More Friends of the Second Amendment: A Walk through the Amicus Briefs in McDonald v. Chicago

Abstract

This Article summarizes each of the dozens of amicus brief filed in McDonald v. City of Chicago, the case regarding the extension of the right to keep and bear arms to the states. That was perhaps the most interesting question at issue here, but there were others too, with activists, think tanks, politicians, and concerned citizens of all stripes filing 50 amicus briefs (fourth all-time). Many focused on the Due Process versus Privileges or Immunities issue, while others discussed the incorporation of rights generally - treating the debate over Fourteenth Amendment clauses as an academic technicality. Disappointingly, many of the respondents’ amici insisted on re-litigating Heller, arguing about the meaning of the historic right to keep and bear arms and its relationship to militia service. One or more of petitioners’ amici might similarly be criticized for running a Heller victory lap, essentially saying that the individual Second Amendment right is so important that it just has to be incorporated. And, of course, several amici got into a duel, as it were, over the social science evidence regarding effectiveness of gun bans and related issues. The amici (32 for the challengers to the handgun ban, 16 for Chicago, and two styled as not taking sides) not only echo the fundamental disagreement on the nature of the right to keep and bear arms and the role of the federal courts in protecting it, but extend it. Perhaps the most striking, and quite possibly influential, brief was provided by the “Constitutional Law Professors”: anything that brings together conservative, progressive, and libertarian lions - e.g., Steven Calabresi, Jack Balkin, and Randy Barnett, respectively - merits serious consideration. (Full disclosure: I was involved in discussions surrounding that and several other briefs regarding the original understanding of the Fourteenth Amendment and how the Constitution protects rights against state usurpation generally - and of course I signed the Cato Institute’s brief, which was principally authored by Timothy Sandefur of the Pacific Legal Foundation.) I hope that, when read in the light of the Court’s opinions in the case, this Article can serve as a guide for counsel and parties in the litigation over how much states can regulate the right to keep and bear arms that has already been launched.

Keywords: McDonald, amicus briefs, Second Amendment, Fourteenth Amendment, Privileges or Immunities, Due Process, Chicago, gun control, incorporation, self-defense