The 2nd Amendment, the Privileges or Immunities Clause, and a Renaissance of Economic Liberty

As I have previously blogged,the Supreme Court granted cert in McDonald v. Chicago, and in the question presented, queried whether incorporation can be accomplished through the privileges or immunities clause of the 14th amendment. The important question, beyond incorporation, is whether the Supreme Court is willing to expand the privileges or immunities of citizenship to certain substantive fundamental rights. To many libertarians, one of the most promising such rights is economic liberty.

So, can the privileges or immunities clause and McDonald v. Chicago restore economic liberty?

At Cato, the venerable Bob Levy (whom I worked for on D.C. v. Heller), writes:

Regrettably, courts have routinely rubber-stamped legislative restrictions on economic liberties. Who would have imagined, however, that the Second Amendment—the right to keep and bear arms— could provide the battlefield on which to reinvigorate judicial review of economic regulations? Yet that might be the outcome in McDonald v. Chicago, a challenge to Chicago’s gun laws, in which Cato and IJ filed a joint brief with the U.S. Supreme Court. Here’s the story: how gun rights and economic liberties intersect.

In the end, the Second Amendment will very likely constrain state governments as well as the national government. The dual criteria under substantive due process are whether the right is implicit in our Anglo- American system of ordered liberty or deeply rooted in our nation’s history and tradition. The Second Amendment surely qualifies. Perhaps the more interesting question is whether the Court will expand its selective incorporation via the Due Process Clause, or overturn Slaughter-House, as Cato and IJ argue in their brief, and declare that the right to keep and bear arms is one of the privileges or immunities of U.S. citizenship that—along with many other liberties, ultimately including economic liberties—may not be abridged by the states.

Over at Reason Magazine, Jacob Sullum opines (h/t Instapundit)

If it cites the Privileges or Immunities Clause instead of (or in addition to) the usual rationale for incorporation, the 14th Amendment’s Due Process Clause, it can prepare the ground for a renaissance of economic liberty.

As reflected in post–Civil War legislation that the amendment was intended to reinforce, its supporters also were concerned about economic liberty: the right to own and exchange property, make and enforce contracts, and work in the occupation of one’s choice—all freedoms the Southern states tried to deny former slaves. As reflected in post–Civil War legislation that the amendment was intended to reinforce, its supporters also were concerned about economic liberty: the right to own and exchange property, make and enforce contracts, and work in the occupation of one’s choice—all freedoms the Southern states tried to deny former slaves.

Those privileges or immunities, the dissenters said, include “the right to pursue a lawful employment in a lawful manner, without other restraint than such as equally affects all persons.” That view reflects the original understanding of the 14th Amendment, which holds great promise as a bulwark against arbitrary interference with economic freedom. The Supreme Court should seize this opportunity to revive it.

I am not too optimistic the Court will give more than one or two votes to the view Levy and Reason espouse.  But, even if the Privileges or Immunities Clause receives one or two votes, that is more meaning that the clause has possesed in nearly 150 years. For future litigation, citizens can seize on this clause, and the re-invigoration of privileges or immunities will commence. As I have argued elsewhere, and am currently writing in an article in anticipation of McDonald v. Chicago, we should be wary of opening Pandora’s box. The privileges or immunities clause is like the due process clause in substance, but without the century of Jurisprudence the conservative court has added to shackle this wide-ranging constitutional provision. If we jump in, head first, without a life preserver, we may soon regret it.

Based on Arguments, SCOTUS Likely to Punt on Salazar Case (Memorial Cross in National Park)

Over at SCOTUSBlog, Lye Denniston reports: Analysis: A case of disappearing issues | SCOTUSblog.

The case of the Christian cross standing alone in the midst of a huge federal land preserve in a California desert put before the Court the latest in a continuing series of controversies over religion commemoration in public places.  Lower federal courts had found the cross’s presence there unconstitutional, and barred enforcement of an attempt by Congress in 2004 to shift ownership of the site into private hands in a bid to save the cross.  The federal government took the case to the Supreme Court to protest those rulings.

Despite strenuous efforts by Justice Antonin Scalia to keep alive the core question of whether the cross display was a violation of the Constitution’s Establishment Clause, the dominant sentiment on the bench seemed to be that that was no longer open to review.  And despite efforts by U.S. Solicitor General Elena Kagan to get the Court to focus on whether a former park service officer had any right to sue to test the display, that, too, seemed to be beyond the Court’s reach.  Kagan, in fact, had to endure lectures by several of the Justices that the government should have tested that question earlier in the case, so had now missed its chance.

Justice Scalia spent considerable effort in trying to keep the argument on the constitutionality of the cross’s display.  He said the government had no obligation, just because it put up a monument to one faith, to have other monuments on the same site to other faiths.  In fact, he said, the Mojave cross was a commemoration of the service of soldiers of all faiths, including Jews and Muslims.  Scalia said it was “outrageous” to suggest otherwise.

In all likelihood the Court will not rule on the broader 1st Amendment issues. This is typical for the Roberts Court, which has taken somewhat of a judicial minimalist approach. Rather than rocking the boat by ruling on the Establishment Clause issue, the Court is likely to resolve it on narrower grounds.

Clip: Justice Douglas on 1956 Game Show, What’s My Line

Pretty funny clip of Justice William O. Douglas on the 1956 Game Show What’s My Line. No questions on emanations or penumbras though.

I have a slight tiff with the show, as they called him a Justice of the Supreme Court, and not an Associate Justice of the Supreme Court, but I’ll let it slide.

Can you imagine Justice Scalia on this show? Do you oppose the “homosexual agenda“? Yes. Do you find Justice Stevens’s opinion in Heller grotesque? Yes. Do you equate the Lemon Test to a “ghoul in a late-night horror movie“? Yes. Does the wolf in Morrison come as a wolf? Yes!

H/T A.L.

Who is John Galt? Detroit too poor to bury the dead, Michigan reverting to state of nature.

From CNN:

Bodies pile up in Detroit morgue; poor can’t afford burial. Inside the Wayne County morgue in midtown Detroit, 67 bodies are piled up, unclaimed, in the freezing temperatures. Neither the families nor the county can afford to bury the corpses. So they stack up inside the freezer.

Detroit is not alone. The Los Angeles coroner’s office said it, too, has seen an increase in the number of bodies abandoned. That’s not surprising at a time when unemployment tops 10% in many cities and the median cost of a funeral in America hovers around $7,000. Cremation can cost $2,000.

This is an issue of concern, said the Detroit mayor’s office, but the city can’t afford to offer any assistance. “The failure, through inability or choice, to bury the deceased is a reflection of the economic conditions that have arrested this region, where people are now forced to make emotionally compromised choices,” said a spokesman in a prepared statement.

I often joke about the sad state of Michigan, Detroit in particular.

While once a proud, thriving, industrial center, the collapse of the automotive industry has rocketed the Peninsular State into a downward spiral of poverty and despair.

I remember reading some time ago that a town in Michigan is no longer paving roads, because it is too expensive. In other places in Michigan, the communities are paying homeowners to demolish their homes because it is too expensive to provide utilities

As a society, Michigan is actually going backwards and retrogressing, and reverting to the State of Nature. I feel bad for the people there, but I fault largely the policymakers in the state, and the poor decisions they have made over the past few decades which has doomed Michigan.

Who is John Galt? New York Residents block construction of new Empire State Building-Sized skyscraper

From CBS 2 in New York:

Imagine a building as tall as the Empire State Building on a lot that size. That’s what the developers want to do. It would twice as tall as the landmarked (and quite beautiful) CBS corporate headquarters across the street and the neighbors said that’s quite tall enough.

“It’s a postage stamp. They say they can get it to stand up but it’s a postage stamp. It’s an abomination,” opponent Justin Peyser said.

I love progress. If these residents opposed to this construction could think outside of their protectivist mindsets, they would reaalize what an economic boon this could bring to midtown, an area like many other areas, that has suffered of late. The opposition to construction is bordering on Luditism and incenses me. If the opposition was based on a objective basis; that is the building will be a safety hazard, the building owner has no prospect of renting it, the building owner is financially suspect and many not finish it; the building owner demands public subsidies; etc. Any of these reasons are valid objections. But not liking it simply because it is an “abomination” and may cast some shadows? Who is John Galt?

As much as I love Washington, D.C., I become disgusted whenever I see the federally restrained skyline. According to the Heights of Building Act, buildings in downtown D.C. cannot be more than “20 feet (6 m) higher than the width of the adjacent street.” Contrary to popular belief, it is not pegged to the height of the Washington Monument or the Capitol, but the effect is the same. Those are still the tallest buildings Downtown.

Can you imagine how much cheaper living in D.C. would be if buildings could grow above 12 or 13 floors (the usual limit)? Commercial leases would be less. More businesses could be located in the Nation’s capitol. Because I loathe most business in Washington, restricting the influence of businesses on the Capitol may be an unintended positive consequence, and may in some level reduce rent-seeking. To that extent, I like the result, but I don’t like the means.

The Lost Volokh Conspirators. Who are all of these people?

As an avid follower of the Volokh Conspiracy, I have become a huge fan of some of the bloggers. But I have no clue who some of these other bloggers are, largely due to the fact that they seldom blog.

Thus, I have dubbed the following the Lost Volokh Conspirators:

• Russell Korobkin– 2 Posts in the last year
• Stuart Benjamin – 7 Posts in the last year
• David Hyman– Since he joined in December 2008, only 22 posts
• Paul Cassel– 29 Posts in the last year

Astute followers of the Volokh Conspiracy will recall there used to be a blogger named Kevan Choset, the so-called Puzzle Blogger. His last post was in 2006, and sometime within the last year, Volokh removed his name from the list of Bloggers. I’m not sure exactly when, as this removal was done with no fan-fare.

So there is some kid of minimum standard of performance in order to remain on the rolls.

So, Volokh Conspiracy, what’s the deal?

Obama nominates Chin for 2nd Circuit, Rogeriee for 1st Circuit

From the The Associated Press:

Judge Denny Chin, a district court judge for the Southern District of New York, and Rhode Island Superior Court Justice O. Rogeriee Thompson were tapped for positions. If confirmed by the Senate, Chin would serve as a judge in the 2nd Circuit, based in New York, and Thompson would serve in the Boston-based 1st Circuit.

Seeing how Justice Sotomayor feels that the Courts of Appeals are where policy is made, every nomination President Obama gets, especially to the influential 1st and 2nd Circuits, is significant.

Legal Theory Lexicon: Textualism. Read this. It’s good.

For those of you are just getting your feet wet with the concept of textualism, check out Professor Solum’s Legal Theory Lexicon: Textualism

This provides a short and sweet, yet insanely helpful guide to getting what textualism means.