Monday, November 22, 2010

A Walk through the Amicus Briefs in McDonald v. Chicago

Ilya Shapiro, Senior Fellow in Constitutional Studies at the Cato Institute, and Editor-in-Chief of the Cato Supreme Court Review, has provided a very useful tool to any one who seeks a better understanding of how the Second Amendment and gun rights were incorporated to states and municipalities. In More Friends of the Second Amendment: A Walk through the Amicus Briefs in McDonald v. Chicago he has summarized each and every amicus brief that was submitted to the Supreme Court in the case of McDonald v. Chicago. Given that there were 32 briefs in favor of McDonald, 16 in favor of Chicago, and two that were ostensibly neutral, this was a major task.

Of the briefs and the question presented by the McDonald case, Shapiro has this to say:
And so, in the wake of Heller, legal scholars and lay people alike widely anticipated the Court’s rejection of Chicago’s far-reaching prohibition on private gun ownership but did not know how the Court would go about doing so. Would it resurrect the Privileges or Immunities Clause or continue using a suspect doctrine—one that Justice Antonin Scalia has called “babble”—for protecting individual rights against state infringement?

That was perhaps the most interesting question at issue in McDonald, but there were others too, with activists, think tanks, politicians, and concerned citizens of all stripes filing 50 amicus briefs (fourth all-time). Many focused on the Due Process versus Privileges or Immunities issue, while others discussed the incorporation of rights generally—treating the debate over Fourteenth Amendment clauses as an academic technicality.
The breadth of the amicus briefs provide an insight into the divisions between those who are pro-gun rights and those who were anti-rights. You had state attorneys general on both sides of the issue just as you had competing groups of Members of Congress. Some briefs, more or less, duplicated the arguments of other amicus briefs and were probably submitted as much as to say they did something (and to raise money) as anything else. That said, Shapiro notes "a not insignificant number of the briefs—even if they didn’t end up being cited—seemed to have genuinely helped the justices write their opinions."

This belongs in everyone's library of works on the Second Amendment. Think of it as serious Cliff Notes guide to the amicus briefs presented in McDonald. If you need to do more in-depth research on a brief, this compendium will point you in the right direction.

H/T Dave Hardy

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