Available here. Joined by 58 Senators (including 19 Democrats) and 251 U.S. Representatives (including 78 Democrats, although my count here may not be exact). Counsel of Record is former Solicitor General Paul D. Clement. Much of the brief recapitulates the lengthy historical record of congressional action (including but not limited to Reconstruction) to protect the individual right to arms from federal or state infringement.
The brief also points out the incorporation of the Second Amendment is a particularly easy case, in that: 1. Express congressional intent to do so via passage of the 14th Amendment is overwhelming and clear, and 2. Unlike the First Amendment (which begins “Congress shall…”), the Second Amendment does not restrict itself to one level of government, so incorporation should be obvious, given that the First Amendment has already been incorporated.
A third argument involves Congressional powers. First, state gun bans would interfere with Congressional war powers, since research shows that soldiers who have prior civilian familiarity with firearms can be trained faster and to a to a higher level of proficiency. (Sergeant York would be the most spectacular of the millions of examples to prove this point.)
Moreover, Article I already forbids states from disarming the citizens. This is because Article I, section 8, clauses 15-16, give Congress authority over the militia, including the authority to call the militia into federal service. Because of the Supremacy Clause, states may not disable citizens from performing their federal militia duties. Accordingly, the Court accurately explained in Presser v. Illinois, “the States cannot, even laying the [Second Amendment] out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government.” Thus:
the constitutional design imparts some limits on a State’s ability to restrict the right to keep and bear arms. And it always has.
The Militia Clauses narrow considerably the issue before the Court today. It is unquestionably the case that the right to keep and bear arms limits the States in some fashion. The only remaining question is to what degree. Incorporation against the States of the right to keep and bear arms as reflected in the Second Amendment would have the salutary effect of obviating the development of two different rights to keep and bear arms of different scope. The development of a unified Second Amendment jurisprudence is of particularly practical benefit in light of the relatively nascent state of the jurisprudence due to the confusion sown by United States v. Miller, 307 U.S. 174 (1939). Moreover, incorporation would properly treat the Militia Clauses, the Second Amendment, and the Fourteenth Amendment as a unified whole, codifying the fundamental right to keep and bear arms that the Founders believed pre-dated the Constitution.
Brilliant.
The brief goes on to point out the the militia was activated for home defense at recently at World War II, that it could be of use in defense against Mumbai-style attacks, and in any case, the constitutional structure ensures that Congress must always have the choice to use the militia.
J. Aldridge says:
Really?
Bingham, House Report No. 22, January 30, 1871: “The words ‘citizens of the United States,’ and ‘citizens of the States,’ as employed in the Fourteenth Amendment, did not change or modify the relations of citizens of the State and the nation as they existed under the original Constitution.”
New York Times, November 15, 1866: “We concluded the first number with the quotation of the First Section of the proposed Amending of the Constitution that ‘no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.’ This is intended for the enforcement of the Second Section of the Fourth Article of the Constitution, which declares that ‘the citizens of each State shall be entitled to all the privileges and immunities of the citizens in the several States.’”
Bingham, House Report No. 22, January 30, 1871: “The clause of the Fourteenth Amendment, ‘No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,’ does not, in the opinion of the committee, refer to privileges and immunities of citizens of the United States other than those privileges and immunities embraced in the original text of the Constitution, article four, section two.”
Bingham, House Report No. 22, January 30, 1871: “It had been judicially determined that the first Eight Amendments of the Constitution were not limitations on the power of the States, and it was apprehended that the same might be held of the provision of the second section, fourth article.”
Bingham, 1866 & 1870: “This guarantee is of the privileges and immunities of citizens of the United States in, not of, the several States.”
Bingham, January 9, 1866: “I propose, with the help of this Congress and of the American people, that hereafter there shall not be any disregard of that essential guarantee of your Constitution (Art. IV, Sec. II) in any State of the Union. And how? By simply adding an amendment to the Constitution to operate on all the States of this Union alike, giving to Congress the power to pass all laws necessary and proper to secure to all persons—which includes every citizen of every State—their equal personal rights; and if the tribunals of South Carolina will not respect the rights of the citizens of Massachusetts under the Constitution of their common country, I desire to see the Federal judiciary clothed with the power to take cognizance of the question …”
Bingham: “The gentleman will pardon me. The amendment is exactly in the language of the Constitution; that is to say, it secures to the citizens of each of the States all the privileges and immunities of citizens of the several States. It is not to transfer the laws of one State to another State at all. It is to secure to the citizens of each State all the privileges and immunities of citizens of the United States in the several States. If the State laws do not interfere, those immunities follow under the Constitution.”
Rep. Samuel Shellabarger of Ohio on the P&I’s clause: “It protects no one except such as seek to or are attempting to go either temporarily or for abode from their own State into some other. It does not attempt to enforce the enjoyment of the rights of a citizen within his own State against the wrongs of his fellow-citizens or his own State after the injured party has become or when he is a citizen of the State where the injury is done.”
Bingham to Rep. Robert Hale (NY): “I respectfully ask him [Hale] to inform us whence he derives the authority for supposing, if he does suppose, that any State has the right to deny to a citizen of any other State any of the privileges or immunities of a citizen of the United States. And if a State has not the right to do that, how can the right of a State be impaired by giving to the people of the United States by constitutional amendment the power by congressional enactment to enforce this provision of their Constitution?”
November 23, 2009, 3:36 pmChris says:
Footnote four of the brief confuses the Bingham Amendment, discussed in February 1866, with the actual Fourteenth Amendment, discussed in May and June–page 1088 was part of the February debate. Should’ve cited Howard instead of Bingham.
November 23, 2009, 4:01 pmKazinski says:
I think the supremacy clause argument is a problem, if the court accepts it as the sole grounds to strike down the Chicago gun laws, then presumably by act of Congress allow states and localities to restrict gun posession. Much like the Dormant Commerce Clause, regulation of interstate commerce is denied the states, but congress can waive its right to regulate specific area’s and authorize the states to do so.
The whole idea is to set gun regulation outside the power of congress and the states, absent a constitutional change.
November 23, 2009, 4:42 pmSoronel Haetir says:
Kazinski,
The 2A itself could be used to negate that argument. The militia clauses prevent states and localities from disarming the people, while the 2A prevents the same action by the feds. An incorporated RKBA may have no relevance on the “keep” portion but could have much more significance when it comes to “bear”.
Even though Heller confined itself to self-defense in the home, it also confined itself to “keep”. Even McDonald is unlikely to stray from that ground.
I wonder if Gura has a “bear” test case ready.
November 23, 2009, 6:56 pmarbitraryaardvark says:
Slow down, I can’t drink that fast.
November 24, 2009, 12:07 amI think that amici briefs by legislators can be very appropriate.
But if as here they have a majority, why not just pass a rtkba civil rights act? Bush would probably have signed it; Obama might veto but it would cost him.
Federal Farmer says:
I believe he has a ‘bear’ case going in DC right now.
November 24, 2009, 10:05 amD. Lamberth says:
Hello all..
I’m not in any legal profession I’m just a guy REALLY interested in government and history. So I apologizes in advance if this isn’t the place to get the clarity I’m looking for. I have spent the last five years assembling a picture (virtual that is) of the structure of government and what I have doesn’t match what I was taught in school. So I was hoping to present this picture to this community for input.. PLEASE.
Pieces of the picture…
Conclusion’s drawn from the Northwest Ordinance (early 1787)
1.”United States” was sovereign over the Territory.
2.There were people and “States” in this territory.
3. The continental congress had exclusive jurisdiction over said territory.
The opinion in Texas v White says that sometimes the word “State” means only a collection of people. I’ll call this a “Vapor State”
The term Federal= Confederacy
In February of 1787 a man who lived in Virgina was known as a Virginian 1st and a citizen of the United States of America 2nd because of the Articles of Confederation and was only subject to the laws of the legislature of Virgina.
In the same year and month an man who lived 100 miles east of the Mississippi River and north of the Ohio River was a citizen of one of the states in the territory or if not in one of the states at least in the territory either way he was subject to the laws of the Continental Congress.
In the journal of the Constitutional Convention hold in Texas 1845 there is an entry on August 19 by the committee on the State of the Nation. They submitted an Ordinance that says (paraphrased). This is a means to present to the people of Texas the question of the Annexation of Texas into the Union AND ALSO to create a government in lieu of the Republic of Texas to join the “American-Confederacy”
The many cases citing the distinction between State citizenship and the term “citizen of the United States”
So the Big Picture as it appears to me….
When the Continental Congress approved the constitution, everyone in the Territory and the States in the Territory became a party to it. As each of the Articles of Confederation States hold conventions and ratified the constitution, and the people involved in each of these states became the same as the man who lived in the territory 100 miles east of the Mississippi. When they got around to writing a State Constitution they were in effect creating,in addition to the original, a “Vapor State” and this only applies to the 13 A of C States. However a man in Pa who pledges his allegiance to Pa never becomes a citizen of the US like the man in the territory.
So art.4 sec 2 “each State” means the territory states and the vapor states, making up what was know as the Union. “several States” means the Articles of Confederation States.
Any clarity would really be appreciated…
D. Lamberth
November 25, 2009, 4:19 pmWhat’s that Smell? « Conservative Libertarian Outpost says:
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December 23, 2009, 8:52 amDave Kopel’s Second Amendment Newsletter | The American Jingoist says:
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December 31, 2009, 7:33 pm