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Institute for Justice brief in McDonald v. Chicago

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;17 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
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.
23 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.
That was anathema to the people who wrote and



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