McDonald amicus briefs: Academics, Congress redux, and California District Attorneys

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).

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