Yesterday, the Petitioner’s merits brief and joint appendix were filed in perhaps the most watched case of this young Supreme Court Term. In McDonald v. City of Chicago, No. 08-1521, the Court will determine whether the Second Amendment right to bear arms is applicable against the states. The case has drawn notable interest from both news media and the legal community.
At issue in McDonald are two constitutional provisions—one well-documented, the other resting in obscurity. The Due Process Clause is an established method for the Supreme Court to hold that a federal right limits state law. Throughout the last sixty years, the Court has held that particular provisions of the Bill of Rights have been “incorporated” into the Due Process Clause of the Fourteenth Amendment. Indeed, almost the entire Bill of Rights, including the right to free speech, to a trial by jury, and to free expression of religion, has been incorporated.
The Court has had no previous opportunity to determine whether the Second Amendment is also incorporated into the Due Process Clause. Before the Court’s decision last year in District of Columbia v. Heller, No. 07-290, the question of whether the Second Amendment conferred an individual right, was open. Now that the question of individual rights has been answered affirmatively, the Court must next decide if the Second Amendment individual right to bear arms applies with equal vigor to state laws, such as Chicago’s ban against handgun possession.
Petitioner contends that the Second Amendment’s historical foundations and its treatment by the states conclusively establish its incorporation into the Due Process Clause. For this reason, Petitioner asked the Court to reverse the Seventh Circuit’s decision.
Although Petitioner requested reversal based on the conventional method of due process, his primary argument rests on the obscure Privileges and Immunities Clause of the Fourteenth Amendment. That provision was effectively rendered meaningless by the Court’s ruling in The Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873)—the infamous decision which has long been called into question by legal scholars.
The McDonald petition argued in no uncertain terms that the Slaughter-House construction of the Privileges and Immunities Clause “was wrong the day it was decided and today stands indefensible.” The merits brief continues with this line of reasoning, arguing that McDonald presents the Court with “a rare opportunity to correct a serious error, honor the Fourteenth Amendment’s true meaning, and bring a needed measure of clarity to