Last night, Orin noted the filing of the Petitioner’s brief in McDonald v. Chicago, the case that will decide whether the 14th Amendment makes the 2d Amendment applicable to state and local governments. As Orin noted, that brief is almost entirely devoted to incorporation under the Privileges or Immunities clause. It directly asks the Court to over-rule Slaughterhouse, Cruikhank, and Presser.
In my view, it’s a superb brief. It’s worthy of study by law students and anyone else who wants a great example of legal writing that is passionate and forceful, yet also sober and serious.
In the brief’s short discussion of Due Process, attorney Alan Gura aptly writes: ”A ‘law’ depriving one of life, liberty or property ‘must not have exceeded the limits of legislative power marked by natural and customary rights.’” (quoting Frederick Gedicks, An Originalist Defense of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, and the Fifth Amendment, 58 Emory L.J. 585, 644-45 (2009).) This is an important point; ”substantive due process” may be ill-named, but it is founded on legitimate, originalist doctrine.
Many folks have been wondering why the Gura brief concentrates so heavily on the bolder theory (Privileges or Immunities) rather than the one that courts have used over the last century (Due Process). Here’s the answer: After Heller, the Second Amendment Foundation (SAF) and the National Rifle Association each filed separate lawsuits against the Chicago handgun ban. The cases were consolidated in the Seventh Circuit; after the panel ruled, SAF and NRA each filed separate petitions for certiorari. The Supreme Court granted cert. in the SAF case, McDonald v. Chicago. A few weeks later, the Court added NRA to the case as a party. So NRA is now a “Respondent in Support of Petitioners.” The suburb of Oak Park, which had been sued by NRA but not by SAF, was also added as a party.
So as a party, NRA filed its brief yesterday. The lead attorneys on the brief are Stephen Poss (attorney of record), Stephen Halbrook, and others. The NRA brief takes the more conservative approach. It mainly argues for incorporation via Due Process, with only a brief discussion of Privileges or Immunities. NRA does not ask for any cases to be over-ruled, since Slaughterhouse, Cruikshank, and Presser are all P or I cases, and predate the Court’s recognition of selective Due Process incorporation.
Because the Question Presented by the Court asked about both P or I and Due Process incorporation, it was appropriate that one party brief focused on the former, and the other party brief on the latter.
Amicus briefs (including one I am writing) in support of Petitioners are due Monday, Nov. 23. The Chicago and Oak Park briefs are due Dec. 30, since the Court granted them a two-week extension. Amicus briefs in support of the Chicago and Oak Park handgun bans are due one week after that.
When the amicus briefs start appearing a few days, I will blog about the most important or interesting ones.
EvilDave says:
The problem is that years of SC confirmation hearings have convinced me that the actual law is immaterial to the case, and that the decision will merely rest on the political opinions of the Justices … who will inform their clerks of the decision and have the clerks backfill up some reasoning to get to that decision.
I’d like to see a brief that shameless plays to each Justice’s political beliefs. Id’ be refreshingly honest. Probably more honest than the Justices could handle.
November 17, 2009, 8:08 pmJoe says:
This does help explain the P/I focus of the one of the briefs. If that’s the case, it was a sound approach.
November 17, 2009, 8:53 pmSoronel Haetir says:
Interesting, none of the sources I watch mentioned that the NRA case was also granted. I suppose I might have missed it, but that seems like a major point to miss for months.
November 17, 2009, 9:14 pmInstapundit » Blog Archive » DAVE KOPEL ON the NRA brief in McDonald v. Chicago…. says:
[...] DAVE KOPEL ON the NRA brief in McDonald v. Chicago. [...]
November 17, 2009, 9:28 pmKharn says:
Soronel Haetir:
November 17, 2009, 9:33 pmNRA has been added as a respondent in support of petitioners to McDonald.
Drew Kelley says:
Slaughterhouse is a boil that this court needs to lance.
November 17, 2009, 9:51 pmTweets that mention The Volokh Conspiracy » Blog Archive » NRA brief in McDonald v. Chicago -- Topsy.com says:
[...] This post was mentioned on Twitter by Frank T, Howdy Take A Gander. Howdy Take A Gander said: http://bit.ly/13wpeO The Volokh Conspiracy » Blog Archive » NRA brief in McDonald v Chicago http://bit.ly/20igxd [...]
November 17, 2009, 10:07 pmdcperson says:
That makes much more sense. Not realizing that, I felt like the lawyers in McDonald were doing their client a huge disservice…that it might be an interesting argument, but why not focus on the one where you’re more likely to succeed? this makes more sense.
November 17, 2009, 10:09 pmGene Hoffman says:
NRA was not granted. Because Oak Park was unsure of its status about whether it could file a brief as it was not a party to McDonald but was a party to NRA, the clerk of the Supreme Court decided that the related, but not combined nature of the other case made Oak Park a respondent but not a party. That logically made NRA a respondent in support of petitioner. Of course, Oak Park is not going to end up filing seperate briefing. The clerk appears incorrect on the law here, but it’s a no harm no foul kind of thing.
NRA was not granted. McDonald was. The major difference between the cases are that one was argued by Alan Gura and focused on the error of Slaughterhouse. Hence the grant signaled that the court wanted to hear the P or I argument.
-Gene
November 17, 2009, 10:17 pmAlec Rawls says:
The 2nd Amendment is the one amendment that does not need incorporation, since it was written from the outset to apply to every level of government. It does not say “Congress shall pass no law,” but asserts without qualification that the the right “shall not be infringed.”
Halbrook (the NRA lawyer) covers the history of this well established interpretation during the founding era in his great little book That Every Man be Armed. It’ll be interesting to see how he handles this dimension of the argument as he makes his incorporation case.
November 17, 2009, 10:21 pmHadur says:
Why are liberals and libertarians so focused on P&I? What does it give them that sub due process doesn’t?
November 17, 2009, 10:39 pmLetalis Maximus, Esq. says:
A colleague’s son clerk for the Supreme Court a few years ago. His report is that the deliberations and decisions are totally politically oriented. Inside the big white building, they reportedly don’t even pretend that it is otherwise.
November 17, 2009, 10:41 pmMcDonald: NRA Files Brief « ricketyclick says:
[...] Dave Kopel writes about McDonald at the Volokh Conspiracy. (If you have any interest in the law, particularly Constitutional law — and the only reason you shouldn’t be interested is because you choose to live outside the law, or beneath its notice) you really need to be follow VC.) [...]
November 17, 2009, 10:47 pmCH says:
The Petitioner’s Argument will be made by Alan Gura. Unfortunately, we will have to wait to hear Stephen Halbrook make his argument in another case.
November 17, 2009, 11:00 pmcubanbob says:
Mr. Kopel for the layman reader what are the consequences if Slaughterhouse, Cruikhank, and Presser are overturned?
November 17, 2009, 11:07 pmKevin Murphy says:
I’m just waiting to see the respondents cite and defend Cruikshank, since that decision pretty much was the legal basis for Jim Crow; the gun thing being just part of the whole. I wonder if Justice Thomas will speak to that….
November 17, 2009, 11:13 pmAl Norris says:
For one thing, the right to privacy is likely legitimized and falls under the reinvigorated P or I clause. From that, it is a short step to the right of a woman to her own body.
There are several other implications that not just libertarians would like, but liberals of many different stripes could salivate over.
November 17, 2009, 11:18 pmKevin Murphy says:
Haldur–
As I understand it, the P&I clause was intended to incorporate the Bill of Rights and other preexisting rights against the states. It was part and parcel of Reconstruction. Reconstruction failed, and so shortly did P&I when the Supreme Court read it out of the Constitution in Slaughterhouse.
Cruikshank took it even further, saying that there were no Federal protections of citizens against actions of their state or its citizens. Lynching, for example, was beyond federal law according to Cruikshank. Well worth reading, if even the summary on Wikipedia.
November 17, 2009, 11:22 pmFederal Farmer says:
It actually makes sense. To me, that is pretty important. Maybe that’s why I’m an engineer instead of a lawyer.
November 17, 2009, 11:29 pmJ. Aldridge says:
Interesting Halbrook does not mention the fact that Congress considered the Freedmen right to bare arms was restored after temporary governments in former rebel states allowed blacks to form armed militias and train to protect themselves.
He also ignores the reason the Freedmen act of 1866 included the constitutional right to bear arms.
Sloppy brief.
[DK: Ridiculous. I respect your diligent dredging of the most eccentric interpretations of 19th century legal commentary to support your argument against the Standard Model of the Second Amendment. Since your tone is appropriately civil for legal discourse, your arguments (even though I think they are wrong) contribute to the intellectual vibrancy of the VC. However, as someone who has 20 years of experience reading Halbrook briefs, I am certain that the notion that this, or any other brief he has written, is "sloppy" is nonsense. If you want to say that in the 15,000 words he was allotted by the Court, he didn't address your (unusual and in your view correct) theory of the Freedmen's Bureau Act, that's fine. To call a Halbrook brief sloppy is lower than poppycock.]
November 17, 2009, 11:51 pmGene Hoffman says:
There are two very important reasons to prefer P or I incorporation.
1. It’s a far more originalist and textual basis as the right to arms really isn’t a right of due process.
2. It has the added benefit, if successful, of potentially garnering justices that didn’t vote in favor of Heller which would lead to a much more cherished and valued right to arms applied against all levels of government.
-Gene
November 18, 2009, 12:43 amKharn says:
P&I incorporation of the 2A has another benefit: All of the prior case law stating that carrying a firearm is a P/I of citizens (but usually in the form of saying blacks could not do it, Dred Scott said if he were white, or equal to whites, he could carry a gun whereever he went, etc). Things could get very hairy for NY, CA, MA, MD & NJ.
November 18, 2009, 6:03 amBrett Bellmore says:
Because P and I incorporation is part of restoring the rule of law in this country; Selective incorporation is just the whim of judges deciding which rights they feel like protecting.
It would be a huge advance in the rule of law if we could get the Court to admit that it wasn’t entitled to pick and chose among the Bill of Rights as to which were worthy of enforcement.
November 18, 2009, 7:00 amSayUncle » NRA Brief in McDonald says:
[...] Dave Kopel has a look. [...]
November 18, 2009, 8:53 amJoe says:
Frederick Gedicks’ article is interesting — it is not alone in pointing out that SDP has originalist weight as well. Note that it was cited as a back-up in the Slaughterhouse Dissents. SDP was cited by antebellum anti-slavery forces and even the Republican Party platform as well.
Because P and I incorporation is part of restoring the rule of law in this country
This incorporation can be just as selective as the due process route.
BTW, DK compliments someone for civility and than calls his views “poppycock.” Curious.
November 18, 2009, 9:19 amWednesday Round-up | SCOTUSblog says:
[...] The Volokh Conspiracy, David Kopel discusses the differing approaches of merits briefs filed Monday by the petitioners [...]
November 18, 2009, 9:59 ammariner says:
Al Norris:
They could, but they won’t if it means letting those evil right-wingers have firearms.
November 18, 2009, 12:58 pmM. Report says:
Is there any consensus on how long it has been
November 18, 2009, 3:44 pmsince the Supreme Court Justices honored their Oaths
of Office; Maybe since the ruling on Interstate
Commerce ?
JDShaw says:
The notion that a ‘right to privacy’ never mentioned in the Constitution somehow gives women a right to murder their unborn children is nonsensical on its face. The fact that libertarian thought cannot find a basis to condemn infanticide when the infant happens to be in the womb is only evidence of the shallowness of libertine thought.
There is a policy debate to be had about exactly when a faetus becomes legally a person with all the natural rights thereof (like not being murdered just for being inconvenient) which does need to be settled with law, perhaps even an ammendment. The key is not so much exactly when such a legal transformation occurs, but that the arbitrary line in the sand is one we can live with, as a nation.
November 18, 2009, 4:46 pmjuris imprudent says:
The fact that libertarian thought cannot find a basis to condemn infanticide when the infant happens to be in the womb is only evidence of the shallowness of libertine thought.
Strange that libertarians are so often mocked for being dogmatic where in this case the lack of dogmatism is the problem.
You are quite right that there is no bright line defining when life begins. Yet you are quite willing to impose one every bit as arbitrary as one drawn by the most radical pro-choice folk.
My two biggest complaints with Roe are that is was poorly grounded in the Constitution, and that it was social engineering writ large. Most opponents of abortion unfortunately attack only the one aspect and would impose an equally tenuous Constitutional position to ban it.
November 18, 2009, 11:08 pmBushmaster1313 says:
Other than not wanting to help the pro-gun majority of citizens, is there any basis for holding that the 14th Amendment was not meant to force the States to follow the Bill of Rights?
Perhaps Liberals think the Bill of Rights only applies to the Southern States?
November 24, 2009, 10:33 pmDan 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
____
December 19, 2009, 6:17 amDan Goodman says:
To all,
I am writing to inform you that the links I provided in my prior comment (Dan Goodman December 19, 2009 6:17am) 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
____________
January 24, 2010, 1:29 am