EYEWITNESS REPORT from the U.S. Supreme Court
Prelude -- Prelude -- Prelude
What's At Stake In The Chicago Gun-Ban Case, McDonald v. Chicago
Feb. 25, 2010
Are the 50 states required to obey the Second Amendment?
Or can they do whatever they want, with no obligation to respect our right to keep and bear arms?
That's what's at stake in the Chicago gun-ban case, McDonald v. City of Chicago, at the U.S. Supreme Court, where oral arguments will be heard this Tuesday, March 2, with a decision expected in June.
I'm hitting the road tomorrow (for two Texas conventions) and will be at the Court for eyewitness reports. The circus atmosphere does not appear to be in the air -- yet this case could have more far-reaching consequences than the Heller case.
There's no disagreement that when the Second Amendment and the Bill of Rights were ratified in 1791, they were designed to control the federal government only, not the states. Did the 14th Amendment change that?
The Colonists and the Founders were intensely afraid that a strong central government would eventually confiscate the rights cherished by early Americans -- the very things that made America great and that have drawn people here like magnetism. It was not a baseless fear, as we can see clearly from constant and growing federal usurpations of our rights and freedoms, with massive accumulations of power in Washington, D.C.
The First Amendment says it plainly: "CONGRESS shall make no law..." (emphasis added). The whole idea was to control the central government, not the states (which had their own protections and statements of rights).
The idea that the states should also be obligated to respect the fundamental rights in the national Bill of Rights didn't arrive until 1868, with the 14th Amendment. And that was a result of the end of slavery -- the former Confederate states did everything they could think of to deny virtually any rights to newly freed slaves -- especially the right to keep and bear arms.
Congress, led by the northern states, declared that all Americans had rights and that, "...No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws..." (the key 52 words of the 14th Amendment's 435 words, emphasis added). The historical record is emphatic in noting that the right to arms, especially for freedmen, was a prime mover in passing this amendment.
That language is clear, but here's where it gets tricky, and the heart of the McDonald case. Passage of 14A didn't automatically protect all citizens. What exactly are all the rights, privileges and immunities of the people? For reasons too complex to go into now, rights in the Bill of Rights have been applied to control the states, but only one at a time, by the U.S. Supreme Court.
There were two main ways to do this -- the Privileges and Immunities clause (which protects only citizens), and the Due Process clause (which applies to "any person"). The Court has essentially abandoned the P&I clause, and relied mainly on Due Process.
A set of cases, combined into "The Slaughterhouse Cases" (look that up, it's fascinating) pretty much gutted the Privileges and Immunities clause, by saying the only rights you have as an American are extremely narrow. The P&I clause has essentially been a dead letter since that case in 1873 -- and this is why McDonald v. Chicago is seen as so critical -- it could breathe life into the heart of the 14th Amendment. The Second Amendment is the subject matter, but the 14th Amendment is what's at stake. OK, OK, they're both at stake.
With a key chunk of the 14th essentially dead, the High Court has relied on Due Process to apply (legal eagles say "incorporate") the Bill-of-Rights rights against the states. That's why states can't search and seize your property without a warrant (well, in theory at least -- the states have usurped enormous powers too). The Due Process clause is why free speech cannot be denied by the states (again, only in theory -- the abuses here are so great it's the subject of my next book: Bomb Jokes At Airports -- And 186 Other Things You'd Better Not Say).
So now we're at the case in hand. Chicago has pretty much outlawed or severely infringed firearms rights for anyone in the city. All the city's powers are basically derived from the state of Illinois. Does Chicago have legitimate power to outlaw your rights? It says yes.
Is Chicago obligated, under the 14th Amendment, to honor and respect your rights? It says no, it can do as it pleases and screw your rights, just like other abhorrent petty tyrants currently running loose without nooses in the United States. (FWIW, Illinois, Maryland and New Jersey filed briefs supporting Chicago, a total of three arguing against RKBA rights.)
I say, along with a huge chunk of this great country, that the states should be as totally bound to protect and safeguard the rights you have as an American citizen as all government should be. (38 briefs were filed in defense of our rights, including one by 251 congressmen and 58 senators). I go a bit further and say the bigots who have been denying and repressing your rights all this time belong in prison, but we're not likely to go that far. This time.
People who know about these things believe it is most likely that, if the High Court decides the states are obligated to honor the Second Amendment (and by implication, the entire rest of the Bill of Rights) they will apply the Due Process clause to justify their reasoning. That's how it's always been done, that's the most safe and precedent-ready route, and that's the best argument to press. Or is it?
Hopes are huge and the Court has subtly signaled that it is ready to finally breathe life into the P&I clause, and that has become the dominant argument for the petitioners (McDonald, et al.) and their attorneys, led by Alan Gura. The Court has all it needs to go the Due Process route, why not give it the encouragement it needs, seems to want, to rebirth P&I.
And here's where it gets really interesting. McDonald v. Chicago is seen as the best opportunity in more than a century to fix the harm done by Slaughterhouse. There is virtually unanimous consensus that Slaughterhouse was bad law, decided for bad reasons, and that it needs to be overturned. It has killed off a crucial part of a crucial constitutional amendment, and the times, and the Court, and the legal system are ready to set it right. It means upsetting a huge apple cart, but it's time.
Even though the subject matter of McDonald is gun rights, and a positive decision will have enormous positive impact on everyone's right to arms, many on the political left are supporting this case. Talk about strange bedfellows. They want that 14th Amendment restored because they see it as a linchpin for all sorts of possible "civil rights" they envision in the future. Think of every wacky demand the left makes, and then imagine these are "found," one by one, to be civil rights the federal government can force the states to honor and protect.
Yes, we're delighted that the states may be forced -- by our friends the feds -- to honor our right to keep arms and our right to bear arms. We can conveniently overlook and rationalize any concerns about federalism -- the concept that states are sovereign and independent, and in many matters can decide on their own how their territories will be run. Force from federal mandates seems just fine to protect free speech or stop search-and-seizure abuse, or to protect RKBA. But how well that flies if it's "newly discovered privileges and immunities" (polygamy? drugs? animal rights? affirmative action? debt? medicine? carbon neutrality? diversity? greenness? diet?) remains to be seen.
Those are far fetched and unlikely concerns, according to most people in the know. And the idea of losing the case, leaving states free to trample our precious right to arms, is just unthinkable. Giving up the best chance we've had in our history to right the wrongs of Slaughterhouse is not an easy option to consider. But the NRA, with laser aim on reinstating the rights of Chicagoans, has stepped into the fray, and asked for and received part of the tiny argument time (30 minutes) Alan Gura has before the Court.
The NRA has retained Paul Clement, the former solicitor general whose experience before the Court is unrivaled (and who wrote the pro-rights brief signed by 58% of the U.S. Congress for this case). The NRA wants to make sure the Due Process arguments are firmly made, since Mr. Gura has chosen the somewhat riskier focus on the Privileges and Immunities clause (though both camps make arguments for both approaches). The NRA's request for time, unusual but not unheard of, was definitely a fly in the ointment, but an ointment they felt needed a stir and examination.
To be sure, many of the friend-of-the-court amicus briefs filed in this case brought up and documented well the value, need and reasons to re-establish the P&I clause -- but it would break very new ground. So the NRA's position is not out in left field -- they are recognizing and making the more traditional case based Due Process. It's a double-barreled approach for success. which is a good thing. Probably. You never know when the Supreme Court gets its hands on an issue.
The most dangerous game may be the side note about Chicago's gun-registration scheme. If you can have a gun there at all it must be re-registered every year, most guns simply cannot be registered, and if you miss your renewal date (and fee for every gun you own) the gun(s) becomes permanently unregisterable and contraband. Is that OK? The Court's handling of this policy if they decide to touch it (and it seems they may have to based on the facts of the case), is fraught with danger for gun rights.
So there you have it. In the amicus brief my company Bloomfield Press filed with lead attorney Chuck Michel and dozens of district attorneys, gun rights groups from Texas, Virginia and Arizona, sheriff Richard Mack who was behind the original Brady law case (which he won) and others, we mainly left the 14A arguments for others. Instead, we addressed some essential points that got far less attention.
Our brief establishes this crucial point: the Second Amendment protects an American right that is long standing, deeply rooted and truly fundamental, and therefore meets the tests for incorporation under the 14th Amendment.
We did this with five separate arguments, two of which were a direct result of the work I did with attorneys Dave Kopel and Stephen Halbrook on my 10th book, Supreme Court Gun Cases. We found 92 gun-related cases the Court had heard (starting in 1820) up to that time (2003) and they were uniformly consistent with an individual right to keep and bear arms. (By my count, the Court has actually heard 103 gun-related cases at this point. McDonald will be the 104th).
In 14 of these prior cases the Court repeatedly stated every basic tenet of self defense in effect today. The Heller case forced the modern-day judiciary to finally unambiguously recognize and accept self defense as a core reason and justification for the right to arms in the first place. The public already understood this well. We carefully documented which classic cases supported which aspects of self defense (innocence, reasonable belief, grounds for belief, actions not words, necessity, equal force, immediacy ends, retreat and chase, plus rightfully armed, mutual combat, wounding and withdrawal) to show how solidly grounded these rights and issues are in the High Court's existing jurisprudence.
Supreme Court Gun Cases is now available as a complete and fully searchable PDF eBook online or as a mailed CD (for a fraction of the original 672-page book's price, which is now out of print).
The Heller Case: Gun Rights Affirmed! has the complete case that saved the Second Amendment, with 400 key quotes highlighted and plain English analysis, plus summaries of the first 96 gun cases the High Court has decided.
My next post is planned for the evening before the oral argument (I'm breaking my infrequent-posts rule, but you understand). I'll be down at the courthouse to see the theatrics, though I'm not expecting much. The wind went out of those sails with the Heller case (and camping out in early March is a much tougher gig than in D.C. in October). Still, with both the left and the right focused on this seminal 14A hearing, well, I'll let you know what I find. Fortunately, I'll spend the night in my hotel.
P.S. In Heller, when we waited with bated breath for the bottom-line result we wanted to hear "Affirmed." And we did. In this case, we're rooting for "Reversed." That means the lower court decision supporting Chicago's gun-rights denial, which is being challenged here, is overturned.
The McDonald v. Chicago petitioners website, with background:
The amicus brief joined by Bloomfield Press:
Background on all Supreme Court Gun Cases:
My initial summary and press release on the issues:
Every amicus brief filed:
Supreme Court official website:
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