Today is the filing deadline for the friend of the court briefs submitted on behalf of Chicago and Oak Park, Illinois in the landmark gun rights case McDonald v. Chicago, which the Supreme Court will hear in early March. ChicagoGunCase.com has been posting them as they come in, and perhaps the most curious so far is the “Brief of Historians on Early American Legal, Constitutional and Pennsylvania History.” This document essentially tries to get the Supreme Court to return to the question it settled in last year’s 2008's Heller case: Whether the Second Amendment secures an individual right or a collective one. These historians of early America adhere to the latter view, arguing, “The debates over the Second Amendment indicate that the Founders codified the right of the people to bear arms collectively.... Protecting the right to keep and bear arms for militia purposes was the dominant reason behind the Second Amendment.” The Supreme Court, of course, disagreed.
And while there’s some interesting stuff here about Pennsylvania Quakers during the American Revolution, the brief isn’t exactly relevant to the question presented in McDonald v. Chicago, which asks: “Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment’s Privileges or Immunities or Due Process Clauses.” In other words, what matters is the text and history of the 14th Amendment, which was ratified in 1868 in order to prevent the former Confederate states from robbing the recently freed slaves (and their white allies) of their political, economic, and civil rights, including the right to armed self-defense. So while early American history mattered very much in Heller, Reconstruction-era history will be the key in McDonald. For Reason’s coverage of that history and what it means for Chicago's draconian handgun ban, see here.