Just Arrived: New Scalia Biography

I just received Joan Biskupic’s new biography about Justice Scalia titled, American Original.

DSC02647

And as I usually do whenever I receive a new book, like any child, I turn to the pictures!

This picture has a hilarious caption:

nino

Also interesting, Nino failed the entrance exam to Regis High School in NY. More thoughts later.

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Justice Sotomayor Poses on Cover of Latina Magazine.

Sadly, she is not wearing the Neck Doily Justice Ginsburg gave her.

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IJ Strikes Again: Entrepreneurs Sue City of Dallas To Overturn Ban on Window Signs

The Institute for Justice filed a new lawsuit today:

The Texas Chapter of the Institute for Justice today filed a federal suit against the city of Dallas, Texas, for violating the free speech rights of local businesses.

Under the new law enacted in 2008, businesses are prohibited from putting signs in the upper two-thirds of any window or glass door, and no more than 15 percent of any window or glass door may be covered by signs.  The only way to comply with the new ordinance is by putting tiny signs at people’s feet—which is not an effective way to advertise.  The law also bans signs that cover more than 25 percent of a building’s façade.

The law only targets commercial messages.  Businesses are free to put anything except a commercial message in their windows.  For example, a business could paint a giant Dallas Cowboys helmet on its window—but not advertise that it offers Cowboys merchandise for sale inside.  Businesses can paint their windows black or put coolers or other items in front of them.  In fact, businesses are not even required to have windows at all.  What they cannot do is put a commercial message in the upper two-thirds of a window or cover more than 15 percent of a window with one.

That law seems rational. Stay tuned.

 

Video: Ayn Rand on Israel and the Middle East Conflict

Fascinating interview on Donohue from 1979. My rough transcript:

“Whose side should one be on, Israel or the Arabs? I would certainly say, Israel, because it’s the advanced technological, civilized country, amidst a group almost totally primitive savages who have not changed for years and who are racist and who resent Israel because its bringing industry and intelligence and modern technology into their stagnation.”

“I don’t resort to terrorism. I don’t go around murdering my opponents. Innocent woman and children. That is what I have against the Arabs. That takes the conflict out of the sphere of civilized conflict, and makes it murderous, and anyone who resorts to force is a monster. And that’s what makes me condemn and despise them.”

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Our New Article in Georgetown JLPP: Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment

I am pleased to post on SSRN an article that Ilya Shapiro and I have been working on for some time, titled Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment.

This article will be published in Volume 8 of the Georgetown Journal of Law & Public Policy. The article will be published in January 2010, right in time for oral arguments in McDonald v. Chicago.

The abstract reads:

The purpose of this article is to provide a roadmap to welcome the Privileges or Immunities Clause back into our modern constitutional jurisprudence. The Slaughter-House Cases “sapped the [Privileges or Immunities Clause] of any meaning” but the Supreme Court now has the opportunity correct this mistake. Heeding Justice Thomas’s call, we “endeavor to understand what the framers of the Fourteenth Amendment thought” the Privileges or Immunities Clause meant, and seek to restore that original meaning. This framework ensures that the Privileges or Immunities Clause is not manipulated to constitutionalize certain modern “rights” that lack deep roots in our nation’s history and traditions. No, the Constitution cannot be properly read to protect positive rights. Pandora’s box will thus remain sealed.

This article proceeds as follows: In Part I, we discuss the history of the Privileges or Immunities Clause starting with the Articles of Confederation and continuing through the Clause’s untimely demise with the Slaughter-House Cases, its re-emergence in legal scholarship, and its potential rebirth in Supreme Court jurisprudence. In Part II, we discuss the meaning of the Second Amendment as it relates to the states by considering District of Columbia v. Heller and subsequent litigation.

In Part III, we explore the Progressive vision of the Privileges or Immunities Clause as it fits into the “Constitution in 2020” paradigm. This progressive model recognizes rights according to national and international consensus, evolving standards, and the enactment of so-called landmark legislation. We show why privileges or immunities serves as the desired weapon of choice to achieve the “Constitution in 2020” by way of its superiority over Substantive Due Process and Equal Protection. Through the Privileges or Immunities Clause, progressives seek to reconceptualize the provision of education, health care, welfare, and other positive entitlements as inviolable constitutional rights. Thus, Pandora’s Box is cracked ajar, with all manner of governmental guarantees and policy preferences spewing forth.

In Part IV, we contend that the Second Amendment could be incorporated through the Due Process Clause, though this approach is historically deficient. In light of Justice Antonin Scalia’s opinion in Heller, and applying modern selective incorporation jurisprudence, the Court is likely to find that the Second Amendment is “necessary to an Anglo-American regime of ordered liberty” and should thus be extend to the states.

In Part V, we show that, instead of dutifully treating the Second Amendment as it has almost all the other parts of the Bill of Rights, the Court should find the underlying rights to be among the privileges and immunities directly protected by the Fourteenth Amendment. Accordingly, this article is not so much concerned with how the Second Amendment should be incorporated but instead provides the Court a roadmap to protecting the right to keep and bear arms for defense of person and property through the Privileges or Immunities Clause. Indeed, the notion of “incorporation” was anachronistic at the time of the Fourteenth Amendment’s ratification. Historical accounts of the ratification debates reveal that the Privileges or Immunities Clause was meant to protect both more and less than the Bill of Rights. Thus reconceptualized, the clause should be viewed not as a mechanical incorporator of the first eight amendments, but rather as a limitation of the power of the states to infringe certain liberties. In 1868, these liberties were referred to as privileges or immunities.

What are these privileges or immunities, and what relationship do they have to the Second Amendment? To resolve this query we answer Justice Thomas’s call in Saenz, and seek to “understand what the framers of the Fourteenth Amendment thought that it meant.” We propose extending the Glucksberg framework for recognizing substantive rights that are deeply rooted in our nation’s history and traditions to understand how privileges or immunities were understood in 1868. By applying the Glucksberg test and adapting Judge Diarmuid O’Scannlain’s opinion in Nordyke v. King, we find that the right to bear arms for the defense of person and property—independent of its enumeration in the Second Amendment—was considered a privilege or immunity of citizenship in 1868.

Part VI concludes by echoing Justice Thomas and implores originalists not to shy away from the Privileges or Immunities Clause for fear that it will become the camel’s nose of positive rights into the constitutional tent. Instead, resurrecting the Privileges or Immunities clause can continue the process of aligning the original meaning of the Constitution with the protection of our most sacred liberties. This process will also eliminate the “current [state of] disarray” of our Fourteenth Amendment jurisprudence. Failing to take control of the Privileges or Immunities narrative invites an alternative vision of the Fourteenth Amendment that further departs from the original meaning of the Constitution. Now is the time, and McDonald is the case, to advance an originalist vision of the Privileges or Immunities Clause. Only be correcting the historical record and claiming it for our own can we keep Pandora’s Box sealed.

A PDF of the article, and future commentary will be forthcoming on this Blog. Stay tuned!

Posted in Privileges or Immunities. Comments Off on Our New Article in Georgetown JLPP: Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment

SCOTUS Podcast: Lund, Neily, and Lash on McDonald and Privileges or Immunities

From the Federalist Society SCOTUScast:

On September 30, 2009, the Supreme Court granted certiorari in the case of McDonald v. City of Chicago on the question of whether the the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment makes the Second Amendment applicable to the States and invalidates Chicago’s ordinance prohibiting the possession of handguns in the home.

To discuss the Privileges or Immunities question, we have Institute for Justice Senior Attorney Clark Neily and Loyola Law School Professor Kurt Lash. George Mason University School of Law Professor Nelson Lund will moderate the discussion.

 McDonald v. City of Chicago – Pre-Argument SCOTUScast Debate – MP3
Running Time: 00:43:56

I am co-authoring an article with Ilya Shapiro from Cato on McDonald and Privileges or Immunities. A draft is forthcoming. It’s good. I promise.

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Shocking Video: Woman falls onto tracks, and train stops short within inches. Would you have helped?

Take a look at this shocking video. A woman, likely inebriated, collapsed on a subway platform in Boston and tumbled onto the tracks, as an oncoming train was rushing towards her. Thankfully, the train operator had quick senses, and stopped short.

Check out the video, and try to answer this question. If you were standing where the bystanders were standing, would you have attempted to jump onto the tracks and try to rush the woman to safety? According to the time stamp, 20 seconds elapsed from when the first bystander saw her on the tracks, and when the train stopped short. Is this enough time to jump onto the tracks, throw her onto the platform, and jump back onto the platform?  But how would one know if the train would stop.

Further, before she fell, she was stumbling around for about 10 seconds. The platform was very crowded. Perhaps someone could have helped her before she fell off?

 

Can one even make these determinations in a split second? I don’t know. I just wonder what I would have done in that situation.

Thoughts?

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