Archive | Fourteenth Amendment

Bush v. Gore was rightly decided

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 2001 Harvard Law Review article from Larry Tribe. Tribe wrote a counter-article in Constitutional Commentary; Lund’s reply to that is here. Tribe penned a further response.

And there is also Lund’s 2002 article from the Cardozo Law Review. [...]

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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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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 major ones such as Orange, San Bernardino, and San Diego. [...]

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McDonald amicus: Don’t trust Fairman and Berger

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 the 20th century, Fairman and Berger were the pre-eminent legal scholars opposed to incorporation of the Bill of Rights. Fairman was a close ally of Justice Felix Frankfurter. In the 1949 case Adamson v. California, Justice Black (with support from two other Justices) wrote an dissent arguing for total incorporation of the Bill of Rights; the dissent included a lengthy appendix with selections from the congressional ratification debates on the Amendment.

Fairman and Berger both looked at original-period sources, and argued for merely selective incorporation (Fairman) or no incorporation (Berger). Their views were later challenged by, inter alia, Michael Kent Curtis, Richard Aynes, and Akhil Amar. The Curtis v. Berger pro/con articles in the law reviews are some of the harshest exchanges I’ve ever read between two legal scholars. The brief’s Table of Authorities provides a list of key law review articles, if you want to study the history of the debate.

The brief’s main argument, which I find persuasive, is that Fairman and Berger really did grossly misread Jonathan Bingham and the early history of the Fourteenth Amendment. Accordingly, the Court in McDonald v. Chicago should not be guided by their views.

And for those VC readers who have been playing Aldridge’s Bingham for the last seven hours, you better tap another keg. [...]

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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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Congressional brief in McDonald v. Chicago

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 individual right to arms from federal or state infringement.

The brief also points out the incorporation of the Second Amendment is a particularly easy case, in that: 1. Express congressional intent to do so via passage of the 14th Amendment is overwhelming and clear, and 2. Unlike the First Amendment (which begins “Congress shall…”), the Second Amendment does not restrict itself to one level of government, so incorporation should be obvious, given that the First Amendment has already been incorporated.

A third argument involves Congressional powers. First, state gun bans would interfere with Congressional war powers, since research shows that soldiers who have prior civilian familiarity with firearms can be trained faster and to a to a higher level of proficiency. (Sergeant York would be the most spectacular of the millions of examples to prove this point.)

Moreover, Article I already forbids states from disarming the citizens. This is because Article I, section 8, clauses 15-16, give Congress authority over the militia, including the authority to call the militia into federal service. Because of the Supremacy Clause, states may not disable citizens from performing their federal militia duties. Accordingly, the Court accurately explained in Presser v. Illinois, “the States cannot, even laying the [Second Amendment] 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 [...]

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Academics for the Second Amendment brief in McDonald

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 in 1998, I wrote a hundred-page article, The Second Amendment in the Nineteenth Century, 1998 BYU Law Review 1359, which focused mainly on cases and treatises. Olson/Hardy/Cramer have gone further, and brought forward extensive evidence about the understanding of the public and of elected public officials. Along the way, the brief also corrects some misunderstandings about the 19th-century Second Amendment which appeared in Justice Stevens’ dissenting opinion in Heller. [...]

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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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