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. In this case, they seek to refute the contentions of Raoul Berger and Frankfurter protegee Charles Fairman, the two authors best known for claiming that the 14th Amendment was never intended to enforce the Bill of Rights against state action. In their words, “Charles Fairman’s and Raoul Berger’s work on Fourteenth Amendment incorporation of the Bill of Rights is deeply flawed, inaccurate, and should not be relied upon by this Court.”
As they point out, Fairman sank to personal attacks upon John Bingham’s character in making what thin points he could. It’s high time someone dragged Berger and Fairman’s biased and agenda-driven drivel into light where it can be seen for what it is.
The Calguns brief is deft and clear in its purpose, and it suceeds admirably. I do recommend that everyone read their primary sources. The first is Akhil Amar’s The Bill of Rights, which anyone with even a passing interest in the matter should own.
The second is On Misreading John Bingham, which is available here.
Third, but not last, is Michael Kent Curtis’ No State Shall Abridge, which should be required reading at the college history level, if not sooner.
For context, I’d also recommend David Hardy’s Original Popular Understanding of the 14th Amendment as Reflected in the Print Media of 1866-68, available here.
Curiously, I’ve heard nothing on behalf of Chicago. The Brady Campaign was supposed to file a brief, but there’s been no announcement. In fact, there’s only silence from the whole Annenberg/Joyce Foundation axis.
I checked Helmke’s column on the Huffington Post, and there’s nothing.
While I was there, I did a search that had some interesting results. There are at least four dozen articles about Heller, but only one about McDonald. I’m wondering if that means what I think it does.