Final amicus curiae briefs in support of the respondents in McDonald v. Chicago were due today. Among the parties filing are the Educational Fund to Stop Gun Violence, a Joyce Foundation beneficiary, and a coalition of “public health” organizations, including the American Academy of Pediatrics. Both briefs take the argument that the 2nd Amendment should not be incorporated, as it would endanger gun control as a public health policy.
Equally ludicrous, but less insolent than the Chicago brief, is the one filed [pdf] by the United States Conference of Mayors. These folks were an endorser of the controversial and impotent group Mayors Against Illegal Guns, and they claim that “the Second Amendment protects a largely obsolete Eighteenth-Century right.” They point to New York City’s “stop-and-frisk” program of detaining people suspected of carrying concealed weapons as one practice that may be endangered by incorporation.
Accordingly, if applicable to state and local governments and confined to framing-era understandings, the eighteenth-century conception of the right to bear arms would imperil the use of stop-and-frisk tactics against drug dealers and gang members, at least as long as they carry firearms openly and have not been previously convicted of a felony or otherwise fall within the scope of the regulatory authority acknowledged in Heller. p. 20
So, incorporation of the 2nd Amendment would threaten a practice that endangers the 4th Amendment?
They go so far as to infer that the preamble and operative clause in the 2nd Amendment, whose relation was made clear in Heller, “may have been easy to reconcile in eighteenth-century America, but in contemporary cities, they will often be at odds. (p. 30)”
As a last-ditch strategy, they reiterate an odd argument that Chicago made:
If the eighteenth-century version of the right to bear arms is not sufficiently fundamental to merit incorporation, a more limited right of defense may nevertheless qualify for constitutional protection under the Fourteenth Amendment. Heller concluded that Second Amendment embodied what was widely thought to be a natural right of defense. Given its historical grounding, the right to defend oneself, one’s family, and one’s property may well be one of the unenumerated rights that qualifies for Fourteenth Amendment protection. If so, a complete prohibition on the possession in one’s home of any type of weapon reasonably useful for defense could impose an impermissible burden on this right. Such a right of defense, however, need not go so far as a “right to possess and carry weapons in case of confrontation.”pp. 32-33
Basically, “we can ban some classes of weapon, so long as there’s some option open to the public.” Then they try to shift the idea of self-defense away from the 2nd Amendment and towards, “one of the unenumerated rights that qualifies for Fourteenth Amendment protection.”
Good luck with that, guys.