Jumping the Shark is an “idiom used to describe the moment of downturn for a previously successful enterprise.”

After 48 hours of defrosting and resting from my camp-out at SCOTUS, I am left thinking that Justice Scalia’s arguments at McDonald v. Chicago represent the moment he jumped the Originalism shark.

For years, he has described himself as a “faint-hearted” originalist, or “an originalist, but not a nut.”

Many characterized his opinion in Gonzales v. Raich as highly hypocritical, in that he turned his back on Originalism for policy reasons (See e.g., Randy Barnett’s essay, Scalia’s Infidelity).

I have no doubt Scalia does not like modern commerce clause jurisprudence, but this was never his strong suit. It is worth noting he never joined Justice Thomas’s concurring opinions in Lopez and Morrison. So, I don’t think he quite jumped the shark in Raich, as disappointing as it was.

I contend that the arguments in McDonald represent the moment Scalia jumped the shark.

For over two decades on the Court, Scalia has railed against substantive due process. I need not cite the numerous caustic dissents arguing that substantive due process is the greatest threat to our rule of law.

The Supreme Court last considered incorporation through substantive due process in 1982, four years before Justice Scalia joined the Court.  Originalists like Justice Scalia are loath to enlarge substantive due process. Stuck between a rock and a substantively hard place, what should they do? This was the perfect opportunity to get it right.Reinvigorating the Privileges or Immunities Clause presented an ideal opportunity for the Court, and Scalia, to restore the original meaning of the Constitution, and scale back the wayward warped doctrine of substantive due process.

As I wrote in Pandora’s Box:

Originalists stand at a unique vantage point. Without the Privileges or Immunities Clause, they must continue extending the un-originalist notion of incorporation via substantive due process to protect the right to keep and bear arms. In other words, to give meaning to the original meaning of one constitutional provision, the Second Amendment, they must further warp the original meaning of another, the Fourteenth Amendment.

But, Justice Scalia would rather take the “easier” approach and perpetuate substantive due process rather than be “original.”

At least Scalia’s robe looks cooler than Fonzie’s leather jacket.

The past 48 hours have been a blitz, and I have not been blogging as assiduously as I would have liked, but here is a brief recap of some of the media coverage of me and my blog:

New York Times [Adam Liptak took my Fantasy SCOTUS "Czar" line slightly out of context, but I'll let it slide ]

Josh Blackman was walking around telling people about his blog, which allows people to make predictions about how the term’s cases will come out. “I’m the czar of Fantasy Scotus,” he said by way of introduction, adding that he had recently barred three people from his site for cheating.

Reason Magazine

I’ll be writing a full account of what went on today and its likely meaning that should be up at Reason Online in a couple of days, but for those eager for a quick blow-by-blow by a very educated 2nd and 14th Amendment maven, Josh Blackman, do go read what he had to say about what happened this morning.

Daily Caller

Josh Blackman, president of the Harlan Institute, told The Daily Caller that a victory for McDonald is imminent. “Either way they go,” Blackman said, in reference to the two arguments the court heard Tuesday for incorporating Heller through the Privileges or Immunities Clause or substantive due process, “the gun law will be struck down.”

Plus links from Volokh, SCOTUSBlog, How Appealing (here and here), Legal Theory Blog (though Professor Solum mispelled my last name, quite tragically, as Blackmun), Above The Law, and more.

And major shout outs to my buddy, Mike Sacks, a/k/a First One @ One First. We hung out all night long at 1 First, and had a blast.

Sigh. :end Sent from my Verizon Wireless BlackBerry

Suffering through the bitter cold for nearly 14 hours (and being interviewed by Adam Liptak for the New York Times) was well worth the price to pay in order to witness the oral arguments in McDonald v. Chicago. While I think incorporation through the due process clause is a slam-dunk, I find it unlikely that the Court will reach to overturn the Slaughter-House cases and reinvigorate the Privileges or Immunities Clause.

Alan Gura began, noting that the framers of the 14th amendment made a promise to the McDonald family, that no state shall abridge the privileges or immunities of citizenship. Gura noted that the rights protected by the Privileges or Immunities Clause are not trivial, and that contrary to the assertions of Slaughter-House, the war was not fought for protection of rights on the high seas.

Chief Justice Roberts interjected, and noted that Gura’s interpretation conflicts with Slaughter-House, and asked whether the “heavy burden” was satisfied in order to overturn that precedent. In many respects, the question of whether Roberts remains more loyal to stare decisis or originalism.

Justice Ginsburg was very interested in the privileges or immunities protecting unenumerated rights, and asked several times whether the right to keep and bear arms would be included in the privileges or immunities, even if the second amendment was never ratified. To this question, Gura answered affirmatively. Gura noted that the Framers considered the privileges or immunities to include many of those protections in the first eight amendments. For those unenumerated rights, he looked to bills like the Civil Rights Act of 1866, which included the right to keep and bear arms, right to contract, right to sue and be sued.

In many respects, Justice Kennedy’s questions indicated that he wanted to vote for privileges or immunities. He asked several times of Gura what the scope of unenumerated rights were, and did not seem satisfied with Gura’s answers.

Justice Scalia asked point blank whether it would be “easier” to incorporate the Second Amendment under the Privileges or Immunities Clause. To that, Gura replied negatively. Scalia retorted that if the Privilege or Immunities process was more difficult, why bother overruling 130 years of precedent. Scalia quipped “unless you are bucking for a place on a law school faculty” and aim to be the “darling of the professoriat,” why would you undertake to overtake 140 years of precedent. This seems to be an attack at the academic consensus that privileges or immunities clause should be reinvigorated, but little practical and pragmatic clamoring for this need. To this, Gura replied that he would be willing to accept incorporation through. substantive due process.

Justice Scalia proposed that the Court may look to rights deeply rooted in our nation’s history and traditions, which is the test from Washington v. Glucksberg. As Gura noted, this is also the approach that Judge O’Scannlain used in Nordyke v. King (and this also the test Ilya Shapiro and I propose in Keeping Pandora’s Box Sealed).

Justice John Paul Stevens took a very interesting line of questioning, in which he sought to create a double standard for the right to keep and bear arms; that is the federal standard would offer more protections that the state standard. To support this, he cited Justice Harlan’s dissent in Griswold v. Connecticut. But neither Gura, nor Clement, nor Feldman, who argued for Chicago, seemed to buy this argument.

Justice Sotomayor, who asked few questions, impressed upon the City of Chicago to articulate the proper standard to be used to incorporate the Second Amendment. Chicago stuck to the “implicit in the concept of ordered liberty” standard from Palk. Though Justice Scalia noted that this standard has not been relied upon since 1937!

Unsurprisingly, Justice Breyer fixated heavily upon the statistics showing the dangers of guns. If the right is incorporated, public safety decisions would be made by judges. If the right is not incorporated, public safety decisions would be made by legislators, who can consider the danger of weapons. Every case involving the second amendment, according to Justice Breyer, considers life versus guns.

To this, Gura replied that the Court should consider the case in the same fashion they considered Heller. Breyer proceeded to disagree with Heller, though he noted that “that was the dissenter’s view.” Justice Scalia retorted that Miranda rule releases dangerous people, and does not save lives. The Courts should not resolve questions on that basis.

Curiously, Justice Scalia on no less than three occasions noted that the right to concealed carry would not be protected by the Second Amendment. I wonder if he was signaling further limitations to assuage Kennedy.

More commentary to follow on Clement’s arguments.

Update 2: Clement’s Arguments

Clement began by arguing that incorporation through the due process clause was straightforward.

Justice Stevens repeatedly asked Clement why the Second Amendment needed to be incorporated, while the right to grand jury and civil trial were not incorporated. Clement tried to draw a distinction between substantive and procedural rights, which did not seem to assuage Justice Stevens.

Justice Stevens also asked Clement whether the state right could be less protective than the federal right, citing again to Justice Harlan dissent in Griswold, as well as Poe v. Ullman. Alito asked why not consider John Marshall Harlan I. All this talk of the Harlans makes this President of the Harlan Institute (www.HarlanInstitute.org) quite happy.

Justice Breyer renewed his disagreement with the Heller opinion, and noted that “all” law professors agre that Blackstone thought the right to keep and bear arms only referred to raising an army. Clement countered that Blackstone was mostly concerned the right of self-defense.

Update: Feldman for the City of Chicago

Feldman, who argued on behalf of the City of Chicago, focused on the implicit in the concept of ordered liberty standard, and argued that the right to bear arms did not meet that standard. In fact, in order to maintain liberty, the City argued that they needed to ban guns.

Scalia challenged Feldman, and noted that the implicit standard has not been used since Palko v. Connecticut in 1937. This makes me think that Scalia is more likely to adopt the Glucksberg framework, a framework which he signed onto, and also the framework I recommended the Court adopt (albeit in the privileges or immunities concept).

Chief Justice Roberts repeatedly asked Feldman why the right to criminal juries should be incorporated, but not the right to bear arms, as it is deeply tied to our nation’s history and very important in our history. The Chief continued, and asked how Feldman could read Heller, and not conclude that the right to keep and bear arms was not important to the Framers. [Roberts makes the error of originalism at the wrong time. The relevant historical inquiry is the perspectives of the framers of the 14th amendment in 1868, not the perspectives of the framers of the Constitution in 1791].

In an add flashback, much of the discussion continued onto the meaning of the prefatory militia clause. I had thought this was resolved in D.C. v. Heller, so it was kind of odd to rehash these old issues. Justice Kennedy asked again if Heller was correctly decided, hwo could this right not be fundamental. Feldman referred to the militia clause. The Chief quipped that sounds like the argument of the losing side.

Justice Alito asked if a State could ban all firearms. To this, Feldman equivocated, and tried to draw a distinction between the right to self defense, and the right to keep and bear arms.

In perhaps my favorite Breyer hypothetical of all time, SGB asked Feldman to “make up an imaginary ordered liberty chart and give to James Madison.” The militia aspect of the second amendment would be high on the chart, and should be incorporated. In contrast, the “shoot burglar” right would be low, and not be incorporated. Alito replied to this hypothetical, noting that the Court does not do this kind of ranking with other rights.

The Chief, in contrast to Justice Stevens’ and Breyer’s assertions, asked Feldman whether the right could be bifurcated. In other words, is it “all in or all out.” To this, Feldman replied that is all in and all out, and the federal standard must mean the same thing as the state standard.

One note. Justice Stevens said that he would rely on Justice Harlan’s dissent in Harlan. Justice Harlan concurred in Griswold, but concurred in Poe v. Ullman. Oddly, the Chief repeated this error, and referred to Harlan’s dissent in Griswold.

Update 3: Gura’s Rebuttal TIme

Gura’s Rebuttal Time
Right off the bat, Kennedy asked for examples of privileges or immunities being denied, and whether they would be remedied by overruling Slaughterhouse.

Gura replied that the right to jury trials for civil cases, and other unenumerated rights were being infringed.

Justice Ginsburg asked if every state would need to provide grand juries and civil jury trials. To this, Gura answered that this is what the framers sought.

Justice Kennedy asked what are the unenumerated rights. Gura replied that “We cannot give full description.” Kennedy asked if this troubled Gura. Before Gura could answer, Justice Alito jumped in and asked whether the privileges or immunities includes the right to contract. Gura replied affirmatively, as understood by the framers, based on the Civil rights act of 1866.

Chief Justice Roberts asked if this would give Judges more power. Gura replied that his approach is deeply rooted in text and history. The Chief replied that the Privileges or Immunities are more flexible than due process, as they are not limited to procedure.

Gura replied that in 1868 the right to keep and bear arms was understood to be a Privileges or Immunity of citizenship.

The Court was not at all receptive to arguments on Privileges or Immunities but incorporation on Due Process is a slam dunk. More commentary soon.

Update:

Suffering through the bitter cold for nearly 14 hours (and being interviewed by Adam Liptak for the New York Times) was well worth the price to pay in order to witness the oral arguments in McDonald v. Chicago. While I think incorporation through the due process clause is a slam-dunk, I find it unlikely that the Court will reach to overturn the Slaughter-House cases and reinvigorate the Privileges or Immunities Clause.

Alan Gura began, noting that the framers of the 14th amendment made a promise to the McDonald family, that no state shall abridge the privileges or immunities of citizenship. Gura noted that the rights protected by the Privileges or Immunities Clause are not trivial, and that contrary to the assertions of Slaughter-House, the war was not fought for protection of rights on the high seas.

Chief Justice Roberts interjected, and noted that Gura’s interpretation conflicts with Slaughter-House, and asked whether the “heavy burden” was satisfied in order to overturn that precedent. In many respects, the question of whether Roberts remains more loyal to stare decisis or originalism.

Justice Ginsburg was very interested in the privileges or immunities protecting unenumerated rights, and asked several times whether the right to keep and bear arms would be included in the privileges or immunities, even if the second amendment was never ratified. To this question, Gura answered affirmatively. Gura noted that the Framers considered the privileges or immunities to include many of those protections in the first eight amendments. For those unenumerated rights, he looked to bills like the Civil Rights Act of 1866, which included the right to keep and bear arms, right to contract, right to sue and be sued.

In many respects, Justice Kennedy’s questions indicated that he wanted to vote for privileges or immunities. He asked several times of Gura what the scope of unenumerated rights were, and did not seem satisfied with Gura’s answers.

Justice Scalia asked point blank whether it would be “easier” to incorporate the Second Amendment under the Privileges or Immunities Clause. To that, Gura replied negatively. Scalia retorted that if the Privilege or Immunities process was more difficult, why bother overruling 130 years of precedent. Scalia quipped “unless you are bucking for a place on a law school faculty” and aim to be the “darling of the professoriat,” why would you undertake to overtake 140 years of precedent. This seems to be an attack at the academic consensus that privileges or immunities clause should be reinvigorated, but little practical and pragmatic clamoring for this need. To this, Gura replied that he would be willing to accept incorporation through. substantive due process.

Justice Scalia proposed that the Court may look to rights deeply rooted in our nation’s history and traditions, which is the test from Washington v. Glucksberg. As Gura noted, this is also the approach that Judge O’Scannlain used in Nordyke v. King (and this also the test Ilya Shapiro and I propose in Keeping Pandora’s Box Sealed).

Justice John Paul Stevens took a very interesting line of questioning, in which he sought to create a double standard for the right to keep and bear arms; that is the federal standard would offer more protections that the state standard. To support this, he cited Justice Harlan’s dissent in Griswold v. Connecticut. But neither Gura, nor Clement, nor Feldman, who argued for Chicago, seemed to buy this argument.

Justice Sotomayor, who asked few questions, impressed upon the City of Chicago to articulate the proper standard to be used to incorporate the Second Amendment. Chicago stuck to the “implicit in the concept of ordered liberty” standard from Palk. Though Justice Scalia noted that this standard has not been relied upon since 1937!

Unsurprisingly, Justice Breyer fixated heavily upon the statistics showing the dangers of guns. If the right is incorporated, public safety decisions would be made by judges. If the right is not incorporated, public safety decisions would be made by legislators, who can consider the danger of weapons. Every case involving the second amendment, according to Justice Breyer, considers life versus guns.

To this, Gura replied that the Court should consider the case in the same fashion they considered Heller. Breyer proceeded to disagree with Heller, though he noted that “that was the dissenter’s view.” Justice Scalia retorted that Miranda rule releases dangerous people, and does not save lives. The Courts should not resolve questions on that basis.

Curiously, Justice Scalia on no less than three occasions noted that the right to concealed carry would not be protected by the Second Amendment. I wonder if he was signaling further limitations to assuage Kennedy.

More commentary to follow on Clement’s arguments.

Update 2: Clement’s Arguments

Clement began by arguing that incorporation through the due process clause was straightforward.

Justice Stevens repeatedly asked Clement why the Second Amendment needed to be incorporated, while the right to grand jury and civil trial were not incorporated. Clement tried to draw a distinction between substantive and procedural rights, which did not seem to assuage Justice Stevens.

Justice Stevens also asked Clement whether the state right could be less protective than the federal right, citing again to Justice Harlan dissent in Griswold, as well as Poe v. Ullman. Alito asked why not consider John Marshall Harlan I. All this talk of the Harlans makes this President of the Harlan Institute (www.HarlanInstitute.org) quite happy.

Justice Breyer renewed his disagreement with the Heller opinion, and noted that “all” law professors agre that Blackstone thought the right to keep and bear arms only referred to raising an army. Clement countered that Blackstone was mostly concerned the right of self-defense.

Update: Feldman for the City of Chicago

Feldman, who argued on behalf of the City of Chicago, focused on the implicit in the concept of ordered liberty standard, and argued that the right to bear arms did not meet that standard. In fact, in order to maintain liberty, the City argued that they needed to ban guns.

Scalia challenged Feldman, and noted that the implicit standard has not been used since Palko v. Connecticut in 1937. This makes me think that Scalia is more likely to adopt the Glucksberg framework, a framework which he signed onto, and also the framework I recommended the Court adopt (albeit in the privileges or immunities concept).

Chief Justice Roberts repeatedly asked Feldman why the right to criminal juries should be incorporated, but not the right to bear arms, as it is deeply tied to our nation’s history and very important in our history. The Chief continued, and asked how Feldman could read Heller, and not conclude that the right to keep and bear arms was not important to the Framers. [Roberts makes the error of originalism at the wrong time. The relevant historical inquiry is the perspectives of the framers of the 14th amendment in 1868, not the perspectives of the framers of the Constitution in 1791].

In an add flashback, much of the discussion continued onto the meaning of the prefatory militia clause. I had thought this was resolved in D.C. v. Heller, so it was kind of odd to rehash these old issues. Justice Kennedy asked again if Heller was correctly decided, hwo could this right not be fundamental. Feldman referred to the militia clause. The Chief quipped that sounds like the argument of the losing side.

Justice Alito asked if a State could ban all firearms. To this, Feldman equivocated, and tried to draw a distinction between the right to self defense, and the right to keep and bear arms.

In perhaps my favorite Breyer hypothetical of all time, SGB asked Feldman to “make up an imaginary ordered liberty chart and give to James Madison.” The militia aspect of the second amendment would be high on the chart, and should be incorporated. In contrast, the “shoot burglar” right would be low, and not be incorporated. Alito replied to this hypothetical, noting that the Court does not do this kind of ranking with other rights.

The Chief, in contrast to Justice Stevens’ and Breyer’s assertions, asked Feldman whether the right could be bifurcated. In other words, is it “all in or all out.” To this, Feldman replied that is all in and all out, and the federal standard must mean the same thing as the state standard.

One note. Justice Stevens said that he would rely on Justice Harlan’s dissent in Harlan. Justice Harlan concurred in Griswold, but concurred in Poe v. Ullman. Oddly, the Chief repeated this error, and referred to Harlan’s dissent in Griswold.

Update 3: Gura’s Rebuttal TIme

Gura’s Rebuttal Time
Right off the bat, Kennedy asked for examples of privileges or immunities being denied, and whether they would be remedied by overruling Slaughterhouse.

Gura replied that the right to jury trials for civil cases, and other unenumerated rights were being infringed.

Justice Ginsburg asked if every state would need to provide grand juries and civil jury trials. To this, Gura answered that this is what the framers sought.

Justice Kennedy asked what are the unenumerated rights. Gura replied that “We cannot give full description.” Kennedy asked if this troubled Gura. Before Gura could answer, Justice Alito jumped in and asked whether the privileges or immunities includes the right to contract. Gura replied affirmatively, as understood by the framers, based on the Civil rights act of 1866.

Chief Justice Roberts asked if this would give Judges more power. Gura replied that his approach is deeply rooted in text and history. The Chief replied that the Privileges or Immunities are more flexible than due process, as they are not limited to procedure.

Gura replied that in 1868 the right to keep and bear arms was understood to be a Privileges or Immunity of citizenship.

I have now been waiting here since 8 p.m., a total of 10 hrs. I’ve gotten probably 3 hours of sleep, but I wake up whenever I get too cold. This has been pretty brutal, and I am quite cold. SCOTUS hands out the tickets around 7 a.m., so the light at the end of the tunnel is getting brighter. I’ve already swapped blackberry batteries so I’m good for another fully day of McDonald blogging.