Why did Alito, Breyer, and Stevens spend only 270 words on Privileges or Immunities?
Something about McDonald v. Chicago strikes me as odd about. In a 147 page opinion (214 pages – Thomas’ 67 page opinion) consisting of a plurality, and two significant dissenting opinions, a mere 270 words were dedicated to the Privileges or Immunities Clause.
Let’s revisit the history of this case.
In one of my first posts on this blog, I noted the significance when the Supreme Court granted cert on this case. They offered two questions presented:
“Whether the Second Amendment is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home.”
This question presented spawned a brouhaha in the legal blogosphere (See here, here, and here) over what the Supreme Court would do with the Privileges or Immunities Clause, and why they asked this question.
Fast forward a few months, and the NRA filed a motion for divided argument time.The NRA argued that the due process argument was not adequately briefed, and they requested time to allow former SG Paul Clement to present it during oral arguments. The motion was granted.
At oral arguments, the vast majority of the discussion centered around Privileges or Immunities. Due Process was really an open-and-shut argument.
Which brings us to today’s opinion. After all of this drama, why only a mere 270 words on Privileges or Immunities?
I could imagine the Court taking this quiet approach if they were trying to keep Justice Thomas from breaking off. But he did just that. Why would Justice Alito be so curt about P or I. If it was so horrible, why not shoot it down. If there is no legitimate basis, why would he merely say that due to the vagaries of the doctrine, and settled precedent, the Court would not disturb precedent. When the Court wants to destroy a doctrine, they do so. See Justice Scalia’s opinion in Stop the Beach.
The wildcard here, of course, is Justice Kennedy. Perhaps he would not join an opinion that rips apart Privileges or Immunities. Maybe in some future case involving liberty–that is not a gun case, but a case involving Kennedy’s favorite forms of personal autonomy and liberty–Kennedy would want to rely on it? Perhaps.
And why did Breyer merely accept Alito’s handling of this issue? Perhaps in future cases, the liberal justices can see this as a useful tool to consider other types of rights.
My point is simple. This is not as bad as it could have been. In fact, I think it has a lot of potential for the future.