Saturday, July 11, 2009

McDonald/NRA v. Chicago: Primal animal salivation

Ok, I haven't posted to this blog in a very, very long time, but I don't blog anywhere else, so I just had to state how absolutely amazingly awesome it will be for anyone interested in constitutional law (which, after all, is anyone who reads this blog--or any law blog for that matter) if the Supreme Court grants cert. in the Chicago guns case AND phrases a question for review on whether the Slaughterhouse Cases should be overturned. We are talking about a whole bunch of things here at the same time, really almost none of which have to do with firearms and the second amendment (that was all figured out in Heller last year).

A brief summary of the issues the Court would maybe delve into:

  • Original meaning in 1791 vs. original meaning in 1868 and how to "figure that out;"
  • Incorporation through the Due Process Clause vs. Privileges or Immunities Clause;
  • (perhaps) unenumerated liberties and how they relate to the P or I Clause and (even more perhaps) the Ninth Amendment;
  • The purpose of the 14th Amendment in relation to the failure of state police protection;
  • The Doctrine of Vested Rights;
  • Locke vs. Hobbs on the State of Nature;
  • The import of Corfield v. Coryell, (CC. Pa. 1825) on the meaning of the P or I Clause;
  • Just how damn radical the radical Republicans of the Reconstruction Congress were.
I don't think any case since the Warren Court has put more primordial, man-vs-state, N(n)atrual L(law) principles before the justices, and perhaps no case since Slaughterhouse itself. For the sake of con law junkies everywhere I desperately hope the Court will grant cert on the P or I issue. My dream outcome would be a majority that solidly overturns Slaughterhouse (that's all one can hope for anyway), and then a bunch of concurring opinions that set up the issues for the next time, regarding what other "rights," "privileges" or "immunities" the Court will recognize and apply to the states.

If anyone would like to add to the above bullet points please be my guest. The Law Professors' brief in support of cert. illustrates just what is at stake.

Also, 34 states have signed on to amicus briefs (33 on one, California in its own) asking that the Second Amendment be incorrporated against them. Has this ever happened before? I can't imagine that in any previous case regarding incorporation that 68% of all states have asked that additional restrictions be placed on their "sovereignty." Any knowlege on if there is any similar precedent?

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