The Next Supreme Decision: Showdown Over Chicago
Saturday, January 23, 2010
The NRA files a brief in the U.S. Supreme Court case of
McDonald v. Chicago, making a powerful argument in defense
of the Second Amendment.
by Dave Kopel
Later this year, the U.S. Supreme Court will
decide whether the Second Amendment applies to state and local
governments. NRA members can be proud of the fine brief filed on
their behalf by a team of attorneys led by Stephen D. Poss and
Before getting into the brief, let's look at some
background. In June 2008, the Supreme Court decided District of
Columbia v. Heller, ruling the Second Amendment applies to
"the people," not just the militia; therefore, the Washington, D.C.
handgun ban was ruled unconstitutional.
The D.C. Council is, in effect, an arm of the
federal government, because all of the Council's powers are mere
delegations of Congress' total power to govern the nation's
capital. Thus, the Supreme Court in D.C. v. Heller did not
decide whether the Second Amendment applies to state or local
In the 1833 case Barron v. Baltimore,
the Supreme Court ruled the Bill of Rights only limits the federal
government. After the Civil War, Congress passed and the states
ratified the 14th Amendment, which was intended to make the Bill of
Rights apply to the states. Congress was especially determined to
make states obey the Second Amendment because Congress was outraged
the Southern states had enacted "black codes," which forbade
freedmen from possessing arms.
Two provisions of the 14th Amend-ment addressed
the problem. One says, "No State shall make or enforce any law
which shall abridge the privileges or immunities of citizens of the
Unfortunately, the Supreme Court quickly
nullified the Privileges or Immunities clause in the
Slaughter-House Cases (1873) and United States v.
The second clause in the 14th Amend- ment
mandates: "nor shall any State deprive any person of life, liberty,
or property, without due process of law." The principle of "due
process of law," as understood by the framers of the 14th Amendment
and by Americans all the way back to James Madison, included some
substantive limitations on government power.
For example, if a government passed a law that
said, "All people with last names beginning with 'A' or 'B' must
pay $500 each to the government, and the money will be
redistributed to persons whose last names begin with 'X,' 'Y' or
'Z,'" that law would be a violation of the Due Process clause.
Even if the law had been passed with proper
procedures--such as a recorded vote by the legislature following a
public hearing--the law would be void because it would be beyond
the legitimate powers of government.
Starting in 1895, the Supreme Court began to use
the 14th Amendment's Due Process clause to make some provisions of
the Bill of Rights enforceable against state governments. Because
local governments derive power from the states, a constitutional
restriction on state governments automatically applies to local
Under the Supreme Court's doctrine of "selective
incorporation," the court chooses which parts of the Bill of Rights
will be applied to the states.
For example, the Eighth Amendment's prohibition
on "cruel and unusual punishment" has been incorporated, but not
the amendment's ban on excessive fines.
Immediately after Heller was decided, the NRA
filed a lawsuit, NRA v. City of Chicago, challenging
Chicago's handgun ban.
The winning attorney in Heller, Alan Gura, filed
a separate case on the same issue, McDonald v. Chicago.
The federal Seventh Circuit Court of Appeals consolidated the two
cases and ruled in favor of the handgun ban last June (See "U.S.
Supreme Court Revisits the Second Amendment," Dec. 2009).
Then in September, the Supreme Court announced it
would hear the McDonald case.
The Supreme Court said the attorneys should
present arguments on whether the handgun ban should be considered
unconstitutional under the Privileges or Immunities clause or under
the Due Process clause.
Because the NRA had been a party in the
consolidated case in the Seventh Circuit, the NRA was included in
the Supreme Court case as a party. Formally, the NRA is a
"Respondent in Support of Petitioner."
As a party challenging the handgun ban, the NRA
filed its brief on Nov. 16. In early 2010, the NRA will file a
reply brief that will respond to arguments raised by Chicago. The
January 2010 NRA brief, will also respond to arguments in amicus
curiae (non-party) briefs filed in support of Chicago.
McDonald's attorney, Alan Gura, devoted his brief
mainly to the Privileges or Immunities question.
The NRA brief, however, concentrates on Due
Process and is the product of an extremely strong legal team. Lead
counsel Stephen D. Poss is a senior partner at the corporate law
firm Goodwin Procter LLP, and is co-chair of the firm's national
Securities Litigation Practice.
Several other Goodwin Procter lawyers volunteered
to help on the brief, including partner Kevin Martin and associate
Joshua Lipshutz, both of whom served as clerks for Supreme Court
Justice Antonin Scalia (the author of the Heller decision).
All the Goodwin Procter lawyers contributed their
services pro bono, meaning that they worked free of charge as
public service volunteer work in a major civil rights case. Poss
and his Goodwin Procter colleagues previously did pro bono work in
writing the amicus briefs for the NRA Firearms Civil Rights Defense
Fund in Heller, and in New York v. Beretta, Mayor
Bloomberg's abusive lawsuit against firearm manufacturers.
Of course, NRA lawyers also participated in the
McDonald brief. Poss explained NRA General Counsel Robert Dowlut
and NRA-ILA Deputy Executive Director and General Counsel David
Lehman "... played key roles assisting the briefing team with edits
and ideas. David Lehman's first child was born while we were
working on the brief and he e-mailed us from the hospital!"
Indispensable to the brief was Stephen Halbrook, who led the NRA
case in the federal district court and court of appeals, and who is
the world's leading scholar on congressional protection of the
right to arms during Reconstruction.
Poss recounted, "one of the special pleasures" of
working on the brief "was the opportunity to collaborate with Steve
Halbrook." Much of the brief summarizes what Poss calls Halbrook's
"extensive research and writings on the primary importance of the
Second Amendment to the framers of the 14th Amendment, who were
concerned about stopping the disarming and terrorizing of newly
freed slaves in the Reconstruction South following the Civil
Part I of the NRA brief begins, accurately: "More
evidence exists that the Right to Keep and Bear Arms referenced in
the Second Amendment was intended and commonly understood to be
protected by the Fourteenth Amendment than exists for any other
element of the Bill of Rights."
Providing all this evidence would fill a
book--and has already. Namely, Stephen Halbrook's Freedmen, the
Fourteenth Amendment, and the Right to Bear Arms, 1866╨1876
(Praeger, 1998). The brief, with a 15,000-word limit, cannot
recapitulate all of this evidence, but it does present the key
Shortly after the Civil War, Southern states
enacted the infamous "black codes," designed to keep the former
slaves in a condition of subjugation. For example, a Mississippi
law stated: "That no freedman, free negro or mulatto . . . not
licensed so to do by the board of police of his or her county,
shall keep or carry fire-arms of any kind."
In response, the same Congress that passed the
14th Amendment passed the Freedmen's Bureau Bill. That bill
provided that in all states that had not been re-admitted to the
Union, the "right . . . to have full and equal benefit of all laws
and proceedings concerning personal liberty, personal security and
the acquisition, enjoyment and disposition of estate, real and
personal, including the constitutional right to bear arms, shall be
secured to and enjoyed by all the citizens of such State or
district without respect to race or color or previous condition of
Congress was aware of the continuing abuses of
civil rights, thanks to reports such as the one written by General
Ulysses Grant, who reported to Congress the Mississippi law
prohibiting blacks "from bearing arms, without a special license,
is unjust, oppressive and unconstitutional."
Grant, of course, would be elected president of
the United States in 1868, and re-elected in 1872. In his two
terms, he used federal power to enforce civil rights more
vigorously than any president before, or any president for nearly a
century afterward. After serving as U.S. president, Grant then
served as president of the National Rifle Association, our nation's
leading civil rights organization.
As Poss and Halbrook show, the 14th Amendment was
understood by the Congress that passed it, and the states that
ratified it, as protecting the Bill of Rights, especially the
After the 14th Amendment became the law of the
land, Congress used its enforcement powers, granted by section 5 of
the amendment, to further protect the right to arms.
The Enforcement Act of 1870 made it a federal
felony for persons to conspire to injure someone in order to
prevent him from exercising "any right or privilege granted or
secured to him by the Constitution or laws of the United
When the Enforcement Act was being passed, Sen.
John Pool, R-N.C., pointed out how the Ku Klux Klan would "order
the colored men to give up their arms; saying that everybody would
be Kukluxed [murdered] in whose house fire-arms were found."
Likewise, Sen. John Thayer, R-Neb., stated: "The rights of
citizenship, of self-defense, of life itself were denied to the
colored race. . . ."
Soon after, Congress enacted the Civil Rights Act
of 1871, which provided civil liability for anyone who, acting
under color of law (that is, with government authority), deprived
anyone of "any rights, privileges or immunities secured by the
Constitution of the United States."
Again, congressional intent to protect Second
Amendment rights was clear. Rep. Henry Dawes, R-Mass., said every
citizen "has secured to him the Right to Keep and Bear Arms in his
defense," and the purpose of the Civil Rights Act was to "secure to
him in these rights, privileges and immunities."
Part II of the NRA brief addresses the Supreme
Court's precedents for selective incorporation of the Bill of
Rights via the Due Process clause. As Poss and Halbrook summarize,
the Supreme Court's incorporation cases have used terms such as
"liberty," "a free society," "free government," the "liberty . . .
at the base of all our civil and political institutions" and
"ordered liberty." Repeatedly the Supreme Court has asked whether a
particular right is an essential part of "our" American system of
The Second Amendment easily passes those tests.
To begin with, the very text of the Second Amendment declares that
it protects something that is requisite to a free society. That is,
"necessary to the security of a free State." In addition, the
Heller decision itself quoted sources that affirmed the right to
arms and to self-defense are "fundamental." Among them was St.
George Tucker, the leading legal scholar of the early republic, who
wrote the Second Amendment is "the true palladium of liberty" and
"the right to self-defense is the first law of nature."
The Supreme Court has often looked to state
practices to decide which rights are embedded in our American
bedrock of liberty. Again, the evidence for incorporation is
overpowering--44 state constitutions protect the right to arms.
The right to arms is the very reason why the
government of the United States exists. As the NRA brief explains,
"This case is before the Supreme Court of the United States of
America precisely because Redcoats marched on Concord in April of
1775 to seize weapons and gunpowder, and were met by colonists
jealous of their right to keep and bear arms who fired the first
shots of the War of Independence."
British General Thomas Gage's subsequent
confiscation of arms from the people of Boston "would be among the
grievances detailed in the Declaration of Causes of Taking Up Arms
of July 6, 1775."
From that April morning in 1775, to the frontier
of the growing nation, to the present, the right to arms has always
been at the center of our liberty. Thus, "In comparison to the
right to keep and bear arms, no right has deeper roots in our
history, no right is more essential to the preservation of all
rights and no right has a stronger claim to fundamental
Part III of the brief is shorter and shifts the
argument from the Due Process clause to the Privileges or
Immunities clause. The brief suggests the Supreme Court's three
19th century decisions in which it rejected Second Amendment
arguments are all distinguishable: United States v.
Cruikshank (which was brought under the Enforcement Act of
1870) involved misconduct by private citizens, not by a government;
Presser v. Illinois (1886) simply held that holding a mass
armed parade without a permit is not part of the Second Amendment
right; and Miller v. Texas (1895) rejected the defendant's
Second Amendment claim on appeal because he had not raised the
issue in the trial court.
Accordingly, argues the NRA brief, the Supreme
Court does not need to overrule any precedent in order to make the
Second Amendment applicable to the states via the Privileges or
Finally, Part IV briefly addresses and supports
the main argument in the Gura brief: the Slaughter-House Cases
should be overruled and the Supreme Court should make a fresh start
on Privileges or Immunities jurisprudence. That would be a
perfectly good result, but whether five justices of the Supreme
Court are willing to go that far remains to be seen.
Poss explained the strategic choices: "The NRA
brief is aimed purely at the singular goal of incorporating the
Second Amendment so as to provide nationwide protection of Second
Amendment rights," he said. "Thus we provided the Supreme Court
with a menu of arguments demonstrating that the court does not need
to overrule or reverse any precedent in order to incorporate the
Second Amendment under the Due Process Clause and also showing an
alternative route to incorporation via the Privileges and
Immunities Clause of the Fourteenth Amendment.
"I am immensely proud of the combined work of our
team on this brief."
As an NRA member, you should be, too. Your
association began fighting for civil rights in 1871 and it is
continuing that fight in the 21st century with superb legal work
worthy of the immense issues that are at stake.
Dave Kopel is a constitutional scholar and
frequent America's 1st Freedom contributor. His newest book is
Aiming for Liberty: The Past, Present and Future of Freedom and
Self-Defense. Visit www.davekopel.com.