Gura Files Petitioner’s Brief in McDonald, Spends 7 Pages on Due Process, The Rest on Privileges or Immunities

Check out Alan Gura’s petitioner brief to the Supreme Court in McDonald v. Chicago

Lyle Denniston has this summary from SCOTUSBlog:

Reflecting the lawyers’ view that their best chance is to rely upon the privileges clause of the Fourteenth Amendment, only seven pages of their 73-page brief are devoted to another provision of that Amendment: the Due Process Clause.

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.  “Faced with a clear conflict between precedent and the Constitution, this Court should uphold the Constitution,” the brief argued.

The Slaughterhouse precedent, “and its unavoidable progency, Cruikshank and Presser,” the brief said, “established that the States could continue to violate virtually all privileges and immunities of American citizens, including those codified in the Bill of Rights, notwithstanding that [the Fourteenth Amendment] Section One’s clear textual command to the contrary.”

I just skimmed the brief, and I am very, very impressed by Gura’s approach. As Ilya Shapiro and I discuss at great length in our forthcoming article, titled Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment, the Privileges or Immunities Clause is a vastly superior means for incorporating the Second Amendment.

I’ll blog about this some more later.

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One Response to “Gura Files Petitioner’s Brief in McDonald, Spends 7 Pages on Due Process, The Rest on Privileges or Immunities”

  1. troll_dc2 Says:

    Who did the bulk of the work on the article (which I intent to read down to the last footnote)?


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