By now we've all heard about "climate gate."  The evidence so far is damning, to say the least.  I've certainly had my fill of the politicizing of pseudoscience, and I hope this new episode gets people questioning what they've blindly accepted for quite some time.

In any case, I imagine things will be a bit awkward at Copenhagen next week.

Reading through the current tale of scientific dishonesty and whitewashing, I can't help but be reminded of the Michael Bellesiles incident.

All of the current amicus curiae briefs in McDonald v. Chicago are now posted on Alan Gura's site.

The NAACP has submitted theirs, and it's one that really bothers me.

They argue against revisiting the Privileges or Immunities clause at all, claiming,

The Court should turn to the largely unexplored Privileges or Immunities Clause of the Fourteenth Amendment only if it first determines that the Second Amendment right to keep and bear arms is not incorporated as against the states through the Due Process Clause. p. 2

They repeatedly claim that there's nothing wrong with selective incorporation, and that it should …

So, they got theirs up just under the wire.  The Brady Campaign brief is pretty much exactly what I expected.

The whole thing is about "reasonable regulation" and "public interest." Without weighing in on incorporation, they simply beg for a standard of review that's as close to rational basis as they can get without calling it such.

They dig pretty deep (Heffron v. International Society for Krishna Consciousness, Inc.?) to prove that strict scrutiny doesn't usually apply across the board for civil liberties, and they seem to encourage such a situation.

If anything, the Left needs to tread very carefully when …

As the day winds down and my body starts rejecting the caffeine, we have two final briefs coming across the wires.

The first is filed by a group including 34 California District Attorneys, 8 Nevada District Attorneys, the California Rifle & Pistol Association Foundation, the Long Beach Police Officers Association, the San Francisco Veterans Police Officers Association, the Arizona Citizens Defense League, the Texas Concealed Handgun Association, the Virginia Citizens Defense League, and the Bloomfield Press.

They argue that incorporation through Due Process is a given, through any reading of the 14th Amendment.  Since the right to keep arms is fundamental, it …

Dave Kopel has posted a brief in conjunction with the International Law Enforcement Educators and Trainers Association (ILEETA). The argument is summed up in the first sentence: Guns save lives.

This one isn't about the 14th Amendment at all.  Rather, it's an ancillary brief written to underscore the point that firearms in the hands of citizens fulfill a useful purpose, and that bans such as the one in Chicago are not only ineffective but dangerous.

It occupies an important strategic position, since the counterargument will likely involve a plea for "interest balancing."  Kopel's research will serve as an effective bulwark …

The Institute for Justice has submitted an amicus curiae brief [pdf] in support of petitioners.  Their thrust of their brief is that the 14th Amendment was meant to give teeth to the antislavery protections of the 13th, and that the marginalization of the 14th allowed "constructive servitude" to exist.  They ask that the Court look at the whole intent of the Privileges or Immunities clause, and not simply use it only as a mechanism for incorporation:

There is ample historical evidence that the purpose of the Fourteenth Amendment, and particularly the Privileges or Immunities Clause, was not

…

I'll post locations throughout the day as the amicus curiae briefs are posted.  It's a lot to absorb in a short time, so I'll just be posting links for now.

The Congressional brief is here.  I'd like to thank Saxby Chambliss and Johnny Isakson for signing onto it.  58 Senators (19 Democrats) and 251 Representatives signed on in total.  There are no great legal insights we haven't heard in any other briefs, but it does mention an interesting historical point:

At the outset of World War II, Congress authorized the President to seize certain property for the national defense under

…

The appellants from Nordyke v. King have filed an amicus curiae brief [pdf] in support of McDonald v. Chicago.

My notes from the original verdict are here.  As expected, the decision at hand created a circuit split.  An order was filed to remand the verdict for a rehearing by the full 9th Circuit, who decided to shelve the matter pending the outcome of McDonald v. Chicago.

Their brief for McDonald not only argues that incorporation is necessary and prudent, but that the Supreme Court must establish a unilateral standard of review so as to give guidance to lower courts in deciding future litigation.

The original Nordyke verdict suggested strict scrutiny, as did the 7th Circuit in this week's Skoien decision.

The current brief is more specific:

An opinion in the McDonald case that incorporates the Second Amendment against the states, but which also includes a holding that all laws regulating the “right to keep and bear arms” must be uniform within each state serves the following functions: (1) Since firearms are ubiquitous, exercising the right to possess firearms should not conflict with the right of intrastate travel; (2) law-abiding firearm owners need only acquaint themselves with federal and state laws, instead of being held criminally accountable in every town, city, county, and parish they travel through within their state while exercising a fundamental right; and (3) instead of the municipal codes of tens of thousands of cities and counties being subjected to challenges under the Second Amendment, a constitutionally recognized, baseline preemption of “the right to keep and bear arms” that funnels down those challenges to the bodies of law of 50 states plus one federal body of law, strangles the majority of potential lawsuits in their crib.  p. 25

Steven Skoien was indicted under § 922(g)(9) for possessing firearms after being convicted of midsdemeanor domestic violence.  He appealed, arguing that the statute under which he was convicted is unconstitutional under the terms of the Heller decision.

The 7th Circuit has agreed and is vacating his indictment [pdf] until such a time that the government can prove that its interests are in balance with the means involved.  The law in question places a lifetime prohibition on gun ownership for those convicted of domestic violence, even if only a misdemeanor.

The importance? Up until now, it has not been established what standard of review Heller implied for the constitutionality of gun laws. According to the 7th Circuit:

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.

The government's justification rested on Heller's reference to "presumptively lawful regulatory measures," to which the 7th Circuit replied, "that's not enough."  If this becomes precedent, then the burden of proof will be much more stringent upon the government when it comes to defending gun-control regulations.

Almost three years since the last issue, Warren Ellis has delivered the final book of Planetary.  It's an odd and problematic epilogue, but a welcome one nonetheless.

The premise seemed simple enough on the surface.  All that stuff in the superhero comics?  It really happened.  Four scientists did venture into space and return with supernatural powers.  A dying planet did send its last son to earth.  Sherlock Holmes was real, and there's an island off the coast of Japan where giant monsters live.

Of course, none of it happened the way we've been led to believe.  Spoilers ahead.

The Petitioners have published their final brief [pdf] in the case of McDonald v Chicago.  The brief is sharp, focused and well-argued, as I've come to expect of Mr. Gura.  It's also unrelentingly meticulous in predicting and dismantling potential counter-arguments.

The first part explains the history and intent of the 14th Amendment.  To remove any doubt that "privileges" meant anything but "rights" to the drafters, he quotes Andrew Jackson Rogers, himself no friend to the idea of incorporation:

What are privileges and immunities? Why, sir, all the rights we have under the laws of the country are embraced under the definition of privileges and immunities. The right to vote is a privilege. The right to marry is a privilege. The right to contract is a privilege. The right to be a juror is a privilege. The right to be a judge or President of the United States is a privilege.  [p. 25]

From there, he moves on to the meat of the case: overturning Slaughterhouse.  Gura understands the gravity of what he's asking the Court to do, and he takes a multi-pronged strategy in his arguments that's very persuasive.

The deadline for amicus curiae briefs in the McDonald case is November 23. Chicago filed for an extension, and their brief is now due on December 30.

Two Senators and two Representatives have drafted a brief in support of the plaintiffs, and we'd like to see it receive as many signatures from other legislators as possible. Please contact your congressmen and ask them to sign this brief.