Nelson Lund explains why in this new article, from the Florida Law Review. Lund is responding an article by Akhil Amar, which does not appear to be available on the public Internet. Readers who want even more on the subject may enjoy Lund’s 2002 article in the Winter 2002 issue of Constitutional Commentary, responding to a […]
Archive | Fourteenth Amendment
A very Gura Christmas
As part of our special Christmas and Hanukkah programming on the VC, here is a 50-minute podcast interview with Alan Gura. It’s all about McDonald v. Chicago, particularly about the meaning of the Privileges or Immunities clause and of the Due Process clause.
McDonald amicus briefs: Academics, Congress redux, and California District Attorneys
By David Kopel on November 25, 2009 3:20 pm in Congress, Constitutional History, Fourteenth Amendment, Guns, Seventh Circuit
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, […]
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 […]
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 […]
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 […]