The Volokh Conspiracy

Petitioner’s Brief in McDonald v. City of Chicago (The Second Amendment Incorporation Case)

Orin Kerr • November 16, 2009 10:58 pm

Today the Petitioners in McDonald v. City of Chicago, the case on whether the Second Amendment applies to the states, filed their merits brief. You can read it here. It’s a truly remarkable brief. It devotes 55 pages to arguing that the Supreme Court should overturn The Slaughterhouse Cases (1873) and embark on a new era of a newly rejuvenated Privileges or Immunities Clause. It then gives a mere seven pages, at the very end of the brief, to applying existing doctrine and arguing that the Second Amendment is incorporated and applies to the states under the Due Process clause. It’s certainly an attention-getting way to brief the case. It’s not just arguing for a win: It’s arguing for a revolution.

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104 Comments

cubanbob says:

I never understood how the second amendment could be deemed not to apply to the states.

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

The language is rather clear. There can be arguments made that the states may qualify who may keep and bear arms in regards to the security of a free state and those whom are not qualified to keep and bear arms but how could the amendment as it is written not apply to the states?

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November 16, 2009, 11:15 pm
p.d. says:

This could wind up to be the most important constitutional decision in decades.

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November 16, 2009, 11:28 pm
Orin Kerr says:

Cubanbob,

I think the answer lies in history, at least most clearly. I think the general understanding is that the original amendments to the constitution that became the bill of rights were intended as limits on the newly formed federal government, not on the states. That is, the purpose of the bill of rights was to respond to widely shared fears at the time of the new constitution that the federal government created by the constitution would become too powerful and would infringe on the powers of the states or of the people. In light of that history, I think it’s somewhat difficult to see the second amendment (pre 14th Amendment) as a limitation on state governments. Or at least that’s my sense of things: I am no expert on the topic.

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November 16, 2009, 11:30 pm
loki says:

Readers would be apt to notice that Eugene Volokh’s article is cited in the Scholarly Authorities.

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November 16, 2009, 11:38 pm
jsimmons says:

Wow. I suppose the strategy is assuming that the Court has basically already made up its mind on whether they will incorporate the Second Amendment, and can obviously do so under existing case law (the Due Process Clause, etc.) if they want to — so why not shoot for something more and see if we can finally get Slaughterhouse overturned?

Gutsy, but I don’t see the Court going any farther than they have to, especially considering the narrow decision in Heller. I expect Thomas will write a concurrence buying into this logic, though, and essentially echoing his dissent in Saenz.

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November 16, 2009, 11:57 pm
Soronel Haetir says:

Agree with JSimmons, the Court is going to do whatever it is going to do with this case and the briefs likely won’t change that either way. Why not put forward your best case even if it normally wouldn’t be a winning strategy.

I see this as the last open-ended 2A question. Assuming incorporation, the follow up cases are going to be much more akin to normal boundary pushing 1A cases. Things like challenges to NYC’s arbitrary schemes.

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November 17, 2009, 12:12 am
s says:

I like how the citation is to “John Ely” (rather than John Hart Ely). Yes, some other Johnny Lee, rather than the one whose idea you’ve borrowed wholesale. Can we just cut down on the outright plagiarism for God’s sake...

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November 17, 2009, 12:25 am
matth says:

I’ve wondered if pushing the P or I clause might not be a decent strategy for trying to get more than five votes. This is the Court’s last major chance to overrule Slaughterhouse. And though I assume the liberal justices would rather not incorporate a meaningful Second Amendment, if it must happen, it would certainly be nice to take the opportunity to put the set of results we call substantive due process on a less incoherent footing.

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November 17, 2009, 12:57 am
cubanbob says:

Orin Kerr: Cubanbob,
I think the answer lies in history, at least most clearly.I think the general understanding is that the original amendments to the constitution that became the bill of rights were intended as limits on the newly formed federal government, not on the states.That is, the purpose of the bill of rights was to respond to widely shared fears at the time of the new constitution that the federal government created by the constitution would become too powerful and would infringe on the powers of the states or of the people.In light of that history, I think it’s somewhat difficult to see the second amendment (pre 14th Amendment) as a limitation on state governments.Or at least that’s my sense of things: I am no expert on the topic.

While I am not a lawyer and certainly not a constitutional scholar I rather doubt the founders who were learned men did not intend the second amendment not to apply to the states. Logically how else could a state maintain a “well regulated Militia”? Suppose that a state was governed by Chavez like governor with a rubber stamp legislature and the only permitted group of arms bearers were those who supported the governor? Under such a state regime the first amendment would be of dubious value if the constitution did not apply to the states. So would the rest of the bill of rights. Indeed of the ten amendments other than the second, amendments one through eight have been considered to apply to the states without controversy. Why is the second exempt? So other than creating individual armies for each state, how can the states and their respective citizens offer any meaningful check on an over whelming federal government that would infringe on the powers of the states and individuals? Indeed without the second applying to the states there can be no state guarantee (as far as I know the states were not required to maintain a militia) to act as a bulwark against the very thing the founders feared. Which is why the second amendment is in the constitution.

Perhaps what the court is finally going to consider the narrowing of who can be excluded from owning a gun and by extension every adult who chooses to own one can unless they fall in to the narrow excluded class. But then again, that is just my opinion and it’s worth as much as the electrons it’s written on.

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November 17, 2009, 1:01 am
Orin Kerr says:

Cuban Bob,

The state could maintain a “well regulated militia” without the Second Amendment applying to the state governments because the Second Amendment is a limitation on regulation. Thus, without a second amendment, the Constitution would not speak to the right to own a gun at all. In such a world, states would be free to do whatever they wanted in terms of creating and regulating their militias or doing anything else.

As for the First Amendment, it doesn’t apply directly to the states, either: Indeed, it says, “CONGRESS shall pass no law....” Its protections apply to the states through the Fourteenth Amendment, not directly from the first amendment. If you’re curious about this, google around to read about the incorporation doctrine; it will help explain the legal issues.

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November 17, 2009, 1:59 am
Tim says:

cubanbob:
While I am not a lawyer and certainly not a constitutional scholar I rather doubt the founders who were learned men did not intend the second amendment not to apply to the states. Logically how else could a state maintain a“well regulated Militia”?Suppose that a state was governed by Chavez like governor with a rubber stamp legislature and the only permitted group of arms bearers were those who supported thegovernor? Under such a state regime the first amendment would be of dubious value if the constitution did not apply to the states. So would the rest of the bill of rights. Indeed of the ten amendments other than the second, amendments one through eight have been considered to apply to the states without controversy. Whyis the second exempt? So other than creating individual armies for each state, how can the states and their respective citizens offer any meaningful check on an over whelming federal government that would infringe on the powers of the states and individuals? Indeed without the second applying to the states there can be no state guarantee (as far as I know the states were not required to maintain a militia) to act as a bulwark against the very thing the founders feared. Which is why the second amendment is in the constitution.Perhaps what the court is finally going to consider the narrowing of who can be excluded from owning a gun and by extension every adult who chooses to own one can unless they fall in to the narrow excluded class. But then again, that is just my opinion and it’s worth as much as the electrons it’s written on.

The third amendment has not been applied to the states, nor the grand juries clause of the 5th amendment. While I think you take a reasonable position, I think history, as Professor Kerr mentions, paints the broadest picture. In the pre-14th amendment United States, I am inclined to agree with him, and I suspect that the people would have to rely on their state constitutions to protect their right to bear arms.

Obviously a post-14th Amendment United States is a very different legal atmosphere. But given how we’ve handled other issues regarding incorporation, I’m inclined to agree with Professor Kerr (having not done sufficient research to say for sure).

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November 17, 2009, 2:09 am
Hadur says:

This is the Court’s last major chance to overrule Slaughterhouse.

Hardly. They can very easily say that it is incorporated under the 14th and there is no need to reach the P&I issue.

“Substantive P&I” underlies many of the liberal fantasies about the constitution of the future. As a conservative I am very concerned about any expansion of it.

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November 17, 2009, 2:10 am
J. Aldridge says:

Pretty silly to argue the privileges or immunities clause incorporates the Second Amendment between a state and its own citizens when Bingham said so clearly before and after the adoption of the Fourteenth that it did not apply to citizens of a state.

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November 17, 2009, 2:13 am
J. Aldridge says:

cubanbob: I never understood how the second amendment could be deemed not to apply to the states.

States had their own constitutions, why would they leave such local concern under the federal constitution? I think Francis Bird got it right when he said:

This was the very purpose of adopting this second amendment to the federal constitution—to put this matter of the independence of the State militia beyond the domain of controversy; and this is the right guaranteed by this amendment,—the right of the people to bear arms, not for “making defence under special exigencies,” which could in no possible manner come under the control of Congress, and needed no guarantee, but to bear them as a part of the military power of the State.

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November 17, 2009, 2:19 am
yankee says:

I’m confused about the strategic rationale in focusing the argument on overturning Slaughterhouse rather than using the Due Process argument. Why ask the Court to overturn a major line of cases when you can use the existing framework?

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November 17, 2009, 2:19 am
Lior says:

This brief does not mince words. In the four paragraphs of “summary of argument” we already find:

... the failure to honor the Fourteenth Amendment’s original public meaning foments confusion and controversy as courts pursue other approaches to protecting core individual rights.

This case presents a rare opportunity to correct a serious error, honor the Fourteenth Amendment’s true meaning, and bring a needed measure of clarity to this Court’s civil-rights jurisprudence.

and

SlaughterHouse’s illegitimacy has long been all-but-universally understood.

Is this kind of over-the-top rhetoric common in USSC briefs? I sure hope the justices are predisposed towards petitioner – if not I doubt this kind of language is likely to sway them.

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November 17, 2009, 3:55 am
andy says:

Mr. Kerr,

Thank you for sharing this. I was hoping you might elaborate on a couple specific questions for those of us who have only skimmed the Heller opinion and have not closely followed the debate:

1) Putting aside the P&I issue that is dissected in the petitioner’s brief, do you think it is likely that this case will be decided on whether the Second Amendment applies to the states?

2) Can Heller be read in such a way that it really does relate only to Congressional powers over the District? Like I said, I have only skimmed the opinion, and perhaps like most members of the general public, I have this vague idea that Heller preserves my right to own a gun, no matter where I live (although I’m aware that the case arose in DC and specifically addressed the facts before it). Is the reasoning/language in Heller so restrictive that whether the Second Amendment applies to the states really is an open question? I guess I’m asking you to decide the case :)

3) How likely is a flip-flop of Justice Kennedy?

4) If Justice Kennedy doesn’t flip-flop, how likely that Breyer/Stevens issue a scathing dissent arguing how Heller applies only to DC (assuming that the Heller opinion was so limited), as opposed to arguing that Heller was wrongly decided in the first place?

I am a tax person, so pardon my ignorance of controversial conlaw issues. Thank you.

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November 17, 2009, 4:27 am
Brett Bellmore says:

Nothing over the top about it at all; The illegitimacy of SlaughterHouse is indeed almost universally understood; Heck, it was elementary school history when I was growing up, that the Court had deliberately spiked the 14th amendment with those rulings. I really don’t think my American history teacher, (Also the gym coach.) was that far out on the fringe.

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November 17, 2009, 6:54 am
Orin Kerr says:

Brett Bellmore,

I don’t think I heard of the Slaughterhouse Cases until law school, and when I did, it was in the context of a fairly heated debate as to whether they were correct (at a Fed Soc student symposium, ’95, I think). I’m curious, what elementary school history book did you use that provided an analysis of Privileges or Immunities Clause jurisprudence — and that actually took a clear side on that issue?

Lior,

No, it’s not common; that’s what makes the brief so remarkable. Most Supreme Court briefs focus on trying to win the case, whereas this brief seems to treat that as an afterthought and instead is trying to use this case to achieve a long-time goal of the libertarian legal movement. You don’t see that very often.

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November 17, 2009, 7:14 am
Anderson says:

Why ask the Court to overturn a major line of cases when you can use the existing framework?

Because you are not interested in doing the best possible job for your client, but rather in exercising your ideological hobbyhorse.

This kind of brief is appropriate for an amicus, and Petitioners would’ve had no trouble rounding one up from Cato or whoever.

(In all fairness, I don’t know who the individual petitioners are, or who the organizations are. But if they’re people who genuinely just want to see federal gun rights apply to the states, then I have some difficulty seeing how such a brief zealously represents their stated interests in the litigation.)

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November 17, 2009, 7:26 am
Kharn says:

The NRA was supposed to submit a brief as a Respondent in Support of Petitioners yesterday, but I have not yet found a PDF version. Since they’re limited to 15k words in their brief (instead of the usual 9k for amicus), I’d assume they’ll focus on Due Process incorporation (NRA v Chicago did not address P&I IIRC).

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November 17, 2009, 7:37 am
Carl from Chicago says:

Kharn: The NRA was supposed to submit a brief as a Respondent in Support of Petitioners yesterday, but I have not yet found a PDF version. Since they’re limited to 15k words in their brief (instead of the usual 9k for amicus), I’d assume they’ll focus on Due Process incorporation (NRA v Chicago did not address P&I IIRC).

That is what I would assume, as well. Hopefully it will be posted today. Also, the Brady Center was to file an amicus brief in support of neither party. As such, that brief was supposedly due yesterday as well.

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November 17, 2009, 8:18 am
Federal Farmer says:

Carl from Chicago: That is what I would assume, as well. Hopefully it will be posted today. Also, the Brady Center was to file an amicus brief in support of neither party. As such, that brief was supposedly due yesterday as well.

The Brady amicus in support of neither party is due next week with the amici in support of petitioner.

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November 17, 2009, 8:58 am
Joe says:

I agree with Anderson.

third amendment has not been applied to the states

True, but it was cited in dicta in Griswold (state case) as protecting privacy, so even outside of the 2nd Cir. case that did incorporate it, I would put it in a different class than the Grand Jury Clause.

“Substantive P&I” underlies many of the liberal fantasies

Thomas supports a substantive P&I. As do various libertarians, including participants of this blog. But, this does remind me of Eugene Volokh’s citation of the Guns & Porn article.

This brief does sound a bit like lawyer porn.

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November 17, 2009, 9:01 am
Adam Kamp says:

Thomas supports a substantive P&I. As do various libertarians, including participants of this blog. But, this does remind me of Eugene Volokh’s citation of the Guns & Porn article.

Well, this is the difference between a conservative and a libertarian, right? (Except for Thomas–he’s a conservative, but such a textualist that the unwritten doctrine of substantive due process must burn at his soul like vitriol.)

But libertarians aren’t going to rue the expansion of individual rights in the same way that some conservatives will.

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November 17, 2009, 9:34 am
JeffH says:

Anderson: Why ask the Court to overturn a major line of cases when you can use the existing framework?Because you are not interested in doing the best possible job for your client, but rather in exercising your ideological hobbyhorse.This kind of brief is appropriate for an amicus, and Petitioners would’ve had no trouble rounding one up from Cato or whoever.(In all fairness, I don’t know who the individual petitioners are, or who the organizations are. But if they’re people who genuinely just want to see federal gun rights apply to the states, then I have some difficulty seeing how such a brief zealously represents their stated interests in the litigation.)

My understanding is that the attorneys who took on this case (and Heller) have always had as their goal the overturning of Slaughterhouse, and that their clients understand this. I believe the plan to attack Slaughterhouse goes back before they had even identified the clients in Heller. The idea was to use the second ammendment cases as a vehicle to attack Slaughterhouse.

Here’s a link that explains IJ’s position. IJ is not officially involved in this case or Heller afaik, but Clark Neily has played an important role in both cases.

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November 17, 2009, 9:41 am
Anderson says:

My understanding is that the attorneys who took on this case (and Heller) have always had as their goal the overturning of Slaughterhouse, and that their clients understand this.

That takes care of the ethical problem, I suppose, if the clients are on board.

I still would think the Court would be a trifle underwhelmed, however. And I would be amazed if the Court reached out to overturn a 150-year-old understanding (however flawed) of the Constitution when that’s not even necessary to reach the result desired by the plaintiffs.

However, the plaintiffs and their counsel will at least walk away with a consolation prize, a stirring dissenting opinion by Thomas, suitable for framing.

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November 17, 2009, 9:46 am
JeffH says:

The link didn’t work.

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November 17, 2009, 9:47 am
Soronel Haetir says:

yankee: I’m confused about the strategic rationale in focusing the argument on overturning Slaughterhouse rather than using the Due Process argument.Why ask the Court to overturn a major line of cases when you can use the existing framework?

The SDP route is so obvious that their thinking likely is that it hardly need be argued. Again, the court is either going to rule for incorporation or it won’t. Why not argue for you prefferred route.

Even more interesting would be a split opinion endorsing incorporation but with disagreement on the means. I suspect loower courts would just treat that as an SDP incorporation no matter what the split was.

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November 17, 2009, 9:55 am
Adam Kamp says:

I tend to agree with Anderson (and the others who have said it). This court–really, the Court for the last 25 years–has stayed away from much in the way of sweeping gestures, and it would be an absolute shock if they made one here.

One small quibble, though: I think it will be a stirring concurrence by Thomas, not a dissent. :)

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November 17, 2009, 9:58 am
Anderson says:

Point taken, sir. “Concurrence in the judgment of the Court,” perhaps.

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November 17, 2009, 10:02 am
JeffH says:

If we’re laying bets on what the final decision will be, then here’s mine: 3/2/4 split in favor of incorporation, with 3 votes to incorporate under DP, and 2 to incorporate under P or I.

Anderson: I would be amazed if the Court reached out to overturn a 150-year-old understanding (however flawed) of the Constitution when that’s not even necessary to reach the result desired by the plaintiffs.

That’s why the brief spends 55 pages arguing that what the Plaintiff’s want is incorporation under P or I. The Plaintiff’s don’t want incorporation under DP, and consider arguments that the 2nd Amendment could be incorporated under DP to be flawed. You may well hear Alan Gura say as much during oral arguments.

There’s at least one Amicus brief out there arguing that the Court could incorporate under P or I without overturning Slaughterhouse, though I’m not sure it will get much attention.

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November 17, 2009, 10:38 am
Anderson says:

Jeff, I think you are too pessimistice about the Heller minority; that case having been lost, I don’t think all 4 will stick together to argue vs. incorporation.

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November 17, 2009, 10:41 am
JeffH says:

Well I’m definitely too pessimisstic, but not about the Heller minority. I’m actually assuming that at least one of the Justices in the Heller majority will vote against incorporation, and that at least one in the Heller minority will find for incorporation.

Actually, if there is incorporation under P or I, it will almost certainly be because the justices in the Heller minority vote for it. I doubt either Roberts or Alito want to open the can of P or I worms, given that many conservatives think that P or I is a gateway to further “reproductive rights” (i.e. abortion, gay rights, etc).

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November 17, 2009, 10:56 am
p.d. says:

yankee: I’m confused about the strategic rationale in focusing the argument on overturning Slaughterhouse rather than using the Due Process argument. Why ask the Court to overturn a major line of cases when you can use the existing framework?

If you read through the brief, the sections before the explicit discussion of Due Process make clear that the history of the 14th Amendment supports incorporation, which already does most of the legwork. They’ve just coupled it in with the historical analysis of P or I, so if the court DOES choose to incorporate under the DPC, they will probably rely on a fair bit of the first part’s analysis. Strategically, this makes sense. Also, you have to consider that the Court was looking at several cert petitions involving the question of incorporating the 2nd Amendment, but it chose to certify a question that explicitly invoked the P or I Clause. This was a sufficient signal that they’re taking this seriously enough to entertain such an argument.

This reminds me of the pending Citizens United case, in which the petitioners requested the Court to overturn Austin v. Michigan Chamber of Commerce as a logical implication of its analysis in one or two sentences–this invited the Court to request further briefing on the question that would undo a major constitutional precedent. It’s not controversial to say that any serious historical analysis of the P or I Clause, which the Court invited, would expose SlaugherHouse and Cruikshank as close to indefensible, so this argument shouldn’t be surprising. It’s hardly “exercising one’s ideological hobbyhorse” to call one of the worst Court decisions still on the books precisely what it is.

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November 17, 2009, 11:00 am
Gene Hoffman says:

Has anyone stopped to consider that the right to bear arms is not a due process right?

Perpetuating judicial fantasy does not serve the Republic.

–Gene

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November 17, 2009, 11:27 am
SeaDrive says:

This is the Court’s last major chance to overrule Slaughterhouse.

and

Hardly. They can very easily say that it is incorporated under the 14th and there is no need to reach the P&I issue.

Perhaps they think it’s the last best chance before the court takes a more liberal turn.

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November 17, 2009, 11:31 am
J. Aldridge says:

matth: This is the Court’s last major chance to overrule Slaughterhouse. And though I assume the liberal justices would rather not incorporate a meaningful Second Amendment, if it must happen, it would certainly be nice to take the opportunity to put the set of results we call substantive due process on a less incoherent footing.

Why would anyone want to overrule such a correct and factually supported ruling as Slaughterhouse? Bingham, 1866 and 1870 on the 14th’s P&I’s: “This guarantee is of the privileges and immunities of citizens of the United States in, not of, the several States.”

The Second Amendment has been meaningless since the establishment of the National Guard. People no longer protect themselves through a organized militia of themselves organized under state law.

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November 17, 2009, 11:58 am
Andy Krause says:

“People no longer protect themselves through a organized militia of themselves organized under state law.” This sounds like an unproven assumption. My opinon is that people do exactly that, “themselves” sometimes being one person.

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November 17, 2009, 12:12 pm
Kharn says:

NRA’s brief is here: PDF

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November 17, 2009, 12:34 pm
J. Aldridge says:

Andy Krause: This sounds like an unproven assumption. My opinon is that people do exactly that, “themselves” sometimes being one person.

Not talking about any natural right for personal self-defense, but of self-defense through the military power of the state. Armed, unorganized persons cannot defend themselves or their community individually from mobs, armed invasions, wild indian attacks, etc.

States needed to project military power since there was no standing armies for that peurpose, and hence, why there is a 2A.

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November 17, 2009, 12:34 pm
Kharn says:

The NRA’s brief is here

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November 17, 2009, 12:34 pm
Carl Donath says:

Many states do formally have their own militias (ex.: Georgia State Defense Force), armed to varying degrees. That a federal military branch may render such state forces largely moot, or that states neglect to seriously arm & train their militias, does not negate the existence of an enumerated natural inalienable right. Asleep is not dead.

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November 17, 2009, 1:10 pm
J. Aldridge says:

Carl Donath: does not negate the existence of an enumerated natural inalienable right.

Strange the 2A would be the only federal amendment to create an individual “numerated natural inalienable right.” What about all the rest? Why was flintlocks singled out for individuals? I think the organized and armed military power of the state explains the amendment much better.

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November 17, 2009, 1:21 pm
Carl from Chicago says:

J. Aldridge:
Not talking about any natural right for personal self-defense, but of self-defense through the military power of the state. Armed, unorganized persons cannot defend themselves or their community individually from mobs, armed invasions, wild indian attacks, etc. States needed to project military power since there was no standing armies for that peurpose, and hence, why there is a 2A.

J Aldridge:

You appear to be woefully “stuck” in a pre-Heller mentality. The question of whether the 2A protects a militia-contexted right to arms is dead. The right is more broad than that. That’s just the way it is. Woefully stuck, but not helplessly ...

Kharn, thanks for posting the brief. I am surprised (and pleased) to see so much devoted to P or I by the NRA.

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November 17, 2009, 1:24 pm
Joe says:

Has anyone stopped to consider that the right to bear arms is not a due process right?

You mean procedurally? Unless the SC suddenly overturns substantive due process (and its use as a sort of 9A proxy), no, I don’t think the right to keep and bear arms is not within that gambit. Ownership at home, as in Heller, particularly so.

Overall, since there is a right secured against the state (no matter how you get there), deprivation is a violation of due process of law.

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November 17, 2009, 1:30 pm
Carl Donath says:

Strange the 2A would be the only federal amendment to create an individual “[e]numerated natural inalienable right.” What about all the rest?

Um, all the rest are listed in 8 other amendments (with further catch-all in the last 2). Strange that the 2A should be construed (by you) as the only federal amendment to _exclude_ any individual right.

Krause posts right in observing that self-defense is simply the militia being reduced to an individual; there is no dichotomy between self-defense (armed individual) and state-defense (armed militia), as the state has an interest in the protection of individual citizens, whereby such defense is provided by that individual.

Why was flintlocks singled out for individuals?

Because that was the maximum armament an individual of modest means could be expected to reasonably afford and handle when acting as an individual, alone or aggregated into a team. Today, the expectation would be that all (who may reasonably called up for defense of self or state) obtain and own an M16, in keeping with modern standards for military “grunt” armament. Certainly nobody then would be chastised for bringing personally-owned crew-served arms into the fray in defense of the state.

Armed, unorganized persons cannot defend themselves or their community individually from mobs, armed invasions, wild indian attacks, etc.

To say “cannot” is preposterous. Every instance you state & imply has innumerable historical examples of armed unorganized persons defending themselves or their community individually — and also of those individuals coalescing into impromptu groups, the whole being greater than the sum. Any time law enforcement & military are overwhelmed/impotent by circumstances, armed citizens emerge to provide self & community defense (ex.: hurricanes Andrew and Katrina).

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November 17, 2009, 2:06 pm
J. Aldridge says:

Carl from Chicago: You appear to be woefully “stuck” in a pre-Heller mentality. The question of whether the 2A protects a militia-contexted right to arms is dead.

I am stuck on truth, not Heller. Whether the truth is dead or not because of the opinion of 5, well we’ll see later down the road.

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November 17, 2009, 2:06 pm
JeffinCA says:

J. Aldridge: Armed, unorganized persons cannot defend themselves or their community individually from mobs, armed invasions, wild indian attacks, etc.

LA riots, insurgencies, Katrina. I think Armed unorganized persons can defend themselves just fine, as long as the will is there and their right to such defense has not been legislated away.

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November 17, 2009, 2:07 pm
Gordon Langston says:

J. Aldridge:
Not talking about any natural right for personal self-defense, but of self-defense through the military power of the state. Armed, unorganized persons cannot defend themselves or their community individually from mobs, armed invasions, wild indian attacks, etc. States needed to project military power since there was no standing armies for that peurpose, and hence, why there is a 2A.

It happened here

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November 17, 2009, 2:25 pm
J. Aldridge says:

JeffinCA:
LA riots, insurgencies, Katrina.I think Armed unorganized persons can defend themselves just fine, as long as the will is there and their right to such defense has not been legislated away.

If that was true there would be no need for armed forces since individuals would do just fine shooting out of their window. Of course we are not talking about a natural right to protect oneself since that needs no constitutional right.

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November 17, 2009, 2:25 pm
ShelbyC says:

J. Aldridge: Not talking about any natural right for personal self-defense, but of self-defense through the military power of the state. Armed, unorganized persons cannot defend themselves or their community individually from mobs, armed invasions, wild indian attacks, etc.
States needed to project military power since there was no standing armies for that peurpose, and hence, why there is a 2A.

Well, there’s a 14A so that individuals can protect themselves from the state, or from folks in white sheets. I’m not sure how relevant the intent of the 2A framers to the incorporation question. This may be a case where the argument for incorporation of the right is stronger than the argument for the existance of the right itself.

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November 17, 2009, 2:31 pm
JeffinCA says:

J. Aldridge:
If that was true there would be no need for armed forces since individuals would do just fine shooting out of their window. Of course we are not talking about a natural right to protect oneself since that needs no constitutional right.

You present a false dichotomy. Your assertion that “armed, unorganized people CANNOT defend themselves...” (my caps), assuming you mean that do not have the ability to defend themselves, is patently absurd. Individuals can and do defend themselves from mobs, armed invasions, and historically, wild Indian attacks. The fact that an organized State army or militia may do a superior job of it is irrelevant.

This is especially telling since during the riots in LA police all but abandoned swaths of the city and people were forced to defend themselves.

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November 17, 2009, 2:34 pm
Federal Farmer says:

Aldridge has a Bingham quote out of context that he dusts off and pastes wherever he can. He never addresses the alleged defects in the briefs. I wonder if he even reads them.

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November 17, 2009, 2:41 pm
cjwynes says:

Scalia did not join Thomas’ dissent in Saenz v. Roe, therefore I must assume the P&I argument is DOA.

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November 17, 2009, 2:48 pm
Off Kilter says:

J Aldridge: Aren’t individual actors in Iraq and Afghanistan doing a credible job of holding our well-equipped military at bay?

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November 17, 2009, 2:53 pm
J. Aldridge says:

JeffinCA: This is especially telling since during the riots in LA police all but abandoned swaths of the city and people were forced to defend themselves.

That is an entirely different issue. Governor Page of NH, 1841:

The “right of the people to keep and bear arms,” is a right dear to every freeman; arms should be in the hands of every citizen of the Republic, who is able to wield them, and it is the duty of Government to prescribe such rules of organization and discipline, as will give those arms the greatest possible efficiency.

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November 17, 2009, 2:56 pm
J. Aldridge says:

Federal Farmer: Aldridge has a Bingham quote out of context that he dusts off and pastes wherever he can.

I beg your pardon, the quote is 100% within context. He was always clear the P&I’s of United States citizens had no bearing on citizens of a state. The concern was with the treatment of some states with citizens of other states, like under the Oregon constitution.

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November 17, 2009, 3:00 pm
J. Aldridge says:

Off Kilter: J Aldridge: Aren’t individual actors in Iraq and Afghanistan doing a credible job of holding our well-equipped military at bay?

They are organized, armed and trained. They are a militia.

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November 17, 2009, 3:03 pm
Carl Donath says:

If that was true there would be no need for armed forces since individuals would do just fine shooting out of their window.

It’s just one extreme or the other with you, no?
Individuals shooting out their windows at invaders will, indeed, give the invaders pause to reconsider doing so ... and thus the tight relationship between “the right of the people...” and “security of a free state”: armed individuals en masse can provide a credible defense of the state. Of course, organizing & regulating* them elicits superior results.

(* — “regulating” meaning “equipping and ordering to maximum effect”, not “virtual prohibition”)

Of course we are not talking about a natural right to protect oneself since that needs no constitutional right.

As I and others have noted: the separation from militia defense of the state vs. armed self-defense is a false dichotomy. The state has an interest in defense of every fraction thereof down to the individual, who in defending self is defending his part of the state. The individual has an interest in acting in aggregate with others to defend the state as an extension/protector of himself. If the natural right to self defense needs no constitutional right, then neither does two — or two hundred million — acting in mutual defense, be they organized or not.

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November 17, 2009, 3:11 pm
JeffinCA says:

J. Aldridge: JeffinCA: This is especially telling since during the riots in LA police all but abandoned swaths of the city and people were forced to defend themselves.

That is an entirely different issue.

Nice try, but handwaving away an example of unorganized people defending themselves from a mob during the LA riots as a direct counter example to your assertion that “Armed, unorganized persons cannot defend themselves or their community individually from mobs, ...” is rediculous.

Face it. Your assertion is false.

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November 17, 2009, 3:13 pm
Carl Donath says:

the P&I’s of United States citizens had no bearing on citizens of a state.

Take that up with the extensive lead argument in Petitioner’s Brief in McDonald v. City of Chicago (a la this very thread’s lead story). The single assertion is crumbling under a torrent of superior counter-assertions.

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November 17, 2009, 3:15 pm
Carl Donath says:

it is the duty of Government to prescribe such rules of organization and discipline

Neglect of duty, nor insufficiency of preparation, negate the supported right.

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November 17, 2009, 3:17 pm
J. Aldridge says:

Carl Donath: Individuals shooting out their windows at invaders will, indeed, give the invaders pause to reconsider doing so ... and thus the tight relationship between “the right of the people...”

Assuming everyone has the proper weapon at home (you know, without some state law requiring you to have a weapon). Of course they can just fire a rocket at you and that will be that.

Remember founder James Wilson was surrounded by an armed mob of 200 at his home, and he and a dozen others inside his home were armed and firing at the mob. One was killed inside his home. Would had been easy for the mob to burn him out if they wanted.

It wasn’t until the militia showed up the next morning that the mob was dispersed.

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November 17, 2009, 3:20 pm
Jeff Hall says:

The Second Amendment has been meaningless since the establishment of the National Guard. People no longer protect themselves through a organized militia of themselves organized under state law.

So is the freedom of the press clause of the first amendment meaningless with the establishment of Google? People no longer need to print anything, since it is all may be found online. Or is the freedom of speech clause meaningless now that Presidential speeches are broadcast on radio and TV? Citizens no longer need to speak up, because the President does our speaking for us. Or is the third amendment meaningless with the establishment of public housing projects? Or ...

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November 17, 2009, 3:25 pm
J. Aldridge says:

JeffinCA: Nice try, but handwaving away an example of unorganized people defending themselves from a mob during the LA riots as a direct counter example to your assertion that “Armed, unorganized persons cannot defend themselves or their community individually from mobs, ...” is rediculous.

Was a awful lot of people who did not have any gun who survived because of police. But again the issue under the 2A isn’t whether a person can defend themselves with “arms,” but whether Congress would interfere with the arming of the people as part of the military power of the state to replace them with a national army. Madison said standing armies was the gravest threat to the liberty of the people.

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November 17, 2009, 3:30 pm
JeffinCA says:

I didn’t realize that you occupy an alternate reality.

J. Aldridge: But again the issue under the 2A isn’t whether a person can defend themselves with a “arms,” but whether Congress would interfere with the arming of the people as part of the military power of the state to replace them with a national army.

The 2A is surely about whether a person can defend themselves with arms. This is settled.

I dismissed your non-sequiter comment regarding Governor Page, and now another from Madison. Is that all you’ve got? You said armed, unorganized people can’t defend themselves from mobs. You’re sticking to that, really? In the face of directly contradictory evidence, you’ve said the equivalent of “up is down”. Brilliant.

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November 17, 2009, 3:38 pm
Joel Rosenberg says:

J. Aldridge: there’s no inconsistency between the Founders having both a concern about the possible misuse of a standing army (and thereby making sure that the militia, as they used the term, would be armed and able to resist it, if necessary) and seeing self-defense as a natural right that could be properly exercised retail against brigands and robbers as well as wholesale against a standing army.

As to how many folks during the LA riots without guns survived because of — rather than irrelevant to the vaguely nearby presence of — the police, we simply don’t know, and it doesn’t much matter to the argument being presented, which is that we do know that some folks with guns did successfully defend themselves and their property there and then — and elsewhere and elsewhen — without the necessity of uniforms, specific government permission, or standing in formations.

As to Gura and Company going after the SlaughterHouse Cases, well: wow.

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November 17, 2009, 3:45 pm
J. Aldridge says:

JeffinCA: You’re sticking to that, really? In the face of directly contradictory evidence

Well, if anyone cares to show me this direct “contradictory evidence” then I can respond. Until then the 2A continues to address militias as security to a free state through armed citizens of that state and not some ridiculous right to hang a rifle over the fireplace.

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November 17, 2009, 3:50 pm
Foxtrot says:

Mr. Aldridge,

Though it seems we disagree on these issues, I appreciate your willingness to participate in a discussion here, where your views are clearly in the minority. However, I’m having some trouble understanding the points you are making and trying to fit them into the context of current 2A and 14A scholarship. I have some specific questions:

1. It seems that you disagree with the majority in Heller. Is that because you reject the method used there (original public meaning to determine the legal content of the 2nd A.) or do you believe that either the method is applied there incorrectly or the evidence there is insufficient?

2. To the extent that you reject Heller, do you think that Stevens’ dissent is correct? Do you agree with the dissent’s method (determining the legal content of the 2nd A. based on the Amendment’s purpose)?

3. To some degree, the 2nd A and Heller are irrelevant to the issue here in McDonald. I assume from the fact that you are posting here that you have read the brief. In the brief the petitioners argue that the 14th A was intended and was understood to give citizens a constitutional right of armed self defense that could not be denied by the states, independent of any militia or military considerations. Do you think that this characterization of the 14th A. is incorrect? If so, why? Why do you think an understanding of Heller determines the proper outcome of the P or I argument made in the brief? (due process incorporation is, of course, clearly determined by the content of the 2nd A.).

4. In the context of your commitment to “truth” (i.e. objective and immutable fact) in interpreting the Constitution, what does the Privileges or Immunities clause mean?

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November 17, 2009, 4:09 pm
af says:

Hasn’t Alan Gura earned the benefit of the doubt on the wisdom of challenging longstanding Supreme Court precedent?

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November 17, 2009, 4:14 pm
Federal Farmer says:

J. Aldridge: Well, if anyone cares to show me this direct “contradictory evidence” then I can respond. Until then the 2A continues to address militias as security to a free state through armed citizens of that state and not some ridiculous right to hang a rifle over the fireplace.

You could respond to the evidence cited in the brief...you know, with direct evidence refuting those parts you think are wrong.

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November 17, 2009, 4:16 pm
Carl Donath says:

With enough rifles hung over fireplaces, a community may form an organized militia in short order.
Without “some ridiculous right to hang a rifle over the fireplace”, they can’t.

Methinks these guys are a prime example: armed from fireplaces & closets, no formal state-sponsored organization, yet quite secure in their neighborhood in the disaster-caused absence of police & military.

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November 17, 2009, 4:18 pm
David Newton says:

J Aldridge you are clearly ignoring Heller completely. SCOTUS completely went contrary to what you are saying. They are both more powerful and more authoritative than you are. Read the Heller opinion: it is the law in the United States whether you like it or not. Anything which directly contradicts its constitutional holdings is wrong under United States federal law and what you are saying directly contradicts it in that manner. Therefore you are wrong.

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November 17, 2009, 4:25 pm
Foxtrot says:

Newton (and others),

You can’t have it both ways. Either SC precedent can be criticized under some objective standard or not. If so, then you can’t keep throwing a 5-vote majority at Aldridge saying “You be quiet little man – Supreme Court has spoken.” If not, then the petitioner’s brief in McDonald (and the Constitutional claims it advances) are also wrong. “Anything which directly contradicts its constitutional holdings is wrong under United States federal law” – are you saying that applies to Slaughterhouse and Presser as well?

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November 17, 2009, 4:30 pm
Railroad Gin says:

Does it really matter whether incorporation is accomplished through P&I versus the due process clause?

I think P&I is the better approach, but as a practical matter, would Thomas suddenly decide that there’s a right to an abortion under P&I? Would Ginsburg think that Miranda doesn’t apply to the states?
If and when the left can get 5 activists, there will be a right to gay marriage, etc. under either approach. If and when the right gets 5 Scalias, rights will be limited to those clearly enumerated in the Constitution under either approach. I see this debate as largely academic.

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November 17, 2009, 4:30 pm
Sebastian the Ibis says:

Foxtrot,

Thank you for your response to Aldridge. I was about to draft something similar, but you have done a better job than I could manage.

I’m very interested in seeing his responses.

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November 17, 2009, 4:34 pm
Carl from Chicago says:

J. Aldridge:

A little bird came to me, revealing that Chicago is desperately trying to come up with argument to defend their ban on handguns kept or borne outside of a militia context.

You might consider contacting them, and outlining some of your arguments. Perhaps they’ll incorporate them into their undeveloped brief. They have, after all, been granted another two weeks (until 30 December) to get their arguments together.

Here are their names and contact information:

MARA S. GEORGES — Corporation Counsel of the City of Chicago
BENNA RUTH SOLOMON — Deputy Corporation Counsel
MYRIAM ZRECZNY KASPER — Chief Assistant, Corporation Counsel
SUZANNE M. LOOSE, ANDREW W. WORSECK — Assistants to Corporation Counsel

30 N. LaSalle Street, Suite 800
Chicago, Illinois 60602

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November 17, 2009, 5:37 pm
Grubbs says:

I’ll declare Aldridge the winner here.

The 2nd Amendment clearly was in response to fears of the disarming of the organized state militias and a select national militia put in their place.

And Heller did not make any kind of convincing argument for a right to personal firearms. Scalia too many times ignored following quotes that would had damaged his assertion.

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November 17, 2009, 5:41 pm
Joel Rosenberg says:

The 2nd Amendment clearly was in response to fears of the disarming of the organized state militias and a select national militia put in their place.

In your view, was that the sole purpose of it?

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November 17, 2009, 5:52 pm
Foxtrot says:

Grubbs: I’ll declare Aldridge the winner here. The 2nd Amendment clearly was in response to fears of the disarming of the organized state militias and a select national militia put in their place.And Heller did not make any kind of convincing argument for a right to personal firearms. Scalia too many times ignored following quotes that would had damaged his assertion.

Grubbs — can you please respond to the same questions I asked Aldridge? Your post here does not make sense (i.e. it is not a coherent argument addressing the issues being discussed here), because you do not address the question of what method should be used to interpret the 2nd or 14th (or any other) Amendments).

Do you agree with Scalia that one should try to determine how people in the Colonies then would have understood the meaning of the Amendment, or with Stevens that purpose is what matters? If the latter (which is implied by your reference to what the Amendment was ostensibly “in response” to, do you think the meaning of the Amendment would be different if it just read “The right of the people to keep and bear Arms, shall not be infringed”?

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November 17, 2009, 5:58 pm
Federal Farmer says:

Foxtrot: Newton (and others),You can’t have it both ways. Either SC precedent can be criticized under some objective standard or not. If so, then you can’t keep throwing a 5-vote majority at Aldridge saying “You be quiet little man – Supreme Court has spoken.” If not, then the petitioner’s brief in McDonald (and the Constitutional claims it advances) are also wrong. “Anything which directly contradicts its constitutional holdings is wrong under United States federal law” – are you saying that applies to Slaughterhouse and Presser as well?

Isn’t there a big difference between a decision handed down last year and one handed down over 100 years ago? Stare decisis is there to prevent rapid changes keeping people and legislators off-balance trying to figure out what is legal or illegal. But it isn’t a suicide compact either.

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November 17, 2009, 6:02 pm
Foxtrot says:

Federal Farmer: Isn’t there a big difference between a decision handed down last year and one handed down over 100 years ago? Stare decisis is there to prevent rapid changes keeping people and legislators off-balance trying to figure out what is legal or illegal. But it isn’t a suicide compact either.

1. If stare decisis as a force for stability is what Newtown, meant, then he should have qualified his statement.

2. The brief discusses reliance and argues that in light of SDP doctrine no one relies on Slaughterhouse anymore.

3. Do you think that stare decisis has any limits based on the context of the text. If a hundred year old decision said that a 30 year old could be President, can the Court overturn that?

4. What about the reliance of Americans who believe they have a right to own guns that is protected by the 2nd Amendment?

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November 17, 2009, 7:47 pm
DjDiverDan says:

It’s certainly an attention-getting way to brief the case. It’s not just arguing for a win: It’s arguing for a revolution.

Yes — a revolution in the right and responsibility of the Federal Government to enforce against encroachment by the states any of the fundamental rights protected by the Constitution (including the entire Bill of Rights), a revolution that was commenced in 1866 in the House of Representatives by the drafters of the 14th Amendment, a revolution that was seemingly won by the People with the ratification of the 14th Amendment, but a revolution which was ingloriously and illegitimately quashed in 1873 by a Supreme Court which chose to ignore both the text and history of the 14th Amendment in order to avoid the logical and necessary consequences of that revolution. Just imagine — how revolutionary is the notion that the Supreme Court is not free to just make it up as they go, that they are bound by the text and unambiguous intent of the Constitution?

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November 17, 2009, 8:29 pm
DjDiverDan says:

So many posters here assume that the “Privileges or Immunities” clause argument is DOA at the Supreme Court — you may be right, and I’ll wait to read the Briefs of Respondents and their Amici before making a judgment, but at this point it’s hard for me to fathom how any Justice intent on addressing this argument can construct a coherent and principled defense of the Slaughterhouse Cases construction of the P & I Clause, or a coherent and principled defense of Cruikshank. They might, of course, simply say “stare decisis — it’s too late to rethink such longstanding precedent,” but of course they could just as easily have said the same about Plessy v. Ferguson, and we’d still be living in the age of “separate but equal.”

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November 17, 2009, 8:52 pm
Jerome says:

Can someone explain to this lay person how the Respondent can argue;

“In Presser, the Court held that a pre-existing right like the Second Amendment right “to keep and bear arms” is not a privilege or immunity of United States citizenship because it is not “in any manner depen-dent upon [the Constitution] for its existence.”

and hold the view that the RTKBA is somehow fully within the power of the states to limit?

If the right to life, self-preservation, self-defense and consequently arms pre-exists the Constitution and is independent of it, how can it be limited by any document?

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November 17, 2009, 9:38 pm
Jerome says:

“while there is a “mountain of evidence” that the Amendment was conveyed by the press to protect fundamental rights, natural rights, and equal protection, but without mentioning the Bill of Rights”

This is why everyone hates lawyers– it seems like double speak. If there is a mountain of evidence to protect fundamental and natural rights how can it not include the Bill of rights?

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November 17, 2009, 9:47 pm
Foxtrot says:

Jerome: “while there is a “mountain of evidence”

Where is this quotation from?

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November 17, 2009, 9:53 pm
Jerome says:

chicago’s cert petition brief

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November 17, 2009, 9:59 pm
Foxtrot says:

Jerome: Can someone explain to this lay person how the Respondent can argue;“In Presser, the Court held that a pre-existing right like the Second Amendment right “to keep and bear arms” is not a privilege or immunity of United States citizenship because it is not “in any manner depen-dent upon [the Constitution] for its existence.”and hold the view that the RTKBA is somehow fully within the power of the states to limit? If the right to life, self-preservation, self-defense and consequently arms pre-exists the Constitution and is independent of it, how can it be limited by any document?

Jerome,
I’ll give it a shot: Assuming that there is a natural right to self-defense (including possesion of guns). Now, what does that have to do with the federal government? Well, it might mean that the federal government can’t deny or infringe that right — but that wasn’t the issue in Presser, nor is it the issue in McDonald.

The issue in those cases is wether the federal government can prevent states from infringing that right. Because the federal government is one of granted and enumerated powers, the answer is “no,” unless it has such a power.

In Presser (and McDonald), the plaintiffs claim that the Privileges or Immunities clause gives the federal government that power. It certainly does something — “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States...” This creates a federal power to prevent states from abridging the Ps or Is of citizens.

But what are those? In Presser the Court held that the right to arms and self defense is not part of P or I.

I hope that clarifies the ppoint you asked about.

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November 17, 2009, 10:07 pm
Gene Hoffman says:

Joe: Has anyone stopped to consider that the right to bear arms is not a due process right?You mean procedurally? Unless the SC suddenly overturns substantive due process (and its use as a sort of 9A proxy), no, I don’t think the right to keep and bear arms is not within that gambit. Ownership at home, as in Heller, particularly so.Overall, since there is a right secured against the state (no matter how you get there), deprivation is a violation of due process of law.

I think you assume your conclusion. If California bans the import or sale of certain semiautomatic firearms, how does that violate my right to due process of law? I’m not arrested for possession, but I sure have seen my right to keep arms infringed. The right to keep arms and thus procure them is a right/privilege/immunity of being a citizen of both the state and the federal government.

When the early 20th century SCOTUS started using substantive due process they were actually talking about rights that were subject to same like takings or warrants. The right to own and carry arms basically free from state interference isn’t a due process right. It may become a due process right when I’m arrested for simply possessing a firearm, but by then it’s a little too late and remains a stretch to call it a right of due process. My process due was to not have to face the process in the first place. As a clarifying example in the alternative, every day for the rest of my life I will face the process of reasonable searches and seizures upon a warrant properly granted and I can conduct my affairs appropriately.

–Gene

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November 17, 2009, 10:32 pm
Federal Farmer says:

Foxtrot,
What did you think of Chicago’s contradictory arguments in its brief opposing cert? Gura points it out in his Reply Brief on pages 5 and 6.

A more serious, substantive contradiction lies between Respondent’s Due Process and Privilege or Immunities arguments with respect to the nature of the Second Amendment. Arguing against the Second Amendment’s incorporation under the Due Process Clause, Respondent asserts that the right to bear arms is not fundamental. Respondent’s Br., 11. Yet the logic of this Court’s Privileges or Immunities doctrine, which Respondent endorses, rests upon the fact that the Second Amendment is indeed an ancient, established right pre-dating the Constitution. United States v. Cruikshank, 92 U.S. 542, 553 (1876). The logical needle Respondent would thread treats the right to arms as natural and inherent in the Constitution’s absence, yet somehow not “fundamental to the American scheme of justice,” Duncan v. Louisiana, 391 U.S. 145, 149 (1968), or “necessary to an Anglo-American regime of ordered liberty,” id. 150 n.14. The tension between these two conditions cannot be resolved.

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November 17, 2009, 11:17 pm
Federal Farmer says:

Foxtrot: 1. If stare decisis as a force for stability is what Newtown, meant, then he should have qualified his statement.2. The brief discusses reliance and argues that in light of SDP doctrine no one relies on Slaughterhouse anymore.3. Do you think that stare decisis has any limits based on the context of the text. If a hundred year old decision said that a 30 year old could be President, can the Court overturn that?4. What about the reliance of Americans who believe they have a right to own guns that is protected by the 2nd Amendment?

Gura addresses the 4-point reasoning for abandoning Stare decisis in his brief.

He also quotes Laurence Tribe: “[T]he stare decisis hurdle posed by Slaughter-House appears fairly insignificant. It would take but a little wind, and far from a hurricane, to blow that House down.”

I admit Tribe is no J. Aldridge, but...

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November 17, 2009, 11:37 pm
David Newton says:

Anything which directly contradicts its constitutional holdings is wrong under United States federal law” – are you saying that applies to Slaughterhouse and Presser as well?

As long as those two cases have not been overruled by the Supreme Court, their constitutional holdings are as valid as Heller’s. Anything which directly contradicts those two cases’ constitutional holdings is wrong under US federal law. That’s exactly what I am saying. I might not like all of it, but that is the legal position.

There are two ways to alter the situation: one is reversal of an earlier opinion, which is being attempted here. That is rare, but it does happen. For example see Dredd Scott and Brown v Board of Education for one of the most famous reversals. The other is through a constitutional amendment, such as the one passed to allow the federal government to charge income tax which reversed an earlier court ruling on the subject.

The other situation where this comes up in a particularly contentious way, of course, is Rowe v Wade. Many people do not agree with the constitutional holdings of that case, but again until either it is overturned or a constitutional amendment is passed its constitutional holdings are the law of the United States.

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November 18, 2009, 3:26 am
Brett Bellmore says:

DjDiverDan: how revolutionary is the notion that the Supreme Court is not free to just make it up as they go, that they are bound by the text and unambiguous intent of the Constitution?

Under present-day circumstances? Revolutionary in the extreme.

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November 18, 2009, 6:34 am
Lou says:

How the the “Progressives” lining up on this one?

Are they going with Liberty or with ideology?

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November 19, 2009, 10:54 pm
rickomarko says:

“The people” , “the states” are but two of several legal entities mentioned in the bill of rights and the constitution as a whole. By being described and mentioned as legal entities , one must assume that these are physical entities as the are. So , if teh founding fathers intended the second amendment to be written as ” A well regulated Militia, being necessary to the security of a free State, the right of the state to keep and bear Arms, shall not be infringed”. If that was the purpose then , the founding fathers would of written it as such. But , “the people” being a separate legal entitiy was included. DUH!

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November 22, 2009, 8:51 pm
Kicker says:

If the Second Amendment is held to not apply to the States, allowing each State to set it’s own rules for gun ownership, doesn’t this open up the question of whether many other Federal regulations are Constitutional? For instance, OSHA and EPA require that States implement plans equivalent to Federal regulations, or the Fed will step in and assume jurisdiction.

An interesting can of worms could be opened by such a ruling.

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November 28, 2009, 9:48 am
ChicagoGunCase.com » We get questions… says:

[...] too surprised to see this point of view pop up in reaction to the McDonald case. Prof. Kerr cynically predicted we’d get wiped out 8–1 on the Privileges or Immunities claim – that’s the one based on the [...]

November 29, 2009, 4:29 pm
Killing Slaughterhouse - Reason Magazine says:

[...] to overturning Slaughterhouse. “Most Supreme Court briefs focus on trying to win the case,” Kerr wrote, “whereas this brief seems to treat that as an afterthought and instead is trying to use this [...]

December 3, 2009, 9:58 am
J. Aldridge says:

Gene Hoffman: The right to keep arms and thus procure them is a right/privilege/immunity of being a citizen of both the state and the federal government.

The question is right to keep and bear arms for what? Evidence points to arms for public defense since none of the colonies wanted to maintain armies for war or public disturbances. This explains why Congress declared freedmen’s right to bear arms restored when they were allowed to organize and train in an armed militia within former rebel states that were still under U.S. control.

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December 5, 2009, 4:55 pm
Carl from Chicago says:

J. Aldridge: The question is right to keep and bear arms for what?

Relevant questions are useful questions. The rest are, well ....

Yours has been resolved:

Held:
1. The Second Amendment protects an individual right to possess a
firearm unconnected with service in a militia, and to use that arm for
traditionally lawful purposes, such as self-defense within the home.

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December 5, 2009, 8:16 pm
Dan Goodman says:

To all,

I wish to state that the Supreme court, in the Slaughterhouse Cases, held that because of the Fourteenth Amendment there were now two separate and distinct citizens under the Constitution of the United States; a citizen of the United States, under the Fourteenth Amendment and a citizen of the several States, under Article IV, Section 2, Clause 1 [FOOTNOTE]:

    “We think this distinction and its explicit recognition in this Amendment (the 14th Amendment) of great weight in this argument, because the next paragraph of this same section (first section, second clause), which is the one mainly relied on by the plaintiffs in error, speaks only of privileges and immunities of citizens of the United States, and does not speak of those of citizens of the several states. The argument, however, in favor of the plaintiffs, rests wholly on the assumption that the citizenship is the same and the privileges and immunities guaranteed by the clause are the same.” 83 U.S. 36 (1873), page 74.

And:

    “In the Constitution of the United States, which superseded the Articles of Confederation, the corresponding provision is found in section two of the fourth article, in the following words: ‘The citizens of each State shall be entitled to all the privileges and immunities of citizens OF the several States.’ ” 83 U.S. 36 (1873), page 75.

The last was later reaffirmed in Cole v. Cunningham:

    “The intention of section 2, Article IV (of the Constitution), was to confer on the citizens of the several States a general citizenship.” Cole v. Cunningham: 133 U.S. 107, 113–114 (1890).

The privileges and immunities of citizens of the several states are those described by Corfield, cited in the Slaughterhouse Cases. This is reaffirmed in Hodges v. United States:

    “In the Slaughter House Cases, 16 Wall. 36, 76, in defining the privileges and immunities of citizens of the several States, this is quoted from the opinion of Mr. Justice Washington in Corfield v. Coryell, 4 Wash. Cir. Ct. 371, 380.” Hodges v. United States: 203 U.S. 1, at 15 (1906).

So there are now two citizens under the Constitution of the United States. One needs to find out information on both. For a citizen of the United States that is easy. Just about anywhere. For a citizen of the several States one will have to begin here:

http://citizenoftheseveralstates.webs.com/index.htm

____________

FOOTNOTE

The Effects of the Fourteenth Amendment on the Constitution of the United States

http://www.australia.to/index.php?option=com_content&view=article&id=15882

Also,

A Look At Corfield (On Citizenship)

http://www.australia.to/index.php?option=com_content&view=article&id=16868

____

Quote
December 19, 2009, 5:40 am
Dan Goodman says:

To all,

I am writing to inform you that the links I provided in my prior comment (Dan Goodman December 19, 2009 5:40am) no longer work. The new locations for them are:

____________

FOOTNOTE

The Effects of the Fourteenth Amendment on the Constitution of the United States

http://www.australia.to/2010/index.php?option=com_content&view=article&id=327

Also,

A Look At Corfield (On Citizenship)

http://www.australia.to/2010/index.php?option=com_content&view=article&id=331

____________

There is also the following which I think would be appropriate.

Comment on Petitioner’s Brief: McDonald v. City of Chicago

http://www.australia.to/2010/index.php?option=com_content&view=category&layout=blog&id=91&Itemid=126

http://www.americanchronicle.com/articles/view/136777

____________

Quote
January 24, 2010, 1:33 am

Petitioner’s Brief in McDonald v. City of Chicago (The Second Amendment Incorporation Case)

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