Tuesday, November 17, 2009

The Petitioners in McDonald are "arguing for a revolution"

Law Prof Orin Kerr reported yesterday at Volokh that the petitioners in McDonald v. City of Chicago - the Second Amendment case pending before the Supremes, which presents the issue whether the Second Amendment applies against the states (and their political subdivisions, such as the city) - "filed their merits brief." I haven't read it yet, but Prof. Kerr characterizes the brief as "truly remarkable" in that its primary argument seeks to overturn the Slaughterhouse Cases, an 1873 decision in which the Supremes narrowly construed the Privileges or Immunities Clause:

[The brief] devotes 55 pages to arguing that the Supreme Court should overturn The Slaughterhouse Cases (1873) and embark on a new era of a newly rejuvenated Privileges or Immunities Clause. It then gives a mere seven pages, at the very end of the brief, to applying existing doctrine and arguing that the Second Amendment is incorporated and applies to the states under the Due Process clause. It’s certainly an attention-getting way to brief the case. It’s not just arguing for a win: It’s arguing for a revolution.

The photo at the top depicts a group of freedmen in Richmond, Virginia in April 1865.

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