Legal Commentary

Commentary on the Briefing in McDonald v. City of Chicago

By Orin Kerr

The latest issue of the libertarian magazine Reason has an interesting essay by Brian Doherty on the briefing in McDonald v. City of Chicago, the Second Amendment incorporation case. Notably, the article includes the responses of Alan Gura, counsel for McDonald, to those who have disagreed with his approach to briefing the case. In response to the amicus briefs in favor of incorporation (that is, in favor of Gura?s client) but on narrower grounds, Gura states:

Nobody has a legitimate reason to fear a faithful interpretation of the Constitution, and nobody has any legitimate reason to fear effective and complete protection of civil rights. There are people who do fear what they might perceive to be a bad case following from the decision in McDonald, but the fact a future court might make an erroneous decision is no excuse to make an erroneous decision in this case. . . . I think clearly some of these people [who want McDonald to win without overturning Slaughterhouse] are not really interested in securing the right to arms, . . . so much as they are interested in constraining civil rights in other ways.

The article then summarizes some of the posts we?ve had here at the VC on the briefing of the case, together with Gura?s response to it:

Kerr thinks there is no way the current Supreme Court will accept Gura?s arguments. Kerr?s colleague at Volokh.com, the anarcho-libertarian legal theorist Randy Barnett, thinks Kerr?s points don?t hold up. . . . .

Gura also thinks Kerr?s take on the strategy is mistaken. Gura tells me that he?s merely asking the Court to actually deal with the explicit language and meaning of the 14th Amendment. ?It is always helpful when the Court decides cases based on the Constitution?s text and history. That way even those who might disagree can take comfort in knowing the Court actually addressed the meaning of the Constitution. It would make not just the opinion in McDonald more stable and accepted, generally speaking this approach increases people?s confidence in the Court. And we could get the 14th Amendment that we?ve always been meant to enjoy.?

Full post as published by The Volokh Conspiracy on December 05, 2009 (boomark / email).