Barnett v. Kerr on McDonald v. Chicago. A fun little tussle is brewing on Volokh today.

A fun little tussle is brewing on Volokh today.

Professor Kerr made his predictions for McDonald (my thoughts here), Professor Bernstein made his predictions (my thought here), and now Professor Barnett has opined.

A few choice nuggets from Professor Barnett regarding Professor Kerr’s posts:

“How sad it is that one can implicitly criticize a brief to the Supreme Court of the United States for relying on the text of the Constitution. Although Alan Gura’s brief does stress both original public meaning and original intent, under the relevant precedent Orin thinks the Court will or should (?) follow, the alternative is not that the Privileges or Immunities has a modern meaning but has no meaning whatsoever! “

“Faced with this background and the actual question presented, I wonder how would Orin have briefed the case. Would he have offered any of the analysis in his post? Would he have told the Court just to ignore the Privileges or Immunities Clause? Or might he not have assumed as an experienced litigator that the Justices could write a Due Process Clause “incorporation” opinion in their sleep–heck, their clerks could write that opinion in their sleep–and then devoted the bulk of his brief to describing the meaning of the Privileges or Immunities Clause in context? “

“The sort of “legal realist” analysis offered by Orin in his post would simply be of no assistance to the Court in reaching its decision. Nor would it help much in oral argument. But who knows? As a mere prediction, it could turn out right, in which case Orin can say he told us so.”

I am expecting Professor Kerr to reply shortly, but Barnett I think has the better argument. As Barnett points out, 4 Justices had to request that the Privileges or Immunities reference should exist in the Question Presented. On Kerr’s breakdown, only one Justice seems interested. This just doesn’t jive.

With the Supreme Court, always expect the unexpected.

Update: Orin replied to Randy,  kind of:

I had a feeling my post predicting the votes on the Privileges and Immunity argument in McDonald v. City of Chicago might draw a disapproving response from Randy, and I see it did. Based on past experience, I gather Randy’s questions directed to me are rhetorical questions designed to defend Randy’s view of the Constitution, not ones asking for my response. But I did want to open a comment thread on the issue in case our commenters wanted to weigh in.

He posted an open thread, which should yield some interesting debate.

(Oh, and I should be clear that I think McDonald will win on the Due Process argument, perhaps by 7 or 8 votes; I just don’t think more than one Justice is on board for the P or I stuff, especially given that it’s not necessary to even reach the issue to decide this case.)

Update 2: Barnett just replied:

I predict that, every time I or another VC blogger posts with closed comments on a subject that Orin finds interesting, he will post something short with open comments soon thereafter. We will see how this prediction holds in the future.

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4 Responses to “Barnett v. Kerr on McDonald v. Chicago. A fun little tussle is brewing on Volokh today.”

  1. troll_dc2 Says:

    I tend not to take Barnett seriously. He comes across as a self-centered humorless ideologue. I say “comes across” becaue I, at most, just skim what he writes. Why read him if you can’t comment on what he says?

    Perhaps he is thoughtful and intelligent, but he makes me not want to care.

  2. Soren Says:

    I’ve attended several events involving Barnett and he doesn’t strike me that way in person but I agree with the above poster. He does come off as a jackass when blogging on Volokh.

  3. David Wagner Says:

    Randy is certainly not a “humorless ideologue” (though he is sometimes wrong, imho).”

    Gura’s brief is bold enough, yet not too bold, in that it offers the Court a way to rule for clients on P/I grounds without overruling Slaughterhouse, if that’s what the Cour wants to do, or even to rule for his clients while ignoring P/I altogether (obviously this is my least favorite part of the brief, as it relies on substantive due process, and *modern* s.d.p. at that).

    Nose-count? Thomas is to precedents as Elmer Fudd is to wabbits. Scalia reveres precedent much more, yet consider what he has said about Roe and Case, and even (*gulp*) about Meyer and Pierce (in his Troxel dissent). Alito? I’ve heard people say he’s just now hitting his stride, and that speech was encouraging. Kennedy? I dunno, but maybe sell it as part of a “the-tie-goes-to-freedom” revolution…?

    So we’re looking for one more vote to overrule Slaughterhouse. It’s hard to imagine the Chief providing it, but perhaps if, in doing so, he could also draft the opinion and keep it from turning 14th Am P/I into a new fountainhead (pardon the expr.) of *liberal* rights…? Perhaps it’s an opportunity he couldn’t turn down!

  4. troll_dc2 Says:

    “and keep it from turning 14th Am P/I into a new fountainhead (pardon the expr.) of *liberal* rights”

    If the SupCt reinvigorates the Fourteenth Amendment’s P/I clause so as to bring the understanding of that clause’s framers into “modern” constitutional law, would that mean that the Ninth Amendment would be part of the package? If so, how do you prevent the so-called fountainhead of so-called “liberal” rights? (Or could it also apply “conservative” rights to the states?)


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