JoshVlogs: Video of Panel Discussion Presentation of NRA Civil Rights Defense Fund Scholar’s Conference of Privileges on Immunities and McDonald v. Chicago

I watched this whole video and a couple of statements intrigued me, and I will paraphrase.
1. Adam Winkler-quoting Amar said that no serious scholar believes Slaughterhouse was decided correctly.
First, I have read Amar’s books and this is an overly broad statement. Many scholars have shown that Slaughterhouse was decided rightly based on the jurisprudence at the time, and others have shown that the Fourteenth Amendment debates are frequently spinned to support the incorporationalist stance. I have read ALL the debates because it is my job…thousands of pages…and there are a lot of inferences that can be made. The problem usually rests with legal scholars who feel there has to be a definitive answer for everything. As any good PhD or professional scholar would tell you, we often do not have the answers and do not know. I think Winkler summed up this point well with discussing the “popular understanding” of the Fourteenth Amendment. We don’t know what it was.

2. Shapiro-He extends Amar’s reasoning on the Fourteenth Amendment to the Second Amendment and incorporation, stating that no serious scholar believes the City of Chicago can win this case.
Really?…really? So anyone that agrees that incorporation in a serious legal or historical publication is a “scholar”, and all others are not? This is hardly an objective and “scholarly” statement. I will admit that Due Process incorporation looks promising considering the make up of the Supreme Court, but there are problems with Due Process incorporation such as “Anglo-American heritage” and the inclusion of the Heller “individual right” language in state constitutions in both the Founding Era (4 states out of 13) and the Antebellum Era, i.e. 1868 (17 states out of 37). In Duncan, the Supreme Court incorporated the right to a jury trial because, ““The constitutions adopted by the original States guaranteed jury trial. Also, the constitution of every State entering the Union thereafter in one form or another protected the right to jury trial in criminal cases.” The Second Amendment does not meet this test. Now, if you argue a living constitution, this requirement for Due Process incorporation may pass. However, this an “if”, and not a slam dunk.

3. Blackman-this case is about 1868, not 1791…
First, you contradict yourself by going back to 1791 saying it was because the colonists were disarmed that the Second Amendment was adopted. I see you have been reading Halbrook’s work and also making the casual connection between disarmament and the Second Amendment. If Halbrook is right though, why did such a complaint not make any Declaration, petition, or grievance in national or local petitions? (Declaration of Causes and Necessity does not count, the grievance was with the violation of the “treaty”, and the seizure of property including arms) Why did no one in Virginian proclaim Dunmore violated their right to “have arms”? This would be a no-brainer complaint. Also, Halbrook’s argument doesn’t adequately explain why the Founders felt justified in disarming “suspected” loyalists (didn’t even have to be loyalists) and those who would not take up arms in the cause. No one questioned this disarming as violating their right to “have arms.”
Second, as the last person queried, why does this case for incorporation through the Privileges or Immunities have to be about 1868 only? Why wouldn’t they go back to 1791? This argument has never been adequately justified, including by Amar. The questioner was right that they often referred to the “Bill of Rights” and they frequently discussed binding the states by the Bill of Rights according to the Founding understanding. In short, the Court may decide to go back to 1791 should it view incorporation through the Privileges or Immunities Clause.

Lastly, on a side note, after talking with my colleagues, it is plausible that the Court took Gura’s case and not the NRA’s because they were only going to take one Second Amendment incorporation case. If Thomas had to choose one, which one do you think he threw his weight behind? Not to mention, it still allowed the Court to hear the Due Process argument.