Amici brief in McDonald v. City of Chicago

Clint Bolick, Nicholas Dranias and Benjamin Barr

Filed: November 23, 2009 (U.S. Supreme Court)

Is the Second Amendment right to keep and bear arms incorporated as against the States by the Fourteenth Amendment’s Privileges or Immunities or Due Process Clauses?

In this brief, the Wyoming Liberty Group joins the Goldwater Institute to argue in favor of incorporating the Second Amendment right to bear arms, meaning the Court should recognize that the U.S. Constitution protects not only from infringement by the federal government onto gun rights, but also from state and local governments.  Instead of relying on the Due Process Clause of the Fourteenth Amendment, the brief contends that it is the Privileges or Immunities Clause of the Fourteenth Amendment that incorporates the Second Amendment. Covering both the history and language of the Fourteenth Amendment, this brief illustrates how Supreme Court case law took a wrong turn in the Slaughterhouse Cases (1872) and places too much reliance on the Fourteenth Amendment’s Due Process and Equal Protection Clauses to protect individual rights.

Ultimately, reviving the Privileges or Immunities Clause would open the door to protecting not only gun rights, but all “privileges or immunities . . . explicitly guaranteed by federal law at the time the Fourteenth Amendment was adopted — categories well-defined by the common law.” This brief argues for a restoration of an important constitutional provision that was meant to protect individual liberty at all levels of government.

The majority of the Supreme Court agreed that the Fourteenth Amendment Due Process clause incorporates the Second Amendment, and unfortunately rejected the need to re-examine the Slaughterhouse Cases.

However, Justice Thomas, in a concurring opinion, agreed with the argument of this brief: “[T]he record makes plain that the Framers of the Privileges or Immunities Clause and the ratifying-era public understood-just as the Framers of the Second Amendment did-that the right to keep and bear arms was essential to the preservation of liberty. The record makes equally plain that they deemed this right necessary to include in the minimum baseline of federal rights that the Privileges or Immunities Clause established in the wake of the War over slavery.”

Throughout history, notable concurrences (and even dissents) have eventually found their way into the majority view of the Court.  Hopefully, Justice Thomas’s concurrence in McDonald is just such an opinion.

Click here to read the brief.

The full opinion is available here.

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