Tag Archives | McDonald v. Chicago

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 [...]

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Kopel brief in McDonald v. Chicago

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 [...]

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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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Cato brief in McDonald v. Chicago

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. [...]

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How I’d Approach the Privileges or Immunities Issue in McDonald

Let’s say someone hired me to write an amicus brief in the McDonald Second Amendment case, and my goal was to get the Court to overrule the SlaughterHouse Cases (holding that the Privileges or Immunities Clause is a virtual nullity) and get the Court to hold that the Clause protects a right to bear arms, how would I go about it?

First, I would recount the scholarly consensus that SlaughterHouse was incorrectly decided, in that the P or I Clause was meant to provide substantive protection for individual rights beyond the extremely narrow category of rights enumerated in SlaughterHouse.

Second, I would explain why I think it’s important to decide this case on P or I grounds.  My argument would be that in due process incorporation cases, the Court has consistently (and thoughtlessly) determined that the scope of the right against the states is precisely the same as the scope of the right against the Federal government.  This is problematic in the context of the right to bear arms because of the confusion over what the “militia” language in the Second Amendment means.  Heller came out the “right” way, but by a bare 5-4 majority, with much dispute about whether the Second Amendment was meant to protect an individual right to bear arms.  By contrast, it’s entirely clear that the Framers of the Fourteenth Amendment thought that the P or I Clause protected an individual right to bear arms.  In particular, they understood that African Americans and “carpetbaggers” needed weaponry to protect themselves from assaults by armed Southern terrorist groups.

Third, I would try to craft an argument that would appeal to the Court’s four conservatives, by far my most likely votes.  I would conclude that originalism isn’t  nearly enough–as witnessed by Antonin “Mr. Originalism” Scalia’s appalling concurrence in the [...]

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