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 …

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

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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

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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

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.

New Ahrends stocks for one of the S&W Combat Magnums. The wood is Cordia.

A few days ago, I spoke to a friend who's a lawyer friendly to the LGBT cause in Atlanta, and the scuttlebutt is that there's an amicus curiae brief in favor of the appellants in McDonald v Chicago. We're going to be keeping some strange…ahem…bedfellows on this one.

Which means two things. First off, I need to get a good shave and iron a shirt if I'm to hang with that crowd!

Second, people from all political sectors are going to be interested in the outcome. This case is about an entire doctrine of Constitutional interpretation; the 2nd Amendment is only a vehicle.

All of which means we've got to be accepting and open-minded when dealing with our new allies. This is a chance to truly "mainstream" the 2nd Amendment in the pantheon of civil rights, not just in the courts, but in public opinion. Every chance we get counts, but this is the big one, gang.

As the we prepare to reignite the debate on the meaning and implications of the Privileges or Immunities clause of the 14th Amendment, we find ourselves reaching back to the 19th century for guidance and interpretation.

From the Georgia Supreme Court, we have two interesting pre-Civil War precendents.  In Nunn v. State, Chief Justice Joseph H. Lumpkin nullified a state-level handgun ban by interpreting the 2nd Amendment as an injunction against all governments, as opposed to a limitation only on Federal powers.  Nunn v. State has gained quite a bit of notoriety over the last few years, and is likely to be cited in the arguments for McDonald v. Chicago.

Lumpkin subsequently revisited the issue in Campbell v. The State of Georgia.  James Campbell was convicted of voluntary manslaughter based in part on the deathbed testimony of one Alfred Mays.  Campbell's attorneys argued that Mays' testimony was inadmissible as evidence as its use would have contravened the 6th Amendment right of Campbell to be confronted by witnesses against him.

Dead men may tell tales, but they cannot address a jury.  Prosecutors argued that the right to confront witnesses did not bind the State courts since the Bill of Rights did not enjoin the States.  Though affirming the judgement of Judge Starnes based on other evidence, Justice Lumpkin took ample opportunity to refute the exclusionary argument.

While the amendments to the Constitution of the United States were primarily intended to be restrictive upon the powers of the General Government, and not the Legislatures of the several States–yet they are "declaratory" of great principles of civil liberty, which neither the national nor the State governments can infringe. (…) The right of a party accused of a crime, to meet the witnesses against him, face to face, is no new principle. It is coeval with the Common Law. Its recognition in the Constitution was intended for the two-fold purposes of giving it prominence and permanence.

McDonald v. Chicago has officially been docketed, case number 08-1521.  Notice the wording of the question presented:

Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment's Privileges or Immunities or Due Process Clauses.

Though the Due Process clause is mentioned as a fallback approach, Gura's case hinges almost entirely on the Privileges or Immunities clause.

Ideally, we'll see Slaughterhouse overruled and the resurrection of the Privileges or Immunities clause it so wrongly gutted.  Cruikshank and Presser would logically follow, and we'll see a return to the total incorporation model.

The Supreme Court has chosen to hear McDonald v. Chicago next session.  Neither NRA v. Chicago or Maloney v. Rice have been consolidated with it.  As it stands, we're left with Gura's case, which is the strongest and, potentially, the most wide-reaching.

According to Gura, opening briefs are due November 16, and we can expect oral arguments in February.  A decision will be reached by June.

The scuttlebutt is that we'll win.  This will be an interesting test for Justice Sotomayor, as she chose in Maloney to refuse incorporation based on precedent.  The only problem with …

The Constitutional Accountability Center has filed an amicus curiae brief [pdf] on behalf of certiorari in the McDonald case. It spends a great deal of time looking into the history of the ratification of the 14th Amendment, emphasizing just what the the Privileges or Immunities clause was meant to protect.

The brief quotes Senator Jacob M. Howard, who was instrumental in drafting both the 13th and 14th Amendments.  Howard's testimony during the 39th Congressional Session (page 2765) is eloquent and clear and leaves absolutely no ambiguity as to the question of what should be incorporated by the Privileges and Immunities clause of the 14th Amendment.

The inquiry is, what are the privileges and immunities of citizens in the several States? We feel no hesitation in confining these expressions to those privileges and immunities which are in their nature fundamental, which belong of right to the citizens of all free Governments, and which have at all times been enjoyed by the citizens of the several States which compose this Union from the time of their becoming free, independent, and sovereign.

As Blackstone meant, and as Justice Scalia pointed out in the Heller opinion, the 2nd Amendment protects an individual, fundamental right. The historical record abundantly confirmed that interpretation. Here, the record proves that Howard, Bingham and the other drafters of the 14th Amendment were just as specific in their intentions.

Counsel for the City of Chicago have responded [pdf] to the McDonald/NRA petitions to have their case heard before the Supreme Court next term.  If you're just tuning in, jump in here.

First off, it's a mess.  Seriously, as I parsed through this and took notes, I felt like I was grading a grammar-school book report rather than a legal argument.

They pounce very quickly on the fact that Nordyke is being reheard and that, in the meantime, it is not precedent. Therefore, there is no split among the Circuit courts. That removes one of our arguments for petitioning for cert.

Of course, that situation may change in the near future.

They seem to be trying their best to preclude incorporation under Privileges or Immunities clause. Their strategy seems to be to force the issue to be decided by the Due Process clause.

Why? Because they're trying to prove that keeping and bearing arms is not a "natural" right, and therefore not subject to incorporation, I guess. They appear to be trying to push us into a corner, forcing us to prove that self-defense itself is a natural right.  Plenty of precedent, from Locke and Blackstone to present day, says it is.  So what are they thinking?