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« Upcoming legal conference on the right to arms | Main | Passing of a genuinely heroic figure »

Chicago's brief is online

Posted by David Hardy · 31 December 2009 09:15 AM

Pdf is here. Reading it now.

Thoughts after a quick read: stylistically, well-written. The argument against due process incorporation involves taking what the Court has said and not what the Court has done. The Court has said that "fundamental rights" are something of a narrow class of rights ... rights without which there is liberty or civilization. But what it did while so saying was to rule fundamental almost all the rest of the bill of rights, and unincorporated rights such as the rights to contraception, abortion, and gay relationships.

I think we can say that there can be liberty and civilization without, oh, jury trial for major misdemeanors, the right to buy condoms, the right to an appointed attorney. For that matter, with an established church, such as in England, and the right of the prosecution to move for a new trial based on legal errors. I vastly prefer living in THIS civilization and with THESE freedoms, but I can envision a liberty and civilization without them.

With regard privileges or immunities incorporation, it's right what we could expect. (1) Don't overrule 100+ years of case law and (2) OK, so there are quite a few mentions in 1866-68 of p or i enforcing the bill of rights, but they're not enough and not clear enough for our tastes. With a dash of (3) if you incorporate via p or i (AND use it to abandon rather than supplement due process incorporation) then you have to withdraw all bill of rights protections from corporations and aliens, since they may be "persons," but are not "citizens."

· Chicago gun case

6 Comments | Leave a comment

Don Kilmer | December 31, 2009 10:13 AM | Reply

I made this point over at the Volokh site, I thought it might also find an audience here.

Asking “what difference does it make” on the proposition: Incorporation of the Bill of Rights Against the States: “Due Process Clause” or “Privileges and/or Immunities Clause?” misses an important point made by the Heller decision itself.

The Heller Court’s mode of analysis for Constitutional principles purports to be a combination of textual analysis and “contemporary public understanding.” {Bias disclosure: This is a theory I happen to agree with.}

If the Court extends that analysis via the incorporation issue, and does so by implicitly (or explicitly) holding that textual analysis and “contemporary public understanding” trumps stare decisis, then it will have bolstered the Heller decision by the outcome in McDonald.

Its called a twofer.

Remember also that the Second Amendment, even more than the other Amendments, protects an article of personal property owned and possessed by a majority of people in this country. In this respect, the Second Amendment has more practical significance as a constitutional right to more people.

Heller/McDonald, by affirming the “right to keep and bear arms” and applying it to the states via the same “mode of analysis” cements this right, not only in the dry pages of our law books, but also in hearts of “the people.” The genius of taking this path is that Mr. Gura, and the Court if they follow his reasoning, are re-gifting the Constitution to the rightful heirs.

I concede that the more abstract rights of speech, press, religion, protections against unreasonable search/seizure and self-incrimination, the right to counsel, etc..., are just as important.

I merely wish to point out two aspects of the right to keep and bear arms that makes this right more relevant to a greater majority of people: (1) State and local governments have been (and are) criminalizing gun ownership to an astonishing degree and at an equally astonishing pace. And (2) A majority of Americans, while they enjoy the buffer zone of liberty created by the criminal procedure Amendments and the First Amendment, will not concretely exercise those rights in their lifetimes. A majority (maybe only a slight majority, but a majority nonetheless) of Americans will shoot, own or possess a gun during their lifetime.

Jeff Showell | December 31, 2009 2:24 PM | Reply

Can the constitution scholars please weigh in with their opinions of the effectiveness of the Chicago brief?

Gregory Morris | December 31, 2009 7:18 PM | Reply

I'm certainly no constitutional scholar, but I did stay at a Holiday Inn while skimming the brief. One of their arguments seems to be "RKBA is based on English common law, and England bans handguns, so we can too." Sure, it is more complicated than that, but I still giggled a little.

It is actually not a terrible defense of their position from what I see, but there are definitely holes in it that I can already imagine certain justices highlighting and making notes for questions during the oral arguments.

Anonymous | January 1, 2010 2:00 AM | Reply

HTML problem.

It looks like in the second sentence, both "said" and "done" are meant to be in bold. For both words, the closing anchor tag /A is used instead of the closing bold tag /B.

Jim D. | January 1, 2010 4:09 PM | Reply

if you incorporate via p or i (AND use it to abandon rather than supplement due process incorporation) then you have to withdraw all bill of rights protections from corporations and aliens, since they may be "persons," but are not "citizens."

If true, then we are back to amending the Constitution to re-establish the changes taht would be reversed.

This is as it SHOULD be, and would be a more correct approach than just "changing our judicial minds."

fwb | January 2, 2010 10:10 AM | Reply

We waste an inordinate amount of time and effort on BS. The truth be known Barron v Baltimore was an egregious lie perpetrated on the People. Marshall had his head up his ass and couldn't see for the poop in his eyes.

Reading the BoR from OUTSIDE the box of law school proves without a doubt the applicability of the BoR to ALL governments.

The BS about Madison's intent was repudiated when the BoR was placed at the end of the document.

Example: The feds have no eminent domain power. The feds have only power to punish in 3 areas. Would the Framers of the BoR worried about including protections on private property or in trials when the feds were so restricted by the lack of granted authority? Or would the Framers have placed these recognitions of Rights in the supreme Law of the Land to restrict all government entities and to guarantee each State a republican form of government?

Before BvB, the law books stated explicitly that the BoR bound both the states and the feds.

Rather than waiting for the SC to create screwed up decisions replete with holes and exceptions, it is time for the People, the rightful bosses, to tell the courts to go to hell. We the People are superior to the courts. The courts have absolutely no power or authority that We the People do not allow them to have.

According to St George Tucker US law is NOT based on English common law. Tucker states that the US created its own common law because English common law was repudiated by the Revolution. Sir William Blackstone states the society can overturn ANY and ALL the decisions of any magistrate whenever society sees fit.

WE are the boss. The government is the servant. Get this in your head, draw your line in the sand, and stand up for honor and integrity.

Tiocfaidh ar la!

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