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Quick analysis of reply briefs
I read Alan Gura's brief last night while waiting to meet with my surgeon (1. I will live. 2. it wasn't much fun) and NRA's brief while bombed in the aftermath of that. So I went back this morning to read and plot things out. One thing is clear: the briefs give an excellent spread of arguments. I think there's only two paragraphs in which they overlap, which means it's going to be hell for the opposition. I can't adequately sum up 70+ pages in a posting, but here's the short version, by subject.
General: Privilege or immunities incorporation has a monopoly on history and logic. Due Process incorporation has a monopoly on Supreme Court case law. Odds are good that some Justices might like one, and others the other.
Privileges or Immunities: Alan puts heavy (but not exclusive) emphasis here. The articles Chicago cites arguing against public understanding apply an impossibly high barrier, approximately "prove that this was in the minds of millions of Americans 130 years ago." No right could pass that standard. "On this logic, all constitutional amendments must be meaningless..." What has been proven is that application of the Bill of Rights, and of the right to arms, to the States was covered in major newspapers, with nationwide readership, in popular speeches, etc., etc.
NRA doesn't put much weight here, preferring to argue Due Process incorporation, but does treat the legislative history as favoring incorporation generally (leaving it ambiguous as to which clause -- no matter which it is, it should be incorporated).
Subissue: If P or I is accepted, should the Court overrule just Cruikshank (relating to enumerated rights) or also nail Slaughter-House (which dealt with non-enumerated ones). Alan argues the Court should overrule Slaughter-House. It was a misbegotten case which created the standard that Cruikshank employed.
NRA argues whether the Court overrules both cases or just one, the right to arms should be incorporated.
Due Process Clause: Alan gives it 9 pages, a quarter of his argument. The case law is outlined, and the test of whether a right is inherent in a scheme of "ordered liberty." Chicago had again argued a laughably high standard -- essentially, unless you cannot envision a civilized country that lacks a right, it is not a right inherent to ordered liberty. Yet we would consider England a civilized country, and it has an established church, a monarchy, one house of the legislature sits by right of birth, and it has such a narrow version of free speech (suits for libel) that Congress is considering a bill refusing to enforce British libel judgments. We'd consider Japan a civilization, yet it only recently allowed a very restricted form of jury trial.
Steve Halbrook and Steven Poss, briefing for NRA (not to mention Kevin Martin and Joshua Lipshutz, of Goodwin Martin, who put in much work on it, and Paul Clement, who signed it, amount of work put in unknown), put their main weight on this clause. Chicago's claims are paradoxical -- that infringing a right can contribute to "ordered liberty." Its idea of ordered liberty is that of a police state, order always triumphs over liberty. It claims falsely that the 14th Amendment is all about equality, not only equality of rights but equality of their infringement. Presumably, Chicago thinks the Black Codes would have been no problem if their oppressions applied to everyone. The framers of the 14th Amendment would beg to disagree.
The Heller case (Chicago made an indirect run at this decision--the right is all about protecting State militias, and so should not restrict the States). Alan Gura argues Chicago neglects the fact that we are discussing what was seen as a natural and individual right. It argues from the wording of the 2A, but its drafters saw the 2A as documenting a natural right, not as creating one from scratch.
Halbrook and Poss argue that Chicago looks at the wrong history. All cases on incorporation look to the history of Reconstruction, not the history of the Bill of Rights. And in 1866-68 the intent to incorporate is clearly proven. Moreover, if it had to do with the militia, the militia was a federal resource as well as a State one, and what was protected against the federal government should also be against State governments.
Both briefs hit this with the point that the same Congress that reported out the 14th Amendment passed a law disbanding most southern militias. The bill started out as disarming them, too, and a 2A objection was raised, so its sponsor modified it to only disband them, and the opposition agreed that solved the 2A problem. So the 39th Congress saw the 2nd Amendment as relating to possession of arms, not as barring Federal dissolution of State militias.
Horrible hypotheticals, States will be forced to use grand juries, etc., if the entire BoR is incorporated. Both briefs respond, and point out that if this was a problem surely Chicago would have been able to get more than 3 States to sign an amicus in support. Our side, in contrast, got 36 to sign.
Policy argument (gun laws are good). Alan argues policy preferences cannot trump clear constitutional guarantees. The Court has, after all, enforced the 4th and 5th Amendments, even tho they impede law enforcement.
NRA argues criminals in Chicago already have guns; Chicago's attempt to disarm the honest is a failure. It cites Kleck and other studies demonstrating that arms ownership deters crime, and in particular "hot" burglaries where the house is entered while the owners are inside. These are common in England, but rare in the US.
Federalism (Chicago argues States should be free to experiment). Both briefs point out that experimentation has to stop when the experiment involves violating the Constitution.
As you can see, there are a few points of overlap, but only amounting to a page or so, out of a total of near 70. Chicago gets it from both sides on just about every issue.
Comments
I thought briefing space was valuable. Did Gura so demolish the other side's arguments that he had space left over to write this:
"NRA’s novel theory, at 40, that Cruikshank did
not bar the Second Amendment’s application to the
States, contradicts over a century of understanding.
See, e.g., Heller, 128 S. Ct. at 2813 (“States, we said, were free to restrict or protect the right under their police powers”). Erroneous precedent should be overruled, not tortured further to achieve politically desirable results."
Posted by: DLaden at January 30, 2010 10:18 AM
Thank You, Sir! I would never have been able to slog through all that, and your analysis is very welcome - now we can hope a majority of the court sees it that way as well..
Posted by: Hartley at January 30, 2010 10:19 AM
I read the 2 replies. Being a layman, I don't understand all of it, but, I get the impression that both replies rip Chicago's arguments to shreds. Additionally, after reading David E. Youngs critiques of the Chicago "historians", I find it difficult to believe that they could show their faces in public. Of course, there are those judges (justices) that never let facts get in the way of a decision driven by political goals.
Posted by: Dennis at January 30, 2010 10:46 AM
"Chicago thinks the Black Codes would have been no problem if their oppressions applied to everyone."
Very true and consistent with the history of the Democratic Party which runs Chicago.
The 2nd Amendment defines the natural intersection of power and trust - it ensures that the powers of government and its agents are offset by the armed citizenry. This is what the anti's cannot brook - that the people can effectively say no to their policy, taxes, laws, etc.
Posted by: RKV at January 30, 2010 11:04 AM
I thought briefing space was valuable. Did Gura so demolish the other side's arguments that he had space left over to write...
Well, hopefully, yes. But you're saying your only objection here is to the use of space of two sentences in a written brief? Cheeky little passive-aggressive bastard, aren't you? To the extent NRA's brief undermines Gura's very sound P & I argument, I don't fault Gura for addressing that directly.
Anyway, argument time is what is valuable, which explains the heat on both sides over NRA's hostile takeover bid.
My understanding of the 14th amendment is that the original interpretation of the privileges and immunities clause as a meaningless dead letter is now widely believed to have been in error, and the extension of due process incorporation was an imperfect way of getting back toward what the 14th was supposed to do in the first place. And yes, due process has the advantage of precedent in case law, but that doesn't redeem the original decisions. Gura's argument seems to be that a return to P & I is cleaner in principle and better for us in practice.
Posted by: Dave R. at January 30, 2010 01:02 PM
"which explains the heat on both sides over NRA's [repeated] hostile takeover bid[s]." I'm a member, but I wish Chris Cox, et al, would but out of this one. It reeks of childishness to stick their nose in like they have been doing. Yes the stakes are high, but Gura did fine in Heller, and NRA's been playing defense for so long, I wonder if they've forgotten how to play for a win.
Posted by: RKV at January 30, 2010 01:49 PM
Thanks! Now I can talk like an expert on this and not have to read anything more *dusting off internet license to practice law* ;-)
Posted by: Stephen at January 30, 2010 02:58 PM
Fund raising, fund raising, fund raising.
NRA must be able to "claim" that THEY are responsible for any victory (while blaming Gura for any shortfall). This is ILA's speciatity.
NRA couldn't do that if they weren't in the room. Thus hiring the Court's favorite lawyer (Clements) and the demand for face time before the bench. All else is secondary.
Posted by: Big Boy at January 30, 2010 03:09 PM