D.C. v. Heller BRIEF FOR THE INSTITUTE FOR JUSTICE re 14th Amendment.

[jody]

BRIEF FOR THE INSTITUTE FOR JUSTICE AS AMICUS CURIAE IN SUPPORT OF RESPONDENT {Heller}

SUMMARY OF ARGUMENT

1. Interpretation of the Constitution, as with interpretation of any instrument, requires this Court to consider the document as a whole. Subsequent amendments to the Constitution can have particular force even for interpreting earlier provisions, not only because they may reflect an operational understanding of the meaning the pre-existing provisions, but because they can incorporate such understanding onto the existing provisions through the force and authority of the amendment itself. In such fashion, amendments can confirm or alter a particular construction of pre-existing provisions, and require that such provisions be read for their meaning as of the time of amendment, not merely from the time of original adoption.

2. The history and adoption of the Fourteenth Amendment demonstrates the Framer’s specific and repeated concern that freedmen were being disarmed by state and local governments and militias, in violation of what those Framers understood to be an individual constitutional right to bear arms. In response to this Court’s previous refusal to enforce parts of the Bill of Rights directly against the States, and its holding that blacks were not citizens of the United States entitled to the rights of such citizens, the Framers set out to remedy the inability to enforce numerous constitutional rights against the States by incorporating them into the Fourteenth Amendment.

Identification of the evils the 39th Congress sought to remedy – including the disarming of freedmen – the parallel legislative responses to that problem, and the specific explanations by the Framers of the purpose and function of the Fourteenth Amendment, all demonstrate that they viewed the existing constitutional right to bear arms as an individual right of personal security. And they understood and intended the language of the Fourteenth Amendment to secure such a right against the States and various militias, not merely in the service of the very entities seeking to disarm and abuse the freedmen. And by accomplishing that goal through the identification and extension of the rights of national citizens, the Framers of the Fourteenth Amendment also clarified and defined the underlying rights in the Second Amendment as well.

Such clarification through incorporation demonstrates that the right to bear arms is an individual right, not merely a federalism provision. It also rebuts the notion that the phrase “to bear arms” was an exclusively military reference and confirms that personal security even, and especially, as against state actors is a primary function and purpose of the right to bear arms. Whatever level of scrutiny this Court applies in evaluating the infringement of the right to bear arms in this case must be protective of that central purpose of allowing for self-defense and personal security, and cannot allow government to, ipse dixit, declare such purposes unlawful or insignificant.

3. The history of the right to bear arms and the Fourteenth Amendment also reflects upon an error in this Court’s incorporation doctrine that ought to be corrected. The Framers of the Fourteenth Amendment viewed the right to bear arms as a privilege or immunity of national citizenship. This Court, starting with the Slaughter-House Cases, has essentially abandoned the Privileges or Immunities Clause as a source of substantive restrictions on the States, contrary to the views of the Framers of that Clause. That decision should be overruled. While this Court subsequently shifted the work of incorporation to the Due Process Clause, a proper textual and historical basis for incorporation would be far more legitimate.

Whatever the basis for incorporation, however, the history of the Fourteenth Amendment shows that the right to bear arms was intended to be incorporated, and thus should be read as it was understood at the time of such incorporation. This Court’s decisions on the reach of the Second Amendment standing alone do not negate, and in fact support, incorporation of the right to bear arms as against the States.

[L1A1Rocker]

1. The briefs in support of Heller

are just ripping the DC folks a new one!

[Boomer 50]

2. I can't see how Fenty can respond

without looking like a total ass. There is absolutely no way in the world he's going to even possibly address the georgiacarry.org amicus. He has no way of countering historical fact and law that shows their side.

I suspect that SCOTUS is going to rule strongly in this case and I believe that incorporation is going to happen. The wording of the question posed by SCOTUS on November 20, 2007 shows that they already recognize the 2nd as an individual right and will rule in that direction. The amicus briefs for Heller can only strengthen their resolve to rule broadly and in such a way that Congress can't pull the same crap they did with the gun free schools zones act (also known as the gun free slaughter zone act).

[L1A1Rocker]

3. I'm on record

and may have to eat my words but I believe that Ginsberg will vote to affirm the Parker decision.

[Boomer 50]

4. I agree

You and I both may have to eat our words but I think that Ginsberg may side with Heller as well as Souter.

We'll see though.

[Will E Orwontee]

5. I've always thought it will be unanimous . . .

I expect a 9 - 0 decision to affirm in an exhaustive opinion written by Alito. A few, (Bryan, Stevens, Souter), will join in a concurrence in part with their differences founded in political and sociological reasoning (times have changed) effecting judicial scrutiny, not fundamental constitutional principle. A strong, more expansive separate concurrence with the decision will be written by Thomas joined by Scalia.

Regarding oral arguments on March 18th; this is the only case the Court has scheduled and parties have already petitioned for extended time to present . . . If DC comes in arguing murder rates and such or that DC residents "want" the ban or anything except that which pertains directly to the constitutional question the Justices crafted, the Justices are going to flay the flesh off them. If their brief is any indication, DC is in for a rough morning.

I'm all atwitter!