Chicago's Friends in the Gun Rights Fight


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. 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.

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  1. Damon, check your calendar:

    Heller was decided in 2008-two terms ago now.

  2. BTW, Barron was bunk. My boy Bingham agreed.

  3. Silly libertarian! Stare decisis only applies to decisions that liberals approve of.

    1. Tulpa, you’re making my point. Thus, Bingham, being aware of Barron, spearheaded the effort to make it ever so clear that the states were bound by the 14th.

  4. The constitutional scholar Amar has high praise for Bingham. He is one solon who merits some props from Libertymike.

    Tulpa, go figure, an alleged neo-confederate showing some love for the father of the reconstruction amendments.

  5. It’s true: The gun control movement to deprive modern day americans of their rights is rooted in a much older movement concerned with depriving selected groups (Black folks) of Americans of their rights.

    A rich tradition, indeed.

    1. It’s true: The gun control movement to deprive modern day americans of their rights is rooted in a much older movement concerned with depriving selected groups (Black folks) of Americans of their rights.

      Based on this fact, should not all gun control laws be invalid per the precedent set by Romer ?

  6. Wow, I am less impressed with their collective scholarship, and legal reasoning, then any given Clayton Cramer paper. It must have torn their hearts out to have to leave out Bellesiles as one of their authorities.

    1. well, crappidy doo dah!

      no guns for negroes

      1. You, sir or madam, just quoted an inherently racist song.


  7. Even if you managed to reopen the Second Amendment issue and win that, you still haven’t proven the 14th doesn’t incorporate an individual right to arms against the states.

    After all, an individual right to self-defense and to have arms to that end could be secured as a matter of 18th century common law (see Blackstone) implicitly enshrined by the Ninth.

    Or, strangely but still plausibly, it could have simply been understood as a privilege or immunity of citizens in 19th Century common law, and thus (even if not protected by any other provision of the Constitution) still have been incorporated against the states by the 14th.

    1. that would be neato.

    2. After all, an individual right to self-defense and to have arms to that end could be secured as a matter of 18th century common law (see Blackstone) implicitly enshrined by the Ninth.

      Why would sodomy be protected ( Lawrence ), but carrying a firearm is not?

      1. Because the government doesn’t want to shoot you; it just wants to fuck you in the ass.

      2. Do you want a logically coherent answer, or one that explains the vote of Justice Kennedy?

        1. A logically coherent answer.

  8. Libertymike: Thanks. Still getting used to the idea of a new calendar year. Date fixed.

    1. Damon, sorry for the nitpick. It just goes to show you how how screwed up I am-I just love your work and your perspective on judicial “acitivism,” the incorporation doctrine, the second and, of course, the botched drug raids, and all I can do is give you a hard time about the freakin’ date.

      Here’s hoping that the great gods of liberty forgive me.

  9. Well sadly, rights are almost and just about a thing of the past!


  10. Stare decisis is a sacred, inviolable principle unless liberals don’t like the decision. Then it’s time to seek out the original intent – or at least some law-office history version of original intent.

  11. As an amicus brief, this isn’t a bad strategic play by the bad guys. SCOTUS isn’t going to extend Heller if they begin to have serious doubts that it was correct in the first place. Its a psychological brief, not a legal brief.

  12. One more thought:

    A SCOTUS decision that says, in effect, that the 2A does not exist outside of DC would be a disaster for Dems in November, the proverbial straw that broke the camel’s back. (See, also, the Dem corpses littering the landscape after the assault weapons ban.)

  13. I’m just wondering what the fuck a “collective right” is, anyway. The term is oxymoronic gibberish.

  14. I hate the argument that the 14th is needed to guarantee the right understood by the 2nd. They weren’t written at the same time. It makes it sound like the Founders didn’t really intend an individual right, so the 14th wouldn’t grant an individual right then either. It would just protect everyone in a militia and that’s it.

    The Founders either intended it to be an individual right, or they did not. Since the 1st is the only Amendment referencing a body of government, the rest of the Amendments should always be understood to be cross-governmental no matter what, not needing the 14th to grant them cross-(state or local) border protection.

    1. You’re conflating the two issues.

      The 2A guaranteed an individual right, but at the time of original ratification of the Constitution, it was understood as being protected only as against the new federal government.

      The 14th Amendment made (well, was intended to make) the same rights protected against state action.

      You don’t need the 14th to make the right an individual right, you need the 14th to gurantee that states cannot infringe that individual right any more than the federal government can.

  15. One of the three filers of the historical brief discussed is Nathan Kozuskanich. He was cited for Pennsylvania’s history relating to “the people have a right to bear arms for the defence of themselves and the state” language in that state’s bill of rights in the professional historians’ Heller brief. The professional historians ignored the Second Amendment’s Bill of Rights history and got virtually everything wrong they did discuss that was actually relevant to the Second Amendment. See this History News Network article published four weeks after the historians’ brief pointing out the historians’ errors:

    For a much more detailed examination and documentation of the numerous errors in the professional historians’ Heller brief, see the 24 part series, Root Causes of Never-Ending Second Amendment Dispute, posted at On Second Opinion Blog:

  16. “Its a psychological brief, not a legal brief.”
    – – – – –

    I need to remember this line the next time I write a losing appellate brief.

    (I think it’s an oversimplification to consider this brief to be anything other than a straightforward legal argument. One might say that, due to its flaws and misdirections, its value (if any) will will be mostly as a mood-setter, but if we can look at a brief and call it psychological that quickly, so can SCOTUS, and the Justices do truly hate it when people (especially pointy-eared college profs) feel qualified to massage them with “psychology” disguised as bad legal argument. I’ll predict that the Court simply says that the brief failed to address the case at hand, and so was given no consideration.)

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