Legal Commentary

Reply Brief in McDonald v. City of Chicago

By Orin Kerr

It?s available here. Here?s the Summary:

1. Respondents offer no coherent alternative interpretation of the Privileges or Immunities Clause, nor do they defend the reasoning of The Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873). Relying on illogical assumptions, selective quotation of the Fourteenth Amendment?s opponents and discredited scholarship, Respondents aver only that the Clause is either indeterminate or redundant of other provisions. It is neither. And included within the Clause?s protection is the right to keep and bear arms as understood in 1868 America.

2. Ignoring their present violation of Petitioners? Fourteenth Amendment rights, Respondents condemn imaginary future consequences of accurate constitutional interpretation, failing to acknowledge that applying constitutional text as plainly intended by the Framers and understood by the ratifying public possesses high intrinsic value. Nowhere is that value higher than when enforcing basic national civil rights standards, a task Respondents suggest is undesirable. Enforcing the Privileges or Immunities Clause does not threaten the rights of immigrants and corporations. The threat?to all individuals?is posed by Respondents? argument that the Fourteenth Amendment was never understood to secure civil rights.

3. Regarding selective due process incorporation, Respondents? veneration of precedent would have well-served their treatment of District of Columbia v. Heller, 128 S. Ct. 2783 (2008); Duncan v. Louisiana, 391 U.S. 145 (1968); and Washington v. Glucksberg, 521 U.S. 702 (1997). Respondents misstate the due process incorporation standards. This Court applies enumerated and unenumerated rights of substantive due process by way of Duncan and Glucksberg, respectively. Both approaches are rooted in the unique history of the American people. Only by denying the role of Anglo-American tradition and ignoring this Court?s clear recent pronouncements on the right to arms can Respondents deny that right is a fundamental aspect of American constitutional liberty.

4. Unable to articulate the correct standard for substantive due process incorporation, or interpret the Privileges or Immunities Clause, Respondents offer irrelevant political arguments against application of the right to keep and bear arms against the States, failing to accept that the decision to secure the right in our Constitution has already been made.

I personally think the McDonald case became a lot less interesting when the Court gave Paul Clement 10 minutes of oral argument time. With Clement there, I suspect the first 20 minutes of argument will be more of a lively intellectual exercise than a likely basis for the Court?s decision. Still, as the Reply brief suggests, it sure will be an interesting initial 20 minutes.

Full post as published by The Volokh Conspiracy on January 29, 2010 (boomark / email).