Monday, May 24, 2010

McDonald v. Chicago: Brief for Petitioners, by Ashley

I have tried to synthesize all of our research and notes into one brief so this might be a little rough.

Supreme Court of the United States
No. 08-1521

OTIS MCDONALD, et al., Petitioners,

CITY OF CHICAGO, Respondent.
On Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit



The Constitutional question in this case is whether or not the Second Amendment can be incorporated by the Fourteenth Amendment using the due process clause and the privileges and immunities clause (however, we did not argue to incorporate under this clause so I won’t be mentioning it in this brief)

Our first and most prominent argument is one of substantive due process, which stems from a broader interpretation of the Fourteenth and Fifth Amendments. The Fourteenth Amendment’s due process clause states, “nor shall any State deprive any person of life, liberty, or property, without due process of the law”. Procedural due process would say that if someone is being prosecuted for a crime they must have a fair trial with jurors and they have the right to an attorney, etc. This is the more obvious meaning of the due process clause. However, substantive due process can be implied as well. This protects people’s basic substantive rights as well as their procedural ones. So using this clause you are not only making sure the government’s procedures or process of implementing the law is correct but you are also making sure that the government has justification for taking away your, “life, liberty, or property”. So, not only does the process have to be fair, but also the reasoning for having the process in the first place.

So, how does this relate to incorporation? Well, because of substantive due process there are certain rights that are seen as “fundamental” to “liberty” stated in the Fourteenth Amendment. Basically, these rights are seen as the “liberty” stated in the Fourteenth Amendment. Also “incorporation” doctrine can be used to apply the enumerated rights in the Bill of Rights to the states under Due Process.

We believe that guns are a “fundamental right” that is protected under substantive due process. It can be seen as part of the “liberty” mentioned in the Constitution. The right to a gun is already a protected right under the Constitution in the Second Amendment which states, “A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed” so it is already established as a “fundamental right” to have a gun (affirmed and expanded by District of Columbia v. Heller 128 S. Ct. 2783 (2008) which I will talk about later in this brief) which is clearly stated in the Constitution. Because it is a Constitutional right it can be applied to the states through the Fourteenth Amendment because of the “selective incorporation” doctrine. Also, under substantive due process, you can incorporate the Second Amendment because it is seen as a “fundamental right” that connects with the “liberty” stated in the Fourteenth amendment and cannot be taken away by the government.

There is also proof that the right to posses a gun was a “fundamental right” originally intended by the people writing the Fourteenth Amendment. It was stated by Senator Samuel Pomeroy when debating § 2 of the Fourteenth Amendment that these are the “indispensible safeguards of liberty”: 1) Every man should have a homestead, that is, the right to acquire and hold one, and the right to be safe and protected in that citadel of his love, 2) He should have the right to bear arms for the defense of himself and family and his homestead. And if the cabin door of the freedman is broken open and the intruder enters for purposes as vile as were known to slavery, then should a well-loaded musket be in the hand of the occupant to send the polluted wretch to another world, where his wretchedness will forever remain complete; and 3) He should have the ballot [46]”.

The before-mentioned statement proves that part of the original intent of the Fourteenth Amendment was to allow blacks to posses firearms. So, why would they argue it is a fundamental right for black people if it wasn’t a fundamental right for everyone? The Fourteenth Amendment wanted to expand the rights of the newly freed slaves so why wouldn’t they talk about expanding a right if it wasn’t a right? This shows us that the people writing the Fourteenth Amendment thought the right to posses a firearm was a “fundamental right” for all people. Therefore, the right to bear arms can be incorporated through the Fourteenth Amendment.

Incorporation not only is supported by the very being of the Second Amendment but can also be seen as a “fundamental right” of the people and can be incorporated under substantive due process, which is supported by the intent of the creators of the Fourteenth Amendment.

Our case can also be supported by District of Columbia v. Heller 128 S. Ct. 2783.

The Heller opinion written by Justice Scalia talks about how the right to bear arms doesn’t just apply to the militia, but to “the people” as well. He says that the, “holder of the right [is the] people” and that the, “substance of the right [is to] keep and bear arms” (Scalia’s opinion, 7). In laymen’s terms he is saying that the people hold the right to bear arms. This is expanding what was originally written in the Constitution to apply to the individual as well. So, one can’t argue against incorporation because it’s not seen as a “fundamental right” of “the people”. This decision by the Court states that the “right to keep and bear arms” is the right of “the people” and so we say it should be incorporated under the “selective incorporation” doctrine and “substantive due process”.

The Heller case also puts restrictions on gun ownership. Because of this, incorporating the Second Amendment would not take away all restrictions on gun ownership. The federal and state governments could still place restrictions on guns after the amendment is incorporated like the restrictions placed on free speech after incorporation. So, why can’t the same thing be done for the Second Amendment? Another question that may be asked is why incorporate just to restrict? Well, incorporating the Second Amendment guarantees a right that cannot be taken away. In McDonald v. Chicago the right to a gun was taken away not restricted. We are trying to give people rights and one can do that by incorporation and then by restricting certain areas of the right after incorporation. But incorporation ensures your State government can take no “fundamental rights” away.

To summarize we can use Heller as more constitutional justification for incorporation because it expands the “right to keep and bear arms” to the individual which can be seen as a “fundamental right”. Also, it allows for restrictions on guns. So, if one were to decide to incorporate the Second Amendment one wouldn’t have to worry about guns for all. However, incorporation of this right is the only way to ensure this “fundamental right” won’t be taken away.

I also have some notes taken during moot court as the argument progressed:

  • They eliminated not “restricted” handguns.
  • There were restrictions on the First Amendment but they were after the First Amendment was already incorporated.
  • Why not incorporate this Amendment when almost all of the rest of the Bill of Rights was incorporated?
  • The other side argued that things aren’t the same as they were when the Fourteenth Amendment was written because people aren’t being as heavily discriminated against, however there are still people discriminated against that need to protect themselves like maybe Muslims or criminals from other criminals.
  • Isn’t “self defense” a legal defense, so why can guns be banned under the right of life?
  • It will always be this right vs. life . . . it’s more like your own life vs. someone who’s trying to kill you.

I very much hope everything in the brief made sense.
If any clarifications are needed you can comment and ask a question or e-mail me at

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