ChicagoGunCase.com

Three quick items:

1. The Court has granted the American Legislative Exchange Council’s motion to file an amicus brief on our side. ALEC had given only two days notice of their amicus brief, and Chicago did not consent to the late filing, but neither did the Respondents file an opposition to that motion.  The brief is now posted here.

2. Chicago and Oak Park did file an application with Justice Stevens to allow the filing of a combined oversize 22,500 word brief, which we did not oppose.  After all, each respondent could have filed its own 15,000 word brief.  That application was granted.

3. Finally, as it did in the Heller case, the State of Texas has sought leave to argue in McDonald, and as in the Heller case, I am not opposing that motion.  It is significant that 38 states are on record supporting application of the right to arms against the states.  Motions like this are very rarely granted and we would not consent to any others being filed on our side.  Texas AG Greg Abbott would participate in the argument if the Texas motion were granted.

Brian Doherty at Reason Online offers a look at some of the controversy surrounding our “radical” desire to have the Court enforce the actual text of the Constitution as it was popularly understood by the people who ratified it.

Note that these dissenting voices are not really claiming that our position is wrong. They just aren’t very enthusiastic about protecting civil rights.  It makes much more sense to debate what the Constitution means, than to debate whether it’s a good idea to follow it.

The case will be argued Tuesday, March 2, 2010 at 10:00 a.m.

It’s impossible to summarize all the amicus briefs that have been filed in support of our position, but we wanted to point out at least a few that appear to be significantly helpful or illuminating. It’s not an exhaustive list, and we may revisit this topic in the future. Please note: We’ve worked hard to encourage amicus filers to cooperate with each other, avoid duplication of effort, and refrain from filing briefs that do not actually help the Court decide the case. But ultimately, we do not control the amici and have nothing to do with the writing of their briefs. If anyone has an issue with a particular amicus brief, please take it up with that brief’s authors.

Nothing demonstrates the incredible range of support we enjoy from across the ideological spectrum as much as the Constitutional Accountability Center’s brief on behalf of an all-star team of constitutional scholars. It’s an honor to have such support.

Additional insight into the Fourteenth Amendment’s original meaning is provided by excellent briefs from Dean John Eastman and former AG Ed Meese on behalf of the Center for Constitutional Jurisprudence; Timothy Sandefeur, Ilya Shapiro, and Bob Levy on behalf of Cato and Pacific Legal Foundation; Clark Neily at the Institute for Justice; and Clint Bolick and Nick Dranias at the Goldwater Institute.

Thirty-eight states, led by Texas, welcome application of the Second Amendment to their legal systems. A substantial bipartisan majority in Congress agrees.

Finally (at least for now), Erik Jaffe’s brief for the Calguns Foundation explores some of the problems with the flawed scholarship of Charles Fairman and Raoul Berger. For much of the twentieth century, their views of the Fourteenth Amendment were accepted without challenge. But later scholars, including Michael Kent Curtis, Akhil Reed Amar, Richard Aynes, and Brian Wildenthal, have debunked Fairman and Berger. It helps to have a brief touching upon the history of the Fourteenth Amendment’s academic treatment.

We understand that not everyone will agree with our position in this case. For example, we expect that Chicago’s attorneys will present some alternative constitutional vision that supports their desired outcome. May the more persuasive argument (ours, I should hope) prevail.

But not everyone agrees that the case should or would be based upon the Supreme Court’s views of the law. Prior to the D.C. Circuit’s decision in Parker/Heller, that case was met by many rolled eyes and deep, knowing sighs by Very Smart People. The skepticism had nothing to do with the merits of the arguments on either side, which were entirely beside the point. Simply put, the Second Amendment wasn’t going to be revived because the courts wouldn’t feel like going there.

So I wasn’t too surprised to see this point of view pop up in reaction to the McDonald case. Prof. Kerr cynically predicted we’d get wiped out 8-1 on the Privileges or Immunities claim – that’s the one based on the actual text and original public meaning of the Fourteenth Amendment – because the justices wouldn’t feel like interpreting the Constitution. Prof. Barnett capably responded to that claim, so I didn’t see the need to do so here.

But now, Prof. Kerr has asked the following set of questions in a discussion thread about the Cato Institute’s amicus brief:

It’s interesting to me that the Cato brief is based on original intent originalism rather than original public meaning originalism. That is, it is based on what the drafters wanted the 14th Amendment to do, rather than what the 14th Amendment was understood by the public to mean (or perhaps more specifically, what the words of the 14th Amendment were understood to mean by the public at the time). Do we have any good historical sources on what the public understood the P or I clause to mean at the time? If so, what do they suggest? If not, do we have reason to believe that the public knew what the authors of the 14th Amendment intended? I don’t know how widely the debates over the meaning of P or I were distributed around the country at the time. Does anyone know?

Of course, had Prof. Kerr actually read our brief, he’d have seen that we devote a significant portion of it to answering just these questions.

Failure to read the pleadings carefully enough to grasp the points they seek to make leads to some frankly bizarre questions.  I’d like to respond to two such questions about our approach in this case. First, some people wonder why our Privileges or Immunities argument needs to define that provision any broader than the actual Second Amendment right at issue. The answer is dictated by logic. While we cannot define the full scope of every right secured by the Fourteenth Amendment, and have no interest in doing so, neither can we show that the right to arms fits within the Privileges or Immunities Clause without first discussing what sort of rights are embodied by that provision.  It’s worth mentioning that self-defense is a natural pre-existing right, and consequently the right to arms would be a Privilege or Immunity of American citizenship even if the Second Amendment did not exist.

Second, some have asked if we’re needlessly straying from our mission in seeking to have The SlaughterHouse Cases overturned. No. While overruling SlaughterHouse is a worthy goal in and of itself, doing so is necessary to secure meaningful Second Amendment rights against state infringement under the Privileges or Immunities Clause.

We believe that the Second Amendment guarantees a fundamental right rooted in the ancient right of self-defense and self-preservation. I’ve worked very hard advancing just that view in Heller. But if the Second Amendment is merely some construct of national citizenship, a claim upon the federal government that grows out of the government’s existence, a right conferred by the government which wouldn’t exist in the government’s absence and which looks an awful lot like a rule of pre-emption, it isn’t much of a right at all. The “Save SlaughterHouse” arguments are not merely untenable as a matter of law, they suggest a very weak Second Amendment right that does us no good. We don’t believe that self-defense is an interest at the level of visiting the sub-treasuries in Washington, D.C. Since SlaughterHouse has no positive value anyway, it is hardly inconsistent with the interests of organizations focused primarily on vindicating gun rights to seek that precedent’s demise. Indeed, it should not be surprising that any litigant whose interests are served by a faithful reading of the Constitution would seek to have overruled a decision widely acknowledged as defying the Constitution.

On our case filings page, you will find the amici brief filed in support of the petitioners, or in support of neither side.

We’ll review some of the more interesting briefs soon….

I have omitted only two briefs.  One was filed without sufficient notice (one day) and Chicago is understandably objecting to it. If the motion to file that brief is granted, I’ll post it.  The other needs to be reprinted. It’s not a very important brief in any event.

Petitioner’s Brief for McDonald v. Chicago

The Second Amendment Foundation today filed its much-anticipated brief to the United States Supreme Court in the case of McDonald v. Chicago, which challenges the constitutionality of that city’s ban on handguns.
SAF is joined in the lawsuit by the Illinois State Rifle Association (ISRA) and four individual plaintiffs. They are represented by attorney Alan Gura, who successfully argued the landmark Heller case before the high court in 2008, leading to a ruling that the Second Amendment affirms and protects an individual right to keep and bear arms beyond the scope of serving in a militia. Gura is joined in the effort by Chicago-area attorney David G. Sigale.

The McDonald case not only challenges the Chicago ban, but also brings up the question of application of the right to keep and bear arms to the states through the 14th Amendment.

“Our filing today will help establish that the right to keep and bear arms is a fundamental right of American citizenship no city official can violate,” Gura said.

Alan Gottlieb, SAF founder and executive vice president, added, “We brought this case because the Chicago ban has denied law-abiding citizens the exercise of a basic civil right for more than 20 years. We are delighted to bring this action with our colleagues  in Illinois because this kind of onerous regulation simply cannot go unchallenged.”

That’s the title of a panel discussion later today at my alma mater, Georgetown, at which I’ll be appearing alongside Prof. Randy Barnett, Prof. Kurt Lash, and David Gans of the Constitutional Accountability Center.  For those who can’t attend, there’s always the internet.

Oh, and the answer to the above-question: we hope so!  Brief on Monday…

Yesterday morning, Chicago and Oak Park sought a three-week extension of time to file their brief. We had no problem with one additional week, but three would have been problematic. The NRA supported our position.

The Court split the difference, and so those of you eagerly anticipating the Chicago/Oak Park brief will now have to wait until December 30.  Our reply brief is now due January 29.

Also today we received word that the Brady Center will be filing a brief… in support of neither party. That would have to be filed by the deadline for our amici, which is November 23.

As the case ramps up, and we have more information to share, this site will become a bit more active.

On Monday, we’re going to be filing the opening brief on the merits before the Supreme Court. Check in around mid-day if you’re interested.

Also on Monday, we expect to see filed (and of course, we’ll post here) the NRA’s “Respondents’ Brief.”  If this sounds strange to you, you’re right: it is an unusual set of circumstances, but one dictated by the Court’s rules.

In the lower courts, NRA and affiliated individuals filed several companion cases against Chicago and its gun-banning suburbs. The other defendants folded, but Chicago and the Village of Oak Park soldiered on. The three cases – ours (McDonald), NRA v. Chicago, and NRA v. Oak Park – were considered together in the Court of Appeals. Under the Supreme Court’s rules,

“All parties to the proceeding in the court whose judgment is sought to be reviewed are deemed parties entitled to file documents in this Court . . . All parties other than the petitioner are considered respondents, but any respondent who supports the position of a petitioner shall meet the petitioner’s time schedule for filing documents.” Rule 12.6.

So NRA is a “Respondent in Support of Petitioners,” and Oak Park is a Respondent.  The practical consequence is that NRA’s brief needs a red Respondent’s cover instead of a green Amicus one, their brief is due the same date as ours instead of a week later, and their word limit goes from 9,000 to 15,000.

We’re informed Oak Park will not be filing a separate brief, but will be joining Chicago’s efforts.