Yesterday was the deadline for Amicus Briefs supporting respondent, City of Chicago in McDonald v. Chicago. Alan Gura has posted most of the briefs at ChicagoGunCase.com. It is worth noting that there were over 30 briefs supporting Petitioner, McDonald, and approximately half that supporting Petitioner. It is also worth noting that many of the high profile Amici from Heller (e.g., ABA, DOJ, and others) did not bother supporting the City of Chicago. Also, the Brady Center, as well as the NAACP LDF filed a brief in support of neither argument (essentially conceding incorporation). Here is a brief summary of the briefs, with a bit of commentary.
- Educational Fund to Stop Gun Violence–
The Second Amendment should not be incorporated. See generally Chicago Resp’ts’ Br. But if it is, this Court should clarify that the Second Amendment protects the right to bear arms only for lawful purposes. See D.C. v. Heller, 128 S. Ct. 2783, 2813, 2815-16, 2816-17 (2008); infra Section II. Advocates for unfettered access to firearms argue that there exists in the Second Amendment an individual and constitutionally-protected right to keep and bear arms for the insurrectionary purpose of attacking so-called government “tyranny.” See infra
Section III. In District of Columbia v. Heller, the Court appears to suggest that the Second Amendment protects “the existence of a ‘citizens’ militia’ ” (i.e., one that exists apart from the democraticallycontrolled State militia) “as a safeguard against tyranny.” 128 S. Ct. at 2802; see infra Section III.A.2. This understanding of the Second Amendment’s purpose and scope is historically erroneous, dangerous, and inconsistent with the Court’s other decisions.
Extremist individuals and groups, in particular, tend to share several characteristics: an intense fascination with firearms; a paranoiac distrust of government or a deep-seated hatred for particular minority groups- or both; and a willingness to engage in acts of shocking, often deadly, violence. Armed extremism leads to violent extremism with profoundly unsettling frequency and profoundly tragic effects. [J.B. The ADL discusses recent shooters, including James Von Brunn, who shot and killed a security guard at the United States Holocaust Museum in Washington, D.C., as an example of violent extremists using guns to justify draconian gun control law. As Jew who owns firearms, I find this position ludicrous.]
- U.S. Conference of Mayors–
When gang members and drug dealers cannot obtain and carry firearms with impunity, in turn, their ability to use violence as a means of competing for control of drug markets is sharply circumscribed. The eighteenth-century version of the right to bear arms codified in the Second Amendment, however, imperils law-enforcement strategies with enormous promise in the fight against violent crime. The first eight amendments are properly applied against state and local governments by virtue of the Fourteenth Amendment when they secure rights implicit in the concept of ordered liberty. The available historical evidence suggests that the eighteenth century conception of the right to bear arms has given way to a more vigorous conception of state and local police powers. Moreover, in high-crime, gang ridden neighborhoods, it may be effectively impossible to grant a right to bear arms while preserving ordered liberty. The Second Amendment’s right to bear arms accordingly is not enforceable against state and local governments by virtue of the Fourteenth Amendment.
- “Public Health Organizations”–
While the numbers of non-fatal shootings are troubling, this brief focuses on the most extreme consequences of improper firearm use—that is, the taking of human life. The studies detailed below illustrate a powerful link between the prevalence of guns—especially handguns—on the one hand, and a heightened risk of suicide, homicide, and fatal gun shootings, on the other. The research further indicates that women and children, including adolescents, are particularly threatened by firearms. These data suggest that the types of
statutes challenged in this case may prevent a substantial number of murders, suicides, and unintentional firearm deaths.
- Rep. Carolyn McCarthy, and 53 members of Congress–
“Reversing the decision below would not only cast doubt on the constitutionality of the decision of the citizens of Chicago that, within the confines of their city, the dangers of handguns outweigh any benefits that may be supposed to flow from their possession, but also coudl throw into question virtually every state and local firearm regulation.”
- States of Illinois, Maryland, and New Jersey–
Pursuing a variety of approaches to gun-control legislation, the individual States have balanced the legitimate interests of gun owners against the need, which varies with locale, to protect their residents from the devastating effects of gun violence. In this manner, the States capably have performed their role as “‘laboratories for experimentation’” in an arena “‘where the best solution is far from clear.’” Grutter v. Bollinger, 539 U.S. 306, 342 (2003) (quoting United States v. Lopez, 514 U.S. 549, 581 (1995) (Kennedy, J., concurring)). [J.B. For my thoughts on the laboratory argument, see Point #4]Incorporating the Second Amendment would undermine these efforts, and neither that provision nor the Fourteenth Amendment was understood to demand such interference with state prerogatives. The Second Amendment was codified to protect the militia from elimination by the federal government, not from overreaching by the States. And the Fourteenth Amendment was designed to prevent discriminatory disarmament of Southern blacks, not restrict the States’ traditional authority to pass generally applicable gun laws. The Second Amendment resists incorporation for the additional reason that—as the only Bill of Rights provision conferring a right to possess an item designed to kill—the right to bear arms uniquely requires government oversight, and the democratic process in the States is far better suited than the federal courts to set limits on firearm possession and use.
- “Early American History”–
The right of individual selfdefense was left unchanged by the Second Amendment. As before, it was a natural right recognized by common law and subject to appropriate regulation under the governmental contract with the people. Protecting the right to keep and bear arms for militia purposes was the dominant reason behind the SecondAmendment.
- “Early English History”–
However, contrary to discredited scholarship upon which Heller relied, the right to “have arms” embodied in the
English Declaration of Rights did not intend to protect an individual’s right to possess, own, or use arms for private purposes such as to defend a home against burglars (what, in modern times, we mean when we use the term “self-defense”). Rather, it referred to a right to possess arms in defense of the realm. Accordingly, the right to own or use arms for private purposes is not a right deeply rooted in our nation’s tradition, and should not be incorporated as against the states by the Fourteenth Amendment.
The evidence compiled by scholars discussed herein shows that the Second Amendment gave individual United States citizens the right to take part in the militia to defend their political liberties and to restore their Constitution should, as Blackstone wrote, “the sanctions of society and laws [be] found insufficient to restrain the violence of oppression.” It is this right of “self-preservation” and “resistance” that the Boston Town Council invoked in 1768 and the American colonies exercised when they rebelled against England
- “Historians and Legal Scholars”–
This Court should reject Petitioners’ argument that the Privileges or Immunities Clause incorporates the whole of the Bill of Rights against the States. The total incorporation theory is radical in two respects. First, particularly when viewed from the perspective of the framing-era public, it would have worked a massive realignment of power between the States and the federal government. Second, embracing total incorporation would require the Court to overrule more than 135 years of unbroken—indeed, repeatedly reaffirmed—precedent. Both of these concerns militate against accepting the total incorporation theory absent convincing evidence about what
the Clause actually meant to the States that ratified it. II. Petitioners’ evidence fails to meet this standard.
First, nothing in the plain language of the Clause suggests that an observer from the framing era would read it to incorporate the Bill of Rights. To the contrary, prevailing legal opinion at the time did not recognize the rights granted by the first eight amendments as “privileges or immunities” guaranteed against States by virtue of national citizenship. And the Clause’s closest textual analog, the Privileges and Immunities Clause of Article IV—which predated the Bill of Rights—has never been read to encompass the first eight amendments.
- Villages of Winnetka & Skokie, et al.–
- Chicago Bd. of Education, et al.
The right to arms, even for personal self-defense, is fundamentally different from all other liberties retained by individuals in society, because of the inherent lethality of firearms. We tolerate few restrictions on the right to free speech because of its salutary effects, and because “sticks and stones may break my bones but words can never hurt me,” as the children’s rhyme goes. Guns, on the other hand, will kill you.
- “Professional Historians”–
It would therefore be contrary to early practice under the Fourteenth Amendment to block states and cities from enacting reasonable gun regulations, including bans on specific types of dangerous weapons, such as the laws at issue in this case. As state constitution drafters, courts, legislatures, and commentators alike have agreed, our constitutional framework gives states and local governments the authority they need to balance the public safety interests impacted by the possession and use of dangerous weapons such as handguns. The regulations at issue in this case are consistent with our nation’s historical regulation of dangerous weapons.
- Criminal Justice Professors–
The City of Chicago’s handgun ban has been an effective part of its efforts to reduce handgun crime since 1982. It has helped reduce handgun homicides involving family members and intimate partners. It has also favorably impacted Chicago’s overall handgun homicide rate relative to other cities once economic and demographic factors are considered. The Chicago handgun ban has saved hundreds of lives.
Chicago’s handgun ban also has reduced the supply of handguns, which reduction is correlated with a reduction in handgun crime. The ban has also protected Chicago’s citizens from the increase in crime associated with increased availability of handguns. Finally, the arguments raised by amici in support of Petitioners with respect to the efficacy of the handgun ban fail for several reasons. In particular, the data actually show that, post-ban, the number of handgun homicides in homes has decreased and that Chicago residents are now safer in their homes than they were before the ban.
- Cities, Cook County, and Police Chiefs–
In other words, the Amendment’s purpose makes clear that it is essentially a “federalism provision” designed to protect the States and their citizens from excessive federal power. In view of the Second Amendment’s stated purpose, it makes no sense to incorporate the right to bear arms against the States. At bottom, the Second Amendment right cannot be considered implicit in the concept of ordered liberty, so as to justify its incorporation under the Due Process Clause of the Fourteenth Amendment. Instead of promoting social order, justice and peace, it functions in situations where the rule of law has broken down, and the States may have to call their citizens to militia duty under their emergency powers. [J.B. This is a slight variation of the Respondent’s argument as to why the right to keep and bear arms is not implict in the concept of ordered liberty]While the notion of citizens using force of arms to protect themselves from harm is not unreasonable or unjustified in a vacuum, it must be tempered in a community setting in which each citizen must conduct himself so as not to cause unnecessary injury or death to fellow citizens.
- Prosecuting Attorneys–
Extension of the Second Amendment’s restrictions to the states will undermine regulation of violent criminal conduct at every stage of the criminal justice process. If possession of a firearm is presumptively legal, police will be less able to intervene and prevent violent crime before it occurs. Incorporation of the Second Amendment would also promote routine challenges to firearms possession charges on Second Amendment grounds and thereby significantly increase the burden on prosecutors in obtaining convictions for violation of state firearms laws and defending them on appeal. Incorporation would cutions in litigation similar to litigation under the Fourth Amendment’s exclusionary rule. Indeed, it also would complicate Fourth Amendment litigation itself by threatening to redefine “probable cause” and “reasonable suspicion” in firearms prosecutions.
The implications of incorporation would be dramatic in scope. Ninety percent of firearms convictions
are obtained at the state level. These convictions are based on laws that have been carefully
calibrated to local conditions based on experience. Subjecting states and localities to an unbending national
standard concerning the right to bear arms would ignore the importance of these local solutions and substantially undermine the ability of elected representatives to take actions to ensure public safety. The position of state and local prosecutors throughout the nation is quite different from that of federal prosecutors who, by definition, operate under a single national standard.
- Oak Park Citizens Committee–
This Court has incorporated against the states only those enumerated constitutional rights that are “implicit in the concept of ordered liberty.” Palko v. Connecticut, 302 U.S. 319, 324-25 (1937), overruled on other grounds by Benton v. Maryland, 395 U.S. 784 (1969). This phrase reflects not only a theoretical standard, but also a practical reality. Incorporated rights “are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.” Malloy v. Hogan, 378 U.S. 1, 10 (1964). Thus, as this Court observed when incorporating the right against self-incrimination against the states, incorporation makes sense when it would be “incongruous to have different standards” concerning the exercise of the right, regardless of whether it is the state or the federal government
which is threatening the personal interest the right protects. Id. at 11.
The right of self-defense has unquestionably been the subject of varying state standards throughout our nation’s history. There is nothing incongruous about states and local communities adopting different standards concerning the role handguns play, if any, in ensuring the right of selfdefense, especially in light of the vastly different circumstances that communities face regarding the public safety implications of handguns. Incorporating the Second Amendment right to own arms for self-defense would entail developing uniform federal standards for the use of those protected firearms in self-defense. To incorporate the Second Amendment
right to possess handguns in one’s home would portend a massive federal intrusion into the administration of the right to self-defense that is as unwarranted as it is unnecessary. Oak Park asks only for the right to decide for itself what weapons best protect the public health and safety of its own citizens and their homes. [J.B. this is actually an interesting argument, and ties into my previous posts about whether the Constitution has a geography clause. Can a constitutional right mean one thing in Place A, and a different thing in Place B]