November 23, 2009 – LonelyMachines

McDonald v. Chicago: Last Briefs

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 must be incorporated automatically as a matter of course. Their brief focuses on principles of individual defense, and they point out prior court precedent reserving citizens that right, including the 1895 decision in Beard v. United States.

The second brief comes from the Calguns Foundation. Like Kopel’s, it is a specialized brief designed to occupy a specific strategic niche.

Continued...

Civil Rights

McDonald v. Chicago: Dave Kopel’s Brief

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 against that.

The brief goes into great detail explaining why blood will not run in the streets if the Court incorporates the 2nd Amendment. Lots of charts, graphs and statistics prove the point, and it’s worth noting that the information in this one will be useful to 2nd Amendment advocates long after resolution of the case at hand.

Civil Rights

McDonald v. Chicago: Institute for Justice Brief

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 merely to provide for the mechanistic “incorporation” of the first eight amendments (it would have been easy enough to say so), but instead to redress a whole host of laws, practices, customs, and mores whose common purpose was to destroy the ability of newly freed slaves to become self-sufficient members of society. p. 12

They argue that incorporation is not only unneccesary but disingenuous, since the 14th Amendment (particularly Privileges or Immunities) was meant to protect a “pre-existing right.”

Continued...

Civil Rights

McDonald v. Chicago: Congressional Brief

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 Property Requisition Act. The Act explicitly excluded “the requisitioning or. . . registration of any firearms possessed by any individual for his personal protection or sport” and further denied that the Act could be used “to impair or infringe in any manner the right of any individual to keep and bear arms.”

Continued...