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.  

Oral Argument Schedule for January through March 2010

The Supreme Court has set the oral argument schedule for January, February and March of this year.  Among the standout cases are:

• Briscoe v. Virginia, No. 07-11191 (argument date January 11th)    In Briscoe, the Court will be confronted with the question of what procedure is required by the Confrontation Clause with regard to lab reports and whether its ruling just last Term in Melendiaz-Diaz v. Massachusetts, No. 07-591, should be reconsidered.  
• American Needle v. NFL, No. 08-661 (argument date January 13th)  The question in this case is whether the NFL has violated anti-trust legislation through its exclusive licensing agreement with Reebok. Virtually every major sports league in the country has sided with the NFL. 
• Skilling v. United States, No. 08-1394 (argument date March 1st)   The case involves two issues:  (1) whether former Enron executive Jeffrey Skilling’s actions constituted federal honest services fraud; (2) whether the pre-trial publicity surrounding the case violated Skilling’s right to a fair trial.
• McDonald v. City of Chicago, No. 08-1521 (argument date March 2nd)  Perhaps the biggest case of the year will decide whether the Second Amendment right to bear arms applies with equal force to state law.  In McDonald, the Court could reconsider a notorious nineteenth century ruling.
• Kiyemba v. Obama, No. 08-1234 (argument date March 23rd)     The Court will decide whether habeas corpus courts can release Guantanamo Bay prisoners from custody, and specifically, release from custody inside the United States. 

Overall for the Term, 75 argument slots have been filled (this includes Citizens United, No. 08-205, which is a carryover from last Term) and all but three of the cases granted for this Term have been scheduled for argument.

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.

McDonald v. Chicago Coverage

There is a large media and blog buzz over the Supreme Court’s decision to hear McDonald v. Chicago, No. 08-1521 (note: the petition was printed by Cockle).  HowAppealing, SCOTUS Blog, and Sentencing Law and Policy all posted links to various media articles prognosticating the Court’s outcome in this Second Amendment case.   The media attention will most likely increase when the Court hears argument sometime after the New Year.

Cockle Blog will continue to provide coverage of what will surely be a historical decision on whether the Second Amendment applies to the States.

Supreme Court Grants Ten Petitions

The Supreme Court issued an order list today granting review on ten cert. petitions.  The so-called “long conference” was heavy with cases involving criminal law. Six petitions covering a range of issues from the Miranda rule to terrorism were granted.  The order list can be viewed here.    

Supreme Court Building

The long conference also advanced a case testing the scope of the Second Amendment.  In McDonald, et al. v. City of Chicago, No. 08-1521, the Court will decide whether the Second Amendment applies to the States through the Due Process Clause or the long-thought dead Privileges and Immunities Clause.  Alan Gura of Gura & Possessky, is the counsel of record.  The petition and reply brief can be viewed here and here.

The Court also granted review in Henneford v. Castaneda, et al., 08-1547. At issue in Henneford is whether government medical employees are immune from civil rights suits filed against them.  The petition argued that Congress specifically provided immunity under 42 U.S.C. § 233(a) for Public Health Service officials.  The petition and reply brief can be viewed here and here.  Our previous blog on Henneford can be viewed here.

A full listing of the petitions granted review can be found here at SCOTUS Blog.