NRA 7th Cir Cert Pet

8/14/2019 NRA 7th Cir Cert Pet

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S~Dr~me C ourt, U.S.

No. ~E:. FICE OF THE CLER~I N T H E

N A TIO N A L R IF LE A S S O CIA TIO N O F A M ERICA , IN C. , et a].Petdtdoners

Vo

C ITY OF C HIC AGO AN D VILLAGE OF OAK P AR K,Re5pondent8

ON PETITION FOR A WRIT OF CERTIOP, ARITO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

STEPHEN P. HALBROOK*3925 Chain Bridge Road, Suite 403Fairfax, VA 22030(703) 352-7276Counsel for Petitioners*Counsel of Record[Additional counsel listed on inside cover.]


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William N. HowardFreeborn & Peters LLP311 South Wacker Drive, Suite 3000Chicago, Illinois 60606(312) 360"6415Stephen A. KolodziejBrenner, Ford, Monroe & Scott, Ltd33 North Dearborn Street, Suite 300Chicago, IL 60602(312) 781-1970


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QUESTION PRESENTEDW h e t h e r t h e r i g h t o f t h e p e o p l e t o k e e p a n d b e a r

arms guaranteed by the Second Amendment to theU n i t e d S t a t e s C o n s t i t u t i o n i s i n c o r p o r a t e d i n t o t h eDue Process Clause or the Privileges or ImmunitiesCl ause of the Fourteenth Amendment so as to beapplicable to the States, thereby inval idatingo r d i n a n c e s p r o h i b i t i n g p o s s e s s i o n o f h a n d g u n s i n t h ehome.


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PARTIES TO PROCEEDING

Petitioner National Rifle Association ofAmerica, Inc. ("NRA"), is a corporation which has noparent corporation. No publicly held company owns10% or more of the corporations stock. Petitioners inAr]~ v. Cit.v oChicago, No. 08"4241, also include thenatural persons Dr. Kathryn Tyler, Van F. Welton,and Brett Benson. Petitioners in N_P.A v. I~illage oOa/~ Park, No. 08"4243, also include the naturalpersons Robert Klein Engler and Dr. Gene A.Reisinger.

ii


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1 1 1

TABLE OF CONTENTSPage

QUESTION PRESENTED ...................

PARTIES TO PROCEEDING ................i iTABLE OF AUTHORITIES ..................OPINIONS BELOW ........................ 1JURISDICTION ........................... 1CONSTITUTIONAL ORDINANCES ...........1STATEMENT OF THE CASE ................

( i ) P r o c e e d i n g s i n t h e C o u r t s B e l o w . . . . . . 1(ii ) Statement of Facts .................2

ARGUMENT: THE WRIT SHOULD BEGRANTED TO RESOLVE THE CIRCUITCONFLICT AND TO DECIDE WHETHERTHE FOURTEENTH AMENDMENTINCORPORATES THE SECOND

AMENDMENT SO AS TO MAKE ITAPPLICABLE TO THE STATES .............CONCLUSION ........................... 25


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ivAPPENDIXOpinion of the U.S. Court of Appeals,June 2, 2009 ............................ la

Order of the U.S. Court of Appeals denyingpetition for initial hearing en banc,May 6, 2009 ............................ llaOrder of dismissal by the U.S. District Court,National Rifle Ass~ v. City of Chicago,Jan. 14, 2009 ........................... 13aOrder of dismissal by the U.S. District Court,National RitIe Ass~ v. Vlllage of Oak Park,Jan. 14, 2009 ........................... 15a

Memorandum Opinion by the U.S. DistrictCourt, Jan. 14, 2009 ......................17aConstitution and Ordinances

U.S. Const., Amend. II ...............24aU.S. Const., Amend. XIV, 1 ..........24aMunicipal Code of Chicago, 8-20-030(k),8-20-040, 8"20-050(c), 8-20-250 ........ 24a

Oak Park Municipal Code, 27-1-1(excerpts), 27-2-1, 27-4-1, 27-4-3, 27-4-4 . 27a


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viDred Scott v. Sandford, 19 How. 393,15 L. Ed. 691 (1856) ......................23

Duncan v. Louisiana, 391 U.S. 145 (1968) ..... 10Georgia v. Rachel, 384 U.S. 780 (1966) ........ 18Gltlow v. New York, 268 U.S. 652 (1925) ....... 8Griswold v. Connecticut, 381 U.S. 479 (1965) .. 17Hurtado v. G~alifornia, 110 U.S. 516 (1884) .... 11Jones v. Alfred H. Mayer Co., 392 U.S. 409(1968) .................................. 17

Katzenbach v. Morgan, 384 U.S. 641 (1966) .... 19Lawrence v. Texas, 539 U.S. 558 (2003) .... 12 , 13Love v. Pepersack, 47 F.3d 120 (4th Cir. 1995) .. 4Malloy v. Hogan, 378 U.S. 1 (1964) ............ 7Maloney v. Cuomo, 554 F.3d 56 (2nd Cir. 2009) .. 4Mapp v. Oh]o, 367 U.S. 643 (1961) ............ 9Miller v. Texas, 153 U.S. 535 (1894) ....... 5, 6, 7


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viiMonell v. Department oSocial Services,436 U.S. 658 (1978) ........................ 5Nordyke v. K~ng, 563 lL3d 439(gth Cir. 2009) .................. 4, 6, 7, 15, 16Nunn v. State, 1 Ga. 243 (1846) ............. 14Palko v. Connecticut, 302 U.S. 319,58 S. Ct. 149, 89. L. ]~d. 288 (1937) ......... 6, 11Patsy v. Board of Regents, 457 U.S. 496 (1982) 21Peoples Pdghts Organization, Inc. v. City ofColumbus, 159. F.3d 59.2 (6th Cir. 1998) ....... 4

Planned Parenthood v. Casey, 505 U.S. 833(1992) ................................... 8Plyler v. Doe, 457 U.S. 209. (1982) ............ 19Pointer v. Texas, 380 U.$. 400 (1965) .......... 8Presser v. Illinois, 116 U.S. 252 (1886) ....... 5, 7Ouilici v. Village of Morton Grove,695 F.2d 261 (Tth Cir. 1982), cert. denied,464 U.S. 863 (1983) ........................ 6Ragonts of University of Cnhfornia v. Bakke,438 U.S. 265 (1978) .......................17


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oooVIII

Reynolds v. Sims, 377 U.S. 533 (1964) ........ 19Rinzler v. Carson, 262 So. 2d 661 (Fla. 1972) ... 15Saenz v. Roe, 526 U.S. 489 (1999) ...... 22, 23, 24Slaughter-House Cases, 83 U.S. (16 Wall.) 36(1873) ................................... 7State v. Chandler, 5 La. Ann. 489 (1850) ...... 14State v. Duke, 42 Tex. 455 (1875) ............ 15State v. Kerner, 181 N.C. 574, 107 S.E. 222(1921) .................................. 15Thomas v. City Council of Portland,730 F.2d 41 (1st Cir. 1984) .................. 4Ullmann v. United States, 350 U.S. 422 (1956) 12United States v. Cruikshank, 92 U.S. 542(1876) ............................... 5, 6, 7United States v. Emerson, 270 F.3d 203(Sth Cir. 2001), cert. denied, 536 U.S. 907(2002) ................................... 7Valley Forge Christian College v. AmericansUnited for Separation of Church & State, Inc.,454 U.S. 464 (1982) .......................12


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ixWashington v. Glucksberg, 521 U.S. 702 (1997) 17

Wolv. Colorado, 338 U.S. 25 (1949) ........... 9

U.S. CONSTITUTIONU.S. Const., Amendment I ..........5, 6, 8, 9, 23U.S. Const., Amendment II ..............assimU.S. Const., Amendment IV .............5, 8, 9U.S. Const., Amendment V ..............10, 11U.S. Const., Amendment VI .................8U.S. Const., Amendment VII ................12U.S. Const., Amendment XIV ............assim

STATUTESCivil Rights Act of 1866, 14 Stat. 27 (1866) .....Civil Rights Act of 1871, 17 Stat. 13 (1871) ....Freedmans Bureau Act, 14 Stat. 176-177(1866)

1821


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28 U.S.C. 1254(1) .........................28 U.S.C. 133142 U.S.C. 198142 U.S.C. 1983

1

ORDINANCESMunicipal Code of Chicago, 8-20-030(k) ....... 1Municipal Code of Chicago, 8-20-040 ......... 1Municipal Code of Chicago, 8-20-040(a) ....... 3Municipal Code of Chicago, 8"20-050(c) ..... 1, 3Municipal Code of Chicago, 8"20-250 ......... 1Oak Park Municipal Code, 27-1-1 ....... 1, 3, 4Oak Park Municipal Code, 27-2-1 ......... 1, 3Oak Park Municipal Code, 27-4-1 ............1Oak Park Municipal Code, 27-4-3 ............1Oak Park Municipal Code, 27"4-4 ............1


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xiLEGISLATIVE MATERIALS

Cong. Globe .............5, 17, 18, 19, 21, 22, 24H.R. Rep. No. 37, 41st Cong., 3d Sess. (1871) ... 21Mass. H.R. Dec. No. 149 (1867) ..............20Public Laws of the State of South Carolina(1790) .................................. 142 Proceedings of the Black StateConventions, 1840"1865 (1980) .......... 19, 20

OTHER AUTHORITIESS. Halbrook, The Founders Second Amendment(2008) ............................... II, 13S. Halbrook, Freedmen, the FourteenthAmendment, & the Rzght to Bear Arms,1866-1876(1998) ............. 14, 16, 17, 19, 20

S. Halbrook, That Every Man Be Armed:The Evolution era Constitutional Right(1984) 11

D. Hardy, "Original Popular Understandingof the 14th Amendment as Reflected in thePrint Media of 1866-68," 30 WhittierL. Rev. __ (2009) ......................... 19


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x iiTl~e Loyal Georgian, Feb. 3, 1866, at 1 ........ 19G. Paschal, Tl~e Constitution o tl~e United~qtates 256 (1868) ......................... 20

H. St. George Tucker, Commentaries on tl~eLaws oVlrginia 43 (1831) ................. 14

E. Volokh, "State Constitutional Rightsto Keep and Bear Arms," 11 Texas Rev.of Law & Politics 191 (2006) ............. 14, 15


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OPINIONS BELOW

The opinion of the court of appeals i s notr e p o r t e d a t t h e t i m e o f t h i s w r i t i n g a n d i s p r i n t e d i nthe Appendix ("App.") at la. The unreported orderd e n y i n g t h e p e t i t i o n f o r i n i t i a l h e a r i n g e ~ b a n c i s a tApp. 11a. The distri ct courts unreportedmemorandum opinion, App. 17a, is available at 2008WL 5 111163.

JURISDICTION

On June 2, 2009, the court of appeals renderedjudgment affirming the district courts orderdismissing the complaint. This Court has jurisdictionunder 28 U.S.C. 1254(1).

CONSTITUTION AND ORDINANCESThe texts of the following are in the Appendix:

U.S. Const., Amends. II and XIV, 1; Municipal Codeof Chicago, 8-20-030(k), 8-20-040, 8-20-050(c), 8-20-250; Oak Park Municipal Code, 27-1-1 (excerpts),27-2-1, 27-4-1, 27"4"3, 27-4-4.

STATEMENT OF THE CASE

(i) Proceedings in the Courts BelowPetitioners National Rifle Association ofAmerica, Inc. ("NRA") et M., filed a complaint against


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the City of Chicago and a complaint against theVillage of Oak Park on June 27, 2008, the day afterthis Court rendered its seminal decision in District ot"Columbia v. Heller, 128 S. Ct. 2783 (2008). Thecomplaints alleged that the ordinances of saidmunicipalities prohibiting possession of any handgun,including in the home, violated the Second andFourteenth Amendments of the United StatesConstitution.The district court had jurisdiction under 28U.S.C. 1331. In a memorandum opinion and orderdated December 4, 2008, the district court held thatthe Second Amendment is not applicable to the Statesthrough the Fourteenth Amendment and grantedjudgment on the pleadings in favor of the City ofChicago and Village of Oak Park. Final judgmentswere rendered on December 18, 2008. Timely noticesof appeal were filed.

On May 6, 2009, the court of appeals denied apetition for an initial on bane hearing. On June 2,2009, the court of appeals issued an opinion that it wasbound by certain nineteenth-century precedents of thisCourt, and that only this Court could decide whetherthe Second Amendment applies to the States throughthe Fourteenth Amendment. The court of appealsaffirmed the judgments of dismissal by the courtbelow.

(ii) Statement of FactsThe City of Chicago prohibits possession of a


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firearm unless it is registered, but provides that nohandgun may be registered. Municipal Code ofChicago, 8-20-040(a), 8-20-050(c). The Village ofOak Park makes it unlawful to possess any "firearm,"which it defines as a handgun. Oak Park MunicipalCode, 27-2"1, 27-1-1.But for the ordinances, the individual plaintiffswould forthwith keep handguns in their homes for selfprotection and other lawful purposes. Some plaintiffsown handguns which they must store outside thesejurisdictions, and other plaintiffs would acquirehandguns if lawful to keep at home. In addition tohaving numerous members in the same predicamentwho reside in Chicago and Oak Park, the NationalRifle Association has numerous members who lawfullytransport firearms but may not do so through thosemunicipalities.

ARGUMENTTHE WRIT SHOULD BE GRANTED TO RESOLVETHE CIRCUIT CONFLICT AND TO DECIDEWHETHER THE FOURTEENTH AMENDMENTINCORPORATES THE SECOND AMENDMENT SOAS TO MAKE IT APPLICABLE TO THE STATES

The court of appeals decided an importantquestion of federal law that has not been, but shouldbe, settled by this Court, and did so in a way thatconflicts with relevant decisions of this Court. Holdingthat a prohibition on possession of handguns violates


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the Second Amendment, District of Columbia v. Heller,128 S. Ct. 2783, 2813 n.23 (2008), stated that thisCourts nineteenth century cases "did not engage inthe sort of Fourteenth Amendment inquiry required byour later cases." The court of appeals here did notengage in that inquiry and instead opined that onlythis Court may decide whether the Second Amendmentis incorporated into the Fourteenth Amendment. App.2a-4a.

In addition, the decision at bar conflicts withdecision of another United States court of appeals onthe same important matter. Nordyke v. King, 563F.3d 439 (9th Cir. 2009), held that the SecondAmendment is incorporated into the Due ProcessClause of the Fourteenth Amendment so as to beapplicable to the States. The court of" appeals herejoins other courts of.appeal in holding that it does not.l

1. This Court has never ruled on whether theSecond Amendment applies to the States through the

1See also Bach v. Patak~ 408 F.3d 75, 85 (2nd Cir. 2005)(rejecting incorporation); accord, M aloney v. Cuomo, 554 F.3d 56,58-59 (2rid C ir. 2009). O ther courts of appeal have also rejectedincorporation, but they also held that the Second Amendmentonly protects a "collective" militia right, which Hellerrejected infavor of an individual-rights approach. See Thom as v. CityCouncil oPortland , 730 F.2d 41, 42 (lst Cir. 1984) ("secondamendment grants right to the state, not the individual"); Love v.Pepersack, 47 F.3d 120, 124 (4th Cir. 1995) ("the SecondAmendment preserves a collective, rather than individual, right");Peoples Rights Or ganization, Inc. v. City of Columbus, 152 F.3d522, 539 n.18 (6th Cir. 1998).


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Fourteenth Amendment. It held that the First,S e c o n d , a n d F o u r t h A m e n d m e n t s d o n o t a p p l y d i r e c t l yto the States. Unlted States v. Cruiksha~k, 92 U.S.542, 552"53 (1876); Presser v. Ilhnols, 116 U.S. 252,265 (1886); Miller v. Texas, 153 U.S. 535, 538 (1894).Each of these decisions relied on the pre-FourteenthAmendment decision in Barton v. Mayor of BMtimore,7 Pet. 243, 8 L. Ed. 672 (1833).2

Mlller refused to consider whether the Secondand Fourth Amendments apply to the States throughthe Privileges or Immunities Clause of the FourteenthAmendment because it was not raised in the trialcourt.3

This Court noted inHelle~. "With respect toCruikshan]is continuing validity on incorporation,.. we note that Cruikshank also said that the FirstAmendment did not apply against the States and didnot engage in the sort of Fourteenth Amendment

2"Representative [John] Bingham... explained that hehad drafted 1 of the Fourteenth Amendment with the case ofBar.on v. Mayo~ of Baltmore, 7 Pet. 243 (1833), especially inmind." Monell v. Dept o~qociM ~qervices, 436 U.S. 658, 686-87(1978). On the same page of that speech, Bingham characterized"the right of the people to keep and bear arms" as one of the"limitations upon the power of the States... made so by theFourteenth Amendment." Cong. Globe, 42nd Cong., 1st Sess.,App. 84 (Mar. 31, 1871).

3 " I f ] f t h e f o u r t e e n t h a m e n d m e n t l i m i t e d t h e p o w e r o f t h estates as to such rights [to bear arms and against warrantlesss e a r c h a n d s e i z u r e ] , a s p e r t a i n i n g t o c i t i z e n s o f t h e U n i t e d S t a t e s ,w e t h i n k i t w a s f a t a l t o t h i s c l a i m t h a t i t w a s n o t s e t u p i n t h et r i a l c o u r t . " M H / e r , 1 5 3 U . S . a t 5 3 8 .


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7Nordyk~ recognized the Second Amendment to bes e l e c t i v e l y i n c o r p o r a t e d i n t o t h e D u e P r o c e s s Cl a u s e o fthe Fourteenth Amendment. Id. at 457.5

2. This C ourt should grant the writ andd e t e r m i n e w h e t h e r t h e r i g h t a t i s s u e i s i n c o r p o r a t e d ."The Court has not hesitated to re-examine pastd e c i s i o n s a c c o r d i n g t h e F o u r t e e n t h A m e n d m e n t a l e s sc e n t r a l r o l e i n t h e p r e s e r v a t i o n o f b a s i c l i b e r t i e s t h a nthat which w as contemplated by i ts Framers whenthey added the Amendment to our constitutionalscheme." Malloy v. Hogan, 378 U.S. 1, 5 (1964). AsHeller, 128 S. Ct. at 2816, states:[N]othing in our precedents forecloses our

adoption of the original understanding ofthe Second Amendment. It should beunsurprising that such a significantmatter has been for so long judiciallyunresolved. For most of our history, theBill of Rights was not thought applicableto the States .... Other provisions of theBill of Rights have similarly remainedunilluminated for lengthy periods.

s Cruikshank, Presser, and M///er "came well before theSupreme Court began the process of incorporating certainprovisions of the first eight amendments into the Due ProcessClause of the Fourteenth Amendment, and.., they ultimatelyrest on a rationale equally applicable to all those amendments.. ." United States v. Emerson, 270 F.3d 203, 221 n.13 (5~ Cir.2001), cert. denied, 536 U.S. 907 (2002) (holding that the SecondAmendment protects individual fights).


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"IT]he Second Amendment, like the First andFourth Amendments, codified a preexisting right.The very text of the Second Amendment implicitlyrecognizes the pre-existence of the right ....128 S. Ct. at 2797. ttellerexplains:The very enumeration of the right takes

out of the hands of government.., thepower to decide on a caseby-case basiswhether the right is really worthinsisting upon Like the First, it [theSecond Amendment] is the very productof an interestbalancing by the people... And whatever else it leaves to futureevaluation, it surely elevates above allother interests the right of law-abiding,responsible citizens to use arms indefense of hearth and home.

128 S. Ct. at 2821He//er held as a matter of law that "the inherent

right of self-defense has been central to the SecondAmendment right" 128 S. Ct. at 2817. The right tohave arms allows one to protect life itself, and theSecond Amendment declares its purpose to be "thesecurity of a free state."

Blackstone "cited the arms provision of the[English] Bill of Rights as one of the fundamentalrights of Englishmen." tteller, 128 S. Ct. at 2798.

W olfv. Colorado, 338 U .S. 25, 27"28 (1949) (the "security of onesprivacy against arbitrary intrusion by the police"), r~vd , on othergrounds, M app v. O /~o, 367 U.S. 643 (1961).


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l0"By the time of the founding, the right to have armshad become fundamental for English subjects." Id.

"In resolving conflicting claims concerning themeaning of this spacious language, the Court haslooked increasingly to the Bill of Rights for guidance;many of the rights guaranteed by the first eightAmendments to the Constitution have been held to beprotected against state action by the Due ProcessClause of the Fourteenth Amendment." Duncan v.L o u i s i a n a , 3 9 1 U . S . 1 4 5 , 1 4 7 - 4 8 ( 1 9 6 8 ) .

" A r i g h t t o j u r y t r i a l i s g r a n t e d t o c r i m i n a ldefendants in order to prevent oppression by theGovernment." Duncan, 391 U.S. at 155-56. TheSecond Amendment also prevents oppression: " whent h e a b l e - b o d i e d m e n o f a n a t i o n a r e t r a i n e d i n a r m sa n d o r g a n i z e d , t h e y a r e b e t t e r a b l e t o r e s i s t t y r a n n y . "H e l l e r , 1 2 8 S . C t . a t 2 8 0 1 .

Benton v. Maryland, 395 U.S. 784, 794 (1969),held "that the double jeopardy prohibition of the FifthAmendment represents a fundamental ideal in ourconstitutional heritage" and is thus incorporated."IT]his Court has increasingly looked to the specificguarantees of the (Bill of Rights)" as to incorporationand "has rejected the notion that the FourteenthAmendment applies to the States only awatered-down, subjective version of the individualguarantees of the Bill of Rights .... " Id. at 794(citations omitted).8The guarantee against double

~ B e n t ~ n Od.) overruled the more narrow, subjective testin Palko v. Connecticut, 302 U.S. 319, 324-25 (1937), which asked


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lljeopardy was fundamental because it could "be tracedto Greek and Roman times," it was "established in thecommon law of England," and "was carried into thejurisprudence of this Country through the medium ofBlackstone, who codified the doctrine in hisCommentaries." Id. at 795. The same is true of theSecond Amendment.9

While most procedural guarantees of the Bill ofRights have been incorporated, the grand juryindictment clause has not. That is because, asHurtado v. Ca]ifornia, 110 U.S. 516, 532 (1884),explained, general maxims such as due process "mustbe held to guaranty, not particular forms of procedure,but the very substance of individual rights to life,liberty, and property.~

Nor has the Seventh Amendment right to jurytrial in civil cases where the value in controversyexceeds $20. "The Court has not held that the right to

if"the specific pledges of particular amendments have been foundto be implicit in the concept of ordered liberty .... "~ S e e Heller, 128 S . C t. at 2792, 2798-99, 2805 (discussionof Blackstone and the comm on law); S. Halbrook, Thst Every M anBe Armed : The E volution ors Consti tutional Raght 9"20 (1984)(recognition of right to have arms in Greek and Roman law andphilosophy); S. Halbrook, The Founders,qecondAmendment 25-26, 114, 293 (2008) (Founders reliance on right to arms inwritings of Aristotle and Cicero).10,,Although the D ue Process C lause guarantees petitionera fair trial, it does not require the States to observe the FifthAmendments provision for presentment or indictment by a grandjury." Alexand er v. State of Louisiana, 405 U.S. 625, 633 (1972).


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12jury trial in civil cases is an element of due processapplicable to state courts through the FourteenthAmendment." Curtis v. Loether, 415 U.S. 189, 192 n.6(1974).Substantive guarantees in the Bill of Rights arenot subject to the question of whether a particularprocedure is necessary for due process. In recognizingsubstantive Bill of Rights guarantees to beincorporated, the Court has relied on their status assuch rather on subjective values to determine if aconstitutional right is really important.

The Second Amendment does not represent aninferior right which a court may subjectively relegateas beneath the usual rules of incorporation. "To viewa particular provision of the Bill of Rights withdisfavor inevitably results in a constricted applicationof it. This is to disrespect the Constitution." Ullmannv. Ur~ited States, 350 U.S. 422, 428"29 (1956). Noconstitutional right is "less fundamental than" others,and "we know of no principled basis on which to createa hierarchy of constitutional values .... " Val IeyForgeChristian College v. Americans United for SeparationoChurch & State, Inc., 454 U.S. 464, 484 (1982).This Court has held that the FourteenthAmendment guarantees various activities that arenon-textual. E.g., Lawrence v. Texas, 539 U.S. 558(2003) (same-sex sodomy).~ It would be incongruous

ills wren~has a lesson for this case: "Liberty protects theperson from unwarranted government intrusions into a dwellingor other private places. In our tradition the State is notomnipresent in the home." Id. at 562.


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14other two had legal traditions consistent therewith.16Revision of their constitutions in 1867-68 left eight ofthe ten states with arms guarantees, three of whichexpanded the guarantee from "the free white men" to"the people" or "the citizens"; the two States that didnot had court decisions or legal traditions consistenttherewith.~7 Stephen P. Halbrook, Freedmen, theFourteenth Amendment, & the Right to Bear Arms,1866"1876, at 90"98 (1998).Currently, fortyfour states have constitutionalguarantees for the right to arms, and no stateconstitution denies the right.~8 Eugene Volokh, "StateConstitutional Rights to Keep and Bear Arms," 11Texas Rev. of Law & Politics 191, 193-205 (2006). Inthe Heller case, 31 states formally declared that "theright to keep and bear arms is fundamental and so isproperly subject to incorporation." BriefAmici Curiaeof the States of Texas, et al., Supreme Court No. 07-

l~Henry St. George Tucker, Comm entaries on the Lsws ofVirglnia 43 (1831) ("the right of bearing arms.., is practicallyenjoyed by every citizen, and is among his most valuableprivileges, since it furnishes the means of resisting as a freemanought, the inroads of usurpation"); Pubhc La ws o the ~qt~te of~qouth Carolina (1790), App., 13 ("Subjects Arms" in English Billof R ights).

17They included Virginia and Louisiana.1~C Bartkus v. Illinois, 359 U.S. 121, 124-25 (1959)(expressing reluctance to incorporate procedural guarantees

where a significant number of states had conflicting procedures),overrru led on o ther grounds, Benton v . M ary land, 395 U.S. 784(1969).


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15290, at 23 n.6. "In the judgment of amici States, theright to keep and bear arms is so rooted in thetraditions and conscience of our people as to be rankedas fundamental." Id. (citation omitted).

Helle~s "common use" test is firmly groundedin State tradition. Rinzler v. Carson, 262 So. 2d 661,666 (Fla. 1972), held protected arms to be those that"are commonly kept and used by law-abiding people forhunting purposes or for the protection of their personsand property, such as semi-automatic shotguns,semi-automatic pistols and rifles."19

Nordyke, the only case to apply this Courtsmodern Fourteenth Amendment jurisprudence to theSecond Amendment, held:We therefore conclude that the right to

keep and bear arms is "deeply rooted inthis Nations history and tradition."Colonial revolutionaries, the Founders,and a host of commentators andlawmakers living during the first onehundred years of the Republic all insistedon the fundamental nature of the right... Colonists relied on it to assert and to

win their independence, and thevictorious Union sought to prevent a

~9~ee~ /soS~e ~ , . DuJke, 42 Tex. 455, 458-59 (1875) ("sucharms as are commonly kept, according to the customs of thepeople, and are appropriate for open and manly use in self-defense"); State ~,. Kerner , 181 N.C. 574, 107 S.E. 222, 224 (1921)("all arms as were in common use"; "pistol ex vi termini isproperly included within the word arms=).


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16recalcitrant South from abridging it lessthan a century later. The crucial role thisdeeply rooted right has played in ourbirth and history compels us to recognizethat it is indeed fundamental, that it isnecessary to the Anglo-Americanconception of ordered liberty that wehave inherited. We are thereforepersuaded that the Due Process Clause ofthe Fourteenth Amendment incorporatesthe Second Amendment and applies itagainst the states and local governments.

563 F.3d at 457.3. "In the aftermath of the Civil War, there was

an outpouring of discussion of the Second Amendmentin Congress and in public discourse, as people debatedwhether and how to secure constitutional rights fornewly free slaves." Heller, 128 S. Ct. at 2809-10, citingHalbrook, F~eedmen, the Fourteenth Amendment, &the Raght to Best Arms, 1866"1876 (Praeger 1998).The Black Codes passed by the Southern Statesprohibited possession of firearms by AfricanAmericans, and a primary purpose of the FourteenthAmendment was to prevent such State deprivation ofSecond Amendment rights. Id. at 2809-11.2

More evidence exists that the Second2See also Bel l v . M arylan d, 378 U.S. 226, 247"48 & n.3(1964) (Douglas, J., concurring)(FourteenthAmendment intendedto eradicate the black codes, under which "Negroes were not

allowed to bear arms.").


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17Amendment was intended to be i ncorporated thanexists for any other right. The same twothirds ofCongress that passed the Fourteenth Amendmente n a c t e d t h e F r e e d m e n s B u r e a u A c t , 2 ~ a n d b o t h s o u g h tt o g u a r a n t e e t h e s a m e r i g h t s . 2 2 T h e A c t p r o v i d e d t h a t" t h e r i g h t . . , t o h a v e f u l l a n d e q u a l b e n e f i t o f a l l l a w sa n d p r o c e e d i n g s c o n c e r n i n g p e r s o n a l l i b e r t y , p e r s o n a lsecurity, and the acquisiti on, enjoyment, andd i s p o s i t i o n o f e s t a t e , . . , i n c l u d i n g t h e c o n s t i t u t i o n a lr i g h t t o b e a r a r m s , s h a l l b e s e c u r e d t o a n d e n j o y e d b ya l l t h e c i t i z e n s . . . . " 1 4 , 1 4 S t a r . 1 7 6 - 1 7 7 ( 1 8 6 6 ) .T h e r i g h t s t o " p e r s o n a l l i b e r t y " a n d " p e r s o n a l s e c u r i t y "are protected by the Fourteenth Amendment.23S i m i l a r l y , t h e C i v i l R i g h t s A c t o f 1 8 6 6 , 1 4 S t a r .2 7 ( 1 8 6 6 ) ( t o d a y s 4 2 U . S . C . 1 9 8 1 ) a l s o p r o t e c t e d t h e" f u l l a n d e q u a l b e n e f i t o f a l l l a w s a n d p r o c e e d i n g s f o rthe security of person and property ...., 2 4 T h e

21Halbrook, Freedmen, 41-42. ~ee CONG. GLOBE, 39thCong., 1st Sess. 3842, 3850 (July 16, 1866).

22Jones ~,. Alfied H. Mayez" Co., 392 U.S. 409, 423-24, 436(1968); t~egen t.s o Ur~iversitj, o Califo~nia v. Bakke, 438 U.S. 265,397-98 (1978) (Marshal], J.).

2 3 S e e Wastangt.on r. Ellucksberg, 521 U.S. 702, 714 (1997)("lhe right to life and to personal security is not only sacred in theestimation of the common law, but it is inalienable") ( citationo m i t t e d ) ; G r i s w o l d v . C o n r ~ e c t J c u t , 3 8 1 U . S . 4 7 9 , 4 8 4 n . * ( 1 9 6 5 )( t h e " i n d e f e a s i b l e r i g h t o f p e r s o n a l s e c u r i t y , p e r s o n a l l i b e r t y a n dp r i v a t e p r o p e r t y " ) .

24,, 14 of the amendatory Freedmens Bureau Act... re-enacted, in virtuall y identical terms for the unreconstructed


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18Fourteenth Amendment was needed because, as Rep.G e o r g e W . J u l i a n e x p l a i n e d , t h e C i v i l R i g h t s A c t

is pronounced void by the jurists andc o u r t s o f t h e S o u t h . F l o r i d a m a k e s i t amisdemeanor for colored men to carryw e a p o n s w i t h o u t a l i c e n s e t o d o s o f r o ma probate judge, and the punishment oft h e o f f e n s e i s w h i p p i n g a n d t h e p i l l o r y . . . C u n n i n g l e g i s l a t i v e d e v i c e s a r e b e i n gi n v e n t e d i n m o s t o f t h e S t a t e s t o r e s t o r es l a v e r y i n f a c t .

CONG. G L O B E , 3 9 t h C o n g . , 1 s t S e s s . 3 2 1 0 ( 1 8 6 6 ) .Introducing the Fourteenth Amendment in the

Senate, Jacob Howard distinguished the "privilegesand immunities of citizens" in Article IV of theC o n s t i t u t i o n f r o m " t h e p e r s o n a l r i g h t s g u a r a n t e e d a n dsecured by the first eight amendments of theC o n s t i t u t i o n ; s u c h a s . . . t h e r i g h t t o k e e p a n d b e a ra r m s . . . . " C O N G . G L O B E , 3 9 t h C o n g . , 1 s t S e s s . 2 7 6 5( 1 8 6 6 ) . H o w e v e r , t h i s " m a s s o f p r i v i l e g e s , i m m u n i t i e s ,a n d r i g h t s " d i d n o t r e s t r a i n t h e S t a t e s . I d . " T h e g r e a tobject of the first section of this amendment is,therefore, to restrain the power of the States andcompel them at all times to respect these greatf u n d a m e n t a l g u a r a n t e e s . " I d . a t 2 7 6 6 .

Howards speech is weighty authority for themeaningofthe FourteenthAmendment. Plyler v. Doe,457 U.S. 202, 214"15 (1982) (How ard was "explicitabout the broad objectives of the Amendment");

Southern States, the rights granted in 1 of the Civil Rights Actof 1866." C~org~a v. R ~che], 384 U.S. 780, 797 n.26 (1966).


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19Reynolds v. Sims, 377 U.S. 533, 600 (1964) (quotingHoward on "those fundamental rights lying at thebasis of all society"). Howards explanation of theEnforcement Clause "was not questioned by anyone inthe course of the debate." Katzenbach v. Morgan, 384U.S. 641, 648 n.8 (1966). Nor did anyone question hisstatement that the Amendment would protect the Billof Rights guarantees that he mentioned, including theright to keep and bear arms.

The Fourteenth Amendments framers reflectedthe Nations views. The fundamental character of theright to keep and bear arms was evident nationwide inview of the plight of the freedmen who were deprivedof this right. It was expressed in debates, hearings,reports, proclamations, trials, letters, Stateconventions, and newspapers.2~ Halbrook, Freedmen,chapters 1-4.

African Americans were advised that "you havethe same right to own and carry arms that othercitizens have." The Loyal Georgian, Feb. 3, 1866, at 1,quoted in Halbrook, Freedmen, 19. The FreedmensBureau proclaimed: "All men, without distinction ofcolor, have the right to keep and bear arms to defendtheir homes, families or themselves." Id. See also 2Proceedings ot# the Black State Conventions, 1840"1865, at 302 (1980) (petition to Congress in 1866 thatSecond Amendment rights be protected from

2~See David T. Hardy, "Original Popular Understandingof the 14th Amendment as Reflected in the Print Media of 1866-68," 30 Whittier L. Rev. __ (2009),http://works.bepress.com/david_hardy/5/.


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2Odeprivation by State of South Carolina).

State ratification records express theunderstanding of the Second Amendment as protectingfundamental rights. The Committee on FederalRelations in the Massachusetts General Court quotedthe Second Amendment and other guarantees andstated: "Nearly every one of the amendments to theconstitution grew out of a jealousy for the rights of thepeople, and is in the direction, more or less direct, of aguarantee of human rights .... [T]hese provisionscover the whole ground of section first of the proposedamendments." Mass. H. R. Doc. No. 149, at 3 (1867),quoted in Halbrook, Freedmen , 71-72.

"This clause [the Second Amendment] . . . isbased on the idea, that the people cannot be oppressedor enslaved, who are not first disarmed." George W.Paschal, The Constitution of the United States 256(1868). "The new feature declared [by the FourteenthAmendment] is that the general principles which hadbeen construed to apply only to the nationalgovernment, are thus imposed upon the States." Id at86.

The Framers broadly referred to the right tohave arms as being among the rights, privileges, andimmunities protected by the Fourteenth Amendment.Patsy v. Board of Regents, 457 U.S. 496, 503 (1982),quoted Rep. Dawes on the judicial protection of"theserights, privileges, and immunities" codified in the CivilRights Act of 1871, todays 42 U.S.C. 1983. Dawesidentified them in part as follows:

He has secured to him the right to keep


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21and bear arms in his defense ....It is allthese, Mr. Speaker, which arecomprehended in the words, "Americancitizen," and it is to protect and to securehim in these rights, privileges andimmunities this bill is before the House.

CONG. GLOBE, 42nd Cong., 1st Sess., 475-76 (Apr. 5,1871).26

4. In their complaints, Petitioners rely on boththe Due Process Clause and the Privileges orImmunities Clause as protecting the arms right.Historically, this Court rejected incorporation underthe Privileges or Immunities Clause, and selectivelyincorporated rights through the Due Process Clause.Petitioners claim that the arms right is protectedunder either or both clauses.

Application of this Courts jurisprudence under

26Pats.T, 457 U.S. at 504-06, further relied on the speechesof Rep. Butler, Rep. Coburn, and Senator Thurman. In relatedstatements each of them held the right to arms to be among the"rights, immunities, and privileges" guaranteed in theConstitution. H.R. Rep. No. 37, 41st Cong., 3d Sess., 3 (1871)(Butler); CO NG . G LO BE, 42d C ong., 1st Sess., 459 (1871) (Coburr0;id., 2d S ess., A pp. 25-26 (1872) (Thurman).

"Opponents of the bill also recognized this purpose andcomplained that the bill would usurp the States power." Pataj,,457 U.S . at 504 n.6 (citing R ep. Whitthorne). On the page cited bythe Court, Whitthorne stated that under the civil rights bill, ff apolice officer seized a pistol from a "drunken negro," then "theofficer may be sued, because the right to bear arms is secured bythe Constitution." CON G. G LO BE, 42d Cong., 1st Sess. 337 (1871).


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22the Due Process Clause easily brings the SecondAmendment into the incorporation tent. Should thisC o u r t w i s h t o r e e v a l u a t e i t s j u r i s p r u d e n c e u n d e r t h ePrivileges or Immunities Clause, this would be ana p p r o p r i a t e c a s e i n w h i c h t o d o s o .

Saenz v. Roe, 526 U.S. 489, 502 n.15 (1999),explained about the Privileges or Immunities Clause:The Framers of the FourteenthAmendment modeled this Clause uponthe "Privileges and Immunities" Clausefound in Article IV. Cong. Globe, 39thCong., 1st Sess., 1033-1034 (1866)(statement of Rep. Bingham).On the same pages of that speech, Binghamnoted that previously "this immortal bill of rights

embodied in the Constitution, rested for its executionand enforcement hitherto upon the fidelity of theStates," but that some States "have violated in everysense of the word those provisions of the Constitution.... " Id. at 1033-34. The next day, Robert Haleargued that the first ten amendments were "a bill ofrights for the protection of the citizen," which already"limit[ed] the power of Federal and State legislation."Id. at 1064. Bingham responded that the proposedamendment would "arm the Congress . . . with thepower to enforce this bill of rights as it stands in theConstitution today." Id. at 1088.

Saenz, 526 U.S. at 502 n.15, continued in itsdiscussion about the Clauses background:InDred Scott v. Sandford, 19 How. 393,15 L. Ed. 691 (1856), this Court had


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l i m i t e d t h e p r o t e c t i o n o f A r t i c l e I V t orights under state law and concludedt h a t f r e e b l a c k s c o u l d n o t c l a i mcitizenship. The Fourteenth Amendmentoverruled this decision. TheAmendments Privi leges or ImmunitiesClause and Citizenship Clauseguaranteed the rights of new ly freedb l a c k c i t i z e n s b y e n s u r i n g t h a t t h e y c o u l dc l a i m t h e s t a t e c i t i z e n s h i p o f a n y S t a t e i nwhich they resided and by precludingthat State from abridging their rights ofnational citizenship.Indeed, L)red Scott stated, 19 How. at 416"17,

that if African Americans were citizens, they wouldenjoy First and Second Amendment rights:

For if they [blacks] were.., entitled tothe privileges and immunities of citizens,it would exempt them from the operationof the special laws and f~om the policeregulations which they considered to benecessary for their own safety. It wouldgive to persons of the negro race.., thefull liberty of speech in public and inprivate upon all subjects upon which itsown citizens might speak; to hold publicmeetings upon political affairs, and tokeep and carry arms wherever they went.By thus overruling the 1)red ~;cott decision, the

Fourteenth Amendment invalidated the "special laws"and "police regulations" passed by the States which


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24violated the rights to speech, assembly, and arms.27

Dissenting in Saenz, 526 U.S. at 527-28, JusticeThomas wrote:

Because I believe that the demise of thePrivileges or Immunities Clause hascontributed in no small part to thecurrent disarray of our FourteenthAmendment jurisprudence, I would beopen to reevaluating its meaning in anappropriate case. Before invoking theClause, however, we should endeavor tounderstand what the Framers of theFourteenth Amendment thought that itmeant.In the context of this case, the Framers intended

the Privileges or Immunities Clause to protect theright to keep and bear arms and other rights fromState infringement. This case presents a ready vehiclefor this Court to reevaluate the Clause.

CONCLUSIONThis Court should grant this petition for a writ

of certiorari.

2~Senator Reverdy Johnson opposed the privileges-or-immunities clause "because I do not understand what will be theeffect of that." CONG. GLOBE, 39th Cong., 1st Sess. 3041 (1866).Yet he was counsel for the slave owner in l~redScottand was thusfully aware of such passages as the above.


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Respectfully submitted,S T E P H E N P . H A L B R O O K *3925 Chain Bridge Road, Suite 403Fairfax, VA 22030(703) 352-7276*Counsel of RecordWilliam N. HowardFreeborn & Peters LLP311 South Wacker Drive, Suite 3000Chicago, Illinois 60606(312) 360-6415Stephen A. Kolodziej ~.Brenner, Ford, Monroe & Scott, Ltd33 North Dearborn Street, Suite 300Chicago, IL 60602(312) 781-1970Counsel for Petitioners

Documents

NRA 7th Cir Cert Pet