« Stars and Stripes letter on bases as gun-free areas | Main | More amicus briefs »
Amicus briefs in Chicago case rolling in
Here's the Academics for the Second Amendment amicus. And here's the Congressional amicus, signed by 58 Senators and 251 Congressmen, and filed by Paul Clement. As Solicitor General, in Heller Clement had argued for a lower standard of review; you don't see that here!
Our theme in the A2A brief was that talk of "incorporating" a right is a bit misleading. It implies the question is whether the 1866 Framers and ratifiers meant to apply a 1789 understanding to the States. The real question is the intent and understanding of 1866-68. Americans of this period may have thought they were speaking of the 1789 intent, but actually their understanding of rights was far broader. This is especially so in the case of the right to arms. Two major changes here.
In 1789, many spoke of it in the context of a universal, mandatory militia that was absolutely "necessary to the security of a free state." But between 1816 and 1850, the mandatory militia statutes were repealed, and the Republic did not fall. In 1789, standing armies and select militias were the path to dictatorship; in 1866, millions of Americans had served, select militias were everywhere, and they had saved rather than destroyed the Republic. The 1866 Framers as often as not omitted the militia preface when quoting the Second Amendment, and went straight to the right to arms.
Conversely, conflicts over abolitionism, "Bloody Kansas," and now attempts to disarm Blacks and unionists, caused the right to arms to be seen as a purely individual right -- the right to shoot an intruder at the door, even if the intruder worked for the State. The same Congress that passed the Freedmen's Bureau Act (explicitly referring to the "constitutional right to arms") and the 14th Amendment also enacted laws disbanding most of the southern militias, precisely because they were disarming freedmen.
Comments
Dave
What is your take on the Congressional brief filed by Clement.
Posted by: David McCleary at November 23, 2009 12:54 PM
Thanks again for your fine work
Posted by: Flighterdoc at November 23, 2009 01:35 PM
Academics for the Second Amendment's treasury, never great, has been depleted by the expenses of producing this amicus brief. We need to raise $20,000.
If you can send a contribution, use this URL http://academicssecondamendment.blogspot.com/ (push the "donation" button) or send a check to
A2A, P. O. Box 131254, St. Paul, MN 55113. Your contribution IS tax deductible.
Posted by: 30yearprof at November 23, 2009 01:57 PM
And another one! Link to the Calguns Foundation Brief: http://www.calguns.net/calgunforum/showthread.php?t=243550
Posted by: Liberty1 at November 23, 2009 04:11 PM
The stretch is amazing. The 14th didn't even cover voting. If it wasn't for the incorrect Barron V Baltimore then the truth would be there. The BoR ALWAYS bound the states and the 14th is about privileges and immunites WHICH ARE NOT RIGHTS. Because the feds have no authority to punish except in 6 cases each explicitly granted (that's right 3994 federal criminal statutes are unconstitutional), the ONLY reading of the BoR that makes sense of much of the BoR is that it applied to the States even more so than to the feds.
Posted by: fwb at November 23, 2009 04:14 PM
The A2A brief is persuasive, educational, and humorous. It was a joy to read -- and that's an accomplishment. Congrats to all.
Posted by: Hypnagogue at November 23, 2009 05:49 PM
"In 1789, standing armies and select militias were the path to dictatorship; in 1866, millions of Americans had served, select militias were everywhere, and they had saved rather than destroyed the Republic."
Depends on your definition of Republic. To state the obvious, the War Between The States settled the question as to which was superior - the states or the central government. At that point some would say the character of the Republic changed (and not for the better). I am not one of those. That said, I don't deny some of the points made by the Southrons. The FEDGOV that grew out of that change in balance certainly has grown too big today - and this is especially true in economic matters. I hope that we can require states to respect the whole Bill of Rights, while finding a way forward to reinforce limits on the feds in other policy areas. I hope the two propositions are not mutually exclusive.
Posted by: RKV at November 24, 2009 06:40 AM