14th Amendment

30 posts

McDonald v. Chicago: Contours and Concerns

So, we won. Or did we?

As David Cohen points out, Chicago theoretically won on both arguments. The margins can be interpreted more than one way. In essence, this case was an 8-1 loss for Gura’s Privileges or Immunities argument. Given that Justice Thomas’ vote was for PorI, we can also see this as a 4-5 loss for Due Process incorporation.

I’m going to throw temperance to the wind for a moment and suggest that Clarence Thomas is the only Justice currently sitting with a spine.

We did achieve a very important philosophical victory, but the practical ramifications remain to be seen.

Civil Rights Info Dump

McDonald v. Chicago, 5-4

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The 7th Circuit’s decision in McDonald v. Chicago has been reversed by the Supreme Court and remanded for further proceedings. That means we won.

To some extent, that is.

The ruling [pdf] was a narrow 5-4 decision, and the 2nd Amendment has been incorporated against the states through the Due Process clause of the 14th.

We get incorporation, but Slaughterhouse stands.

Civil Rights

McDonald v. Chicago: Come Monday

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Monday is the last day for opinions, and the consensus seems to be that the opinion for McDonald v. Chicago will be written by Justice Alito.

From a 2nd Amendment perspective, this is a good thing. It may also be glad tidings for the 14th.

Jim March thinks that having Justice Alito author the opinion signals the Court’s willingness to revive the Privileges or Immunities clause. I’d lost hope for that mechanism when I first parsed the oral arguments. Justice Scalia’s naked rancor for the approach seemed to have doomed it in favor of Due Process.

However, Mr. March points out a couple of utterances from Justice Alito that I’d missed, including his invocation of Justice Harlan (the 1st), himself a champion of total incorporation. Alito has also been in agreement with Justice Thomas in the majority of cases, and Thomas has been an ardent defender of an originalist reading of the 14th Amendment.

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Civil Rights

McDonald v Chicago: Oral Arguments

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Long story short, with the exception of Breyer, there appears to be no significant opposition to incorporation through Due Process. With the exception of Ginsburg, the Court showed no interest in revisiting the Privileges or Immunities clause.

So, it’s a win, but only for the 2nd Amendment. Although Slaughterhouse and Cruikshank stand for the time being, incorporation here will whittle away at them, as it did in Gitlow and Benton.

The transcript [pdf] is up here. Josh Blackman was there, and has his commentary here.

I was saddened to see how quickly Scalia and Roberts dismissed the idea of overturning Slaughterhouse. I’d worried that Scalia would be opposed to revisiting Privileges or Immunities, and I was sadly proven right.

Regarding selective incorporation, a doctrine he’s been wary of in the past, Scalia said, “As much as I think it’s wrong, even I have acquiesced in it.”

Breyer’s “imaginary importance of ordered liberty chart” is truly a surreal idea.

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Civil Rights

McDonald v. Chicago: the 11th Hour

Oral arguments are tomorrow morning at 10:00 EST. Check for transcripts after lunch.

Though they did so in Heller, the Court has chosen not to allow a recording of the proceedings. I’d have hoped that, with Souter gone, the Court would consider broadcasting, but that appears not to be the case.

Though the Justices’ minds are likely made up at this point, the tenor and nature of their questions may give us an idea where they lean. It should be fun to see Chicago counsel dissemble while trying to pretend Heller didn’t mean what it said.

They’re obviously nervous. Mayor Daley has stooped to trotting out Blair Holt’s parents to cry on cue for the cameras, and we have this missive from Dennis A. Henigan, in which he cites the same tired, discredited statistics he’s been using for years. It’s a sad last wave before drowning, but the text and history of the 14th Amendment are squarely on our side.

Civil Rights

Division in the Ranks

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Paul Clement, representing the NRA, has filed a motion [pdf] requesting a portion of the time reserved for petitioners’ oral arguments in McDonald v. Chicago. Alan Gura will have thirty minutes to argue his case before the Court, some of which will be given over to Texas Attorney General Greg Abbott. I doubt he can spare another ten.

The gist of the NRA motion is that they wish to have more time dedicated to arguments in favor of Due Process incorporation, believing that it “presents the most straightforward and direct route” to incorporating the 2nd Amendment.

The NRA had their chance to argue for selective incorporation. They did so before the 7th Circuit last June, and it was a good case. It was considered, alongside McDonald, to be heard by the Supreme Court. The Court chose McDonald.

The Justices could have taken the easy way out with the NRA case, which asked only for selective incorporation.

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Civil Rights

When in Doubt, Blame the 2nd Amendment

Two other amicus briefs on behalf of the respondents in McDonald v. Chicago warrant mention. The first [pdf] is filed on behalf of the Villages of Winnetka & Skokie, Illinois. The other is written by Carolyn McCarthy.

You may remember Skokie from its brief cameo in the Blues Brothers. In their brief, they maintain that incorporation of the 2nd Amendment would violate Home Rule powers. They also worry that constituents will grow weary of seeing their government spend tax dollars defending unconstitutional regulations.

Another aspect of amici’s experiences should concern the Court. When Evanston and Winnetka repealed their more restrictive laws in 2008, it was not because their citizens or legislators had been persuaded by policy arguments like the ones advanced by petitioners, respondent NRA, and their amici–but rather because they determined that the costs of defending the laws in federal court were too high to have local taxpayers bear.

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Civil Rights

McDonald v. Chicago: Amicus Briefs for Respondents

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.

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Civil Rights

McDonald v. Chicago: Respondents’ Brief Filed

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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.

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Civil Rights

Replying to the Naysayers

An organization called the Arms Keepers wrote a brief in the McDonald case. In it, they argue for an odd model of “selective” incorporation through the Privileges and Immunities (PorI) clause, while strangely insisting that Slaughterhouse can (and possibly should) be preserved.

They were just formed this year, and there’s scant information on them. Their website is registered to a lawyer named Andrew Hyman. The brief describes them as, “a volunteer organization that supports reasonable regulation of handguns and rifles, instead of prohibition.”

The phrase “reasonable regulation” is a red flag, being appropriated as it’s been by the Brady Campaign, and it makes me wonder.

Alan Gura has a few notes on the matter. Apparently, Orin Kerr is involved with Arms Keepers and was one of the co-authors of the brief. Although he seems open to the idea of visiting PorI, he cast some grim predictions about its revitalization on the Volokh site.

Civil Rights

Still a Ron Paul Fan?

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I wrote briefly about the Congressional amicus curiae brief [pdf] in support of the petitioners in McDonald v. Chicago when it was submitted. We saw a great deal of support from both sides of the political spectrum, but one signature was notable for its glaring omission: Ron Paul.

I’d been wondering about that, and Howard Nemerov was able to get a statement from Dr. Paul’s office:

Congressman Paul’s DC office said he didn’t sign the brief because he believes that it interferes with state’s rights, whose policies shouldn’t be dictated by the federal government.

Let’s get a few things straight here, people. First off, states do not have rights. Like any other government, they have powers that are delegated to them by the people. Only people have rights.

Second, the 14th Amendment does not conflict with the 10th, and in no way does it interfere with the agendas of individual state governments.

Civil Rights

NAACP v. Civil Rights

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.

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Civil Rights

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.

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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.”

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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.”

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Civil Rights

Nordyke Brief Up

The appellants from Nordyke v. King have filed an amicus curiae brief [pdf] in support of McDonald v. Chicago.

My notes from the original verdict are here. As expected, the decision at hand created a circuit split. An order was filed to remand the verdict for a rehearing by the full 9th Circuit, who decided to shelve the matter pending the outcome of McDonald v. Chicago.

Their brief for McDonald not only argues that incorporation is necessary and prudent, but that the Supreme Court must establish a unilateral standard of review so as to give guidance to lower courts in deciding future litigation.

The original Nordyke verdict suggested strict scrutiny, as did the 7th Circuit in this week’s Skoien decision.

The current brief is more specific:

An opinion in the McDonald case that incorporates the Second Amendment against the states, but which also includes a holding that all laws regulating the “right to keep and bear arms” must be uniform within each state serves the following functions: (1) Since firearms are ubiquitous, exercising the right to possess firearms should not conflict with the right of intrastate travel; (2) law-abiding firearm owners need only acquaint themselves with federal and state laws, instead of being held criminally accountable in every town, city, county, and parish they travel through within their state while exercising a fundamental right; and (3) instead of the municipal codes of tens of thousands of cities and counties being subjected to challenges under the Second Amendment, a constitutionally recognized, baseline preemption of “the right to keep and bear arms” that funnels down those challenges to the bodies of law of 50 states plus one federal body of law, strangles the majority of potential lawsuits in their crib.

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Civil Rights

McDonald v Chicago: SAF Brief Submitted

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The Petitioners have published their final brief [pdf] in the case of McDonald v Chicago. The brief is sharp, focused and well-argued, as I’ve come to expect of Mr. Gura. It’s also unrelentingly meticulous in predicting and dismantling potential counter-arguments.

The first part explains the history and intent of the 14th Amendment. To remove any doubt that “privileges” meant anything but “rights” to the drafters, he quotes Andrew Jackson Rogers, himself no friend to the idea of incorporation:

What are privileges and immunities? Why, sir, all the rights we have under the laws of the country are embraced under the definition of privileges and immunities. The right to vote is a privilege. The right to marry is a privilege. The right to contract is a privilege. The right to be a juror is a privilege. The right to be a judge or President of the United States is a privilege.

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Civil Rights

McDonald v. Chicago: Briefs Pending

The deadline for amicus curiae briefs in the McDonald case is November 23. Chicago filed for an extension, and their brief is now due on December 30.

Two Senators and two Representatives have drafted a brief in support of the plaintiffs, and we’d like to see it receive as many signatures from other legislators as possible. Please contact your congressmen and ask them to sign this brief.

Info Dump

Sunday Info Dump

New Ahrends stocks for one of the S&W Combat Magnums. The wood is Cordia.

A few days ago, I spoke to a friend who’s a lawyer friendly to the LGBT cause in Atlanta, and the scuttlebutt is that there’s an amicus curiae brief in favor of the appellants in McDonald v Chicago. We’re going to be keeping some strange…ahem…bedfellows on this one.

Which means two things. First off, I need to get a good shave and iron a shirt if I’m to hang with that crowd!

Second, people from all political sectors are going to be interested in the outcome. This case is about an entire doctrine of Constitutional interpretation; the 2nd Amendment is only a vehicle.

All of which means we’ve got to be accepting and open-minded when dealing with our new allies. This is a chance to truly “mainstream” the 2nd Amendment in the pantheon of civil rights, not just in the courts, but in public opinion.

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Civil Rights

Prominence and Permanence

As the we prepare to reignite the debate on the meaning and implications of the Privileges or Immunities clause of the 14th Amendment, we find ourselves reaching back to the 19th century for guidance and interpretation.

From the Georgia Supreme Court, we have two interesting pre-Civil War precendents. In Nunn v. State, Chief Justice Joseph H. Lumpkin nullified a state-level handgun ban by interpreting the 2nd Amendment as an injunction against all governments, as opposed to a limitation only on Federal powers. Nunn v. State has gained quite a bit of notoriety over the last few years, and is likely to be cited in the arguments for McDonald v. Chicago.

Lumpkin subsequently revisited the issue in Campbell v. The State of Georgia. James Campbell was convicted of voluntary manslaughter based in part on the deathbed testimony of one Alfred Mays. Campbell’s attorneys argued that Mays’ testimony was inadmissible as evidence as its use would have contravened the 6th Amendment right of Campbell to be confronted by witnesses against him.

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Civil Rights

Incorporation: a Brief Primer

McDonald v. Chicago has officially been docketed, case number 08-1521. Notice the wording of the question presented:

Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment’s Privileges or Immunities or Due Process Clauses.

Though the Due Process clause is mentioned as a fallback approach, Gura’s case hinges almost entirely on the Privileges or Immunities clause.

Ideally, we’ll see Slaughterhouse overruled and the resurrection of the Privileges or Immunities clause it so wrongly gutted. Cruikshank and Presser would logically follow, and we’ll see a return to the total incorporation model.

Civil Rights

McDonald gets Cert

The Supreme Court has chosen to hear McDonald v. Chicago next session. Neither NRA v. Chicago or Maloney v. Rice have been consolidated with it. As it stands, we’re left with Gura’s case, which is the strongest and, potentially, the most wide-reaching.

According to Gura, opening briefs are due November 16, and we can expect oral arguments in February. A decision will be reached by June.

The scuttlebutt is that we’ll win. This will be an interesting test for Justice Sotomayor, as she chose in Maloney to refuse incorporation based on precedent. The only problem with the Supreme Court doing so is that the precedents against incorporation are incomptetent, morally loathsome and generally indefensible. It will take a huge intellectual stretch for the Court to deny incorporation based on precedent.

As a Supreme Court Justice, Sotomayor no longer has the option of waffling. She’ll have to take a stand one way or the other, and what she decides here will tell us more about her character and judicial philosophy than the Congressional hearings did.

Civil Rights

Pesky Originalism

The Constitutional Accountability Center has filed an amicus curiae brief [pdf] on behalf of certiorari in the McDonald case. It spends a great deal of time looking into the history of the ratification of the 14th Amendment, emphasizing just what the the Privileges or Immunities clause was meant to protect.

The brief quotes Senator Jacob M. Howard, who was instrumental in drafting both the 13th and 14th Amendments. Howard’s testimony during the 39th Congressional Session (page 2765) is eloquent and clear and leaves absolutely no ambiguity as to the question of what should be incorporated by the Privileges and Immunities clause of the 14th Amendment.

The inquiry is, what are the privileges and immunities of citizens in the several States? We feel no hesitation in confining these expressions to those privileges and immunities which are in their nature fundamental, which belong of right to the citizens of all free Governments, and which have at all times been enjoyed by the citizens of the several States which compose this Union from the time of their becoming free, independent, and sovereign.

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Civil Rights

Chicago Responds

Counsel for the City of Chicago have responded [pdf] to the McDonald/NRA petitions to have their case heard before the Supreme Court next term. If you’re just tuning in, jump in here.

First off, it’s a mess. Seriously, as I parsed through this and took notes, I felt like I was grading a grammar-school book report rather than a legal argument.

They pounce very quickly on the fact that Nordyke is being reheard and that, in the meantime, it is not precedent. Therefore, there is no split among the Circuit courts. That removes one of our arguments for petitioning for cert.

Of course, that situation may change in the near future.

They seem to be trying their best to preclude incorporation under Privileges or Immunities clause. Their strategy seems to be to force the issue to be decided by the Due Process clause.

Why? Because they’re trying to prove that keeping and bearing arms is not a “natural” right, and therefore not subject to incorporation, I guess.

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Civil Rights

Sotomayor and the Pitfalls of Precedent

Senator Leahy put Supreme Court nominee Sonia Sotomayor on the spot today, and her answers don’t surprise me in the least. She paid the expected lip-service to the Heller decision:

Like you, I understand that how important the right to bear arms is to many, many Americans. In fact, one of my godchildren is a member of the NRA. And I have friends who hunt. I understand the individual right fully that the Supreme Court recognized in Heller.

All well and good, but her answers regarding her decision in Maloney v. Cuomo are a bit questionable. As with Ricci v. DeStefano, she chose to defer rather blindly to precedent rather than risk making waves:

In Supreme Court province, the right is not fundamental. It’s a legal term. It’s not talking about the importance of the right in a legal term. It’s talking about is that right incorporated against the states.

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Civil Rights

First Briefs for NRA/SAF v. Chicago

California Attorney General and former Presidential Candidate Edmund “Jerry” Brown has submitted an Amicus Curiae brief (pdf), asking the Supreme Court to hear the joint NRA and SAF suits against Chicago. At first, it seems surprising and perhaps a bit heartening, but don’t worry, Brown’s got an agenda here.

It opens with the pronoucement:

(…) unlike many states, California has no state constitutional counterpart to the Second Amendment. Unless the protections of the Second Amendment extend to citizens living in the States as well as to those living in federal enclaves, California citizens could be deprived of the constitutional right to possess handguns in their homes as affirmed in District of Columbia v. Heller.

He points out that the Heller ruling failed, “to establish a standard of review applicable to asserted Second-Amendment infringements,” which is correct. He also concurs with Halbrook and Gura that the current schism between the 9th Circuit and other circuit courts on the matter of incorporation can only be settled by the Supreme Court.

Civil Rights

Maloney v. Rice

Today’s the one-year anniversary of the Supreme Court’s decision in Heller v. District of Columbia. James Maloney, appellant in Maloney v. Cuomo, has filed a petition for his case to be heard before the Supreme Court next session. The case is now Maloney v. Rice (pdf). Kathleen Rice is the current District Attorney for Nassau County.

The petition follows and supplements the 14th Amendment claim Mr. Maloney made before the 2nd Circuit in February. It points out that the Circuit Courts are now divided three ways on the question of 14th Amendment incorporation, which would demand that the Supreme Court rectify this discrepancy. It’s worth noting that 7th Circuit Justice Easterbrook also acknowledged this disparity in NRA v. Chicago.

Maloney also recognizes the existence of the pending petitions from Alan Gura and the NRA, and he suggests consolidating all three:

Either or both of the pending petitions for certiorari on the Second Amendment incorporation issues arising out of National Rife Association would be fitting for this Court to grant because those cases present the same Fourteenth Amendment issues concerning applicability of the Second Amendment to the States invoked in this petition.

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Civil Rights

I love Mondays

This week, 23 state Attorney Generals signed off on a letter (pdf) to Attorney General Eric Holder, in which they advised against any sort of renewal of the 1994 Assault Weapons Ban. Part of the letter reads,

As Attorneys General, we are committed to defending our constituents’ constitutional rights —including their constitutionally-protected right to keep and bear arms. This duty is particuarly important in light of the United States Supreme Court’s recent Heller decision, which held that the Second Amendment “elevated above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” The high court’s landmark decision affirmed that individual Americans have a constitutionally-protected right to keep and bear arms. We, the undersigned Attorneys General, are staunch defenders of that right and believe that it should not be encroached upon without sound justification — and a clear law enforcement purpose. (…) we believe that additional gun control laws are unnecessary.

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Civil Rights

NRA v. Chicago, up the ladder

It took less than a week, but the 7th Circuit has passed down their judgement in National Rifle Association of America v. City of Chicago [pdf]. They disagree with Nordyke and find that the 14th Amendment does not incorporate the 2nd Amendment against state and local governments.

I fully expected this. What I didn’t expect was for the 7th to so gleefully and eagerly hand the ball off to the Supreme Court, which is what they’re doing here.

Presiding Judge Easterbrook argues,

Cruikshank, Presser, and Miller rejected arguments that depended on the privileges and immunities clause of the fourteenth amendment. The Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873), holds that the privileges and immunities clause does not apply the Bill of Rights, en bloc, to the states. [p. 2]

There’s just one little problem with that logic: this isn’t about the privileges and immunities clause, and it never was.

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Civil Rights

2nd Amendment: Closer to Incorporation

Nordyke v. King has been winding its way up to the 9th Circuit Court in California since 2003. The plantiff charged that his 1st and 2nd Amendment rights were being violated by enforcement of a 1999 Alameda County ordinance prohibiting the carry of arms on County property.

In the shadow of Heller, this was one to watch.

Unfortunately, the 9th Circuit ruled that the ordinance was just and would stand.

But that’s not the big news. This is:

We are therefore persuaded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the states and local governments. (Nordyke v. King, p. 29 [pdf])