Thirty two amicus briefs in McDonald v. Chicago have been filed so far, and they are all available at the Chicago Gun Case website, run by the Second Amendment Foundation (which is one of the parties in McDonald). My brief is also available on SSRN. The next brief (Chicago’s) is not due until Dec. 30, so we have all of Thanksgiving, Advent, and the first 5/12 of the Twelve Days of Christmas to examine the amicus briefs so far.
Today, let’s take a look at the brief of Philosophy and Criminology professors. It’s co-written by Don Kates (one of the founders of modern scholarship of the Second Amendment) and Marc Ayers. The pair had teamed up in Heller to write an excellent brief arguing that DC’s handgun been had been a failure, and probably counter-productive, in terms of public safety.
The new Kates-Ayers brief begins with a survey of the 17th-18th century philosophical view, with which the American Founders agreed, that self-defense was among the most fundamental of all rights, that it was also a duty, and that the right necessarily implied the right to use arms in self-defense. This Part of the brief rebuts the 7th Circuit’s assertion in McDonald that self-defense is merely a “gloss” on the criminal law, and could be abolished by statute.
Next, the brief provides a litany of evidence showing that most murderers are not otherwise law-abiding citizens who impulsively kill because a gun happens to be available. To the contrary, murders overwhelmingly tend to have prior records of serious crime and mental illness. This particular topic has been a long-running theme of Kates’ three decades of scholarship on firearms policy.
A long section titled “Research makes gun ban advocates recant” provides a history of the social science debate on gun control in the U.S. since the 1960s. Some of the most prominent scholars who have been critical of gun control started out as gun control advocates, but changed their mind because of the evidence. These include James Wright, Gary Kleck, Marvin Wolfgang, and Hans Toch (a member of the 1968–69 Eisenhower Commission which had promised that reducing handgun availability would reduce crime).
Finally, there are several pages responding to a recent study (by Branas et al. from Penn) claiming that guns are ineffective for protection in an urban environment because gun carriers are supposedly more likely to be shot than non-carriers.
Regarding another brief...Orin’s Monday post, “Against Congressional Briefs,” argues that, out of respect for separation of powers, Congresspeople should not file briefs in Supreme Court cases. However, it should be remembered that the Court does look to Congressional intent and action–not just in interpreting federal statutes, but also in momentous constitutional cases. For example, in Frontiero v. Richardson, 411 U.S. 677 (1973)(equal protection clause applies to sex discrimination), Justice Brennan’s plurality opinion listed some recent actions that Congress had taken against sex discrimination (Civil Rights Act of 1964, Equal Pay Act of 1963, sending the Equal Rights Amendment to the states for ratification in 1972), and declared: “Thus, Congress itself has concluded that classifications based upon sex are inherently invidious, and this conclusion of a co-equal brand of Government is not without significance to the question presently under consideration.”
Accordingly, it seems to me appropriate that in Heller and McDonald, large majorities of Congress signed briefs reminding the Court of a century-and-a-half of Congressional actions taken to protect the individual Second Amendment right from federal, state, and local infringement. And, in the McDonald brief, to point out that some local infringements violate not only the Second Amendment, but also the Supremacy Clause, because they interfere with congressional exercise of its enumerated militia power.
Eugene has written a post about the brief which Chuck Michel filed on behalf of 34 California District Attorneys, and other law enforcement officials. In light of the speculation about the DAs and their motives, it seems useful to provide some background. In Heller, 29 elected California District Attorneys joined the brief that Chuck and I co-authored. That brief explicitly stated: “strict scrutiny is the appropriate standard of review for most gun controls.” (p. 39).
Orin Kerr says:
David,
Statements by Justice Brennan in plurality opinions can be unpersuasive, as they are here.
Further, there is the important point that a brief written specifically for litigation by some random lawyers* and signed by legislators as individuals is not “the conclusion of a co-equal branch of Government.” That is, there is a difference between saying that a court should be influenced by legislation that passed Congress and was signed by the President and saying that a court should want to know what some lawyers who found individual members of the legislature to sign their brief have to say.
Finally, if this principle of constitutional interpretation is valid, it presumably is a two way street. For example, if Congress enacts gun control, then this argument would suggest that the mere fact that Congress thought it was constitutional to do so should limit Second Amendment rights. I’m curious as to whether you think Congressional action can limit the scope of the Second Amendment in that way.
*Or not-so-random lawyers, as in this case.
[DK: Putting constitutional theory aside, and answering the question as a legal realist, the answer to your question is “yes.” There is zero chance that the Court would find the entire Gun Control Act of 1968 (the main federal gun control law) to violate the Second Amendment, even though, from a purely originalist perspective, one could make plausible arguments against the GCA.]
[OK: I appreciate the reply, but I’m not sure it works to offer a predictive answer about what you think the Supreme Court would do given that the question is a matter of constitutional theory and the proper role of the three branches.]
[DK: Well, lots of Supreme Court decisions have looked at where the country is on a particular issue. A state practice is much more likely to be found to be a violation of Due Process if three states do it than if thirty-three states do it. When the Court is considering whether incorporating a right will be too burdensome to the states, it’s relevant that 38 Attorneys General favor incorporation, and so does a comfortable majority of elected District Attorneys in a state that doesn’t have its own state constitution right to arms. Considering that 7/9 of the current Court practices at least some degree of Living Constitutionalism, it’s appropriate for a large majority of both houses of Congress to let the Court know that in the current Congress, a vigorous Second Amendment is very much alive in the hearts and minds of the elected representatives of the people. If 9/9 of the Court were pure originalists, then presumably the Court would not care about the views of the current Congress.]
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November 25, 2009, 3:34 pmCarl from Chicago says:
David:
Thanks for summarizing these many briefs for us. I am looking them over, too, but taking my time. I just finished the Brady brief. It’s rather straightforward.
One question I have (for anyone) is whether the “reasonable regulation” standard of review pushed by Brady is standard in any way. I was long of the understanding that regarding US constitutional law, the standards of review were 1) rational basis, 2) intermediate, and 3) strict.
Here is hoping that you’ll provide your summary and take on Brady and NAACP brief.
[DK: I will write on the Brady brief at some point. For now, check out the Chemerinsky-Winkler brief in Heller, which argues for “reasonableness,” and defines it as more than rational basis, but far less than intermediate scrutiny. The official tripartite standard of review is not the full story for standard of review. Cf. the “undue burden” standard for abortion restrictions.]
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November 25, 2009, 3:43 pmJ. Aldridge says:
Exactly. Like when former rebel states were allowed to re-arm and organize the militia congress declared the people’s right to bear arms had been restored.
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November 25, 2009, 3:48 pmCJColucci says:
I’d be astonished if any Justice read 30-plus amicus briefs, and I’m not sure I’d want them to. Probably, Justices will decide which way they want to come out and have their clerks rummage through the amicus submissions for ammunition.
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November 25, 2009, 3:56 pmdcperson says:
that’s an interesting question...I’d initially say that I’d want them to read everything, with the presumption being that more information leads to a better decision and a more rational argument. Rather than starting with the answer and then finding the support, you start with the arguments and come up with an answer. That said, seeing how political the whole process is makes me wonder whether that’s truly the case.
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November 25, 2009, 4:12 pmArthurKirkland says:
More than 30 briefs? Most of them, I suspect, were aimed at audiences other than Justices of the Supreme Court.
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November 25, 2009, 5:45 pmDjDiverDan says:
Or maybe they’ll decide the same way Law Professors grade papers — throw the whole stack down a flight of stairs, and whichever one[s] reach the bottom must be right.
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November 25, 2009, 5:59 pmLarryA says:
Given that the 2008 Brady scorecard (no longer on the Brady site) found that even California, the highest ranking state, rejected 1/5 of the Brady agenda, and that half the states had enacted a tenth or less of the laws they promote, I’d say not.
IMHO one of the greatest effects of Heller was educational. For a couple of decades or so the mainstream media has been asking whether people want reasonable gun control. Then, in Heller, we saw the D.C. version of gun control: no handguns, long list of banned long guns, byzantine registration process for the long guns that were acceptable, strict requirements to store firearms, and a prohibition of getting a firearm out of the safe as someone was breaking down the front door. And the Brady folks pointed and said, “See? Reasonable gun control!”
That changed a lot of minds about the anti-gun side of the issue.
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November 25, 2009, 6:32 pmJ. Aldridge says:
You mean it had a great disinformation effect. Example: Scalia claiming “Protestants would never be disarmed” under the provision of the English Bill of Rights that read, “That the subjects which are Protestants may have arms for their defense, suitable to their conditions, and as allowed by law.”
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November 25, 2009, 6:59 pmBrett Bellmore says:
When they weren’t busy with Congressional actions taken to attack that self-same right.
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November 25, 2009, 8:50 pmClayton E. Cramer says:
If “as allowed by law” allows disarmament of even Protestant subjects, then “as allowed by law” directly contradicts the first part of that guarantee. It becomes, “That the subjects which are Protestants may have arms for their defense, suitable to their conditions, except if the king decides to disarm them.” I would suggest that “as allowed by law” must have had a somewhat narrower meaning than you propose, or the whole clause means nothing at all.
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November 25, 2009, 11:19 pmClayton E. Cramer says:
Who would that be, then? I know for a fact that the briefs submitted by Academics for the Second Amendment for both Heller and McDonald were aimed quite specifically at the Justices of the Supreme Court.
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November 25, 2009, 11:20 pmClayton E. Cramer says:
Except that this is not what happened. Congress disbanded state militias precisely because those state militias were disarming freedmen. And they were using the exact same excuse that Chicago uses: “those people” were too violent to be trusted with arms–unlike the Klan, or Chicago police officers who like to beat up barmaids.
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November 25, 2009, 11:22 pmClayton E. Cramer says:
I half agree with Orin Kerr about this question of Congressional statements of belief. Only in the context of passage of the 14th Amendment is Congressional statement of intent dispositive, and that’s only because those statements were in reference to something that was ratified by the states.
Still, Dave has an interesting point: there are members of the Court who clearly claim to believe that if a right is enjoyed in the vast majority of the states (as with the Loving case, or the Lawrence case), then the living, breathing, constantly mutating Constitution theory turns that into a right. I find this to be a completely ridiculous claim, because this same crowd didn’t accept that argument in Roe v. Wade, where the vast majority of states severely restricted abortion. It is useful to confound their intellectual dishonesty, nonetheless.
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November 25, 2009, 11:27 pmClayton E. Cramer says:
Everyone knows that this is what happens on controversial cases, and not just when you reach the top of the food chain. I wish it was different, but it isn’t.
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November 25, 2009, 11:28 pmLarryA says:
Well, that could be another point. I was actually referring to the effect of the case, not the decision. When the Brady folks’ idea of “reasonable gun control” was so clearly illustrated a lot of my leaning-toward-reasonable gun-control friends reacted with, “Say what?” and changed attitudes.
Actually the real limitation is in the “suitable to their conditions” clause. Look at today’s situation in the eight states with discretionary licensing. It turns out that the politically connected (like Chicago’s aldermen) “need” gun licenses, but the peasants don’t. That mirrors Jolly Old England, where weapons ownership was carefully scheduled according to social status.
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November 26, 2009, 12:35 amArthurKirkland says:
Inhabitants of fundraising lists, for starters.
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November 26, 2009, 12:54 amJ. Aldridge says:
No it wasn’t because blacks were being disarmed. It was because of Johnson’s intern govts were allowing only all white militias and it was feared by Republicans they would oppress blacks. When blacks finally formed and trained under their own black militias in S.C. Republicans proclaimed their right to bear arms restored.
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November 26, 2009, 1:40 amJ. Aldridge says:
Doesn’t sound like any “guarantee” to me.
Scalia really screwed up when he claimed in Heller that it “was clearly an individual right, having nothing whatever to do with service in a militia.” Parliament debates used the words “bear arms” in “military employment” when discussing whether to arm the Protestants. Papists of course were allowed to maintain armed militias.
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November 26, 2009, 2:30 amBrett Bellmore says:
Well, yeah, but the alternative was recognizing that it was a right to keep and bear military arms, and that was a bridge too far for Scalia.
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November 26, 2009, 12:30 pmPubliusFL says:
Gun control supporters like to point out the highlighted language, saying “see, the right was never considered to be absolute.” By this, they mean to imply that the right should be considered weaker than other constitutionally guaranteed rights, more subject to “reasonable” regulation. What they fail to acknowledge is that every provision of the English Bill of Rights was subject to the same qualification, because the English Bill of Rights only restrained the power of the king. Parliament could do whatever it wanted, the Bill of Rights notwithstanding, so all English rights were “as allowed by law.” The idea of a bill of rights that limited legislative as well as executive power was an American innovation.
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November 27, 2009, 12:11 pmJ. Aldridge says:
All true for sure. However, implying this was an “individual right” is just as false under the English Bill of Rights as the American. Both address the military power of the people and not their private affairs of keeping and using a gun. It is true it was attempted to disarm the militia through the false pretense of game laws, but that doesn’t change the fact we are talking about the right of the people to provide for their own military protection.
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November 27, 2009, 3:20 pmPubliusFL says:
That would have been a surprise to Blackstone, who discussed the right to have arms in Chapter 1 (“Of the Absolute Rights of Individuals”) of Book 1 (“Of the Rights of Persons”) of his Commentaries on the Laws of England.
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November 27, 2009, 4:13 pmJ. Aldridge says:
I submit he would had endorsed and confirmed what I say as true.
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November 27, 2009, 4:36 pmSGH says:
I’m still waiting for the brief from the ACLU!
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November 27, 2009, 10:39 pmPubliusFL says:
Then why did he discuss the right to have arms as an “absolute right of individuals”?
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November 28, 2009, 10:48 amJ. Aldridge says:
Not familiar with any statement from him that said that about keeping guns at home, but did say it was an absolute right in protection of life, liberty, or property.
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November 28, 2009, 1:04 pmPubliusFL says:
Correct, and an individual right of Englishmen. Nothing about military service in his discussion of the right.
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November 28, 2009, 5:30 pmJ. Aldridge says:
I think he discussed it when talking about the militia. In any event, it was well understood when talking about arms of the people for their defense they were talking about the militia. That is all it meant in the House of Lords.
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November 29, 2009, 5:04 amPubliusFL says:
Nope, sorry. He never mentions the militia or military in that chapter. He says that the right to have arms is auxiliary to “the natural right of resistance and self-preservation.” Gee, starting to sound like Heller, eh?
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November 29, 2009, 10:05 amJ. Aldridge says:
I thought he did under rights of persons (I am going by memory). Arms was thought as a “the natural right of resistance and self-preservation” in the hands of trained militias of the people against a standing army of the king.
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November 29, 2009, 1:09 pmPubliusFL says:
He discussed the militia in Chapter 13 (“Of the Military and Maritime States”), which is a long way from Chapter 1 (“Of the Absolute Rights of Individuals”). The right of having arms is discussed only in the latter, not in the former. If it were so intimately connected with militia service, one would expect the reverse, or at least a mention where the militia is discussed.
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November 30, 2009, 9:22 amJ. Aldridge says:
Depends on who the editor of the book is and how they chapter his writings.
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November 30, 2009, 4:48 pmPubliusFL says:
Sorry, the chapter divisions are Blackstone’s own. In chapter 1, he states:
He later states that he will discuss the “constitution, powers, and privileges of parliament . . . in the ensuing chapter.” Sure enough, chapter 2 is “Of the Parliament.”
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November 30, 2009, 5:10 pmJ. Aldridge says:
Well you said Chapter 1 was “Of the Absolute Rights of Individuals”), and his original book I have it is “Rights of Persons.”
In the first chapter he says “The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law.”
He wasn’t talking about any individual right to have a gun for self-preservation, but for the people to arm themselves as the military power for their self-preservation and defense. That is exactly how parliament viewed the law.
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November 30, 2009, 8:50 pmPubliusFL says:
Blackstone divides all the laws of England into 4 categories: rights of persons, rights of things, private wrongs, and public wrongs. Each has its own book in Commentaries, and each book is divided into chapters. As I said back on the 27th, the right of having arms is covered in Chapter 1 (“Of the Absolute Rights of Individuals”) of Book 1 (“The Rights of Persons”). Incidentally, by “persons,” Blackstone explains that he means not only natural persons (individuals) but artificial persons (such as corporations). Many of the chapters of Book 1 aster the first deal with artificial persons.
As far as your bare assertion that Blackstone understanding the right of having arms as part of the military power (which Blackstone covers in Chapter 13, without mention of the right of having arms), you’ll have to forgive me if I take it as just that: a bare assertion.
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