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, […]
Archive | Constitutional History
California & Nevada District Attorneys’ Brief in Support of Incorporation of the Second Amendment
The brief, of (among others) 34 California DA’s, 8 Nevada DA’s, three Western sheriffs (two from California and one from Arizona), and a couple of California police officers’ groups, is here. It was interesting for me to note that it include DAs from all the Southern California counties except Los Angeles and Riverside, and including […]
McDonald amicus: Don’t trust Fairman and Berger
By David Kopel on November 23, 2009 11:39 pm in Constitutional History, Fourteenth Amendment, Legal Scholarship, Supreme Court
Erik S. Jaffe has written a very interesting brief for the CalGuns Foundation. In short, the argument is: “Charles Fairman’s and Raoul Berger’s Work on Fourteenth Amendment Incorporation of the Bill of Rights Is Deeply Flawed, Inaccurate, and Should Not Be Relied Upon by this Court.” To make a long story short, during the latter half of […]
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 […]
Congressional brief in McDonald v. Chicago
By David Kopel on November 23, 2009 3:26 pm in Congress, Constitutional History, Fourteenth Amendment, Guns
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 […]
Academics for the Second Amendment brief in McDonald
By David Kopel on November 23, 2009 2:52 pm in Congress, Constitutional History, Fourteenth Amendment, Guns, Press
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 […]
Cato brief in McDonald v. Chicago
By David Kopel on November 23, 2009 2:02 am in Civil Rights, Constitutional History, Constitutional Theory, Fifth Amendment, Fourteenth Amendment
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 […]
Predicting McDonald
By Randy Barnett on November 18, 2009 9:52 am in Civil Rights, Constitutional History, Constitutional Theory, Guns, Originalism, Property Rights, Supreme Court, Uncategorized
Below, my colleague Orin offers his predictions as to whether the Supreme Court will restore the “lost” Privileges or Immunities Clause to constitutional law. He may well be correct in predicting but a single vote for that proposition, but I remember when many predicted Angel Raich would get 0-1 votes for her Commerce Clause challenge […]
Robert Tsai on ‘Eloquence and Reason’
By Kenneth Anderson on November 15, 2009 2:20 pm in Academia, Constitutional History, Constitutional Theory, Freedom of Speech, Supreme Court
A couple of weeks ago I mentioned a new book on constitutional interpretation and language by my colleague, Washington College of Law professor Robert Tsai – Eloquence and Reason: Creating a First Amendment Culture. Constitutional rhetoric and interpretation are not my areas, but I started reading the book and have found it to be a […]
Congratulations to Robert Tsai on ‘Eloquence and Reason: Creating a First Amendment Culture’
By Kenneth Anderson on November 6, 2009 10:57 am in Academia, Constitutional History, Constitutional Theory, Freedom of Speech, Language
This is coming more than a little late, as the book has been out for a few months, but I wanted belatedly to congratulate my Washington College of Law colleague, Robert Tsai, on his book Eloquence and Reason: Creating a First Amendment Culture. I have it on my shelf for night reading, but unfortunately even […]
Louis Brandeis and the Incorporation Doctrine
By David Bernstein on October 28, 2009 1:28 am in Constitutional History, Freedom of Speech, Supreme Court
I’ve read most of Mel Urofsky’s new biography of Louis Brandeis, and it’s an extremely good, and very informative, book. But I’m afraid that Mel vastly exaggerates Brandeis’s influence on the Supreme Court’s adoption of the “incorporation doctrine”, to wit: (1) p. 618: “Scholars now believe that the Fourteenth Amendment … was intended to extend […]
First Circuit upholds federal ban on juvenile handgun possession
By David Kopel on October 6, 2009 2:02 pm in Commerce Clause, Constitutional History, Criminal Law, Guns
The decision is here, and includes extensive analysis of 19th and early 20th century state laws (and court decisions upholding them under state constitution RKBA provisions) against juvenile handgun possession, or sale of handguns to juveniles. The decision also rejects a challenge that the federal ban on simple possession in one’s own home exceeds congressional […]
The Ten Best Supreme Court Decisions
By Ilya Somin on October 6, 2009 11:12 am in Constitutional History, Constitutional Theory, Libertarianism, Supreme Court
It’s easy to make lists of the worst Supreme Court decisions of all time, and libertarians are constantly criticizing the Court for not doing enough to protect constitutional liberties. But now, libertarian lawprof Brad Smith asks for a list of the ten best Supreme Court decisions from a libertarian point of view. As I see […]
Justice Brandeis
By David Bernstein on September 29, 2009 8:08 am in Constitutional History, Freedom of Speech, Supreme Court
The New York Times has published two reviews of Mel Urofsky’s new biography of Louis Brandeis. I haven’t seen the book yet, but Mel had sent me the page proofs of several chapters earlier this year, and they were great. Whiles the parts of the book I read struck me as admiring but with appropriate […]