The petitioners in McDonald v. Chicago, the Supreme Court case challenging Chicago's handgun ban, filed their merits brief yesterday, and it's a doozy. Rather than just citing the well-established Due Process Clause of the Fourteenth Amendment, the brief invokes the long-dead Privileges and Immunities Clause and seeks to overturn three 19th-century Supreme Court cases. From SCOTUSblog:
In a bold thrust, the attorneys for the challengers to Chicago's strict handgun ban asked the Court to strike down three of its prior rulings: the Slaughterhouse Cases in 1873 - the ruling that made the privileges clause a nullity - and two decisions limiting the Second Amendment to a restriction only on federal laws: U.S. v. Cruikshank in 1876 and Presser v. Illinois in 1886.Â "Faced with a clear conflict between precedent and the Constitution, this Court should uphold the Constitution," the brief argued.
The brief spends only seven pages addressing the Due Process Clause. Over at the Volokh Conspiracy, Orin Kerr is impressed by the novel approach:
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.
Or, to put it another way, it's like calling a pass play on fourth and two on your own 28*. But like any good gamble, there are heavy rewards if the petitioners win out. Lower courts cited the Cruikshank and Presser decisions in ruling the Second Amendment only applied to the federal government. If the Supreme Court overturns those antiquated decisions (Cruikshank also rather quaintly ruled that the First Amendment did not apply to the states), it will definitively close a line of argument used for decades to restrict Second Amendment rights.â€¨ One good sign for the petitioners: The Court hinted that it didn't consider Cruikshank good law when it struck down D.C.'s handgun ban in 2008.â€¨ The city of Chicago now has 30 days to file its merits brief. You can read the full petitioner's brief here.
â€¨*Which was the correct decision according to The Numbers.â€¨â€¨â€¨â€¨â€¨