Does the Right to Bear Arms Apply to the States?

Yesterday, the Petitioner’s merits brief and joint appendix were filed in perhaps the most watched case of this young Supreme Court Term.  In McDonald v. City of Chicago, No. 08-1521, the Court will determine whether the Second Amendment right to bear arms is applicable against the states.  The case has drawn notable interest from both news media and the legal community.

The merits brief can be viewed here and the joint appendix here.

At issue in McDonald are two constitutional provisions—one well-documented, the other resting in obscurity.  The Due Process Clause is an established method for the Supreme Court to hold that a federal right limits state law.  Throughout the last sixty years, the Court has held that particular provisions of the Bill of Rights have been “incorporated” into the Due Process Clause of the Fourteenth Amendment. Indeed, almost the entire Bill of Rights, including the right to free speech, to a trial by jury, and to free expression of religion, has been incorporated.

The Court has had no previous opportunity to determine whether the Second Amendment is also incorporated into the Due Process Clause.  Before the Court’s decision last year in District of Columbia v. Heller, No. 07-290, the question of whether the Second Amendment conferred an individual right, was open.  Now that the question of individual rights has been answered affirmatively, the Court must next decide if the Second Amendment individual right to bear arms applies with equal vigor to state laws, such as Chicago’s ban against handgun possession.

Petitioner contends that the Second Amendment’s historical foundations and its treatment by the states conclusively establish its incorporation into the Due Process Clause.  For this reason, Petitioner asked the Court to reverse the Seventh Circuit’s decision.

Although Petitioner requested reversal based on the conventional method of due process, his primary argument rests on the obscure Privileges and Immunities Clause of the Fourteenth Amendment.   That provision was effectively rendered meaningless by the Court’s ruling in The Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873)—the infamous decision which has long been called into question by legal scholars.

The McDonald petition argued in no uncertain terms that the Slaughter-House construction of the Privileges and Immunities Clause “was wrong the day it was decided and today stands indefensible.”   The merits brief continues with this line of reasoning, arguing that McDonald presents the Court with “a rare opportunity to correct a serious error, honor the Fourteenth Amendment’s true meaning, and bring a needed measure of clarity to [ ] civil-rights jurisprudence.” 

McDonald has yet to be set for argument.  The deadline for Amicus Curiae briefs supporting Petitioner is November 23, 2009.  The Respondent’s merits brief is set for filing on December 16, 2009. 

Cockle Critique

At Cockle Law Brief Printing Company, we strive to provide you with top-notch service.  We aim to make filing a document with the Court as smooth and flawless as possible.  In keeping with this, we are always seeking input from Cockle clients regarding our services.

If you have used Cockle in the past, please let us know how we’re doing.  What has impressed you?  Is there anything we can improve on? 

We also want feedback on our blog postings.  Was the blog helpful?  Was it informative?  Is there a topic that we need to write about?  

Please post your comments below.  Thank you.

The Court Takes Bankruptcy, Business and Tax Cases

On Monday, the Supreme Court granted three cert petitions.  One of those petitions involves what evidence bankruptcy courts must use in determining a debtor’s “projected disposable income” before calculating a Chapter 13 bankruptcy plan.  Hamilton Chapter 13 Trustee v. Lanning, No. 08-998.  The second petition asks the Court to determine whether the National Labor Relations Board may decide cases when only two of its five members are present.  New Process Steel v. National Labor Relations Board, No. 08-1457.  And the third petition questions whether state residents may commence civil actions in federal court against a state over tax breaks, when the action may intrude upon state tax systems.   Levin, Tax Commissioner of Ohio v. Commerce Energy, Inc., No. 09-223. 

 Both Hamilton and New Process Steel were printed by Cockle Law Brief Printing Company and the petitions can be viewed here and here.  The Court’s order list can be viewed here.

Your Petition and Anthrax Screening

        You’ve just over-nighted a petition for certiorari to the Supreme Court, and you’re eager for the Justices to rip open their individual copies tomorrow and start reading all about the case’s unjustness.  But not so fast.  A petition is considered filed the date it’s postmarked.  But the Justices won’t have a copy in hand until four to six days later.

        The culprit of the delay?  Off-site anthrax screening.

        So where is it done?  And why?  And how?

        I called the Court for answers, but was told simply, the Court “will not discuss the anthrax screening process … at all.”

        I did a little research of my own, and this is what I found.

        The anthrax mail scare began in the fall of 2001, coinciding with the September 11 attacks.  Five people died as a result of anthrax exposure and 18 others got sick.  Hundreds of people took preventative antibiotics to stave off any possible side effects.

        News and media organizations, post offices, and governmental buildings were hit the hardest.

        In late October of 2001, Supreme Court officials reassured the public that the Court building had not been contaminated with anthrax.  However, the toxic substance was found on an air filter at a mailroom in the building’s basement.  The Justices and 400 Court employees were tested for the bacteria and placed on a one-week course of antibiotics.  Test results came back negative for all employees.

        Nevertheless, the Supreme Court moved to a different building.  It was the first time the Justices convened outside the building since it was constructed in 1935.  The Justices met in the courtroom for the D.C. Circuit for a couple of days while the entire Court building was tested.

        Although it may not be clear exactly what the Supreme Court does with a document in the days before it reaches the Justices’ hands, or where it goes, or how it’s tested, the Court’s Rules do accommodate the anthrax screening process.  Rule 29 allows a petition to be considered filed when it’s handed to a third-party carrier, rather than the date the document arrives at the Court.  Rule 29.1 holds that “A document is timely filed if it … bears a postmark … showing that the document was mailed on or before the last day for filing ….”

        Bottom line: The Supreme Court’s anthrax screening process has no adverse effect on filing a document with the Court.  In fact, it may even aid you by allowing a document to be sent on the date it’s technically due.

        If you just can’t bear the four-to-six-day wait for anthrax screening, your only option is to hand-deliver the documents to the Court in an open, unsealed box.  For more information on how Cockle Law Brief Printing Co. can assist you with this process, please give us a call at 800-225-6964.