McDonald v Chicago: SAF Brief Submitted

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.

At its heart, this is a case about overturning bad precedent.  As Gura writes:

A doctrine originally celebrated for defying the Constitution, and which cannot seriously be defended against the overwhelming weight of text and history, must not be allowed to continue depriving Americans of their civil rights. “[W]hat would enshrine power as the governing principle of this Court is the notion that an important constitutional decision with plainly inadequate rational support must be left in place for the sole reason that it once attracted five votes.”  [p. 58, quoting Justice Scalia in Payne v Tennessee, 1991.]

He runs down a list of arguments, ticking each off methodically:

• Slaughterhouse contradicts history,
• Slaughterhouse rests on a misquotation, reflecting a premise rejected by the amendment’s framers,
• Slaughterhouse is illogical,
• Stare Decisis does not secure the SlaughterHouse line,
• Slaughterhouse is not truly practical (and, correcting this court’s Privileges or Immunities doctrine would not upset legitimate reliance interests),
• Slaughterhouse Is largely anachronistic,
• Modern factual understandings render Slaughterhouse untenable.

As this is a case about resurrecting the Privileges or Immunities clause, he gives only perfunctory treatment to Due Process incorporation.

Duncan’s analysis suggests looking to the right’s historical acceptance in our nation, its recognition by the states (including any trend regarding state recognition), and the nature of the interest secured by the right. The right to bear arms clearly satisfies all aspects of the selective incorporation standard.  [p. 67]

By all criteria, the 2nd Amendment qualifies for selective incorporation, but such a model is narrower and weaker.  A stronger argument can be made for incorporation through Privileges or Immunities.

The City of Chicago has plenty of time to read the SAF brief, since they’ve stalled for time and don’t have to file theirs until December 30.  Still, they’ll be hard-pressed to rebut anything here.

In any case, I can’t wait to hear the oral arguments in January.