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.

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.

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.

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