ricketyclick

National Rifle Association files “Brief for Respondants…in Support of Petitioners“. The NRA is, as I understand it, a party to the case, not just an amicus, but they had filed their own case, which is still pending. McDonald will resolve their case, too, most likely, hence the rather odd “respondent in support of petitioners” label.

I’m about 3/4 of the way through petitioner’s brief, which focuses more on the 14th amendment than the 2nd. Huge chunk of history there, and if the Supremes rule on the question, rather than on some minor side issue, a huge chunk of precedent, based on the much-maligned SlaughterHouse cases, will be vacated.

McDonald’s brief makes very clear how the 14th Amendment, and hence the 2nd, was blocked for profoundly racist reasons — to deny freed blacks full citizenship.

Naturally, though, the laws denying blacks the right to defending themselves against marauding whites ended up disarming the whites as well.

If this gets taken care of, then let’s dispose of Kelo.

And if Kelo goes, then we can work on the granddaddy of them all, the hook that about half the Federal Government hangs from: Filburn v. Wickard.

Ha ha ha, I can dream, can’t I?

Dave Kopel writes about McDonald at the Volokh Conspiracy. [If you have any interest in the law, particularly Constitutional law -- and the only reason you shouldn't be interested is because you choose to live outside the law, or beneath its notice) you really need to be following VC.]

Here’s why Petitioner’s Brief concentrates on Privileges or Immunities, while NRA’s brief focuses on Due Process:

Many folks have been wondering why the Gura brief concentrates so heavily on the bolder theory (Privileges or Immunities) rather than the one that courts have used over the last century (Due Process). Here’s the answer: After Heller, the Second Amendment Foundation (SAF) and the National Rifle Association each filed separate lawsuits against the Chicago handgun ban. The cases were consolidated in the Seventh Circuit; after the panel ruled, SAF and NRA each filed separate petitions for certiorari. The Supreme Court granted cert. in the SAF case, McDonald v. Chicago. A few weeks later, the Court added NRA to the case as a party. So NRA is now a “Respondent in Support of Petitioners.” The suburb of Oak Park, which had been sued by NRA but not by SAF, was also added as a party.

So as a party, NRA filed its brief yesterday. The lead attorneys on the brief are Stephen Poss (attorney of record), Stephen Halbrook, and others. The NRA brief takes the more conservative approach. It mainly argues for incorporation via Due Process, with only a brief discussion of Privileges or Immunities. NRA does not ask for any cases to be over-ruled, since Slaughterhouse, Cruikshank, and Presser are all P or I cases, and predate the Court’s recognition of selective Due Process incorporation.

Because the Question Presented by the Court asked about both P or I and Due Process incorporation, it was appropriate that one party brief focused on the former, and the other party brief on the latter.

The comments at VC are especially well informed, as well, although frequently too many pile up to follow.

I especially like Alec Rawls’ comment here:

The 2nd Amendment is the one amendment that does not need incorporation, since it was written from the outset to apply to every level of government. It does not say “Congress shall pass no law,” but asserts without qualification that the the right “shall not be infringed.”

Too bad that so far, no court has seen this, and enforced the 2nd at state level and below.