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
What they propose is a streamlining of the law through a unified standard. As they point out,
In those states that do not have a state constitutional right to keep and bear arms (California, Iowa, Maryland, Minnesota, New Jersey and New York) this newly incorporated right will be the only substantive protection of this enumerated right. In those states with a Second Amendment analog in their constitutions, incorporation will guarantee a baseline right, in much the same way that the criminal procedure protections of the Fourth, Fifth, and Sixth Amendments have standardized the minimum rights afforded the accused throughout the United States. Incorporation of the Bill of Rights is a form of constitutional preemption that insures a baseline uniformity of the rights, privileges and immunities of all persons entitled to the protections of our Constitution, in every jurisdiction subject to its reach. This is the very essence of the Fourteenth Amendment. p. 4-5
They effectively argue that Chicago’s registration scheme, particularly its required annual renewal system, would not pass even the most lax standard of review. They also argue that the fee system involved is a tax on a fundamental right, and they refer back to 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.
Taken to its logical end, this could be a very good argument against the National Firearms Act, which is also a taxation framework.
In conclusion,
This renaissance of the Second Amendment must be vigorous, principled and complete. The Bill of Rights will only work if virtuous citizens are exercising all of their rights as actual limitations on government.
I’ve been asked what possible counterarguments Chicago could possibly make against our case. The historical and textual record is simply too clear for much of a rational rebuttal. Most likely, we’ll hear the phrase “interest balancing” bandied about quite a bit.
The Brady Campaign is waiting until the last minute to file their brief, and the respondents cleverly got an extension on the deadline for theirs. They’ve no doubt had the opportunity to read our briefs, and if they have a bit of sense, they know that incorporation is inevitable.
So they’ll switch to damage control. They’ll most likely push for the widest and most permissive standard of scrutiny possible. I expect they’ll quote Breyer’s dissent in Heller, in which he argued,
Indeed, adoption of a true strict-scrutiny standard for evaluating gun regulations would be impossible. That is because almost every gun-control regulation will seek to advance (as the one here does) a “primary concern of every government–a concern for the safety and indeed the lives of its citizens.” United States v. Salerno, 481 U. S. 739, 755 (1987) . The Court has deemed that interest, as well as “the Government’s general interest in preventing crime,” to be “compelling.”
I’ve got a feeling that such an argument won’t hold up too well in orals. One of the guilty pleasures I took from the Heller proceedings was listening to Dellinger dissemble before the Court with many of the same talking points.
At least four Justices chose to hear this case, rather than Holbrook’s. That means they want to revisit Privileges and Immunities. This is a case about original intents, not about government interests.