NRA Reply Brief in MacDonald

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I thought the NRA should have avoided the motion for divided time in the oral argument; but they absolutely needed to file a reply brief. It gave us a nice advantage here since between Gura's brief for SAF/McDonald and Halbrook's brief for the NRA, they covered virtually every possible angle to incoporating the Second Amendment.

However, I disagree with you on the NRA brief being an easier read. However, they were both top notch briefs from top notch lawyers. I will be very disappointed if any of the Justices vote against incorporation after seeing the arguments here (though I do expect to be disappointed since I believe that some of the Justices will allow their personal policy preferences to override what the law says).
 
(though I do expect to be disappointed since I believe that some of the Justices will allow their personal policy preferences to override what the law says).
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Actually, Gura's main argument is to OVERTURN the current law (Slaughterhouse Cases) and incorporate the 2nd Amendment through the Privileges and Immunities Clause (instead of the Due Process clause that has been used to incorporate other amendments). So, at the current time, the law's position is not in our favor. We must hope that the Justices realize the Slaughterhouse Cases were decided improperly and overturn them, not follow the law.
 
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So, at the current time, the law's position is not in our favor.
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That is why this vote will be telling about the Justice's personal policy preferences. Gura has made a very strong case for P&I; but even if the Justices discount P&I, we still have the closest thing you can have to an airtight case for incorporation of the Second Amendment through selective due process. If you summarize the test for due process incorporation, it uses almost identical language to the preamble of the Second Amendment. You don't often get that kind of happy coincidence in law.

For a Justice to oppose incorporation entirely they will need to ignore all of the scholarship with regard to Slaughterhouse and ignore the basic fundamentals of due process incorporation. A Justice voting against us will need to ignore and uphold the racist precedent established by Slaughterhouse and Cruikshank AND ignore all the previous precedent regarding due process incorporation.

So they really are between a rock and a hard place, if they think stare decisis is so important that it justifies upholding racist precedent on par with Dred Scott, then they should also respect stare decisis with regard to due process incorporation.

We must hope that the Justices realize the Slaughterhouse Cases were decided improperly and overturn them, not follow the law.
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We can still win (defining a win as applying the Second Amendment to the States) without the Justices overturning Slaughterhouse. The Justices might vote to overturn Cruikshank but not Slaughterhouse for a partial P&I win. Or the Justices might vote for Due Process incorporation. Or the Justices could have a plurality vote (3 for P&I and 3 for due process = 6 vote majority). So we still have a lot of ways to win even if Slaughterhouse does not get overturned.

Overturning Slaughterhouse is only important if you want to later use the P&I clause to reinvigorate the type of rights discussed in Corfield, which has the potential to be a big deal for libertarians, though whether it will end up being their dream or their nightmare remains to be seen.
 
So they really are between a rock and a hard place, if they think stare decisis is so important that it justifies upholding racist precedent on par with Dred Scott, then they should also respect stare decisis with regard to due process incorporation.
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This is really what has me so optimistic about the result being in favor of incorporating the 2A against the states. Hell, it seems to be such a powerful argument overall that even the Brady folks themselves have practically conceded it; their amicus brief not actually being in support of Chicago per se (if I've understood it correctly).
 
The thing to remember is for the SC, in many way this case is only peripherally about 2A which makes it particularly difficult to handicap

The case, depending upon where the individual SCJ falls in personal belief, has the potential to move and redefine substantial chunks of constitutional law both on the "left" and the "right".

Apart from everyone's favorite racist piece of legal garbage with the Slaughterhouse Cases as well Presser and Cruikshank, Miller v Texas, US v Miller etc etc.....

General re-invigoration of the 14th Amendment as a whole
Limits and extent of State v Federal powers
Potential direct impact on "interstate commerce" fun and games
Direct challenges to Lautenberg
etc

These and other issues simply don't map to a "Pro 2A" v "Anti 2A" tendency and cut variably across the political spectrum.

No matter the result it'll be a wild ride....:cool:
 
I agree, the liberal justices are really between a rock and a hard place and how they vote will be very telling on how strongly they object to the private ownership of firearms IMHO.

You can argue all you want as to allowing the government the ability to protect citizens but doing so ignores so many rights and the other side of the "society safety" argument that, IMHO, you simply have to have an irrational fear of firearms to vote against Gura's arguments.
 
MacDonald should be 9-0 but it will be 5-4.

Anyone true to the Constitution understands that the 14th was meant to make the Bill of Rights apply to the States.

The Liberal Justices, however do not care about the Constitution. This is why they rely on the abomination called "Selective Incorporation". Let's them do what they want when they want it.
 
Bushmaster

<.........>

The history of selective incorporation has sod all to do with "Liberal Justices" and much to do with "Conservative Justice" racism during the post Reconstruction period.

The doctrine of selective incorporation was in use as far back as Barron v Baltimore in 1833 with its nadir with Slaughterhouse and Cruikshank in 1873 and 1876 respectively.

Pretty sure none of the current justices were born, never mind active justices then.
 
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Anyone true to the Constitution understands that the 14th was meant to make the Bill of Rights apply to the States.
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I disagree. My impression is that the 39th Congress would not have passed an amendment which made the USBOR binding upon the States. Of course, I am aware that some few radicals (Bingham, Howard, Wilson) expressed such an intent, but it seems like a short cut through the facts to conclude that this was the consensus view.
 
I disagree. My impression is that the 39th Congress would not have passed an amendment which made the USBOR binding upon the States. Of course, I am aware that some few radicals (Bingham, Howard, Wilson) expressed such an intent, but it seems like a short cut through the facts to conclude that this was the consensus view.
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:rolleyes: Well, anyone interested in having this debate with Hugh can find numerous previous threads and the Briefs, Reply Brief, and Amicus Briefs from McDonald for plenty more on that subject.

However, may I suggest that such a conversation deserves its own thread or PM since this thread is about the NRA reply brief in McDonald (which was primarily about Due Process incorporation anyway)?
 
This is all way over my head, but it seems like some of you are stating that the P&I aspect of this case may be enticing to some of the more liberal Justices, as well as Thomas. If these (4) Justices see that the outcome is going to be in favor of McDonald, with say 4 incorporation votes through DP and 1 through P&I, is it possible that the 4 dissenting Justices would change to a vote in favor of McDonald through P&I? Seems like that would keep it from being a total loss for those Justices.
 
Az_imuth

As an example and this is VERY VERY VERY broad brushstroke

Scalia has (frequently but not invariably) been more of a "states right" person and voted for Heller

Ginsberg has (frequently but not invariably) been more of a "Federal Government" person and voted against Heller

McDonald, by the questions asked, will (potentially) strip a particular and central section of law from the control of the several states.

So, for Ginsberg and Scalia, do they swap their 2A stance for a stronger belief in another area
 
I disagree. My impression is that the 39th Congress would not have passed an amendment which made the USBOR binding upon the States. Of course, I am aware that some few radicals (Bingham, Howard, Wilson) expressed such an intent, but it seems like a short cut through the facts to conclude that this was the consensus view.
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One of the reasons for the 14th was to give the freed slaves the right to bear arms so they could protect themselves from being lynched by the military wing of the Democrat Party.

The Attorneys General of every state that seceded from the Union have signed on to a brief in support of the 2nd Amendment applying to the States!

The North knew then it was making the south toe the line and the southern states knew then that the Federal Government was making them toe the line.

The only ones who forgot are the Liberals.
 
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The Attorneys general of every state that seceded from the Union has signed on to a brief in support of the @nd Amendment applying to the States!
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Unlike hugh, they probably figure that their states are part of the Union now.
 
We must hope that the Justices realize the Slaughterhouse Cases were decided improperly and overturn them, not follow the law.
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Cbrgator, I disagree. The United States Constitution is the law, improvident prior opinions should not be followed. Will I see you at the Federalist Society's Lunch with Gura tomorrow?
 
Yeah, stare decisis isn't "the law". Past decisions have been overturned, and for that matter, I don't believe there is any law that requires the court to respect stare decisis at all.
 
Armed Bear said:
Yeah, stare decisis isn't "the law". Past decisions have been overturned, and for that matter, I don't believe there is any law that requires the court to respect stare decisis at all.
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There certainly is nothing in the Constitution about stare decisis. Since no two cases are exactly alike, using stare decisis robs someone of their full day in court.

Woody
 
A new theory?

First of all I am not a lawyer but neither am I completely ignorant of the law so what I am about to say next may be meaningless.

After reading several of the briefs about the Slaughter House Cases and the other antebellum SCOTUS cases that gutted the true meaning of the Privileges or Immunities clause of the XIV Amendment a thought occurred to me. Could it be that the Justices that ruled for the majority in those cases deliberately and knowingly ignored the true meaning of the P&I clause because they were radical racists who wanted to deprive all former slaves of their Civil and Natural rights that would have been protected under the P&I clause?

I have never read this anywhere but I would not be surprised if others have not thought of it before me. If this could be proved then surely it would guarantee the restoration of the P&I clause to its proper place in American Jurisprudence.

The only way I can think to prove this would be to either study the life of these Justices to see if they left any evidence of racism in their lives or better yet obtain copies of their private journals or diaries where they had admitted as much. ( if indeed they had )

Just a thought but after having read the briefs and other articles about the P&I clause I cannot see where anyone who is a serious student of the Law could possibility not see that the antebellum SCOTUS was mistaken about the P&I clause.
 
When Warren Burger became Chief, a clerk he inherited from Warren snidely asked him what is view of stare decisis was, trying to uphold the Warren era. Burger replied that he would deffer to stare decisis to the same degree Warren had.
 
Cbrgator, I disagree. The United States Constitution is the law, improvident prior opinions should not be followed. Will I see you at the Federalist Society's Lunch with Gura tomorrow?
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Wouldn't miss it.

And you are right that obviously the Constitution is the law. And OF COURSE I agree the Slaughterhouse Cases should be overturned. I was merely explaining to another member that the current jurisprudence in this area, at least with respect to Privileges and Immunities, was currently not on our side.
 
and so we wait, as we must do even before this debate. It seems to me the question of our time must and will be whether Obama will have an opportunity to revise the constitution (philosophical bent) of the SC.

This is what must be done before liberal congressional advantage can truly manifest our fears.

So while we might hope for inclusion, and a final end to the debate and erosion of rights we fear, as Slaughter and it's evils can be overturned, so might Heller and any advances we claim by appointment to a life term?

Should we not first and foremost be concerned about appointments of young liberals and the upset of an already delicate balance in the SCOTUS? This is where power might truly shift.
 
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To a large extent, stare decisis preserves the power of the Supreme Court. There's no point in agonizing over a decision if you know that a future court will simply throw it out if they don't like it.

It's not law, but you can bet that if they consider their decisions important they will do what they can to respect and uphold the rulings of earlier courts because that strengthens their own decisions at the same time.

That's not to say that an old SCOTUS decision can't be overturned--but it is to say that it's going to happen very rarely.
 
and so in a like way, there is an inherent demotivation to overturning the ruling of any previous court.

and so we wait................
 
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and so in a like way, there is an inherent demotivation to overturning the ruling of any previous court.
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There sure is. Overturning prior decisions happens, but they rarely in engage in the practice. Doing so on any regular basis would undermine the legitimacy of the court (or at the very least, the perception of its legitimacy)... something they tend to take seriously.
 
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