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November 24, 2009

Seeking help working though the Second Amendment amicus briefs filed in McDonald

As SCOTUSblog notes here, many amici briefs in support of applying the Second Amendment to state and local laws were filed yesterday in the McDonald case, and many of these amici filings are linked at via this Chicago Gun Case webpage (and many are also being noted and discussed at The Volokh Conspiracy).  Including the merits briefs, I now count 34 briefs filed in the McDonald case.

Especially because I consider Second Amendment incorporation pretty much a fait accompli (as explained here), I am checking out these McDonald briefs mostly to see what they might be saying for the really hard Second Amendment questions on the horizon, especially concerning traditional law enforcement and sentencing issues.  I am looking, for example, to see if any amici who call Second Amendment rights "fundamental" explain whether and why all felons and some misdemeanants can be severely criminally punished simply for seeking to exercise a fundamental right.  Similarly, I wonder if any amici arguments in McDonald might undermine the application of severe mandatory minimum sentencing terms for mere gun possession in certain settings.

Based on a quick scan of who submitted filings, the following briefs caught my eye as potentially worth a close read by those thinking about the possible criminal justice implications of McDonald:

In addition, I notice that at least these two amicus briefs directly engage with the all-important "standard of review" question that has already caused some problems in lower courts:

  • Amicus Brief by the Nordyke Plaintiffs (urging SCOTUS to discuss review standards)
  • Amicus Brief by the Brady Center(urging SCOTUS to declare "that regulations of firearms are not subject to strict scrutiny, but instead are subject to a deferential, reasonableness standard of review")

By flagging this set of amicus briefs, I do not mean to imply that all the others are not worthy of time and attention.  Indeed, as the title of this post is meant to indicate, I am eager to get assistance and insights from others concerning which (if any) of the filings in McDonald are worthy of extended attention.

A few related new and old Second Amendment posts:

November 24, 2009 at 02:30 PM | Permalink

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