This just floors me. The answer to the first question is yes. It says so, explicitly and quite plainly, in the Cruikshank opinion.

“It [the fourteenth amendment] simply furnishes an additional guaranty against any encroachment by the States upon the fundamental rights which belong to every citizen as a member of society. As was said by Mr. Justice Johnson, in Bank of Columbia v. Okely, 4 Wheat. 244, it secures 'the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private rights and distributive justice.'”

This is word-for-word out of Cruikshank. How in the world can anyone read this to mean that the federal government isn’t supposed to protect us from violations of our fundamental rights by the states??

Arguably the brief itself is unconstitutional if it is drafted by a state government and seeks to infringe upon a constitutional right. The court clerk should reject it on the basis that accepting it for filing would violate the constitution.

I like how Chicago tries to tell the Supreme Court what it meant in _Heller_... And how they explicitly ignore the finding in _Heller_ that a law that allowed rifles and shotguns but not handguns was unConstitutional... I think they'll lose just on the "in common use" claims alone...

So when Scalia and other members of the Heller majority read that bit about "allowing rifles and shotguns but not handguns" will that inspire them?

Also, will the justices overlook the blatant contradiction in Chicago's argument: 2A is not incorporated because it is not fundamental yet 2A is not incorporated because it pre-dates the Constitution?