If Heller Case was Historic, McDonald May Prove More so


When the Heller case went before the US Supreme Court in 2008, it got there on an appeal by the District of Columbia which had lost the challenge to its gun ban in the case that started out as the Parker lawsuit. There was much confusion about the impact on gun laws of the Parker/Heller case at the time, among gunowners in particular, as well as the media and the general public. I pointed out at the time, that while it was an important Second Amendment case, the central issue was keeping arms, not keeping and bearing.


DC lost and the Heller decision was proclaimed “historic,” but it did not solve everyone’s concerns about the scope of their Second Amendment rights.


Further decisions were needed. The first of these involved incorporation—whether or not the Second Amendment right applied to the states or only federal enclaves like DC. That issue is now before the Supreme Court in a case captioned McDonald v. City of Chicago.


The McDonald case offers the prospect of a truly landmark decision on a par with Brown vs. the Board of Education. It’s impact would be huge.


For that reason, the Second Amendment Foundation (SAF), which is one of the plaintiffs and which is funding the McDonald case, is encouraging people to get as much background on the issues involved on a special website: chicagoguncase.com, which has all of the background and history of the case as well as all of the filings, amicus briefs included. That is also the reason SAF has invited Alan Gura, the lead attorney in the case, as well as representatives of the National Shooting Sports Foundation, which had filed a supporting brief, to participate in a public/press conference during the SHOT Show in Las Vegas. It will provide everyone a chance to get fully informed about this critical court case.


To give you an idea of the importance of the McDonald case, a great number of briefs were filed in support of the plaintiffs, a few in opposition, some supporting neither party.


Among the amicus briefs filed in support of petitioners were those of the: Cato Institute/Pacific Legal Foundation; Constitutional Law Professors / Constitutional Accountability Center; Center for Constitutional Jurisprudence / Attorney General Edwin Meese, Dean Eastman; Institute for Justice; CalGuns Foundation; Texas and 37 other state attorneys general; Members of Congress; Goldwater Institute; Law Enforcement Trainers; American Legislative Exchange Council; Professors of Philosophy; Heartland Institute; Nordyke Plaintiffs; Buckeye Firearms Foundation; Maryland Arms Collectors; Rocky Mountain Gun Owners; Jews for the Preservation of Firearms Ownership; Safari Club; State Firearms Associations; National Shooting Sports Foundation; Eagle Forum; Paragon Foundation; Rutherford Institute; Prosecutors Arms Keepers; Academics for the Second Amendment; ACLJ; ACRU; Women Legislators and Academics; State Legislators; and Gun Owners of America.


Among the most recent information posted on chicagoguncase.com by Gura are the following bits of news.


• 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 on the website.


• 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.”


In a brief review of the amici briefs on the website, Gura, the lead attorney for McDonald et al, the Second Amendment Foundation and Illinois State Rife Association, who will argue before the nine justices for the plaintiffs on March 2, offered the following comments.


“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….


“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….


“Finally, 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.”


Gura also commented further; “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 r case should or would be based upon the Supreme Court’s views of the law. Prior to the DC 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 there….


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.”



View the original article here.