All of the current amicus curiae briefs in McDonald v. Chicago are now posted on Alan Gura’s site.
The NAACP has submitted theirs, and it’s one that really bothers me.
They argue against revisiting the Privileges or Immunities clause at all, claiming,
The Court should turn to the largely unexplored Privileges or Immunities Clause of the Fourteenth Amendment only if it first determines that the Second Amendment right to keep and bear arms is not incorporated as against the states through the Due Process Clause. p. 2
They repeatedly claim that there’s nothing wrong with selective incorporation, and that it should be kept, as it has not “suddenly proven unworkable.” Sure, no problem. Selective incorporation can work, it just takes a hundred years or so sometimes.
Regarding Slaughterhouse and Cruikshank,
While it is undeniable that these cases are part of a dreadful chapter in the history of this nation, they present no bar to incorporation of constitutional rights as against the states under the Due Process Clause. p. 13
I can’t help but get the feeling they’re being more than just a bit glib about post-Reconstruction harassment and lynching, something that’s confirmed a few pages later:
It would be ironic, to say the least, if this Court decides to reexamine the Privileges or Immunities Clause in this case–which involves firearms regulations in a city where, each year, many times more African Americans are murdered by assailants wielding guns than were killed during the Colfax massacre by white insurgents who escaped federal prosecution in Cruikshank. pp. 5-6
They argue that the Court, “should not decide Constitutional questions unnecessary to the resolution of this case,” which is a bit disingenuous, since revisiting Priviliges or Immunities is necessary to the resolution at hand.
The NAACP has serious political capital invested in gun control as a political ideology, and I guess overturning bad civil rights precedent would threaten that agenda.
If this was 1968 or so, do you really think they’d would be so content to forestall a rehearing of the 14th Amendment?