The question presented is Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment’s Privileges or Immunities or Due Process Clauses.
I haven’t read all of the briefs, but I wonder if any of them pointed out that there is a document that “incorporates” the Second Amendment against the States. It’s called the Constitution of the United States of America. In fact, that document would have never passed had they not added the first ten amendments to the Constitution known as the inalienable Bill of Rights.
After all, Sotomayer said in her confirmation hearing that the Constitution and the words of the founding fathers should be the most important factor in any court decision.
During a slow week at the Court, the amicus briefs filed Monday in the gun rights case McDonald v. Chicago continue to be the biggest news. At Balkinization, David Gans describes the “overwhelming case” made by the Constitutional Accountability Center in its amicus brief (of which he is a co-author) for the Court to rejuvenate the Privileges or Immunities Clause; at the same time, Gans aims to quell concerns that such a move would endanger the constitutional rights of non-citizens. Douglas Berman of Sentencing Law and Policy sifts through the briefs for arguments about criminal justice implications. And at The Volokh Conspiracy, Orin Kerr segues from originalist arguments in the briefs to a discussion of originalism and the Sixth Amendment right to counsel.
The Jurist notes the filing of other amicus briefs yesterday in the terrorism support case Holder v. Humanitarian Law Project.
The WSJ Law Blog discusses the judicial takings theory advanced by the petitioners in Stop the Beach, Inc. v. Florida Department of Environmental Protection, to be argued next week. (You can read Elisabeth Oppenheimer’s preview of the case for Scotuswiki here.)