The Volokh Conspiracy

Available on SSRN. (This is the abstract page. To read the full brief, click “Download,” then on the new screen click the button for which city’s server you will use for the download.) The brief is filed on behalf of the two major police training organizations in the United States: the International Law Enforcement Educators and Trainers Association (ILEETA) and the International Association of Law Enforcement Firearms Instructors (IALEFI). Additional law enforcement amici are the Southern States Police Benevolent Association, Texas Police Chiefs Association, and Law Enforcement Alliance of America. The brief is also joined by the Congress of Racial Equality, the Claremont Institute, the Independence Institute, and several scholars.

The brief presents new empirical research, conducted by Prof. Carl Moody of William & Mary, about the criminological results of changes in handgun ban policies. In 1965, South Carolina repealed its 1902 ban on handgun sales. We show that, relative to the rest of the United States, South Carolina suffered no statistically significant increase in crime rates. In 1983, Chicago’s handgun ban went into effect. Chicago crime rates rose immediately and significantly. Post-ban Chicago is much more dangerous, relative to the 24 other largest U.S. cities, than it was before the ban. The differences are very large, and sustained, and the possibility that they are due only to random fluctuations in less than 1 in 100,000. During the 32 years studied, Chicago was the only top-25 city with a handgun ban during any part of the period.

Thanks to my hardworking intern Joshua Austin of Denver University Law School, the brief also presents data from 1996-2008 showing that Chicago’s rate of police homicides is 79% greater than the U.S. average, and that Chicago’s police homicide problem is the sixth-worst among large American cities.

The brief addresses various claims that were made by amici in the Seventh Circuit in support of the ban, including: that Chicago’s population density is a unique reason to ban handguns in the home; that enforcement of the Second Amendment would prevent the use of NYC-style stop-and-frisk tactics of gangsters who are carrying illegal guns; or that NY state case law supports handgun prohibition.

Part V surveys eleven Supreme Court cases, from 1893-1921, which expressly vindicated the right of armed self-defense.

Finally, Part VI, which relies on input from the police trainers, explains why handguns are often the superior choice for home defense, especially in an urban setting. As the brief explains, there is no perfect gun for every situation, and the choice of any particular gun necessarily involves trade-offs. First Amendment cases, as well as Meyer v. Nebraska, teach us that aldermen and similar officials do not have the authority to micro-manage how individual families choose to exercise their constitutional rights. “A fortiori, the decision of parents, and other law-abiding individuals, to choose the best tool to defend their lives and their families is an inherent, fundamental, and natural liberty.”

Counsel of record is Clark Neilly, who was Alan Gura’s right-hand man in Heller. The most important part of the brief is Part III, which begins: “To enslave a class of people requires three basic things: destroy their self-sufficiency, prevent them from fighting back, and silence any opposition.” The brief then goes on to argue that the the Court should resist suggestions that it hold that the Privileges or Immunities clause makes the first eight amendments applicable against the states, but does nothing else.

Thus, for example, many states adopted laws that kept blacks from practicing trades or even leaving their employer’s land without permission; others adopted vagrancy laws that, in practice, made it illegal to be unemployed, and therefore illegal to look for work

….

And the animating purpose of the Privileges or Immunities Clause, the elimination of constructive servitude, could not be achieved by enforcing only the narrow set of rights already enumerated in the existing Constitution. This last point is best illustrated by the sheer variety of laws invented by Southern governments to prevent freed slaves from enjoying the personal autonomy that was to have been theirs upon ratification of the Thirteenth Amendment. To take just one example, starting with Virginia in 1870, Southern states began to pass increasingly restrictive regulations of “emigrant agents”—people who attempted to recruit freedmen to leave their plantations by promising higher wages and better working conditions on understaffed Western plantations, eventually making it illegal or practically illegal for people to even offer these economic opportunities to poor workers. Those and other laws had the express (though not always expressed) purpose of binding former slaves to the very same plantations they had worked during slavery, and upon essentially the same terms.

In short, the protection of at least some economic rights (the right to choose where to work, the right to choose not to work, and the right to learn about work opportunities) was among the rights which the Privileges or Immunities clause was specifically intended to protect.

IJ does not ask the Court in McDonald v. Chicago, to take any affirmative steps to protect those rights. The IJ simply urges that the McDonald Court enforce the Second Amendment via the Privileges or Immunities clause, and not create any dicta prematurely restricting the scope of P/I.

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.

Available here. Co-authored by Joseph Olson (Hamline), David Hardy, and Clayton Cramer. Key point: From 1789 to 1860, popular and legal understanding of the Second Amendment became much less militia-centric. Well before Reconstruction, the Second Amendment was considered to be mainly a guarantee of a right to own and carry guns for personal protection. Back in 1998, I wrote a hundred-page article, The Second Amendment in the Nineteenth Century, 1998 BYU Law Review 1359, which focused mainly on cases and treatises. Olson/Hardy/Cramer have gone further, and brought forward extensive evidence about the understanding of the public and of elected public officials. Along the way, the brief also corrects some misunderstandings about the 19th-century Second Amendment which appeared in Justice Stevens’ dissenting opinion in Heller.

Available here. An outstanding brief, as one might expect. The bulk of the brief (21 pages, comprising Part I) shows that from the Founding Era into through the framing of the Fourteenth Amendment, national citizenship was paramount to state citizenship. Part II briefly argues that Slaughterhouse violated canons of constitutional construction–such as by interpreting the Privileges or Immunities Clause to make it nothing more than a reiteration of the Supremacy Clause.

Finally, Part III (pp. 27-33) argues that enforcing the Privileges or Immunities Clause will not undermine the Court’s prior so-called “substantive due process” jurisprudence. The brief shows that long before the 14th Amendment, “due process” was understood to mean that certain inherently unfair government actions were beyond the scope of lawful government powers–even if the government had followed proper procedures, such as public hearings. In the Supreme Court, the doctrine is as old as Daniel Webster’s argument in the 1819 Dartmouth College case, was always solidly established in American understanding of “due process,” and was so understood by the Framers of the Fourteenth Amendment.

Lead author on the brief is Timothy Sandefur of the Pacific Legal Foundation, which is also a party on the brief. You can listen to a podcast with Sandefur discussing the brief. The PLF’s Liberty Blog has some very interesting posts on the historical background of the Slaughterhouse cases.

United States v. Cruikshank, which was decided a few years later, finished off the job of judicial nullification of the Privileges or Immunities clause. Since that Court allowed some white domestic terrorists get away with mass murder of armed blacks who had assembled in a Louisiana courthouse, Cruikshank might appropriately have been captioned Slaughterhouse II.