C|M|LAW Alumnus Cited in SCOTUS Dissent

A book  by 2009 C|M Alumnus Patrick J. Charles and an Amicus Curie brief co-written with the firm Goodwin, Macbride, Squeri, Day and Lamprey, LLP were cited by Justice Breyer in his dissent in the recent U.S. Supreme Court gun control case, McDonald v. Chicago, No. 08-1521, (June 28, 2010).  Breyer cited Charles’ book, The Second Amendment : The Intent and Its Interpretation by the States and the Supreme Court (2009) and extensively cited the English Historians’ Amicus Curiae Brief, which Patrick Charles helped draft.  The brief was based on an article Charles wrote for CSU Law Review entitled ““Arms for Their Defence: An Historical, Legal, and Textual Analysis of the English Right to Have Arms and Whether the Second Amendment Should Be Incorporated in McDonald v. City of Chicago”

McDonald v. Chicago dealt with whether the Second Amendment is incorporated through the Fourteenth Amendment and applies to the States through either the Due Process or Privileges and Immunities Clause.  The plurality held that the Second Amendment right to keep and bear arms applies to the states through the Fourteenth Amendment.  Justice Alito and two other justices found that the Fourteenth Amendment’s Due Process Clause incorporates the Second Amendment rights, while Justice Thomas recognized incorporation through the Privileges or Immunities Clause of the Fourteenth Amendment protects Second Amendment rights.   The test for determining whether an enumerated right is incorporated through the Fourteenth Amendment’s Due Process Clause is whether the right is fundamental to the nation’s scheme of ordered liberty.    The McDonald plurality found that self-defense is a basic right, recognized by many legal systems from ancient times to the present, and the right recognized in District of Columbia v. Heller , 554 U. S. ___ (2008), (the right to armed self defense in the home with a hand gun) is incorporated to the States as it applies only to American citizens.

Breyer’s dissent found otherwise and argues that Heller relied upon an incorrect interpretation of history when it determined that the Second Amendment was not primarily concerned with the need to maintain a “well regulated Militia.”

“Since Heller, historians, scholars, and judges have continued to express the view that the Court’s historical account was flawed. See, e.g., Konig, Why the Second Amendment Has a Preamble: Original Public Meaning and the Political Culture of Written Constitutions in Revolutionary America, 56 UCLA L. Rev. 1295 (2009); Finkelman, It Really Was About a Well Regulated Militia, 59 Syracuse L. Rev. 267 (2008); P. Charles, The Second Amendment : The Intent and Its Interpretation by the States and the Supreme Court (2009)…”

Futhermore, Breyer asserts that in the case at hand, the plurality relied upon inconsistent historical analysis to determine that the private self-defense right is “fundamental to the American scheme of justice”.   The thrust of his argument is that the plurality’s version of history is not as clear as they state it.   Breyer relies heavily on the English Historians Amicus Curiae Brief to prove this point.  Breyer concludes that substantive due process does not include a right to possess firearms for self-defense.

“In my view, that [historical] record is insufficient to say that the right to bear arms for private self-defense, as explicated by Heller , is fundamental in the sense relevant to the incorporation inquiry.”

Also see our prior post Cleveland State Law Review Makes History Today.