By Dave Kopel
America's 1st Freedom, Feb. 2010. More by Kopel on McDonald v. Chicago.
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 Stephen Halbrook.
Before getting into the brief, let’s look at some background. In June 2008, the Supreme Court decided District of Columbia v. Heller, ruling that 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 governments.
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 Amendment addressed the problem. One says, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”
Unfortunately, the Supreme Court quickly nullified the Privileges or Immunities clause in the Slaughter-House Cases(1873) and United States v. Cruikshank(1876).
The second clause in the 14th Amendment 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 governments also.
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 have 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 General Counsel and Deputy Executive Director 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 War.”
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 14th 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 14th 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 facts.
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 slavery.”
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, including the Second Amendment.
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 States.”
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 plain. 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 liberty.
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 status.”
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 19thcentury 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 Immunities clause.
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 14th 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 21stcentury with superb legal work worthy of the immense issues 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.
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