McDonald and Overruling Slaughter-House. A Response to Professor Kerr

At Volokh, Orin Kerr gazes into his crystal ball to predict how the Supreme Court will respond to Gura’s arguments regarding the Second Amendment and the Privileges or Immunities Clause.

In summary, he predicts:

  • Thomas will vote in favor of P/I in light of his vote in Saenz
  • Scalia will not vote for P/I; Scalia thinks that Substantive Due Process is wrong, but will not overrule it becuase of the reliance interest built up over the years
  • Roberts and Alito, though Originalists, are not revolutionaries willing to give the judiciary the new power to “strike down legislation because it is inconsistent with’natural rights,’ including ‘the right to obtain happiness and safety,’ with some of those natural rights undefinable “in their entire extent and precise nature.”
  • Kennedy is not an originalist, and will incorporate through Due Process.
  • Stevens, Ginsburg, Breyer, and Sotomayor will view Gura breif as attempt to rehabilitate Lochner, and won’t buy it.

In an article I co-authored with Ilya Shapiro fortchoming in the Georgetown Journal of Law & Public Policy, titled Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment we deal with a lot of these points, so I will try to summarize the argument here (we will be posting a PDF of the article later this week).

First, I think Orin presents a binary choice; incorporate through Due Process OR incorporate through privileges or immunities.  The question presented asked about both routes of incorporation. Neither path is by necessity mutually exclusive. As Gura’s brief makes clear, the Court could incorporate through the Due Process Clause, and alternatively recognize that the right to keep and bear arms is also among the Privileges or Immunities of Citizenship.  The Court need not displace 100 years of substantive due process jurisprudence with this single case. And from a practical perspective, basically the entire Bill of Rights has been incorporated. So, unless some people start clamoring about states quartering troops in theirs homes, this would be a one time deal. Such a holding would do little to upset the apple cart, or as we put it, open Pandora’s Box.

Second, I think Orin over-simplifies Scalia’s views on originalism and stare decisis. Our article shows that Scalia, while on the Supreme Court, has never voted in favor of a substantive due process incorporation. The last such case was in 1982. Can Scalia really cite the doctrine that he excoriated in Lawrence, Casey, and elsewhere based solely on reliance interests?  It is no secret Scalia likes guns, and he wants to incorporate the 2nd Amendment. But he does not want to enlarge substantive due process. Is he stuck between a rock and a substantively hard place? The Privileges or Immunities Clause provides an alternative method for Scalia. He could write a classic originalist opinion tracing the right to bear arms during Reconstruction, and find that it applies to the State.

Third, the Court does not need to rehabilitate Lochner (another shameless plug for David Bernstein’s forthcoming book). In fact, the Court can take a narrow view of Privileges or Immunities solely as an incorporative methodology, and leave to a later day the protection of substantive rights.  But this possibility raises another issue. While Orin is quite right to say the liberal Justices would be afraid to bring back Lochner, in a different case, the Justices may see the Privileges or Immunities Clause as a means to constitutionalize certain positive rights (welfare, education, health care, etc.). There is a growing body of literature, springing from the Constitution in 2020 project, that aims to use P/I as a means to elevate positive social rights to constitutional rights.

So, while Justice Breyer may not be willing to recognize the right to keep and bear arms as a Privilege or Immunity, the Court in a few years, with a much different composition, may be willing to recognize a constitutional right to health care, for example. While these types of arguments failed under due process and equal protection, privileges or immunities jurisprudence will be written on a clean slate.

For these reasons, and others mentioned in our article, we ask the Court not to punt on P/I for future generations, but rather to assert an originalist jurisprudence; namely, adopt the Washington v. Glucksberg test. By looking at only those rights deeply rooted in our nation’s history, the Court can find the right to keep and bear arms is such a right, and thus incorporate it to the state.


NRA Brief in Support of Petitioners in McDonald v. Chicago- Incorporate through Privileges or Immunities, Re-Evaluate Slaughterhouse

The NRA, authored by Stephen Halbrook, posted its Brief in Support of Petitioners in McDonald v. Chicago. Some of my initial thoughts

The NRA seeks incorporation under the Privileges or Immunities as an alternate ground: If the Court does not decide this case in favor of Petitioners on selective incorporation grounds, then the Court should find that the right to keep and bear arms is one of the privileges and immunities of national citizenship protected by the Fourteenth Amendment. See U.S. Const., amend. XIV (“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”).

However, they do not want to reconsider the entire Privileges or Immunities Clause jurisprudence:

Respondents in Support of Petitioners do not believe it is necessary to revisit the entire analytical framework the Court has developed for the Privileges and Immunities Clause, under which that Clause protects only rights connected to national citizenship, in order to recognize that the right to keep and bear arms is protected.

But, in the alternative, the NRA seeks for the Court to reconsider Slaughter-House.

For the reasons given at greater length in the brief of Petitioners, it is time for this Court to depart from the The Slaughter-House Cases and recognize the incorporation of the Bill of Rights, or at a Fourteenth Amendment’s Privileges and Immunities Clause. Even if this Court finds it unnecessary to hold that the entire Bill of Rights is so incorporated, it would be faithful to the original understanding to hold that the Second Amendment is incorporated.

Because the NRA is a Party in Support of Petitioners, they file earlier than the 11/23 deadline for amici (H/T Ilya Shapiro for the deadline clear up).

Posted in 2nd Amendment, Privileges or Immunities. Comments Off on NRA Brief in Support of Petitioners in McDonald v. Chicago- Incorporate through Privileges or Immunities, Re-Evaluate Slaughterhouse

Gura Files Petitioner’s Brief in McDonald, Spends 7 Pages on Due Process, The Rest on Privileges or Immunities

Check out Alan Gura’s petitioner brief to the Supreme Court in McDonald v. Chicago

Lyle Denniston has this summary from SCOTUSBlog:

Reflecting the lawyers’ view that their best chance is to rely upon the privileges clause of the Fourteenth Amendment, only seven pages of their 73-page brief are devoted to another provision of that Amendment: the Due Process Clause.

In a bold thrust, the attorneys for the challengers to Chicago’s strict handgun ban asked the Court to strike down three of its prior rulings: the Slaughterhouse Cases in 1873 — the ruling that made the privileges clause a nullity — and two decisions limiting the Second Amendment to a restriction only on federal laws: U.S. v. Cruikshank in 1876 and Presser v. Illinois in 1886.  “Faced with a clear conflict between precedent and the Constitution, this Court should uphold the Constitution,” the brief argued.

The Slaughterhouse precedent, “and its unavoidable progency, Cruikshank and Presser,” the brief said, “established that the States could continue to violate virtually all privileges and immunities of American citizens, including those codified in the Bill of Rights, notwithstanding that [the Fourteenth Amendment] Section One’s clear textual command to the contrary.”

I just skimmed the brief, and I am very, very impressed by Gura’s approach. As Ilya Shapiro and I discuss at great length in our forthcoming article, titled Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment, the Privileges or Immunities Clause is a vastly superior means for incorporating the Second Amendment.

I’ll blog about this some more later.

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.

Posted in 2nd Amendment, Privileges or Immunities. Comments Off on SCOTUS Podcast: Lund, Neily, and Lash on McDonald and Privileges or Immunities

Chicago Shrugged: Chicago to give bounties to turn in tax-cheating neighbors; # Of Women Buying Guns Up

Things keep getting worse and worse for Chicago. First, they lost Richard Epstein. They, they lost the Olympics. And because bad things come in threes, they will lose McDonald v. Chicago!

Today, NBC Chicago reports that Chicago is planning a new program that would make the Stasi proud. Rats! City to Pay for Informing on Tax Cheats

Chicago and Cook County residents aren’t the only ones about to get shocking tax news; the city is debuting a “tax whistle-blower” plan that could turn neighbor against neighbor in Chicago’s business community.

The folks at city hall will pay cash bounties to informants who turn in business tax cheats around the city. The reward would amount to some sort of percentage of the tax money that the city recovers.

“It’s just another way of bringing people into compliance,” Revenue Department spokesman Ed Walsh told the Sun-Times.

“It would probably be … a business knowing that a competitor is not remitting a tax. An employee [of the tax-dodging business] could know that, too. Typically, you need to provide some type of incentive.”

Laffer Curve. When you increase taxes, people find ways to evade taxes. When you crack down on people not paying taxes, taxpayers will exit. They may not go all the way to Galt’s Gulch, but perhaps they will visit a city more hospitable to liberty.

In other news, in Chicago the number of women purchasing hand guns is on the rise:

Local gun shop owners say they’re seeing an increase in the number of women shoppers right now. The reasons, they say, are many, including the downturn in the economy and violence on the street. According to the National Shooting Sports Foundation, about 48 percent of people taking their first handgun seminars this year happen to be women. CBS 2’s Pamela Jones reports on the growing trend.
“It’s very dangerous out there. I mean, there’s people getting robbed here and there,” said Josie Santiago. “It’s just for protection.”

Santiago says she’s always thinking about the danger lurking on the streets of the Chicago area. It’s a big reason why she visited Illinois Gun Works in Elmwood Park. Not only did she shop for a new weapon, but she also wanted to find out about taking firearms training from the pros.  “It’s better that you know how to use it,” Santiago said. “You know, take the class, take the course, protect yourself.”\

And soon, the right to keep and bear arms in Illinois will be Constitutionally protected.

Posted in 2nd Amendment, John Galt, Privileges or Immunities. Comments Off on Chicago Shrugged: Chicago to give bounties to turn in tax-cheating neighbors; # Of Women Buying Guns Up

1st Circuit Upholds Ban on Minors Possessing Guns

From BNA, the First Circuit held on August 31, 2009:

The U.S. Court of Appeals for the First Circuit held Aug. 31 that nothing in the U.S. Supreme Court’s most recent interpretations of the Constitution’s Second Amendment and Commerce Clause has undermined prior rulings upholding the law that makes it a federal crime for a minor to possess a handgun, 18 U.S.C. §922(x)(2)(A). With respect to the Second Amendment challenge, the court decided that Section §922(x)(2)(A) is unlike the handgun ban struck down in District of Columbia v. Heller, 83 CrL 5148 (U.S. 2008), because it contains a number of exceptions, including one for self-defense and defense of others. (United States v. Rene E., 1st Cir., No. 08-1974, 8/31/09)

In an opinion by Judge Kermit V. Lipez, the First Circuit held that “Heller does not render section 922(x)(2)(A) unconstitutional as applied” to the defendant in this case, who was 17 when he was caught with a handgun. “We rest our conclusion on the existence of a longstanding tradition of prohibiting juveniles from both receiving and possessing handguns,” the court said.

“Nothing in Morrison or Raich undermines our analysis of section 922(x)(2) in Cardoza,” the First Circuit decided. “Both decisions reaffirmed Congress’s power to regulate intrastate economic activity that substantially affects interstate commerce,” the court stressed. It also agreed with decisions from other circuits that have characterized other firearms prohibition statutes as suppressing demand and being, therefore, an essential part of regulating the national market in firearms.

This opinion seems about right in light of the limiting dicta from Heller. Although I appreciate the test Justice Scalia proposed regarding “longstanding traditions” to determine if a regulation is consonant with the 2nd Amendment, this test has its limitations. Largely because the original meaning of the 2nd amendment was largely ignored for the last century. Any traditions and regulations enacted in light of that misunderstanding are constitutionally flawed and suspect. Relying on such traditions, premised on a collective right to keep and bear arms, seems illogical and likely unconstitutional.

One related issue are bans on non-violent felons possessing firearms . See this article, “Why can’t Martha Stewart Own a Gun,” by C. Kevin Marshall which provides a lengthy discussion of the history of regulations restricting access to weapons by those convicted of crimes, before and after the Bill of Rights was adopted. It always struck me as odd that non-violent felons, because of one bad act, are forbidding forever from keeping arms at home for purposes of self defense.  From Professor Lunds’s summary of Marshall’s article

While acknowledging that this history cannot solve all line-drawing problems, Mr. Marshall makes a powerful case that the traditional understanding of the right to arms did not authorize much more than laws forbidding those convicted of crimes of violence to carry firearms outside their homes, and possibly also forbidding them to possess easily concealable weapons, at least for as long as the offender continued to present a credible threat of recidivism.

If in fact the 2nd amendment is an individual right, on equal footing with other rights in the Bill of Rights, why is it still treated as an ugly red-headed stepchild. If Congress passed a law forbidding a person who violated election law from advocating for a political cause at any point in the future, would we not pause to argue this violates the First Amendment. But if a person commits a non-violent offense (tax evasion for example), that person’s individual right to keep and bear arms is forever eliminated. Professor Lund’s article addresses this point (pp. 14-15):

“[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill . . . .”32 This certainly sounds unobjectionable, at least at first. But how “longstanding” are these prohibitions? Justice Scalia either doesn’t know, or decided not to tell us. Apparently, however, the first general ban on the possession of firearms by felons was enacted in 1968.33
Longstanding? This was 177 years after the adoption of the Second Amendment, and less than a decade before the D.C. handgun ban was enacted.

Aside from the absence of historical support for the claim that such prohibitions are consistent with the preexisting right to arms, they are inconsistent with what Justice Scalia himself calls its “core,” namely self defense.34 On what understanding of that core does it make any sense to leave American citizens defenseless in their own homes for the rest of their lives on the basis of nothing more than a nonviolent felony like tax evasion
or insider trading? It would make more sense to say that the government may silence these felons for the rest of their lives regulatory crimes, after all, usually involve an abuse of speech, such as making false statements to the government or negotiating contracts that the government forbids. Such regulatory crimes have nothing at all to do with violence or the use of firearms.

It is also relevant to keep in mind the over-criminalization of our country. I have absolutely no idea how many felonies there are, but I’m pretty sure I violate at least one a day. Whereas at common law, where there were a relatively few number of felonies, today the number of infinitely larger, thus increasing the likelihood that a person will do something to foreclose his right to possess arms to defend himself at home.

Posted in 2nd Amendment. Comments Off on 1st Circuit Upholds Ban on Minors Possessing Guns

The Debate over Privileges or Immunities and the 2nd Amendment Rages on Volokh Comments

Over at the Volokh Conspiracy comment threads, a debate is raging over the Privileges or Immunities Clause and the 2nd Amendment Incorporation Case, McDonald v. Chicago.

A sampling of the comments may help explain why this is such a hot and controversial area, and why conservatives, libertarians, and liberals are all up in arms over the outcome of this case.

PubliusFL says:

What I can tell you is why libs like Jerry Brown [Attorney General of California] are supporting P&I incorporation. They’re hoping they can use the same theory to enforce other rights, unrelated to gun ownership, against state governments.

In Response to Publius, Angus says:

This is it exactly. This cases seems to make strange bedfellows. You have conservatives praising incorporation and denouncing federalism, leftists denouncing incorporation and praising federalism, and then a third group who look at this and say “Wow, we’re not interested in the gun issue, but we could really use case’s outcome to get what *we* want.”

In Response to Angus, troll_dc2 says:

Yes, yes, yes. The issue is actually less crucial than it formerly would have been both because of the use of the Due Process Clause to do the incorporation and the enactment of all sorts of civil rights laws, but if the conservative pro-gun types have to use the Privileges and Immunities Clause to get the Second Amendment to apply to the states, they may well discover that the Privileges and Immunities Clause might make the states subject to other federal rights, not all of which they might approve. So while the pro-gun result will look like a victory, the precedent that is established could bite them in the long run.

In response to Publus, geokstr says:

Yet no one believes that the left, by incorporating the 2A, can then use this theory to get everything they want. As you said above, to “…enforce other rights…against state governments.”

With a one vote shift in the balance of SCOTUS, they can also then use an incorporated 2A “against state governments” once the new court finds the hidden emanation that says this is all about formal state militias, not individual rights to own guns.

Wow. After watching how the left operates for all these decades, and still not understanding how they operate. Reminds me of an old Abbott/Costello routine: “…inch by inch, step by step, slooowwwly I turned…”, and there stood the monster.

This interesting alliance and bedfellows this creates is fascinating. See mainly the Amicus brief for this case signed by Randy Barnett AND Jack Balkin.

For these reasons, I compare revisiting the Privileges or Immunities Clause to opening up Pandora’s Box. We really don’t know what will come out. But we have to be prepared.

Though, perhaps one of the best NSFW comments is:

don’t incorporate me bro says:

Sounds like a blockbuster. The question presented is a legal academic’s wet dream.

For once, no comment from your humble blogger.