McDonald v. City of Chicago—The Reply Brief

Today, Cockle filed the Petitioner’s Reply Brief in McDonald v. City of Chicago, No. 08-1521.  In that brief, McDonald’s counsel of record, Alan Gura, once again calls on the Court to overrule The Slaughterhouse Cases, 83 U.S. (16 Wall.) 36 (1873), or in the alternative, hold that the Due Process Clause incorporates the Second Amendment right to bear arms.  The Reply Brief can be viewed here. 

While the Reply Brief highlights many of the same themes as the Petitioner’s Brief, it does shed light on a few issues previously unaddressed. Notably, the brief may be one of the first Supreme Court merits briefs to invoke the Court’s decision last week in Citizens United v. FEC, 558 U.S. __ (2010), No. 08-205. McDonald argues, by citing Justice Kennedy’s opinion in Citizens United, that where neither party defends a prior precedent, “stare decisis is diminished.” The brief also attacks Slaughterhouse on the ground that “decisions improperly limiting enjoyment of con­stitutional rights create no valid reliance interests.”  (Note: When looking to overrule prior cases, the Court often considers to what degree the country has relied on a decision.  The higher the reliance, the less likely a case will be overturned.)

A Google search is also at issue in the brief.  The City of Chicago had presented a computerized search of 19th Century newspapers, finding few articles declaring a publicly held belief that the Privileges and Immunities Clause covered the Bill of Rights. The City had argued that the absence of newspaper articles was conclusive regarding whether there existed an original public meaning of the Privileges and Immunities Clause that includes the right to bear arms.  Countering that argument, McDonald asserts that “[a] paper based on little more than a Google search should not be used against decades of detailed, disciplined scholarly work by some of the nation’s leading legal historians.”

One of the main counterpoints advanced by McDonald in reply was that federalism (and policy matters in general) cannot trump constitutional rights. McDonald maintains that the City’s “irrelevant political arguments” against applica­tion of the Second Amendment to the States failed “to accept that the decision to secure the right in our Constitution has already been made.”

McDonald is scheduled for argument on Tuesday, March 2, 2010, with a decision expected sometime before the end of the Term in late June.