Constitutional Law

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.

Full post as published by Of Arms and the Law on January 30, 2010 (boomark / email).