy.