Preparing for McDonald v. Chicago

As I write this article, I am assisting in preparation of briefs associated with McDonald v. Chicago.  McDonald is the suit challenging Chicago’s ban on new registration of handguns.  If you aren’t on the inside, you may not understand exactly what goes into preparing a case like this.  Don’t the lawyers just argue the case before the U.S. Supreme Court?  Let me tell you a bit about the process works.

When a suit goes before the Supreme Court, there are word limits on the briefs.  The person who brought the suit has a limited number of words in which to make their argument (the Petitioner’s Brief).  The other side has a limited number of words in which to make their case (the Respondent’s Brief).  Then, the petitioner gets a limited number of words for the Reply Brief.

Especially in a very complex case, the total of all three of those briefs isn’t that many words!  It is therefore quite common for groups or individuals who care about the outcome to file what are called amicus curiae briefs.  Amicus curiae is Latin for “friend of the court.”  The pretense is that those filing such briefs do so because they are trying to help the Supreme Court to figure out what the correct answer is because of our concern for the Court.  No one actually believes that those filing these briefs put the substantial time and money required into such efforts because we care so much about helping the Supreme Court.  Amicus briefs are filed by organizations that want the Supreme Court to take one side or the other in their final decision.

Remember that I mentioned that there are word limits on briefs filed by the Petitioner and the Respondent?  Well, there are word limits on amicus briefs, too.  But there can be lots of amicus briefs filed by different organizations.  In D.C. v. Heller (2008), there were dozens of amicus briefs filed by dozens of organizations, persons, groups, and even by elected public officials.  The lead attorney for each side organizes what those writing these briefs are going to emphasize.  He doesn’t write them—but he does discuss with these groups the general subject matter that needs to be covered.

For McDonald v. Chicago, there will again be many organizations filing amicus briefs, on both sides.  I’ve been involved with providing research assistance to the attorneys challenging Chicago’s ban—as well as helping to write the amicus brief that will be filed by Academics for the Second Amendment.  Writing and filing these briefs isn’t free (not even close)—so if you want to help the cause, go to and donate to help the cause.

The amicus briefs are word limited, so whenever possible, you want to focus on main points—and not put too much fine detail in it.  It is therefore common for briefs to point to published books and articles.  If those articles are in law reviews—all the better, because law reviews are usually very, very carefully “cite checked.”

What is “cite checking”?  You know that scholarly books and articles have citations to sources for quotations and facts.  Unfortunately, in most academic fields, editors do not actually check to see if those citations are accurate.  As a result, if you are careless or dishonest in many academic disciplines, you can get away with murder (or at least, murdering the truth) for a long time.  Professor Michael Bellesiles, whose fraud I helped to expose some years ago, was one of those truth murderers.  Professor Ward Churchill of Colorado University was another.  Both lost their jobs because finally, years after publication, troublemakers actually went and checked their citations.

Law reviews are a whole different situation.  The editors of law review check (or at least, are supposed to check) every single statement of fact in an article, to verify that it is correct and properly cited.  They do not take your word for it.  Even for knowledge that everyone knows—the editors are going to want a citable source.  I haven’t had a law review editor ask me to prove that the sky is blue, or water is wet, but it has been close, at times!  For this reason, if you cite a claim or a fact from a law review article, the Court is a lot more prepared to believe that it is true, than if your source is a history journal, or a book, or a newspaper.

As a result, when preparing for a case as momentous as McDonald v. Chicago, there is a flurry of activity during which troublemakers like myself write law review articles about important points of constitutional history.  Then, once an article has been accepted, everyone writing briefs cites that law review article.  It isn’t necessary for the article to be actually in print yet.

I have recently written (with Fordham University Law School Professor Nicholas Johnson, and George Mocsary, a law clerk with a Tenth Circuit Court of Appeals judge), a law review article with the long title, “'This Right is Not Allowed by Governments that are Afraid of the People': The Public Meaning of the Second Amendment When the Fourteenth Amendment was Ratified.”  It has been accepted for publication by at least one respected law review, and we are hoping to go up the ladder of prestige from there.  I am also finishing another law review article with Dave Kopel of the Independence Institute about the Pennsylvania Constitution’s right to keep and bear arms provision (which is actually more important for this case than you might think).

It is an exciting activity, to be near the center of an important, historic case—with some possibility that the Supreme Court’s decision may cite some of the law review articles that I have written, as they did in the Heller case.  Our strategy must remain confidential, but I am giving away nothing in this article that isn’t already obvious from reading the law review articles already published, or otherwise made visible.

For starters, let me explain that what we are asking the Supreme Court to do is extend its ruling in Heller to apply to the states.  In Heller, the Court ruled that the Second Amendment protects an individual right of law-abiding and sane adults to possess a loaded handgun at home for self-defense.  

This was a very narrow question—too narrow, probably, for some gun rights activists to consider Heller much of a victory.  While the decision recognized that the right includes the right to “bear arms,” the question of whether one may carry arms outside one’s home was not before the Court.  The Court also did not answer questions about whether machine guns were protected weapons, or even scary-looking semiautomatic rifles.  Nor did the Court consider whether the Second Amendment applied to the states (although they certainly hinted that it did).  

This was very intentional, and modeled on the manner in which the civil rights movement in the twentieth century attacked one discriminatory law after another.  Had the first challenges in the 1930s been aimed at striking down the entire system of racial discrimination (everything from segregation of schools to bans on interracial marriage), it would have been too dramatic.  A change this large would have been too much for the Court to accept all at once—and unfortunately, too much for the American people to have accepted.  We lost many of our gun rights one slice at a time; we’re going to get them back the same way.  Impatience—demanding that we get everything restored immediately—isn’t going to work.

Don’t expect every abusive state gun control law to be overturned by McDonald.  The goal is to get the Court to find that the right to keep and bear arms applies to the states and their local subsidiaries.  The narrow ruling will likely be that Chicago may not refuse to register new handguns.

Subsequent suits will take up different questions: may states restrictively license purchase or ownership of handguns, such as in New York State and Massachusetts?  I suspect that because the Court is going to find that the Second Amendment protects a fundamental human right in McDonald, a later suit will conclude that the government must provide a compelling governmental interest in denying a license—effectively destroying these systems.

Are there limits to the discretion that sheriffs or judges may use in deciding whether to grant concealed weapon permits (as is the case in California, Maryland, New York, New Jersey, Massachusetts, and Maryland)?  Based on how other fundamental human rights are treated by the Court, and the openly racist origins of some of these laws (such as in California), I suspect that these states will have to move to a “shall issue” system, like the rest of America enjoys.

Does the right to “bear arms” protect only a right to carry openly?  I suspect that the Court will conclude that because only open carry was clearly protected when Congress passed the Fourteenth Amendment, that only open carry is clearly protected.  The prospect of open carry is likely to terrify states such as Wisconsin and Illinois into creating a “shall issue” concealed carry permit system.

I am a bit less confident how the Court will eventually handle the questions about machine guns and scary-looking semiautomatics.  It is clear to me that the Second Amendment protects these weapons—but it is also clear that judges, like many other Americans, may let their emotions take precedence over their minds.  We should not regard a bad decision by the Court to be a hopeless disaster, however.  Most American states resisted passing “assault weapon” bans back in the 1980s and 1990s—and this is unlikely to change anytime soon.

There is much to despair about in America today.  I am horrified, shocked, and amazed at how rapidly President Obama and the most radical and corrupt elements of the Democratic Party are destroying this country.  But do not let your despair and disappointment wash over into the area of gun rights.  We have the gun control fanatics on the run—and that run is about to turn into full-scale retreat.


Clayton E. Cramer lives in Horseshoe Bend, Idaho.  His most recent book, Armed America: The Remarkable Story of How and Why Guns Became as American as Apple Pie was published by Nelson Current in 2006.


Clayton E. Cramer is a software engineer and historian.  His sixth book, Armed America: The Remarkable Story of How and Why Guns Became as American as Apple Pie (Nelson Current, 2006), is available in bookstores.  His web site is