by September 4th was the last day to submit a brief in support of the petitioners in Viramontes v. Cook County and Grant v. Higgins. That is because under Supreme Court rules amicus briefs at the merit stage are due no more than seven days after the petitioners have submitted their brief. Amicus briefs in support of neither party must be submitted within the same seven day period after a petitioner or appellant submits their brief.
Given these two cases were the first two the Supreme Court accepted that deal with bans on AR-15s and similar semi-automatic firearms, a very large number of amicus briefs have been submitted. I imagine the gun control industry will submit a large number as well after Cook County and Connecticut file their response briefs.
Here is a breakdown of the numbers. Amici is the legal term for the organizations or individuals who are named in the amicus briefs.
- 45 amicus briefs
- 43 in favor of the petitioners
- 2 in favor of neither party (Prof. Akhil Reed Amar and US Conf. of Catholic Bishops)
- 104 organizational amici
- 63 individual amici
- 27 states in favor of petitioners
- 63 members of the House of Representatives (counted as an organization)
A number of arguments have been put forth in favor of the petitioners. A number make the point the AR-15 and semi-automatic firearms are in common use and because they in common use they cannot be considered dangerous and unusual. Some petitions go into the history of firearms and how multi-shot firearms have been around since before the American Revolution. A few suggest the Supreme Court needs to give explicit guidance in their rulings and provide “benchslaps” when lower courts misconstrue the intent. Others discuss the AR-15 as the modern analog of the Brown Bess musket that colonies and later some states required citizens to own as members of the unorganized militia.
This link will take you to the Supreme Court docket where any or all of the briefs can be read or downloaded.
All the major Second Amendment organizations filed amicus briefs as did many smaller organizations. The Second Amendment Foundation, the Firearms Policy Coalition, and the Connecticut Citizens Defense League as parties to the cases were precluded from filing amicus briefs. Of particular note was that the Solicitor General on behalf of the United States filed an amicus brief in favor of the petitioners. As I said elsewhere, elections have consequences and you would not have seen this from a Biden or Obama Administration.
As expected, the National Rifle Association and the NRA Civil Rights Defense Fund each submitted amicus briefs. However, the involvement of NRA directors as individuals or officers of other organizations that were amici was also significant.
- Knox Williams (Individual and American Suppressor Association)
- Rob Beckman (Individual and Ohio Rifle & Pistol Association)
- Dennis Fusaro (Individual)
- Todd Vandermyde (Aurora Sportman’s Club and Second Amendment Defense & Education Coalition)
- Huey Laugesen (Colorado Shooting Sports Association)
- Charlie Hiltunen (Indiana State Rifle and Pistol Association)
- Theresa Inacker (Coalition of NJ Firearms Owners)
- Scott Bach (Assn of NJ Rifle & Pistol Clubs)
- Jim Wallace (Gun Owners Action League)
- Charlie Beers (NY State Rifle & Pistol Association)
- John Richardson (Grass Roots NC and Rights Watch International)
The joint cases have been placed on the calendar for oral arguments on Wednesday, December 2nd. I will be listening!
Concurrent with or following this can our side finally take up the task of putting an end to the gun control industry? It’s absurd that they still exist. We need to reach endpoints where we can finally stop fearing what they might do if political winds change or events happen.
Probably the one weakness in these amicus briefs is that they all seem to say the same thing. The Second Amendment is the focus and also how the Supreme Court has viewed the Second Amendment in the past.
The amicus brief from Tennessee and 26 other states covered a little about the history of the 14th Amendment. I do not believe any one else cared about the 14th.
If lawyers are all about technicalities it would seem that when a state passes an anti-gun law these lawyers would know that a unanimous Supreme Court ruled in 1833 Barron v. Baltimore that the Second Amendment and the rest of the Bill of Rights did not limit any state authority. The lawyers might not know the primary purpose of Section 1 of the 14th Amendment, but they should be aware that the Supreme Court has used the 14th’s due process clause to apply these rights to the states from the time that they started with Gitlow v. New York 1925. McDonald in 2010 was a due process clause application. That is the SCOTUS applying these rights, and in the process, it has been selective incorporation. That is also an official SCOTUS doctrine.
At the 2018 GRPC, I had asked David Sigale, 1/2 of the SAF team spearheading the McDonald case, why did the privileges or immunities clause come before the Court for that case in 2010? He said that Justice Thomas would not concur with the majority if it wasn’t in the arguments. Numerous amicus briefs had talked about this for McDonald. The other half of the SAF team Alan Gura argued orally the P or R clause and Paul Clement argued the due process clause. Justice Scalia did no favors to Alan Gura. But, Justice Thomas concurred using the privileges or immunities clause. Justice Thomas also concurred using that clause in an 8th Amendment case Timbs v. Indiana 2019. Justice Gorsuch joined him.
The Justice everyone loves is also treated with contempt because he views the Constitution differently than others. (Ask other lawyers) The 14th Amendment is ignored not only from Justice Thomas’ view, it is ignored from the Supreme Court majority view. Section 1 applies these rights to the states by denying state authority to abridge them, or these rights are applied to the states by Supreme Court benevolence via the due process clause. None of these rights are not applied to the states at all without the 14th. These current amicus briefs are very non-existent concerning the 14th Amendment.
MY biggest problem with these amicus briefs not mentioning the 14th Amendment is that they miss the primary point of the framers of Section 1. It was to counter the Barron 1833 decision.
Also, ‘No State shall’ in Section 1 of the 14th has the exact same meaning as it does in Article 1, Section 10. THERE IS NO ROOM FOR ANY INCORPORATION NONSENSE by the Court when dealing with state legislation. And that would change almost all of the arguments in these briefs. ‘Commonly used guns’ is just one selective incorporation point that the Court has used in the past.
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States…”. The privileges or immunities of citizens of the U.S. are chiefly defined in the first eight amendments. If someone wants to counter the author of Section 1, please feel free.