Those liberals that signed the brief, I suspect, are concerned more with the Privileges or Immunities Clause than with the incorporation of the Second Amendment.

Would one of the ex-clerks be so kind as to talk about the kind of reception these amicus briefs get?

Are they ignored? glanced at by the clerk? Cherry-picked depending on the issue and author? Used as supplemental resources?

Or has this been talked about before?

But nobody argues that the 2nd Amendment was incorporated prior to the passage of the 14th Amendment... right?

Those liberals that signed the brief, I suspect, are concerned more with the Privileges or Immunities Clause than with the incorporation of the Second Amendment.

On page 14 of the PDF, they expressly say they are not commenting on the Second Amendment.

-- It's very plainly simple - if the 2nd Amendment is NOT incorporated, if the subject of it is strictly a state matter outside of Federal enclaves ( DC and military bases ), if the states can deny its protections, then there IS no 2nd Amendment, for practical purposes, and it was merely a rather odd joke by the Founding Fathers. --
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That conflates the 2nd amendment with the RKBA. If the 2nd amendment is "all there is to the RKBA," then why do state constitutions recite anything at all about RKBA?
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The 2nd amendment is supposed to stand in the way of federal infringement, like the 1934 NFA (ruled unconstitutional in light of the 2nd amendment by a federal district court in the Miller case). States are SUPPOSED to be hemmed in by their (state) constitutions; but like the feds (who don't follow the fed constitution), states get away with whatever they can, too. See Kalodimos v. Village of Morton Grove, 103 Ill. 2d 483, 470 N.E.2d 266 (1984) for both sides of the argument of "police power" vs. "RKBA"
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And even if the RKBA is not noticed by either the fed or state constitutions, the US Supreme Court found, in Presser, that states cannot prohibit RKBA, because doing so deprives the country of the resource of an armed public.
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All this "incorporation" gibberish flows from the paradigm that rights are for the federal government to "confer" on a subservient people.

"The 2nd amendment is supposed to stand in the way of federal infringement,"

Then by extension, that is the sole purpose of the ENTIRE BOR ? 1st, 5th, et al ?

The fundamental question is : does the BOR apply to the states or not ? Sadly, it's been handled piece-meal over the decades, answering that question one tiny section at a time.

"All this "incorporation" gibberish flows from the paradigm that rights are for the federal government to "confer" on a subservient people."

No, the paradigm is that the Constitution ( and thus flowing to the BOR ) is supposed to enumerate powers accorded to the Federal government, and the states, and 'All other rights belong to the people'. In some cases, the statement is made in the negative ( The government MAY NOT do such and such ), and in some cases the positive (The people have such and such a right ), but the effect is the same. And unenumerated rights flow to thet PEOPLE, not the STATES.

cboldt: "Incorporation" is a concession that the RKBA lacks force, until the federal courts order the states to respect it.

It's just a concession that the federal courts have no business telling the states not to do anything unless there's some federal law (e.g. a provision of the federal constitution) standing in the way. Are you suggesting that the federal courts shouldn't be in the business of enforcing individual rights against state-level action at all (leaving such matters to the state courts)?

-- Are you suggesting that the federal courts shouldn't be in the business of enforcing individual rights against state-level action at all --
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I'm saying that the paradigm that the RKBA comes from the feds, through the states, to the people, is backwards. The Presser Court had it right - states cannot prohibit RKBA, but not for the reason that the 2nd amendment stands in the way.

cboldt: I'm saying that the paradigm that the RKBA comes from the feds, through the states, to the people, is backwards. The Presser Court had it right - states cannot prohibit RKBA, but not for the reason that the 2nd amendment stands in the way.

It looks to me like Presser was based on that same backwards paradigm:

"all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the States, and in view of this prerogative of the general government, as well as of its general powers, the States cannot, even laying the constitutional provision in question 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."

The Court didn't say that the states were incapable of prohibiting arms because that would violate some inherent right of the people, it said the states were incapable of prohibiting arms because that would limit the ability of the federal government to treat the people as a military resource and call on them to perform their duty to the government. I find it hard to believe that the Court would have made those particular comments in the absence of the militia clauses in Art 1 Sec 8. A pretty miserable opinion all around, in my opinion.

-- it said the states were incapable of prohibiting arms because that would limit the ability of the federal government to treat the people as a military resource --
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Not "federal," but "general" government. "General government" is at least both state and fed, and perhaps better viewed as local, state and fed. The people have an incentive to uphold a form of government that they feel serves them, against enemies foreign and domestic.
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That section of Presser recites TWO reasons that the people cannot be denied the RKBA, and neither reason depends on the 2nd amendment for vitality. Your comment reflects a focus on "to deprive the United States of their rightful resource for maintaining the public security." But that is immediately followed, in the opinion, with "and disable the people from performing their duty to the general government."

cboldt: Not "federal," but "general" government. "General government" is at least both state and fed, and perhaps better viewed as local, state and fed.

I think the Court is using "general government" as synonymous with "federal government." That's also how the phrase was used in the Federalist Papers (e.g. "Whether any part of the powers transferred to the general government be unnecessary or improper"; Fed 41), and how it was used in the Slaughterhouse Cases several years prior to Presser ("It was then discovered that the true danger to the perpetuity of the Union was in the capacity of the State organizations to combine and concentrate all the powers of the State, and of contiguous States, for a determined resistance to the General Government") and in many other SCOTUS cases before and after. For example, Justice Woods (author of the Presser opinion) himself used "general government" to clearly refer to the federal government as distinct from the states in other cases. See Burnes v. Scott, 117 U.S. 582 (1886); Wiggins Ferry Co. v. City of East St. Louis, 107 U.S. 365 (1883); Traer v. Clews, 115 U.S. 528 (1885).

So, it seems pretty clear to me that the second reason given by the Court ("and disable the people from performing their duty to the general government") is also talking about the duty the people owe to the feds, and how the states can't interfere with the prior claim of the feds on that human resource.

The feds are already stepping all over the RKBA. Once "incorporated," there will be federal FOID cards, subject to revocation for all manner of unrelated infraction.

If that were legal after incorporation, it would be legal before incorporation. Incorporation cannot possibly change the relationship of the Federal Government to the 2A, since the 14A has nothing to do with the limitations on the Federal Government in the first place.

With regard Presser's language that State law cannot disable a person from performing duties to the Federal government ....

Remember that at the time the 1792 militia act and similar enactments were still effective (not being repealed under 1903, I think). The reference may simply mean that State law could not forbid what the 1792 act required (every male between certain ages to have a rifle or musket and ammo), but that the law at issue against armed parades did not have this effect.

Oren - "As a matter of simple logic, one cannot deprive a party of something which it does not desire."

Huh ? That makes no sense at all, unless you are ( incorrectly ) ascribing to the word 'deprive' a sense of 'this will be received badly by the party so deprived', a meaning it does not have. Retirees in Florida are 'deprived' of snow, but you won't find many of them complaining about it.

IANAL, but couldn't it be argued that the entire BOR is already statutorily incorporated by 18 USC 242? It reads in part:

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States....

The rights "protected" by the BOR may be protected from the federal government, but this in no way affects the fact that they're protected by the Constitution, and so apply to "Whoever" via 18 USC 242.

PubliusFL:

geokstr: Which means that if the court turns very liberal in the next 8 years, they could find that penumbra somewhere that allows the feds to reinterpret the meaning of the 2A and severely restrict gun rights and the STATES would not be able to do anything about it, right?

How would the states be able to do anything about it in the absence of a re-evaluation of the Privileges and Immunities Clause? The argument for state nullification of federal laws was lost a few decades before the 14th Amendment.

I reiterate, IANAL.

I assume you are, and it's very apparent that you are of the opinion that there are constitutional restrictions of some sort that prevent the feds from enforcing strict gun controls of their own and then precluding the states from doing anything about it. Perhaps there are, but I am not betting the farm that there are not ways to get around them, either. That is, after all, what lawyers do for a living. It is all "just words".

I'm more of a realist, though. I look at all the tin horn tyrants in Venezuela, Nicaragua, Honduras and elsewhere trying, and so far succeeding, to rearrange their constitutions to permit them to have a de-facto dictatorship that looks almost like a constitutional democracy, in dim light if you squint just right. (Might be one of the reasons that the founders decided to make us a republic instead, no?) Heck, even Iran has a written "constitution" that "guarantees" "rights" and other things, but funny, it doesn't look like a democracy to me, and horrible, but perfectly legal, persecution is rampant against anyone who is a non-believer.

I also look at how the legal relationships have worked between the feds and the states here, with abortion being the most ready example for me. Before Roe, there were 30-odd states with their own ideas of how to regulate it, and the left had to fight for even minimal abortion rights state by state, with little success. With one fell swoop, the SCOTUS found this penumbral emanation that no one had even known the founders were prescient enough to include, and accomplished what the left had wanted all along. Now the right has to slog it out state by state, with even less success.

If a liberal SCOTUS decides that what the authors of the constitution had really meant all along was that the right to bear arms only applied to formal militias, what's to stop them? How long exactly do you think it would take blue states and blue cities (Chicago, et al) in red states to enact strict gun confiscation?

I'm sure I'm not expressing these concerns in the best way, given my lack of legal expertise, and perhaps there are such strong protections somewhere that would prevent this from happening. I hope so.

But I can't stop being suspicious of a left that has shown over and over again its willingness to use and/or ignore the constitution and the judiciary to attempt to restructure this entire country, a process in full bloom under the current administration. Why are all those leftists who we know are antithetical to the 2A suddenly jumping on this "incorporation" bandwagon? How do they think that will benefit them on the gun issue?

And I am not particularly hung up on the 2A, being afraid of guns and never having owned one. However, the inexorable growth of federal government power is readily apparent to anyone who looks at the whole forest, while the lawyers argue over this tree or that. With this current administration, collectivism has picked up an awful lot of steam, and there are lots of rights I see under attack besides the 2A now. Can anyone say "freedom of speech", boys and girls?

cboldt: Reflecting on my sentiment, it isn't that the feds are currently "unable" to enact certain gun controls [I think the federal GFSZ Act and parts of the 1934 NFA are unconstitutional, but current jurisprudence holds otherwise], it's that after incorporation, whatever regime passes federal review (e.g., Washington, DC regulations) will be greenlighted for passage by federal, state, or local law.

Hmmm. I agree with you about GFSZ and NFA, but how would new restrictions be any less greenlighted if the Court rules against incorporation? Obviously there would be no impediment at all to stricter gun controls in states like California with no state RKBA, and I don't see why the courts would apply stricter scrutiny to federal gun laws without incorporation than with incorporation. For example, if the 2nd Amendment is incorporated, it will likely be because the Court says the RKBA was considered a fundamental right. If the 2nd Amendment is not incorporated, the Court will likely defend such a decision by contending that the RKBA is not so fundamental. Which of those has better ramifications for federal gun control?

Overturning Slaughterhouse would, in theory, apply the rest of the BofR against the states. Rights such as prohibition on excessive bail, grand jury requirement for felonies, right to a jury trial in civil cases, etc. are not currently applied against state action, and likely would be if Slaughterhouse is dispatched.

Yup. And if some of those requirements (grand jury indictment, for example) are REALLY too difficult or complicated for the states, then we need to admit that the authors of the 14th Amendment erred, and correct this by amendment--not by the nonsensical selective incorporation through due process.

I suspect, however, that the left thinks that P&I incorporation means that all sorts of wonderful rights will be applied to the states, including rights that NO ONE in 1868 thought were rights.

-- how would new restrictions be any less greenlighted if the Court rules against incorporation? --
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That depends on what sorts of regime are upheld by the SCOTUS. If SCOTUS holds that RKBA can be regulated by FOID, then that test (constitutionality of FOID) is established nationwide in one fell swoop. On the other hand, if SCOTUS rules FOID cannot be required, the reverse is true. My aversion to incorporation is based on my belief that SCOTUS is not gun or gun-owner friendly.
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-- For example, if the 2nd Amendment is incorporated, it will likely be because the Court says the RKBA was considered a fundamental right. If the 2nd Amendment is not incorporated, the Court will likely defend such a decision by contending that the RKBA is not so fundamental. Which of those has better ramifications for federal gun control? --
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There is another possibility, that being that SCOTUS finds RKBA to be fundamental/inherent, and that the 2nd constrains ("reminds" or "reinforces" the absence of enumerated power works better that "constrains," in that absence of the 2nd would result in the same conclusion; while "2nd constrains" depends on the presence of the 2nd for effect) feds not to act; while amendments to state constitutions remind the states not to act.
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There is also the possibility that SCOTUS chooses to remain mute on the subject, which is the outcome I prefer.
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If SCOTUS is going to screw up, I prefer they do so in a big/obvious way, e.g., finding RKBA to be "not fundamental." I think the country would be better off if the minority had carried Heller. Not because that decision would be correct, but because the more egregious the error by SCOTUS, the more likely the public will refuse to accord legitimacy to the decision. As it stands, the majority got substantial parts of gun rights wrong in Heller, and that dicta is not widely perceived as the egregious error that it is. I think the Heller decision is as disgraceful as the Dred Scott decision.

Clayton E. Cramer said:

Yup. And if some of those requirements (grand jury indictment, for example) are REALLY too difficult or complicated for the states, then we need to admit that the authors of the 14th Amendment erred, and correct this by amendment--not by the nonsensical selective incorporation through due process.

Novel concept, eh?

Yes, the grand jury requirement could put a pretty significant strain on a busy urban judicial system. A reasonable strain, IMNSHO, but a strain nonetheless. Another area was brought up when McDonald was argued at the 7th, Judge Easterbrook made this warning to the attorney for the City of Chicago:

One potential consequence of the line you’re taking is that the Supreme Court will overrule Slaughter-House and incorporate everything. And then all of Chicago’s administrative tribunals for handling parking tickets will suddenly become unconstitutional under the Seventh Amendment.

As well it should, since the 14A amendments by its plain terms protects all privileges and rights, not the ones extant in 1868.

But are "privileges or immunities"? If they are whatever a judge decides that they should be, then we're back to the Supreme Court as superlegislature again.

Judge Easterbrook is quoted as warning the City of Chicago attorney:

One potential consequence of the line you're taking is that the Supreme Court will overrule Slaughter-House and incorporate everything. And then all of Chicago's administrative tribunals for handling parking tickets will suddenly become unconstitutional under the Seventh Amendment.

cboldt commented in response:

Heh. Not true, but funny. The 7th amendment pertains to civil suits, the 6th to "criminal" (against the government) proceedings. And as to the 6th, Duncan v. Louisiana, 391 U.S. 145 (1968), incorporated it against the states. Absence of jury is hunky dory, as long as the accused is at risk for less than 6 months of imprisonment, less than $500 fine. I'm not up to speed on the decisions that support forfeiture with one-sided process, but I'm sure that's fine too, in the eyes of the government's court system.

Actually, both funny AND true.

Chicago parking tickets (and, I believe, minor building violations, red light camera tickets, etc.) are treated as civil cases.

Judge Easterbrook happens to have decent knowledge of the topic, as he was on the panel in Ada Van Harken v. City of Chicago, 103 F.3d 1346 (Cir 7 1997) where Chicago's civil parking ticket adjudication system was challenged, and upheld.

http://biotech.law.lsu.edu/cases/adlaw/van_harken.htm

So, the 7th amendment, applied directly through the PorI clause (with Slaughterhouse overturned), would likely force a significant change in how parking tickets are handled in Chicago and other similar procedures throughout the country.