By Robert Wallace
Let’s start with District of Columbia v. Heller:
On June 27, 2008, the Supreme Court affirmed the Court of Appeals for the D.C. Circuit in Parker v. District of Columbia. The Court of Appeals had struck down provisions of the Firearms Control Regulations Act of 1975 as unconstitutional, determined that handguns are “arms” for the purposes of the Second Amendment, found that the District of Columbia’s regulations act was an unconstitutional banning, and struck down the portion of the regulations act that requires all firearms including rifles and shotguns be kept “unloaded and disassembled or bound by a trigger lock.”
Although this was a vital decision with regards to the Second Amendment, it had very little application because the case involved a specifically federal jurisdiction–Washington D.C.–as opposed to a state.
So that brings us McDonald v. Chicago, an attempt to overturn Chicago’s handgun ban. The first phase ended in December 2008 when a court ruled in favor of a ban. The 7th Circuit Court of Appeals affirmed that ruling in June 2009. The Supreme Court agreed to hear the case in September, and yesterday David Kopel of the Volokh Conspiracy linked to a variety of briefs in favor of the plaintiffs.
First he posted a link to his own brief and described the main findings:
The brief presents new empirical research, conducted by Prof. Carl Moody of William & Mary, about the criminological results of changes in handgun ban policies. In 1965, South Carolina repealed its 1902 ban on handgun sales. We show that, relative to the rest of the United States, South Carolina suffered no statistically significant increase in crime rates. In 1983, Chicago’s handgun ban went into effect. Chicago crime rates rose immediately and significantly. Post-ban Chicago is much more dangerous, relative to the 24 other largest U.S. cities, than it was before the ban. The differences are very large, and sustained, and the possibility that they are due only to random fluctuations in less than 1 in 100,000. During the 32 years studied, Chicago was the only top-25 city with a handgun ban during any part of the period.
Thanks to my hardworking intern Joshua Austin of Denver University Law School, the brief also presents data from 1996–2008 showing that Chicago’s rate of police homicides is 79% greater than the U.S. average, and that Chicago’s police homicide problem is the sixth-worst among large American cities.
Next Kopel provided a link to and summary of the Institute for Justice brief:
The most important part of the brief is Part III, which begins: “To enslave a class of people requires three basic things: destroy their self-sufficiency, prevent them from fighting back, and silence any opposition.” The brief then goes on to argue that the the Court should resist suggestions that it hold that the Privileges or Immunities Clause makes the first eight amendments applicable against the states, but does nothing else.
Then he discussed the congressional brief. He first notes that the brief is “joined by 58 Senators (including 19 Democrats) and 251 U.S. Representatives (including 78 Democrats…).” The most interesting parts of this brief to me are the second and third arguments:
The brief also points out the incorporation of the Second Amendment is a particularly easy case, in that: 1. Express congressional intent to do so via passage of the 14th Amendment is overwhelming and clear, and 2. Unlike the First Amendment (which begins “Congress shall…”), the Second Amendment does not restrict itself to one level of government, so incorporation should be obvious, given that the First Amendment has already been incorporated.
A third argument involves Congressional powers. First, state gun bans would interfere with Congressional war powers, since research shows that soldiers who have prior civilian familiarity with firearms can be trained faster and to a to a higher level of proficiency. (Sergeant York would be the most spectacular of the millions of examples to prove this point.)
And finally there as a fourth brief that was more of a historical perspective.
Heller was a really important decision, but this case is vital to build on that earlier success. I’m really impressed with the arguments supporting the plaintiffs, but the fact that the rulings have gone the other way twice already show that this is an uphill battle.
[For more information on McDonald, Heller and the other cases--historical and contemporary--which bear upon the incorporation debate, see The Case For Incorporation of the Second Amendment. A shameless plug, of course, but much of what you'll hear as the debate progresses is explained within. -- Jeff]
Robert Wallace is classical liberal studying economics in graduate school. He and his wife work as business analysis consultants, and they live as undercover conservatives with their two small children in a socialist bastion of a college town. He has been writing for America’s Right since December 2008.