The NRA files a brief in the U.S. Supreme Court case of McDonald v. Chicago, making a powerful argument in defense of the Second Amendment.

by Dave Kopel

Later this year, the U.S. Supreme Court will decide whether the Second Amendment applies to state and local governments. NRA members can be proud of the fine brief filed on their behalf by a team of attorneys led by Stephen D. Poss and Stephen Halbrook.

Before getting into the brief, let’s look at some background. In June 2008, the Supreme Court decided District of Columbia v. Heller, ruling the Second Amendment applies to “the people,” not just the militia; therefore, the Washington, D.C. handgun ban was ruled unconstitutional.

The D.C. Council is, in effect, an arm of the federal government, because all of the Council’s powers are mere delegations of Congress’ total power to govern the nation’s capital. Thus, the Supreme Court in D.C. v. Heller did not decide whether the Second Amendment applies to state or local governments.

In the 1833 case Barron v. Baltimore, the Supreme Court ruled the Bill of Rights only limits the federal government. After the Civil War, Congress passed and the states ratified the 14th Amendment, which was intended to make the Bill of Rights apply to the states. Congress was especially determined to make states obey the Second Amendment because Congress was outraged the Southern states had enacted “black codes,” which forbade freedmen from possessing arms.

Two provisions of the 14th Amend-ment addressed the problem. One says, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

Unfortunately, the Supreme Court quickly nullified the Privileges or Immunities clause in the Slaughter-House Cases (1873) and United States v. Cruikshank (1876).

The second clause in the 14th Amend- ment mandates: “nor shall any State deprive any person of life, liberty, or property, without due process of law.” The principle of “due process of law,” as understood by the framers of the 14th Amendment and by Americans all the way back to James Madison, included some substantive limitations on government power.

For example, if a government passed a law that said, “All people with last names beginning with ‘A’ or ‘B’ must pay $500 each to the government, and the money will be redistributed to persons whose last names begin with ‘X,’ ‘Y’ or ‘Z,’” that law would be a violation of the Due Process clause.

Even if the law had been passed with proper procedures--such as a recorded vote by the legislature following a public hearing--the law would be void because it would be beyond the legitimate powers of government.

Starting in 1895, the Supreme Court began to use the 14th Amendment’s Due Process clause to make some provisions of the Bill of Rights enforceable against state governments. Because local governments derive power from the states, a constitutional restriction on state governments automatically applies to local governments also.

Under the Supreme Court’s doctrine of “selective incorporation,” the court chooses which parts of the Bill of Rights will be applied to the states.

For example, the Eighth Amendment’s prohibition on “cruel and unusual punishment” has been incorporated, but not the amendment’s ban on excessive fines.

Immediately after Heller was decided, the NRA filed a lawsuit, NRA v. City of Chicago, challenging Chicago’s handgun ban.

The winning attorney in Heller, Alan Gura, filed a separate case on the same issue, McDonald v. Chicago. The federal Seventh Circuit Court of Appeals consolidated the two cases and ruled in favor of the handgun ban last June (See “U.S. Supreme Court Revisits the Second Amendment,” Dec. 2009).

Then in September, the Supreme Court announced it would hear the McDonald case.

The Supreme Court said the attorneys should present arguments on whether the handgun ban should be considered unconstitutional under the Privileges or Immunities clause or under the Due Process clause.

Because the NRA had been a party in the consolidated case in the Seventh Circuit, the NRA was included in the Supreme Court case as a party. Formally, the NRA is a “Respondent in Support of Petitioner.”

As a party challenging the handgun ban, the NRA filed its brief on Nov. 16. In early 2010, the NRA will file a reply brief that will respond to arguments raised by Chicago. The January 2010 NRA brief, will also respond to arguments in amicus curiae (non-party) briefs filed in support of Chicago.

McDonald’s attorney, Alan Gura, devoted his brief mainly to the Privileges or Immunities question.

The NRA brief, however, concentrates on Due Process and is the product of an extremely strong legal team. Lead counsel Stephen D. Poss is a senior partner at the corporate law firm Goodwin Procter LLP, and is co-chair of the firm’s national Securities Litigation Practice.

Several other Goodwin Procter lawyers volunteered to help on the brief, including partner Kevin Martin and associate Joshua Lipshutz, both of whom served as clerks for Supreme Court Justice Antonin Scalia (the author of the Heller decision).

All the Goodwin Procter lawyers contributed their services pro bono, meaning that they worked free of charge as public service volunteer work in a major civil rights case. Poss and his Goodwin Procter colleagues previously did pro bono work in writing the amicus briefs for the NRA Firearms Civil Rights Defense Fund in Heller, and in New York v. Beretta, Mayor Bloomberg’s abusive lawsuit against firearm manufacturers.

Of course, NRA lawyers also participated in the McDonald brief. Poss explained NRA General Counsel Robert Dowlut and NRA-ILA Deputy Executive Director and General Counsel David Lehman “... played key roles assisting the briefing team with edits and ideas. David Lehman’s first child was born while we were working on the brief and he e-mailed us from the hospital!” Indispensable to the brief was Stephen Halbrook, who led the NRA case in the federal district court and court of appeals, and who is the world’s leading scholar on congressional protection of the right to arms during Reconstruction.

Poss recounted, “one of the special pleasures” of working on the brief “was the opportunity to collaborate with Steve Halbrook.” Much of the brief summarizes what Poss calls Halbrook’s “extensive research and writings on the primary importance of the Second Amendment to the framers of the 14th Amendment, who were concerned about stopping the disarming and terrorizing of newly freed slaves in the Reconstruction South following the Civil War.”

Part I of the NRA brief begins, accurately: “More evidence exists that the Right to Keep and Bear Arms referenced in the Second Amendment was intended and commonly understood to be protected by the Fourteenth Amendment than exists for any other element of the Bill of Rights.”

Providing all this evidence would fill a book--and has already. Namely, Stephen Halbrook’s Freedmen, the Fourteenth Amendment, and the Right to Bear Arms