CATO FILES AMICUS BRIEF ON INCORPORATING 2A

[Molly B.]

CATO FILES AMICUS BRIEF ON INCORPORATING THE SECOND AMENDMENT TO THE STATES

 

Last summer, in District of Columbia v. Heller, the Supreme Court confirmed what the Framers, most scholars, and a substantial majority of Americans believe: that the Second Amendment protects an individual right to keep and bear arms. Heller led to lawsuits raising the question of whether the Fourteenth Amendment protects that right against infringement by state and local governments. In a consolidated case involving a challenge to Chicago's handgun ban, the Seventh Circuit answered that question in the negative, finding itself foreclosed by 19th-century Supreme Court decisions. Cato, joining with the Institute for Justice, filed an amicus brief supporting requests for the Supreme Court to review that line of precedent. We argue that the Court's initial encounters with the Fourteenth Amendment yielded a profound misreading of its Privileges or Immunities Clause that has haunted the Court's rights jurisprudence ever since.

 

Download a copy of the brief

[Thirdpower]

Thank you for the update. Most appreciated:

 

http://daysofourtrailers.blogspot.com/2009...icus-brief.html

[Federal Farmer]

If they don't find the Cato argument compelling they can refer to the GOA/GOF argument that disagrees.

 

I found the GOA/GOF brief contradictory to the point of confusing. They are using tortured logic to apparently further the argument that only US citizens have the right to self defense.

[Jeff Johnson]

If they don't find the Cato argument compelling they can refer to the GOA/GOF argument that disagrees.

 

I found the GOA/GOF brief contradictory to the point of confusing. They are using tortured logic to apparently further the argument that only US citizens have the right to self defense.

I hate it when I get a twist in my briefs.

[bob]

If they don't find the Cato argument compelling they can refer to the GOA/GOF argument that disagrees.

 

I found the GOA/GOF brief contradictory to the point of confusing. They are using tortured logic to apparently further the argument that only US citizens have the right to self defense.

 

I don't think so.

 

I think they are trying to tell the court there is an option that does not involve wholesale incorporation of the BOR. Perhaps they think that might be attractive to the the court.

 

Keep in mind if the whole BOR is incorporated it could have a lot of fallout, not the least is that states would have to use a grand jury system for all criminal indictments. I would favor such a thing but it could create a lot of chaos.

[Tvandermyde]

I think the GOA brief if from a far more conservative view point of not overturning Slaughter House so as not to enshrine other liberal causes.

 

Gura has a line of thinking on the P&I clause. There is some question as to if the Court will overturn Slaughterhouse. At orals in the 7th the judges said it should be overturned and I think the 9th hinted at it as well.

[GarandFan]

I think the GOA brief if from a far more conservative view point of not overturning Slaughter House so as not to enshrine other liberal causes.

 

Gura has a line of thinking on the P&I clause. There is some question as to if the Court will overturn Slaughterhouse. At orals in the 7th the judges said it should be overturned and I think the 9th hinted at it as well.

 

Overturning Slaughterhouse and incorporating via P or I clause would upset 120 years of jurisprudence. I am not saying it won't be done ... but the ramifications of that would be huge and far-reaching ... much more far-reaching than simply selectively incorporating the 2A via the Due Process clause.

 

I also got the feeling that part of the direction GOA was taking was to preclude the RKBA to US citizens only. Non-citizens have various 1st, 4th and other amendment rights ... if the 2A would be treated the same way, then arguably illegal immigrants might argue that they too have a right to arms (as protected by the constitution, anyway). Some of the GOA brief make little sense to me ... but this citizenship angle is just a hunch of mine.

[Tvandermyde]

Garand -- agreed, but that would put those legal residents in a quandry and set up another two tiered system. But I can see it now, ACORN rises up to support 2A rights for all...........

[Federal Farmer]

I think the GOA brief if from a far more conservative view point of not overturning Slaughter House so as not to enshrine other liberal causes.

 

Gura has a line of thinking on the P&I clause. There is some question as to if the Court will overturn Slaughterhouse. At orals in the 7th the judges said it should be overturned and I think the 9th hinted at it as well.

 

Overturning Slaughterhouse and incorporating via P or I clause would upset 120 years of jurisprudence. I am not saying it won't be done ... but the ramifications of that would be huge and far-reaching ... much more far-reaching than simply selectively incorporating the 2A via the Due Process clause.

 

I also got the feeling that part of the direction GOA was taking was to preclude the RKBA to US citizens only. Non-citizens have various 1st, 4th and other amendment rights ... if the 2A would be treated the same way, then arguably illegal immigrants might argue that they too have a right to arms (as protected by the constitution, anyway). Some of the GOA brief make little sense to me ... but this citizenship angle is just a hunch of mine.

 

As you certainly know, GarandFan, self-defense is an inalienable right granted by our creator (be it God or nature). Our creator wasn't James Madison. The US Constitution cannot supercede the inalienable rights of all humans.

[GarandFan]

As you certainly know, GarandFan, self-defense is an inalienable right granted by our creator (be it God or nature). Our creator wasn't James Madison. The US Constitution cannot supercede the inalienable rights of all humans.

 

Quite right ... and felons and mentally ill people have a natural right to defend themselves, as well. But in practice, law does (and will) prohibit such persons for lawfully keeping and bearing arms. They might well choose to likewise deny illegal aliens that natural right, as well. And create a massive double-standard it likely would. Is illegal immigration a felony-level crime?

 

The constitution cannot supercede rights, but the government certainly can and will infringe those rights in some cases.