Con Law Center Amicus Briefs

Document Type

Court Filing

Publication Date

2-2009

Abstract

The parties—and the district court below—all agree that the threshold question in this case is whether the individual right to bear arms recently recognized by the Supreme Court in District of Columbia v. Heller, and applied in the context of the federal government and the District of Columbia, must also be protected against state infringement. In modern Supreme Court jurisprudence, the most common means of “incorporating” rights enumerated in the Bill of Rights against the states has been under the Due Process Clause of the Fourteenth Amendment. However, the textually and historically accurate approach to determining whether the Fourteenth Amendment protects an individual right to keep and bear arms is to look to the Privileges or Immunities Clause of the Fourteenth Amendment. Undertaking this inquiry, amici submit to the Court that it is clear that the framers of the Fourteenth Amendment sought to constitutionally protect an individual right to keep and bear arms against state infringement, in large part because they wanted the newly freed slaves to have the means to protect themselves, their families and their property against well-armed former rebels. Precedent does not preclude the Court from following this constitutionally faithful method of incorporation. While the Slaughter-House Cases read the Privileges or Immunities Clause so narrowly as to render it practically meaningless— completely ignoring the contrary text, history and purpose of the Fourteenth Amendment—and its progeny stand for the proposition that the Fourteenth Amendment does not apply the Bill of Rights to the states, this line of precedent has been so completely undermined by subsequent Supreme Court incorporation decisions that there no longer remains any justification for its continued application.

Publication Title

United States Court of Appeals for the Seventh Circuit

Download

Share

COinS