Brief of Constitutional Law Professors as Amici Curiae in Support of Petitioners, McDonald v. City of Chicago, No. 08-1521 (U.S. Nov. 23, 2009).

Authors

• Richard L. Aynes, University of Akron School of LawFollow
• Jack M. Balkin, Yale Law School
• Randy E. Barnett, Georgetown University Law Center
• Steven G. Calabresi, Northwestern University
• Michael Kent Curtis, Wake Forest University Law School
• Michael A. Lawrence, Michigan State University College of Law
• William Van Alstyne, William & Mary Law School
• Adam Winkler, UCLA School of Law

Document Type

Court Filing

Publication Date

11-23-2009

Abstract

The question in this case is whether the individual right to keep and bear arms recently recognized in District of Columbia v. Heller, and held applicable to the federal government, must also be protected against state infringement. The textually and historically accurate way to determine if the states must respect an individual right to keep and bear arms is to examine the meaning of the Privileges or Immunities Clause of the Fourteenth Amendment. Amici submit to the Court that the original meaning of the Privileges or Immunities Clause protected substantive, fundamental rights against state infringement, including the constitutional right of an individual to keep and bear arms. Indeed, the framers of this Clause specifically desired to protect the right to bear arms so that newly freed slaves and unionists would have the means to protect themselves, their families and their property against well-armed former rebels and chose language whose meaning would accomplish this end. Precedent does not preclude the Court from adopting this faithful interpretation. The Slaughter-House Cases and its progeny, which held that the Fourteenth Amendment does not apply the Bill of Rights to the states, have been completely undermined by subsequent Supreme Court decisions. Reviving the Privileges or Immunities Clause and limiting Slaughter-House and its progeny would bring this Court's jurisprudence in line with constitutional text and a near-unanimous scholarly consensus on the history and meaning of the Clause. Slaughter-House read the Privileges or Immunities Clause so narrowly as to essentially read it out of the Amendment, but "[virtually no serious modern scholar-left, right, and center-thinks that this is a plausible reading of the Amendment." Akhil Reed Amar, Substance and Method in the Year 2000, 28 PEPP. L. REV. 601, 631 n.178 (2001).

Publication Title

United States Court of Appeals for the Seventh Circuit

Recommended Citation

Aynes, Richard L.; Balkin, Jack M.; Barnett, Randy E.; Calabresi, Steven G.; Curtis, Michael Kent; Lawrence, Michael A.; Van Alstyne, William; and Winkler, Adam, "Brief of Constitutional Law Professors as Amici Curiae in Support of Petitioners, McDonald v. City of Chicago, No. 08-1521 (U.S. Nov. 23, 2009)." (2009). Con Law Center Amicus Briefs. 12.
https://ideaexchange.uakron.edu/conlawakronamicus/12