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The NRA, authored by Stephen Halbrook, posted its Brief in Support of Petitioners in McDonald v. Chicago. Some of my initial thoughts

The NRA seeks incorporation under the Privileges or Immunities as an alternate ground: If the Court does not decide this case in favor of Petitioners on selective incorporation grounds, then the Court should find that the right to keep and bear arms is one of the privileges and immunities of national citizenship protected by the Fourteenth Amendment. See U.S. Const., amend. XIV (“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”).

However, they do not want to reconsider the entire Privileges or Immunities Clause jurisprudence:

Respondents in Support of Petitioners do not believe it is necessary to revisit the entire analytical framework the Court has developed for the Privileges and Immunities Clause, under which that Clause protects only rights connected to national citizenship, in order to recognize that the right to keep and bear arms is protected.

But, in the alternative, the NRA seeks for the Court to reconsider Slaughter-House.

For the reasons given at greater length in the brief of Petitioners, it is time for this Court to depart from the The Slaughter-House Cases and recognize the incorporation of the Bill of Rights, or at a Fourteenth Amendment’s Privileges and Immunities Clause. Even if this Court finds it unnecessary to hold that the entire Bill of Rights is so incorporated, it would be faithful to the original understanding to hold that the Second Amendment is incorporated.

Because the NRA is a Party in Support of Petitioners, they file earlier than the 11/23 deadline for amici (H/T Ilya Shapiro for the deadline clear up).

Welcome to the first installment of Predictions of the 10^th Justice, brought to you by FantasySCOTUS.net. FantasySCOTUS.net, the premier Supreme Court fantasy league, has over 1,300 members, who have made predictions on all cases currently pending before the Supreme Court. In this feature, we analyze these predictions, and try to explain how the Supreme Court will resolve top cases.

The first case we will look at is Citizens United v. Federal Election Commission, commonly known as the Hillary Movie case.

Out of 286 predictions, 192 members (67%) predicted that the Supreme Court will likely reverse the lower court’s decision regarding the case, and 94 members (33%) predicted that the Court will affirm the lower court’s decisions. Next we will explore the decision vote distributions and how the Justices will vote.

On this bar graph, the 9-0 and 8-1 Affirm splits each garnered less than 5 votes, along with 7-2, 8-1, and 9-0 Reverse. This graph reinforces the predicted outcome from the first chart.  Most members are predicting a 5-4 Reverse, while those predicting an Affirm were more moderately split,  slightly favoring a 5-4 split over a 6-3 split. Overall, the 10^th Justice predicts a 5-4 decision reversing the lower courts holding.

But how will each Justice vote? Predictions, after the jump.

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Read these sentences and let me know what you think?

• The experience of representational familiarity invests itself in the illusion of the parent-child dynamic.
• The representational validity of post-capitalist hegemony fails to penetrate the myths obscuring the totalization of the culture industry.
• The logic of teleological narrative thematizes the cooptation of disciplinary boundaries.

Are they written by some pointy-headed academic, or by a random sentence generator? The University of Chicago has created a Random Academic Sentence Generator (H/T Glenn R. on Facebook).

Soon, Professors will feel threatened by the ability of this generator to make perfectly rational academic-style sentences, without the years of schooling and prestige. Like the Candlemakers Petition by Bastiat, expect academics to come out against this fantastic service.

The Second Circuit decided INTERNATIONAL ACTION CENTER v. CITY OF NEW YORK H/T How Appealing. New York City Bans new parades down 5th avenue:

a City regulation (the “Fifth Avenue Rule”) — that began as an informal policy in the 1970s and was codified in 2001 — bans any “new” parades on Fifth Avenue.

A group challenged this ban on content-based regulation, as it “discriminat[es] against parades related to current events.”

The Court rejected this argument:

In contrast, the Fifth Avenue Rule does not seek to regulate messages or distinguish between different types of speech. The Fifth Avenue Rule applies to all “new” parades, irrespective of their content. There is nothing in the record to suggest that the City has banned new parades on Fifth Avenue because it is seeking to restrict speech relating to current  events.

Although the Fifth Avenue Rule may indeed have “an incidental effect on some speakers or messages but not others,” that is true of many content-neutral regulations. Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). Such an incidental effect does not convert a content-neutral regulation into a  content-based one.

And in an interesting panel arrangement, the court noted that:

1. * Honorable Denny Chin, United States District Judge for
   the Southern District of New York, sitting by designation. The
   Honorable Sonia Sotomayor, originally a member of this panel, was
   elevated to the United States Supreme Court on August 8, 2009.
   The two remaining members of the panel, who are in agreement,
   have decided this appeal. See 28 U.S.C. § 46(b); Local Rule §
   0.14(b).

Professor Richard Epstein posted a new article on SSRN, forthcoming in the Chicago Law Review, titled NRA v. City of Chicago: Does the Second Amendment Bind Frank Easterbrook?

In NRA v. City of Chicago, Judge Easterbrook held that the Second Amendment, which protects the right to keep and bear arms, did not bind state governments. This article examines the reasoning that he uses to reach that result, which it contrasts with the style of argumentation that led to the opposite conclusion in Judge O’Scannlain’s decision in Norkdye v. King. Easterbrook’s approach emphasized the imperative need for lower court deference to the Supreme Court’s explicit Reconstruction Era holdings that the Second Amendment does not bind the states, even after the Supreme Court’s game-changing decision in District of Columbia v. Heller and thus gave only scant attention to the various historical authorities that O’Scannlain referred to in Nordyke. On balance it appears that Easterbrook is against incorporation on a variety of historical and federalism grounds, none of which are likely to prevail when the Supreme Court addresses the issue of incorporation when it hears the case later in the 2009 October Term.

Only scant discussion of the current Supreme Court case, and the Privileges or Immunities Clause, but it is a nice, short read.