McDonald v. Chicago: Respondents’ Brief Filed

Counsel for the City of Chicago and Village of Oak Park have submitted their brief [pdf], and just under deadline.  It’s better written (and longer) than I’d expected, but it’s still not going to do much for their case.

Their primary argument is that regulation, including outright bans, of handguns “may reasonably be thought to preserve, not intrude on, ordered liberty.”  Of course, the Supreme Court ruled otherwise just last year.  Never mind that–respondents are smitten with the phrase “ordered liberty,” so much so that their brief uses it no less than 27 times.

Much of their work is concerned with contradicting the Heller decision, claiming that the right to keep and bear arms refers to a “right” of the states to arm militias, rather than the right of the individual to keep arms for self protection.

The scope of the Second Amendment right–weapons in common use–also reflects its purpose of protecting the militia, rather than an individual right related to self-defense, since the Second Amendment protects weapons regardless of whether they are useful for self-defense. p. 6

Yep, they’re going to get real far with that.

Despite the fact that the Court will likely bristle at this, they push the issue:

In short, the Framing-era history of the Second Amendment is unique, because the reason for codifying the Second Amendment (to protect the militia) differs from the purpose (primarily, to use firearms to engage in self-defense) that is claimed to make the right implicit in the concept of ordered liberty. pp. 36-37

There’s not much credibility to be gained by trying to separate the protection of militias from the possession of arms by the individual at this point. In case we need to revisit this part of “Framing-era history,” George Mason said it well:

I ask, sir, what is the militia? It is the whole people, except for a few public officials.

Quoting Palko v. Connecticut, they opine that,

To be “implicit in the concept of ordered liberty,” a right must be “implicit”–that is, essential–to the very “concept” of ordered liberty. As the Court has explained, that means that “neither liberty nor justice would exist if [the right] were sacrificed.” p. 9

It can very handily be argued that liberty and justice would be threatened if the citizenry did not have the tools to bodily support a just government and resist an unjust one. They don’t stop there.

Our submission is simply that data exist to support a conclusion that under some conditions stringent firearms regulations can limit violence; reduce injury and death; and lead to the preservation of, not the intrusion upon, a system of ordered liberty. p. 13

Strangely enough, they do not footnote the data they claim exists to support that claim. Instead, we’re regaled with quotes from such luminaries as Saul Cornell and Josh Sugarmann. It should be noted that Cornell was head of Ohio State’s Second Amendment Research Center, a beneficiary of the Joyce Foundation that was shut down for lack of funding after the Heller decision. Sugarmann heads the Violence Policy Center, a group that fought for restrictions on Federal Firearms licenses while being one of the few licensed firearms dealers in Washington DC.

Still, let’s give it a try, shall we?

Because handguns are so well adapted for the commission of crimes and the infliction of injury and death, stringent handgun regulations, including prohibitions, can be reasonably thought to create the conditions necessary to foster ordered liberty, rather than detracting from it. p. 15

Nope. That won’t fly after Heller. So, what’s left? Heck, let’s compare America to other countries!

Finally, the treatment of firearms rights in other countries–especially countries that share our Anglo-American heritage–supports the conclusion that the Second Amendment right is not implicit in the concept of ordered liberty. The legal systems of England, Canada, and Australia each have their roots in the same English law as does this country, and each should be seen as a country in which “ordered liberty” is valued. Yet each of them imposes stringent regulations on firearms that would be impermissible or at least suspect under Second Amendment standards. p. 21

There are, however, two fundamental differences. First off, none of those countries ascended from colony to democracy through armed rebellion. None saw the need to articulate an explicit right to self-defense. Our founders did.

The second rebuttal is this: they argue that if the pesky 2nd Amendment wasn’t in the way, we’d enjoy a halcyon world of non-violence. One needs only to look at England’s recent troubles to see that bans simply don’t reduce violence. If they did, then the petitioners could easily cite their own cities as proof that such draconian social engineering has merits. They cannot.

On the matter of incorporation, they challenge total and selective incorporation separately. Of particular interest is their rancor for incorporation under the Privileges or Immunities clause.

That history shows no general public understanding or congressional intent that the Privileges or Immunities Clause was meant to impose the Bill of Rights on the States. p. 7

In response, I’ll simply direct the reader to David Hardy’s Original Popular Understanding of the 14th Amendment as Reflected in the Print Media of 1866-68, available here.  The evidence is abundant that the country knew what the wording of the 14th Amendment meant.

Much of the petitioners’ argument that the Privileges and Immunities clause is some sort of odd red herring is fueled by the work of Raoul Berger and Frankfurter protegee Charles Fairman.  Their assertions are aptly addressed in the brief [pdf] from the Calguns foundation, so I won’t belabor the point here.

Past this, they echo the concerns of the disturbing NAACP brief and argue that “reliance interests” demand the preservation of the disastrous Slaughterhouse ruling.

Overruling Slaughter-House and its progeny would create a chaotic situation in constitutional law. It would immediately call into doubt the scope of constitutional rights enforceable against the States by two important classes: aliens and corporations.  p. 47

Of course, under any sane reading of Privileges or Immunities, the rights of aliens and corporations would still be protected under the Due Process and Equal Protection clauses. The three clauses were written in harmony and can function so. It is only the Court’s past decisions that have introduced dissonance.

Petitioners base their argument on sources that, if credited, would establish not only that the Privileges or Immunities Clause incorporates all of the Bill of Rights provisions, but that it also makes applicable to the States unenumerated fundamental rights of uncertain scope.   p. 49

This is very unlikely to be the case. Addressing the Joint Committees in 1866, Senator Howard described the intention of the clause to protect “the personal rights guaranteed and secured by the first eight amendments of the Constitution; such as freedom of speech and of the press; the right to keep and bear arms.” If the Court is to stick with a literal reading of the history and intent, the 9th Amendment would not be an issue. Unenumerated rights would continue to be selectively interpreted through the Due Process clause, and are not the issue here.

It’s along this line of argument that things get truly surreal:

Assuming that there is an unenumerated right to self-defense that extends beyond its recognition as a defense to criminal charges, such a right would not support incorporation of the Second Amendment.  pp. 38-39

An unenumerated right to self-defense?  The Court made it clear that such a right (or at least the concept of such a right) was part of the 2nd Amendment in Heller.  It seems here that the petitioners are trying to imply that self-defense is some odd “emanation” from the 9th Amendment.

It’s okay; I’m confused, too.

But even if the Court were to recognize not merely the existence of a constitutional right to self-defense but also an ancillary right to tools necessary for its effectuation, and even if that ancillary right included a right to some kind of firearm, it would not provide support for incorporating the Second Amendment. So long as the States permitted the use of reasonable tools (including perhaps some kind of firearm) for self-defense, any constitutional right to self-defense would surely be adequately protected. pp. 38-39

So, according to their argument, if some guns are not banned, the right to self-defense would still be “adequately protected.”  Again, this flies in the face of Heller, in which handguns were specifically given protection, and blanket bans were ruled unconstitutional.

They’re reaching, and they exceeded their grasp long ago.  I’m very much looking forward to seeing their attorneys dissemble during oral arguments.