2nd Amendment
JoshVlogs: Video of my Presentation at NRA Civil Defense Fund Scholar’s Conference of Privileges on Immunities, McDonald v. Chicago, and Pandora’s Box
Jan 12th
Here is video from a discussion I gave at the NRA Civil Defense Fund’s Scholar’s Conference last weekend in New Orleans. I spoke about the Privileges or Immunities Clause of the 14th Amendment, the right to keep and bear arms, McDonald v. Chicago, and Pandora’s Box. Also on the panel, from left to right, were Ilya Shapiro, Dave Hardy, and Adam Winkler. I will be uploading the full hour-long discussion shortly.
Recognition of Unenumerated Rights, Washington v. Glucksberg, and McDonald v. Chicago
Jan 7th
I previously blogged about the City of Chicago’s Respondent brief in McDonald v. Chicago. The respondents do make one argument, that I think needs to be further addressed.
On page 50, respondent writes:
Thus, petitioners’ argument would require this Court to sort out which unenumerated and previously unrecognized rights are protected by the Privileges or Immunities Clause.
This is exactly the question that Ilya and I aim to answer in our forthcoming article. Keeping Pandora’s Box Sealed: Privileges or Immunities, The Constitution in 2020, and Properly Extending the Right to Keep and Bear Arms to the States (pp. 115-144).
We propose the Court extends the test from Washington v. Glucksberg to sort out previously unrecognized unenumerated rights. Following the 2 prong test from Glucksberg, the right to keep and bear arms is (1) deeply rooted in our nation’s history and traditions, and (2) can be clearly defined (see the numerous statements about the importance of bearing arms, and contemporaneous references in the Freemen Bureau Act, Civil Rights Act, etc)
The majority of the Supreme Court, liberal and conservative Justices alike, have endorsed Glucksberg. SDP in many ways mirrors what P or I should do. No need to reinvent the wheel here. Stick with what SCOTUS, and the lower courts, know.
The current Supreme Court test for recognizing unenumerated right is Glucksberg. Glucksberg is more accepted than the “implicit in the concept of ordered liberty” test. If the Court ventures into this area in McDonald, this is the test the Court should apply.
Curiously, the respondent fails to make any mention of the Glucksberg test (they include it in a footnote in passing on an unrelated topic). This is even more odd in light of the fact that in Nordkye v. King, Judge O’Scannlain provided a lengthy explication of how Glucksberg applies.
Overview of Amici Supporting City of Chicago in McDonald v. Chicago
Jan 7th
Yesterday was the deadline for Amicus Briefs supporting respondent, City of Chicago in McDonald v. Chicago. Alan Gura has posted most of the briefs at ChicagoGunCase.com. It is worth noting that there were over 30 briefs supporting Petitioner, McDonald, and approximately half that supporting Petitioner. It is also worth noting that many of the high profile Amici from Heller (e.g., ABA, DOJ, and others) did not bother supporting the City of Chicago. Also, the Brady Center, as well as the NAACP LDF filed a brief in support of neither argument (essentially conceding incorporation). Here is a brief summary of the briefs, with a bit of commentary.
- Educational Fund to Stop Gun Violence-
The Second Amendment should not be incorporated. See generally Chicago Resp’ts’ Br. But if it is, this Court should clarify that the Second Amendment protects the right to bear arms only for lawful purposes. See D.C. v. Heller, 128 S. Ct. 2783, 2813, 2815-16, 2816-17 (2008); infra Section II. Advocates for unfettered access to firearms argue that there exists in the Second Amendment an individual and constitutionally-protected right to keep and bear arms for the insurrectionary purpose of attacking so-called government “tyranny.” See infra
Section III. In District of Columbia v. Heller, the Court appears to suggest that the Second Amendment protects “the existence of a ‘citizens’ militia’ ” (i.e., one that exists apart from the democraticallycontrolled State militia) “as a safeguard against tyranny.” 128 S. Ct. at 2802; see infra Section III.A.2. This understanding of the Second Amendment’s purpose and scope is historically erroneous, dangerous, and inconsistent with the Court’s other decisions. - ADL-
Extremist individuals and groups, in particular, tend to share several characteristics: an intense fascination with firearms; a paranoiac distrust of government or a deep-seated hatred for particular minority groups- or both; and a willingness to engage in acts of shocking, often deadly, violence. Armed extremism leads to violent extremism with profoundly unsettling frequency and profoundly tragic effects. [J.B. The ADL discusses recent shooters, including James Von Brunn, who shot and killed a security guard at the United States Holocaust Museum in Washington, D.C., as an example of violent extremists using guns to justify draconian gun control law. As Jew who owns firearms, I find this position ludicrous.] - U.S. Conference of Mayors-
When gang members and drug dealers cannot obtain and carry firearms with impunity, in turn, their ability to use violence as a means of competing for control of drug markets is sharply circumscribed. The eighteenth-century version of the right to bear arms codified in the Second Amendment, however, imperils law-enforcement strategies with enormous promise in the fight against violent crime. The first eight amendments are properly applied against state and local governments by virtue of the Fourteenth Amendment when they secure rights implicit in the concept of ordered liberty. The available historical evidence suggests that the eighteenth century conception of the right to bear arms has given way to a more vigorous conception of state and local police powers. Moreover, in high-crime, gang ridden neighborhoods, it may be effectively impossible to grant a right to bear arms while preserving ordered liberty. The Second Amendment’s right to bear arms accordingly is not enforceable against state and local governments by virtue of the Fourteenth Amendment. - “Public Health Organizations”-
While the numbers of non-fatal shootings are troubling, this brief focuses on the most extreme consequences of improper firearm use—that is, the taking of human life. The studies detailed below illustrate a powerful link between the prevalence of guns—especially handguns—on the one hand, and a heightened risk of suicide, homicide, and fatal gun shootings, on the other. The research further indicates that women and children, including adolescents, are particularly threatened by firearms. These data suggest that the types of
statutes challenged in this case may prevent a substantial number of murders, suicides, and unintentional firearm deaths. - Rep. Carolyn McCarthy, and 53 members of Congress-
“Reversing the decision below would not only cast doubt on the constitutionality of the decision of the citizens of Chicago that, within the confines of their city, the dangers of handguns outweigh any benefits that may be supposed to flow from their possession, but also coudl throw into question virtually every state and local firearm regulation.” - States of Illinois, Maryland, and New Jersey-
Pursuing a variety of approaches to gun-control legislation, the individual States have balanced the legitimate interests of gun owners against the need, which varies with locale, to protect their residents from the devastating effects of gun violence. In this manner, the States capably have performed their role as “‘laboratories for experimentation’” in an arena “‘where the best solution is far from clear.’” Grutter v. Bollinger, 539 U.S. 306, 342 (2003) (quoting United States v. Lopez, 514 U.S. 549, 581 (1995) (Kennedy, J., concurring)). [J.B. For my thoughts on the laboratory argument, see Point #4]Incorporating the Second Amendment would undermine these efforts, and neither that provision nor the Fourteenth Amendment was understood to demand such interference with state prerogatives. The Second Amendment was codified to protect the militia from elimination by the federal government, not from overreaching by the States. And the Fourteenth Amendment was designed to prevent discriminatory disarmament of Southern blacks, not restrict the States’ traditional authority to pass generally applicable gun laws. The Second Amendment resists incorporation for the additional reason that—as the only Bill of Rights provision conferring a right to possess an item designed to kill—the right to bear arms uniquely requires government oversight, and the democratic process in the States is far better suited than the federal courts to set limits on firearm possession and use. - “Early American History”-
The right of individual selfdefense was left unchanged by the Second Amendment. As before, it was a natural right recognized by common law and subject to appropriate regulation under the governmental contract with the people. Protecting the right to keep and bear arms for militia purposes was the dominant reason behind the SecondAmendment. - “Early English History”-
However, contrary to discredited scholarship upon which Heller relied, the right to “have arms” embodied in the
English Declaration of Rights did not intend to protect an individual’s right to possess, own, or use arms for private purposes such as to defend a home against burglars (what, in modern times, we mean when we use the term “self-defense”). Rather, it referred to a right to possess arms in defense of the realm. Accordingly, the right to own or use arms for private purposes is not a right deeply rooted in our nation’s tradition, and should not be incorporated as against the states by the Fourteenth Amendment.The evidence compiled by scholars discussed herein shows that the Second Amendment gave individual United States citizens the right to take part in the militia to defend their political liberties and to restore their Constitution should, as Blackstone wrote, “the sanctions of society and laws [be] found insufficient to restrain the violence of oppression.” It is this right of “self-preservation” and “resistance” that the Boston Town Council invoked in 1768 and the American colonies exercised when they rebelled against England
- “Historians and Legal Scholars”-
This Court should reject Petitioners’ argument that the Privileges or Immunities Clause incorporates the whole of the Bill of Rights against the States. The total incorporation theory is radical in two respects. First, particularly when viewed from the perspective of the framing-era public, it would have worked a massive realignment of power between the States and the federal government. Second, embracing total incorporation would require the Court to overrule more than 135 years of unbroken—indeed, repeatedly reaffirmed—precedent. Both of these concerns militate against accepting the total incorporation theory absent convincing evidence about what
the Clause actually meant to the States that ratified it. II. Petitioners’ evidence fails to meet this standard.
First, nothing in the plain language of the Clause suggests that an observer from the framing era would read it to incorporate the Bill of Rights. To the contrary, prevailing legal opinion at the time did not recognize the rights granted by the first eight amendments as “privileges or immunities” guaranteed against States by virtue of national citizenship. And the Clause’s closest textual analog, the Privileges and Immunities Clause of Article IV—which predated the Bill of Rights—has never been read to encompass the first eight amendments. - Villages of Winnetka & Skokie, et al.-
- Chicago Bd. of Education, et al.
The right to arms, even for personal self-defense, is fundamentally different from all other liberties retained by individuals in society, because of the inherent lethality of firearms. We tolerate few restrictions on the right to free speech because of its salutary effects, and because “sticks and stones may break my bones but words can never hurt me,” as the children’s rhyme goes. Guns, on the other hand, will kill you. - “Professional Historians”-
It would therefore be contrary to early practice under the Fourteenth Amendment to block states and cities from enacting reasonable gun regulations, including bans on specific types of dangerous weapons, such as the laws at issue in this case. As state constitution drafters, courts, legislatures, and commentators alike have agreed, our constitutional framework gives states and local governments the authority they need to balance the public safety interests impacted by the possession and use of dangerous weapons such as handguns. The regulations at issue in this case are consistent with our nation’s historical regulation of dangerous weapons. - Criminal Justice Professors-
The City of Chicago’s handgun ban has been an effective part of its efforts to reduce handgun crime since 1982. It has helped reduce handgun homicides involving family members and intimate partners. It has also favorably impacted Chicago’s overall handgun homicide rate relative to other cities once economic and demographic factors are considered. The Chicago handgun ban has saved hundreds of lives.
Chicago’s handgun ban also has reduced the supply of handguns, which reduction is correlated with a reduction in handgun crime. The ban has also protected Chicago’s citizens from the increase in crime associated with increased availability of handguns. Finally, the arguments raised by amici in support of Petitioners with respect to the efficacy of the handgun ban fail for several reasons. In particular, the data actually show that, post-ban, the number of handgun homicides in homes has decreased and that Chicago residents are now safer in their homes than they were before the ban. - Cities, Cook County, and Police Chiefs-
In other words, the Amendment’s purpose makes clear that it is essentially a “federalism provision” designed to protect the States and their citizens from excessive federal power. In view of the Second Amendment’s stated purpose, it makes no sense to incorporate the right to bear arms against the States. At bottom, the Second Amendment right cannot be considered implicit in the concept of ordered liberty, so as to justify its incorporation under the Due Process Clause of the Fourteenth Amendment. Instead of promoting social order, justice and peace, it functions in situations where the rule of law has broken down, and the States may have to call their citizens to militia duty under their emergency powers. [J.B. This is a slight variation of the Respondent's argument as to why the right to keep and bear arms is not implict in the concept of ordered liberty]While the notion of citizens using force of arms to protect themselves from harm is not unreasonable or unjustified in a vacuum, it must be tempered in a community setting in which each citizen must conduct himself so as not to cause unnecessary injury or death to fellow citizens. - Prosecuting Attorneys-
Extension of the Second Amendment’s restrictions to the states will undermine regulation of violent criminal conduct at every stage of the criminal justice process. If possession of a firearm is presumptively legal, police will be less able to intervene and prevent violent crime before it occurs. Incorporation of the Second Amendment would also promote routine challenges to firearms possession charges on Second Amendment grounds and thereby significantly increase the burden on prosecutors in obtaining convictions for violation of state firearms laws and defending them on appeal. Incorporation would cutions in litigation similar to litigation under the Fourth Amendment’s exclusionary rule. Indeed, it also would complicate Fourth Amendment litigation itself by threatening to redefine “probable cause” and “reasonable suspicion” in firearms prosecutions.
The implications of incorporation would be dramatic in scope. Ninety percent of firearms convictions
are obtained at the state level. These convictions are based on laws that have been carefully
calibrated to local conditions based on experience. Subjecting states and localities to an unbending national
standard concerning the right to bear arms would ignore the importance of these local solutions and substantially undermine the ability of elected representatives to take actions to ensure public safety. The position of state and local prosecutors throughout the nation is quite different from that of federal prosecutors who, by definition, operate under a single national standard. - Oak Park Citizens Committee-
This Court has incorporated against the states only those enumerated constitutional rights that are “implicit in the concept of ordered liberty.” Palko v. Connecticut, 302 U.S. 319, 324-25 (1937), overruled on other grounds by Benton v. Maryland, 395 U.S. 784 (1969). This phrase reflects not only a theoretical standard, but also a practical reality. Incorporated rights “are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.” Malloy v. Hogan, 378 U.S. 1, 10 (1964). Thus, as this Court observed when incorporating the right against self-incrimination against the states, incorporation makes sense when it would be “incongruous to have different standards” concerning the exercise of the right, regardless of whether it is the state or the federal government
which is threatening the personal interest the right protects. Id. at 11.
The right of self-defense has unquestionably been the subject of varying state standards throughout our nation’s history. There is nothing incongruous about states and local communities adopting different standards concerning the role handguns play, if any, in ensuring the right of selfdefense, especially in light of the vastly different circumstances that communities face regarding the public safety implications of handguns. Incorporating the Second Amendment right to own arms for self-defense would entail developing uniform federal standards for the use of those protected firearms in self-defense. To incorporate the Second Amendment
right to possess handguns in one’s home would portend a massive federal intrusion into the administration of the right to self-defense that is as unwarranted as it is unnecessary. Oak Park asks only for the right to decide for itself what weapons best protect the public health and safety of its own citizens and their homes. [J.B. this is actually an interesting argument, and ties into my previous posts about whether the Constitution has a geography clause. Can a constitutional right mean one thing in Place A, and a different thing in Place B]
Exclusive: NRA files Opposed Motion for Divided Argument in McDonald v. Chicago
Jan 5th
The NRA Respondents-Supporting-Petitioners, in McDonald v. Chicago, have filed a Motion for Divided Argument to request time at oral arguments. Petitioner opposed this motion.
In short, the NRA, represented by Paul Clement at King & Spalding, is asking to divide Gura’s time, and to get 10 minutes to argue. The NRA argues that Gura’s brief spent primarily focused on arguing in favor of extending the right to keep and bear arms through the Privileges or Immunities Clause, rather than the Due Process Clause. The NRA argues that the Court needs to hear an argument in favor of the Due Process Clause.
Indeed, because the Due Process Clause represents a route to reversal that does not necessitate the overruling of this Court’s precedents, it would be particularly unfortunate if that argument were not adequately presented at oral argument . . . Because participation of the Respondents-Supporting-Petitioners in the oral argument will ensure that the Due Process Clause alternative is adequately presented, the proposed division of argument will materially assist the Court in its consideration of the case.
The NRA wants to incorporate through the Due Process Clause, and leave Slaughter-House intact. Gura, wants the Court to overrule Slaughter-House, and reinvigorate the Privileges or Immunities Clause. Even though both parties want the Court to strike down Chicago’s gun ban, their preferred approaches are in tension.
While Gura’s brief mainly focuses on Privileges or Immunities Clause, he does address the Due Process argument. It is pretty much open and shut. Recognizing this likely failure, the City of Chicago spends most of its ammo on policy arguments.
To be frank, it really doesn’t take much effort to find for incorporation through the Due Process Clause. Ilya Shapiro just pinged me a note, and remarked that any first-year law student who’s taken constitutional law—let alone a Supreme Court clerk—could write an opinion incorporating the Second Amendment via the Due Process Clause in her sleep.
Further, the Due Process argument was briefed extensively by over 30 Amici. And, I am certain that Gura will be able to handle any questions at oral arguments dealing with Due Process.
For those of you new to the fray, there is a lot of history here. First, if you recall, the NRA tried to spike Heller by joining plaintiffs who would be dismissed. For a full background, see Clark Neily, District of Columbia v. Heller: The Second Amendment Is Back Baby, 2007–2008 CATO SUP. CT. REV. 127, 134 (2008) and Pandora’s Box, pp. 19-23. Second, in all likelihood, Paul Clement will argue the case. As Solicitor General, Paul Clement filed a brief on behalf of the United States in Heller urging the Court to adopt an intermediate level of scrutiny. Both positions were antagonistic to Gura’s efforts to champion the right to keep and bear arms.
This is Supreme Court politics at its greatest. Stay tuned.
Sorry Gilbert Arenas. Heller did not legalize carrying firearms into the Verizon Center.
Jan 5th
The holding of D.C. v. Heller was very simple. D.C. could no longer ban the possession of firearms to be kept in a resident’s home. Heller does not touch the right to carry a firearm outside one’s home. Apparently, Washington Wizard star Gilbert Arenas did not get the memo.
Washington Wizards star Gilbert Arenas says he took unloaded guns from his locker in a “misguided effort to play a joke” on a teammate. Arenas released a written statement Monday after meeting with law enforcement officials. Arenas’ lawyer says the player voluntarily met with prosecutors and detectives and answered every question during a two-hour interview. In his statement, Arenas repeated his assertion that he brought four guns to the Verizon Center to store in his locker in order to get them out of his house and away from his children. He said he mistakenly believed that recent changes in District of Columbia law made it legal for him to store unloaded guns there.
Arenas undoubtedly is referring to Heller here. Amazing how the landmark case, even if misunderstood by this athlete, has made it into the cultural zeitgeist. But Arenas would be well-served to read JoshBlackman.com. Maybe then he could stay out of trouble.
H/T Sentencing Blog
Instant Analysis of the Respondent Brief of the City of Chicago in McDonald v. Chicago
Dec 31st
Here is my Instant Analysis of the city of Chicago’s Respondent Brief in McDonald v. Chicago. You can download the brief here. For my thoughts on McDonald and Privileges or Immunities, see my article, co-authored with Ilya Shapiro, titled Keeping Pandora’s Box Sealed: Privileges or Immunities, The Constitution in 2020, and Properly Extending the Right to Keep and Bear Arms to the States, forthcoming in the Georgetown Journal of Law & Public Policy.
In short, Chicago argues:
I. THE DUE PROCESS CLAUSE DOES NOT INCORPORATE THE SECOND AMENDMENT RIGHT TO KEEP AND BEAR ARMS.
A Provision Of The Bill Of Rights Applies To The States Under The Due Process Clause If It Is “Implicit In The Concept Of Ordered Liberty.” Regulation Or Prohibition Of Fire- arms, Particularly Handguns, May Reasonably Be Thought To Preserve, Not Intrude On, Ordered Liberty
II. THE COURT SHOULD ADHERE TO PRECEDENT REJECTING INCORPO- RATION UNDER THE PRIVILEGES OR IMMUNITIES CLAUSE
Even If Viewed De Novo, The Histor- ical Record Provides No Basis For Imposing The Second Amendment On The States. Petitioners Fail To Carry Their Bur- den Of Showing That This Court Should Abandon Its Traditional Due Process Approach To Incorporation
I have only given this brief a cursory glance, but a few things jump out at me.
1. First, the Respondents take on the “implicit in the concept of ordered liberty” incorporation test is a new one for me.
Bill of Rights provisions are incorporated into the Due Process Clause only if they are implicit in the concept of ordered liberty . . . Thus, Chicago and Oak Park may reasonably conclude that in their communities, handgun bans or other stringent regulations are the most effective means to reduce fear, violence, injury, and death, thereby enhancing, not detracting from, a system of ordered liberty
Because handguns are so well adapted for the commission of crimes and the infliction of injury and death, stringent handgun regulations, including prohibitions, can be reasonably thought to create the conditions necessary to foster ordered liberty, rather than detracting from it.
Because guns lead to violence, in order to promote liberty, the states must be able to ban guns. To eliminate the states ability to ban gun actually decreases liberty. This is a very curious definition of liberty. Under this interpretation, in order for some people to be free from violence, others need to be forcibly disarmed and denied of their liberty.
2. Second, the Respondents fall into the trap of considering originalism at the wrong time. When considering the right to keep and bear arms as applied to the states, the key year is 1868, and not 1791. Yet, they rehash the debates from Heller about the right during the time of the Revolution. While they discuss the ratification of the 14th amendment, this discussion of the ratification of the 2nd amendment has limited utility.
Second Amendment, that history does not support incorporation. Although a right to fire- arms for personal use was recognized in a variety of sources of law that pre-existed the Constitution, District of Columbia v. Heller, 128 S. Ct. 2783 (2008), makes clear that it was not included in the Bill of Rights for its own sake or to protect it against the political process; rather, it was codified to protect the militia by eliminating the threat that the federal government would take away the arms necessary for militia service. Nothing in the congressional debate over the Amendment suggests any view that a private arms right unconnected to preservation of the militia was thought implicit in the concept of ordered liberty. The scope of the Second Amendment right— weapons in common use—also reflects its purpose of protecting the militia, rather than an individual right related to self-defense, since the Second Amendment protects weapons regardless of whether they are useful for self-defense.
The congressional debate surrounding Madison’s proposal for the Second Amendment tends to confirm that conclusion. If the Second Amendment right were thought essential to protect a non-militia-related personal liberty from governmental intrusion and from the political process, some trace of that belief would likely have surfaced. But nothing in the con- gressional debate over Madison’s proposal for the Second Amendment suggests any view that a private arms right unconnected to preservation of the militia was essential. See The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins, 169-76, 185-91 (Cogan ed. 1997); Jack Rakove, The Second Amend- ment: The Highest Stage of Originalism, 76 Chi.-Kent L. Rev. 103, 127-28 (2000).20
3. Third, in their treatment of Slaughter-House, the Brief omits any reference to the near-universal academic consensus that it was wrongly decided. The best argument they make finds that the Justices on the Slaughter-House court were 20 years removed from the 14th amendment, and were in the best position to understand the original meaning of the P/I clause. This is mildly persuasive, but I would have preferred to see substantive responses to the literature showing how Slaughter-House was correct.
4. Fourth, their reliance on Federalism to justify the ban is questionable. While the states can, and should be, laboratories to experiment, legislatures are still bound by the Constitution as a floor.
The genius of our federal system ordinarily leaves this type of social problem to be worked out by state and local governments, without a nationally imposed solution excluding one choice or the other. See United States v. Morrison, 529 U.S. 598, 618 (2000) (“[W]e can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims.”).
A state cannot act as a laboratory by infringing a person’s freedom from unreasonable search and seizure because the person is dangerous. No more should a state be able to deny a person’s right to self-defense because it could be “dangerous.” The Federalism argument just seems rather weak.
5. Fifth, the arguments for stare decisis should have been expected. Yet, the Petitioners do not ask for the Court to displace the modern substantive due process jurisprudence, contrary to the Respondent’s assertions.
The current rule is workable and venera- ble; significant reliance interests are in place; and there is nothing petitioners cite that was not known to and considered by the Court whose Members actually lived through the Civil War and Reconstruc- tion. Adopting petitioners’ view would throw into doubt the rights of aliens and corporations; make the Grand Jury Clause and Seventh Amendment appli- cable to the States; and unsettle the legal status of unenumerated rights, both those that have been recognized and those that have not. Stare decisis concerns are of overwhelming force in this case.
Overruling Slaughter-House and its progeny at this late date would upset strong reliance interests, throw the structure of constitutional law applicable to the States into disarray, and serve no useful purpose.
Furthermore, to call Slaughter-House venerable is tenuous. It is almost universally reviled and disagreed with. But, reinvigorating the privileges or immunities clause need not necessarily upset the apple cart. The Respondents insist that PEtitioners argue that the entire Due Process Jurisprudence should be displaced. Such is not the case. In fact, Gura is very careful to say that the two doctrines can live side by side. The Pandora’s Box Respondent’s fear is not even hinted at by Gura and the Petitioners.
6. Sixth, Respondents also argue that the right to keep and bear arms should mean different things in different places, based on local concerns.
Firearms are designed to injure or kill; conditions of their use and abuse vary widely around the country; and different communities may come to widely varying conclusions about the proper approach to regulation. Although other approaches are possible and may be effective elsewhere, it cannot be concluded that easy and widespread availability of firearms everywhere is necessary to ordered liberty.
I have blogged about this elsewhere, but I reject the notion that the Constitution has a “geography clause.” A right to be free from unreasonable searches and seizures should mean the same thing in Chicago as it does in Cheboygan. The Second Amendment should receive the same treatment.
7. Seventh, I’m not quite sure why, but the brief sees fit to discuss international gun control laws in England, Canada, and Australia.
The legal systems of England, Canada, and Australia each have their roots in the same English law as does this country, and each should be seen as a country in which “ordered liberty” is valued. Yet each of them imposes stringent regulations on firearms that would be impermissible or at least suspect under Second Amendment standards.
That these countries have a similar common law origin is largely irrelevant. Since our separation from the Queen two centuries ago, our nations have diverged in may aspects, especially in gun rights.
In summary, the Constitutional Law in this brief is at a real premium. It is mostly a policy argument about the dangers of legalizing guns, an argument that has been fought, and in my opinion, lost in Heller.
I’ll provide some more analysis later.
In a word, fail.
Pandora’s Box and Privileges or Immunities Featured on Volokh, Cites “Shapiro/Blackman/Sandefur theory”
Dec 21st
Dave Kopel just wrote a post on Volokh titled, Privileges or Immunities Extravaganza
Dave features several of the leading articles on Privileges or Immunities in the lead-up to McDonald v. Chicago, including my article, Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment, as well as the arguments of Ken Klukowski and the ACRU.
My favorite sentence from the post:
In McDonald v. Chicago, the brief of the American Civil Rights Union presents the Klukowski approach, while the joint brief of Cato and the Pacific Legal Foundation presents the Shapiro/Blackman/Sandefur theory. (All McDonald briefs can be read here.)
That is one fine Libertarian sandwich I’m in 
What is the Difference between Incorporating the 2nd Amendment and Extending the Right to Keep and Bear Arms to the States?
Dec 21st
What’s the difference between incorporating the 2nd Amendment through the Due Process Clause and extending the right to keep and bear arms to the states through the Privileges or Immunities Clause?
In the lead-up to McDonald v. Chicago, this is a huge distinction that hasn’t been clarified.
In Alan Gura’s petitioners brief, compare his discussion of the Privileges or Immunities Clause:
“The right to keep and bear arms is among the privileges or immunities of American citizenship that states may not abridge”
With his discussion of the Due Process Clause:
“The second amendment right to keep and bear arms is incorporated as against the states by the fourteenth amendment’s due process clause.”
Alan is quite careful in how he crafts his argument. Nowhere, does he say that the Second Amendment should be incorporated through the Privileges or Immunities Clause. In fact, the word “incorporation” does not appear once in the entire section devoted to P/I.
So what’s the difference?
As we argue on pp. 74-75 of our article, Keeping Pandora’s Box Sealed: Privileges or Immunities, The Constitution in 2020, and Properly Extending the Right to Keep and Bear Arms “incorporation” through the Privileges or Immunities Clause is a Constitutional malaproprism.
“Incorporation” is a term of art not utilized during the ratification debates of the Fourteenth Amendment. Although our research found that the term was used in several Court opinions, mostly dissents, following Reconstruction, the term entered the Supreme Court’s lexicon over several decades in the early 20th century. In 1868, when the Fourteenth Amendment was ratified, the term “incorporation” as we know it today would have been seen as a misnomer, a constitutional malaproprism, a misunderstanding of how the Fourteenth Amendment protected against state oppressions. Indeed, the concept of “incorporation” was anachronistically inserted into our Constitutional jurisprudence decades after the ratification of the Fourteenth Amendment,. To the extent the Reconstruction Congress sought to limit the power of the states to infringe certain rights, the Fourteenth Amendment did not merely copy the 1791 understanding of the first eight amendments in the Bill of Rights. Instead, it sought to protect certain liberties held by the people, the privileges or immunities, from being infringed by the states. In the words of Professor Amar, “Section I [of the Fourteenth Amendment] means not just more than mechanical incorporation but also less.”
In light of Professor Amar’s conception of the Privileges or Immunities Clause as applying “both more and less” of the freedoms in the Bill of Rights to the states, it is misleading to view the Privileges or Immunities Clause as a mechanical device that injects federal constitutional provisions into state law. Instead, the Privileges or Immunities Clause places a limitation on what liberties the states could infringe. Simply put, the Clause may indirectly “incorporate” rights, but its actual, uncontroverted purpose is to prevent states from abridging privileges or immunities. While these privileges or immunities include most of the rights in the first eight amendments, there are certain rights beyond the printed page of the Constitution—those deeply rooted in the Anglo-American tradition—that also deserve protection.
That is why Gura phrased his question presented his argument as “The right to keep and bear arms is among the privileges or immunities of American citizenship that states may not abridge.” There is no discussion of incorporation.
So if the Privileges or Immunities Clause does not “incorporate” rights, how does it work? Mechanically inserting the Second Amendment, as it was understood in 1791, into the Privileges or Immunities Clause, as it was understood in 1868, is akin to shoving a video cassette into a DVD player. Rather, the Court should consider Originalism at the right time. (pp. 82-85).
The Privileges or Immunities Clause is not a magic box. An amendment, applying only to the federal government, does not enter through one side and then exit through the other side, applying to the states in the same fashion. Incorporation as we know it today would have seemed a quixotic and clumsy concept to the framers of the Fourteenth Amendment. In 1868, the Privileges or Immunities Clause meant what it said: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” The plain language mentions nothing about incorporation or anything else to do with the Bill of Rights. What it does mention, however, is vital: States can no longer infringe certain rights.
The Privileges or Immunities Clause on its face prevents the states from making laws abridging the privileges or immunities of citizens of the United States. The question of how these rights are to be protected against the federal government remains unresolved for another day. The term privileges or immunities, however, was synonymous with certain liberties, both more and less than those included in the Bill of Rights.
Rather than viewing the Privileges or Immunities Clause as an incorporator, we should thus see it as a check on the power of the states. That was Reconstruction’s primary goal—to prevent states from infringing on individual liberties. According to Professor Amar, “1860s Republicans sought not to incorporate clauses but to apply (refined) rights against the states.” Before the Civil War, states could operate virtually unfettered within their sovereign domain. Not so after Reconstruction.
And so we turn to the question presented in McDonald: “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 is inartfully drafted.
The Second Amendment simply cannot be incorporated into the Privileges or Immunities Clause. This approach is akin to trying to “incorporate” a VHS videocassette into a DVD Player. The two recordings have similarities, and accomplish similar ends, but work differently.
That is, prohibiting the states from infringing the privileges or immunities of citizens is conceptually different from the incorporation of rights to the states through the Due Process Clause. If a right listed in the Bill of Rights is a privilege or immunity, the state cannot abridge it. But this process does not “incorporate” the amendment into the clause. Instead, the personal right, the liberty derived from the common-law tradition—and not the amendment as ratified in 1791—is protected against infringement. The Privileges or Immunities Clause is about individual liberty, not a jot-for-jot incorporation as Justice Black would have had it.
The Second Amendment, like the VHS cassette, represents an older expression of the right to keep and bear arms, reflecting a different time and a different concern. In contrast, the right of self-defense as understood during Reconstruction, like the DVD, is a more recent articulation of the liberty to defend one’s person and property. What should be applied to the states is the common-law notion of the right of self defense and the right to bear arms. This vision of the Privileges or Immunities Clause reflects the original understanding of the Fourteenth Amendment, and is faithful to the liberties the 39th Congress sought to protect.
If the Supreme Court decides to revisit the Privileges or Immunities Clause, the correct inquiry is not whether the Second Amendment should be incorporated through the Privileges or Immunities Clause. Rather, the correct question is whether the right to keep and bear arms should be extended to the states.
What if McDonald v. Chicago Yields 4-1-4 Split under Marks Rule? Reinvigorate Privileges or Immunities with 1 Vote
Dec 21st
At Cato@Liberty, my esteemed co-author Ilya Shapiro has a post on McDonald titled Properly Extending the Right to Keep and Bear Arms to the States
Ilya provides a breakdown of the five different positions in McDonald the Justices can take. He is confident there are 5 votes for Incorporation of the Second Amendment, but Justice Thomas may be the only Justice willing to use the Privileges or Immunities Clause.
But I’m curious. What happens if there is a 4-1-4 split as follows:
- Chief Justice Roberts, Justice Scalia, Justice Kennedy, and Justice Alito vote to incorporate the Second Amendment through the due process clause and strike down the Chicago law
- Justice Thomas rejects incorporation through the Due Process Clause, and chooses to extend the right to keep and bear arms (cf. 2nd Amendment) to the states through the Privileges or Immunities Clause, and strikes down the Chicago Law
- Justice Stevens, Justice Ginsburg, Justice Breyer, and Justice Sotomayor, uphold the validity of substantive due process incorporation but find that the Second Amendment should not be incorporated, and finds the Chicago law constitutional
Under the “Marks Rule” Marks v. United States, 430 U.S. 188 (1977), what would the precedent be in such a situation?
As best as I can tell, there are five votes to extend the the right to keep and bear arms to the state. There are five votes to strike down the Chicago Law. But there will be no majority on how to extend the right.
I think, the gun ban falls and people living in the states have the individual right to keep and bear arms (but not the Second Amendment). And this would not foreclose the validity of Privileges or Immunities.
I am far from an expert on Marks, but this seems to be a highly possible outcome.
This may, in fact be a best case scenario. If the Court fragments 4-1-4, the Privileges or Immunities Clause can be reinvigorated with but a single vote.
For more thoughts on McDonald, check out.“Keeping Pandora’s Box Sealed: Privileges or Immunities, The Constitution in 2020, and Properly Extending the Right to Keep and Bear Arms,
Four Items I Disagree With In the Americans Civil Rights Union Amicus Brief in McDonald v. Chicago
Dec 18th
Last week I blogged about an Op-Ed by Ken Klukowski and Ken Blackwell arguing that the Supreme Court should incorporate the Second Amendment through the Privileges or Immunities Clause, but the Court need not overrule Slaughter-House. While the Op-Ed contained several errors, the Amicus Brief filed by Ken Klukowski and Peter Ferrara on behalf of the American Civil Rights Union provides a much for thoughtful explanation. For my views on this topic, see Keeping Pandora’s Box Sealed: Privileges or Immunities, The Constitution in 2020, and Properly Extending the Right to Keep and Bear Arms to the States co-authored by Ilya Shapiro and myself.
The Fourteenth Amendment and the Privileges or Immunities Clause are uncharted territory. Because this area is so new, it is very important to understand what all the different arguments are on all sides of the issue. In this post, I consider the ACRU argument, as well as Ken’s law review article, Citizen Gun Rights: Incorporating the Second Amendment Through the Privileges or Immunities Clause. In sum, I find the arguments to be unpersuasive for four major reasons. This is a very long post, so more after the jump.
Kopel: The Right to Arms is Compatible with Originalism and the Living Constitution
Dec 18th
Dave Kopel posted an interesting article to SSRN attempting to reconcile the right to bear arms and the living constitution. H/T Legal Theory Blog. Here is the abstract:
This Article presents a brief history of the Second Amendment as part of the living Constitution. From the Early Republic through the present, the American public has always understood the Second Amendment as guaranteeing a right to own firearms for self-defense. That view has been in accordance with élite legal opinion, except for a period in part of the twentieth century.
“Living constitutionalism” should be distinguished from “dead constitutionalism.” Under the former, courts looks to objective referents of shared public understanding of constitutional values. Examples of objective referents include state constitutions, as well as federal or state laws to protect constitutional rights. Under a “dead constitution,” judges simply impose their personal values, and nullify parts of the Constitution which they do not like.
When living constitutionalism is taken seriously, the case for the Second Amendment individual right to own and carry firearms for self-defense is very strong. In the 19th century, almost all legal commentators and courts, as well as the political branches and the public, recognized the Second Amendment as guaranteeing such a right.
In the 20th century, some elements of the legal elite asserted that the Second Amendment guaranteed no meaningful right. But this view was never accepted by the public or by the political branches. Congress repeatedly enacted laws to protect Second Amendment rights. In the states, right to arms constitutional provisions were added or strengthened, and many statutes were enacted to defend and broaden the right, especially in the last several decades. Opinion polls showed that the public always believed in the Second Amendment right.
As Jack Balkin has elucidated, the ability of groups such as the NRA (or the ACLU or NAACP) to mobilize constituencies, persuasively communicate their constitutional vision to the public, and influence the political process in favor of the appointment of sympathetic judges is a major force which shapes our living constitution.
From an originalist standpoint, the living constitutionalism of the Second Amendment had a positive influence, in that the social and political forces which living constitutionalism celebrates finally convinced the Supreme Court to stop ignoring the Second Amendment. Living constitutionalism does not always lead back to enforcement of original meaning, but in District of Columbia v. Heller, it did.
What is interesting about this article is Kopel attempts to adopt the living constitution theories of the left, and apply them to the right to keep and bear arms. According to Kopel’s theories, the Second Amendment should be protected, whether as a matter of originalism (as the Court did in Heller) or according to the Living Constitution (see Balkin and others).
Kopel attempts to use empirical evidence showing the great support for the right to keep and bear arms to signal the Constitutional significance of the Second Amendment in our modern era. Specicifically, he takes Balkin’s quotes about the Constitution in general, and applies them to the Second Amendment.
The Democrats in 2006 and 2008 reversed the curse of 1994, taking back control
of Congress, thanks to the dozens of pro-Second Amendment candidates whom they
put forward.
As Balkin notes, ―”the Supreme Court often takes direction about how to
construct doctrine from contemporaneous expressions of constitutional values by
political majorities.”128 The importance of the living, vital, Second Amendment was
expressed not only in election results which the Supreme Court read about, but in
briefs filed by CongressWhen courts exercise judicial review to strike down laws, they often work in
cooperation with the dominant national political coalition,‖ says Balkin.135 Thus,
Brown v. Board came only after most states had already abolished de jure racial
segregation in schools, and Lawrence v. Texas only after most states had repealed
criminal laws against sodomy.136 Similarly, the fact that handgun prohibition in the
United States was very rare (only D.C., Chicago, and five Chicago suburbs) is a
crucial fact in understanding Heller via living constitutionalism.―Constitutional constructions become durable, says Balkin, ―when people stop
fighting about them and accept them in practice.137 With Heller, the fighting never
even began. Presidential candidates Barack Obama and John McCain rushed to
announce their agreement with the decision.138 During the election campaign, there
was no controversy at all about Heller, except that McCain‘s side accused Obama of
being insufficiently devoted to the decision, and Obama‘s side retorted that Obama
was a firm supporter of Heller. Quite a contrast to cases such as Miranda or Roe v.
Wade, which instantly became hot political issues, with many candidates building
political capital by denouncing the Court‘s decision.
As Kopel does not endorse, nor reject, the Living Constitution argument, I think this is a very interesting approach. In a previous article analyzing Justice Breyer’s philosophy of “Active Liberty,” I made a somewhat similar argument, that Breyer should support the Right to Keep and Bear Arms (pp. 28-29).
Breyer writes that the framers were not certain that liberty could be protected merely by constitutional
structures, so “they added a Bill of Rights with explicit protections against government
interference with certain fundamental personal liberties.”249 In his book, he spends significant
amounts of time talking about free speech, the criminal procedure amendments, cruel and
unusual punishment, and other rights specifically mentioned in the bill of rights as among these
personal liberties. But he does not include the Second Amendment in this list. The Second
Amendment is certainly in the Bill of Rights. Or does that not count for Justice Breyer as a
“fundamental personal liberty?”On the role of the courts to enforce these liberties, Justice Breyer writes further “One
could understand an independent judiciary as providing the additional protection, for judges
could interpret the Constitution’s delegation of limited power to the federal government as
excluding the authority to take action that deprived individual citizens of their (negative)
Liberty.”250 But isn’t that what the independent judiciary did in Heller? They interpreted the
limited delegation of power to the D.C. government, and took action to prevent the deprivation
of the citizens’ liberty to keep and bear arms. Yet why does Justice Breyer not champion the role
of the Court in Heller? It fully exemplifies his idealized view of the Court.Justice Breyer continues, “But my thesis . . . finds in the Constitution’s democrative
objective not simply restraint on judicial power or on ancient counterpart of more modern
protection, but also a source of judicial authority and an interpretive aid to more effective
protection of ancient and modern liberty alike.”251 But what could be more ancient than the
“ancient and indubitable right” to keep and bear arms? 252 Now of course Justice Breyer does not
use the concept of liberty of the ancients in the same sense I imply, but according to his description of liberty of the ancients, keeping arms should fit right in. According to Breyer, the
liberty of the ancients “consisted of a sharing of a nation’s sovereign authority among that
nation’s citizens . . . [and enabled a] constant participation in a collective power.”253 Historically,
the right to keep arms served as a strong bulwark of keeping a despotic tyrant in check, and
ensuring that citizens can participate in society. Consider the influence of the Black Codes
disarming freedmen in the Reconstruction South. Surely that prevented them from engaging in
the participative process?254 Even after the Thirteenth Amendment, it is very hard to vote when a
lynch mob or the Klan is burning down a freedman’s home, and he is left disarmed and helpless.
For that reason, the right to keep and bear arms was so essential to the 39th Congress that passed
the 14th Amendment; an Amendment Breyer otherwise heavily respects. Consider how the
Kings of England sought to disarm his subjects to strengthen the influence of his standing
armies?255 In all these cases, an armed citizenry enabled the people to keep the ruling class
cautiously restrained.The right to keep arms should also be considered a modern liberty, another element
Justice Breyer seeks to protect.256 A modern liberty “consisted of the individual’s freedom to
pursue his own interests and desires free of improper government interference.”257 To call the
D.C. gun ban mere “interference” is an understatement. It was an absolute ban on a fundamental,
ancient liberty, and inhibited citizens’ ability to pursue that freedom. By Justice Breyer’s own
words, the right to keep and bear arms should be both an ancient, and modern liberty. Yet to
Justice Breyer, it is neither.
It seems to me that Justice Breyer signing onto the majority opinion in Heller, according
to his views in Active Liberty, should have been a fait acompli. The Court protecting the Second
Amendment satisfies all the hallmarks of his active liberty framework. Heller enforces a liberty
explicitly mentioned in the bill of rights, and the courts are empowered to enforce the limited
delegation of power to the state because it protects a liberty of the ancients. Though he did not
sign onto the majority. But why?
objective not simply restraint on judicial power or on ancient counterpart of more modern
protection, but also a source of judicial authority and an interpretive aid to more effective
protection of ancient and modern liberty alike.”251 But what could be more ancient than the
“ancient and indubitable right” to keep and bear arms? 252 Now of course Justice Breyer does not
use the concept of liberty of the ancients in the same sense I imply, but according to his
My Reply to Washington Times Op-Ed, “A gun case or Pandora’s box?” Imitation is the Most Sincere Form of Flattery.
Dec 11th
Thursday, Ken Klukowski e-mailed me and said he found interesting the article Ilya Shapiro and I wrote, titled Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment, 8 Georgetown Journal of Law & Public Policy ____ (2010) SSRN
In Friday’s Washington Times, Ken Klukowski and Ken Blackwell (the Kens) write an op-ed titled A gun case or Pandora’s box?
I’m glad Ken and Ken (the Kens) enjoyed my article, and it seems to have inspired the title of their Op-Ed.
Indeed, imitation is the most sincere form of flattery.
But, beyond the title, I think there are several errors in this Op-Ed.
First, the Kens favorably cite to the Slaughter House Cases. Though, they fail to mention that virtually every Constitutional Law scholar on earth agrees that these cases were wrongly decided. In fact, the history shows that people in 1873 also thought Slaughter House was wrongly decided.
Second, the Kens characterize Slaughter House as a case primarily about economic rights:
What’s so important about that ruling is that there’s nothing in the Constitution about such an economic right.
This is not quite accurate. While the Slaughter House cases considered whether the state could maintain a monopoly on facilities to slaughter animals, the scope of the case was very expansive. The case virtually read the Privileges or Immunities Clause out of the Constitution. Contrary to the Kens, this case was not simply about an “economic right.” This was about interpreting one of the most critical aspects of the 14th Amendments, the crown jewel of the Reconstruction Congress.
Third, the Kens write:
Had the court accepted the butchers’ argument and struck down the Louisiana law, federal courts would have the power to declare anything they want to be a right of U.S. citizenship and strike down any state or local law they don’t like.
This statement is beyond hyperbole. The Privileges or Immunities clause of the 14th Amendment is not a general license for courts to impose their personal views. Rather, Privileges or Immunities was a term of art in 1868 that referred to a specific set of common law, pre-existing rights, including the right to keep and bear arms. This clause is no more a blank check for Judges to impose their will than the Due Process Clause; the exact vehicle the Kens seek to use in this case.
Fourth, the Kens write:
The libertarian lawyers representing Otis McDonald in the current lawsuit acknowledge that their goal is to persuade the court to overrule the Slaughterhouse Cases. Then federal judges could use the Privileges or Immunities Clause to challenge state and local labor laws, commercial laws, employment laws and business regulations across the country.
While the first part of this statement is accurate (see Petitioner’s Brief), the second part is not only inaccurate, but represents a misunderstanding of how constitutional litigation works. Judges don’t challenge laws. Plaintiff’s challenge laws. If a Plaintiff brings suit, and alleges that a law violates the Privileges or Immunities Clause of the 14th Amendment, it would be incumbent on a Judge to consider that question. If the Judge adheres to Originalism, he would consider the meaning of the privileges or immunities clause in 1868, and apply it. This is no different from the approach Justice Scalia took in D.C. v. Heller. He considered the meaning of the Second Amendment at the time of the Founding, and found that the D.C. gun control ordinance violated it. While the Kens may want to pick and choose when Originalism should apply, I do not adhere to Selective Originalism.
Fifth, the Kens write:
That would destroy federalism as we know it in this country; life-appointed federal judges could override the decisions made by elected leaders that we, the voters, choose. The people ultimately making those decisions would no longer answer to us.
I cringe whenever I see the word “life-appointed” and “federal judges” in the same sentence. I understand many on the Right do not like the idea that Judges are not elected and have lifetime tenure. Fine. Amend the Constitution. Again, it seems many like to pick and choose what parts of the Constitution they like. Yes, judges can strike down laws. Justice Scalia struck down the D.C. gun control law in Heller. This is nothing new. Judges, for better or worse, have been doing this for centuries. This case won’t change that.
While I concur with the Kens regarding the potential Pandora’s Box that can be opened if Slaughter House is overruled, I think the Supreme Court can keep Pandora’s Box sealed by writing an opinion in McDonald to make clear that the rights protected by the Privileges or Immunities clause are those rights deeply rooted in our nations history and traditions, and those rights there were publicly understood as privileges or immunities in 1868.
Update: My esteemed co-author, Ilya Shapiro, chimed in on this matter at Cato@Liberty. As Ilya mentioned, to set the record straight, we are working on an op-ed — not so much to respond to the Kens’ flawed analysis but to present the correct historical and textual view of the Privileges or Immunities Clause.
Update: I wrote that the Kens seek to incorporate the 2nd Amendment through the Due Process Clause. Thanks to commenter Andrew below, I realize this was in error. The Kens seek to incorporate the 2nd Amendment through the Privileges or Immunities Clause.
David Gans Cracks Pandora’s Box Open, CAC’s Privileges or Immunities Amicus Brief in McDonald
Nov 24th
This morning I blogged about the Constitutional Accountability Center’s Amicus Brief in McDonald. I mentioned that this brief brought together odd bed-fellows, uniting the likes of Randy Barnett and Jack Balkin.
Both libertarians and progressives agree to revive the Privileges or Immunities Clause. But beyond that, I don’t think there is much agreement.
As Ilya Shapiro and I argue in Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment the libertarian and the progressive vision of the Privileges or Immunities clause is quite different. Libertarians seek to ground Privileges or Immunities in Negative Rights, deeply rooted in our Nation’s history and traditions. Progressives seek to ground it in Positive Rights based on a modern traditions.
If you read the CAC Brief, it is noticeably bereft of any definition of the substantive rights protected by the Privileges or Immunities clause. Neither positive nor negative types of rights. This can only be explained by a compromise of necessity between the disparate interests.
But, David Gans of CAC just blogged on Balkinzation and tipped his cards, and in my estimation, cracked open Pandora’s Box. He wrote:
Finally, a shift to the Privileges or Immunities Clause could even inure to the benefit of aliens in other ways. Take the right of protection – unquestionably one of the Privileges or Immunities that the framers of the Fourteenth Amendment considered a fundamental right of all citizens protected by the Privileges or Immunities Clause, as well as a right of all persons secured by the Equal Protection Clause. The Court has ignored this text and history in cases like Deshaney v. Winnebago County and Castle Rock v. Gonzales, holding that the Due Process Clause does not require state and local governments to protect anyone against threats of harm, even when the government turns a blind eye to known violence. Taking text and history seriously would not only require overruling DeShaney, it would also demand that all persons, citizens as well as aliens, be afforded the right to protection.
Gans made the same point about the right of protection and Deshaney and Castle Rock in a Georgetown Lecture I blogged.
I do not know if the “right of protection” is “unquestionably” one of the Privileges or Immunities. But, Deshaney and Castle Rock are positive right cases. They impose on the government the obligation to do something (without casting any normative judgment). A “right of protection,”Deshaney v. Winnebago County and Castle Rock v. Gonzales were never referenced in the CAC Brief.
This is revealing of the Progressive vision of the Privileges or Immunities Clause in the future. I’ll blog about this some more.
Update: For an alternate perspective, check out this article from Roger Pilon discussing the right of protection as a Privilege or Immunity.
Center for Constitutional Jurisprudence, Eastman and Meese, Amicus in McDonald v. Chicago
Nov 24th
Check out the Amicus Brief of the Center for Constitutional Jurisprudence, authored by Dean Eastman and General Meese. This brief makes some points similar to the Cato/PLF Brief and the CAC Brief, but focuses a bit more on the natural rights vision of liberty, derived from the Declaration’s ode to life, liberty, and happiness.
A careful consideration of “the historical events that culminated in the Fourteenth Amendment”2 reveals that the “privileges or immunities” clause of the Fourteenth Amendment protects against state infringement on the individual right of citizens to keep and bear arms.
The terms “privileges” and “immunities” have held a constant meaning from the Founding era through the debates and ratification of the Fourteenth Amendment and the Civil Rights Act of 1866. Indeed, a review of the writings of the political and legal thinkers who inspired our republic reveals an understanding that the terms “privileges” and “immunities” refer to fundamental, natural entitlements or rights essential to the preservation of life, liberty, and other necessary aspects of existence—political or individual. The generation which enacted the Constitution intended the “privileges and immunities” clause of Article IV to refer to well-understood, fundamental rights. This understanding of the scope of the “privileges and immunities” clause of Article IV was recognized and adopted by those who came after the Framers. Subsequently, the authors of the Fourteenth Amendment created a “privileges or immunities” clause which they intended to codify the protection of these fundamental rights3 against the states—in response to efforts by states to deprive freed Americans of African descent of these well understood, fundamental rights.4
In addition, the Congress which drafted and the states that ratified the Fourteenth Amendment intended the “privileges or immunities” clause toextend to the right to keep and bear arms—a fundamental, individual right long recognized as essential to the preservation of liberty and personal safety. The conclusion that the right to keep and bear arms is a well-understood, fundamental right demanding protection against governmental encroachment finds support from those who came before American Independence and upon whom the Framers of the Constitution relied. Unsurprisingly,
it was also asserted by the Framers themselves and those who came after the Framers—and was a significant influence on the Fourteenth Amendment. Finally, the authors of the Fourteenth Amendment explicitly stated their intention that the amendment protects well-understood, fundamental rights— including the right to keep and bear arms.
This tracks closer with Alan Gura’s petitioners brief. These natural, pre-existing rights are those rights necessary for a citizen to exist in a free government. One of these rights must be the right of self-defense.
Constitutional Accountability Center Amicus in McDonald v. Chicago
Nov 24th
Check out Alan Gura’s site for a listing of all amici filed in McDonald.
In this post, I’ll discuss the brief of Constitutional Law Professors and the Constitutional Accountability Center.
This is quite a curious brief, because it joins such divergent minds as Richard Aynes and Jack Balkin with Randy Barnett and Steven Calabresi. Privileges or Immunities and individual rights encourages odd bed fellows.
This brief heavily focuses on original public meaning originalism to establish that in 1866 the privileges or immunities were established terms of art that protected substantive fundamental rights, including, but not limited to, those in the Bill of Rights.
The Privileges or Immunities Clause was written and ratified to secure the substantive liberties protected by the Bill of Rights, as well as other fundamental rights. By 1866, the words “privileges” and “immunities” were commonly used to refer to core, inalienable rights, including those set out in the Bill of Rights. History shows that leading proponents and opponents alike of the Fourteenth Amendment understood the words of the Clause to protect substantive fundamental rights, including the rights enumerated in the Constitution and Bill of Rights.
The problems motivating the framers of the Privileges or Immunities Clause—for example, deprivations of the right to free speech, the right to bear arms, and other denials of liberty and personal security in the southern states—are strong evidence that the Clause was drafted to protect fundamental rights against state infringement. As discussed in the next sections, the public meaning of the words “privileges” and “immunities” and the floor debates over the Amendment confirm the intent to use the Clause to protect substantive rights in the States.
The brief proceeds to discuss statements made on the floor during the Ratification debates, and how these discussions would have been understood at the time. The brief also argues that “The Wording Of The Privileges Or Immunities Clause Is Broader Than The Privileges And Immunities Clause Of Article IV.”
While the Privileges or Immunities Clause in the Fourteenth Amendment draws on the public meaning of “privileges” and “immunities” in Article IV, discussed, supra, in Section I.B, its wording is more expansive in at least two respectsNext, the brief argues that the Privileges or Immunities Clause includes an individual right to bear arms As was shown in Section I, supra, the public meaning of “privileges or immunities of citizens of the United States” included the “personal rights guarantied and secured by the first eight amendments of the Constitution,” such as the individual “right to keep and bear arms.” Cong. Globe, 39th Cong., 1st Sess. 2765 (1866) (Sen. Howard).
Because state statutes disarming freedmen—as well as legislative restrictions on other fundamental rights—were considered to be the South’s post-war attempt to re-institutionalize the system of slavery in a different guise, Congress
initially thought itself justified in exercising its Thirteenth Amendment powers to enact the Civil Rights Act of 1866. If slavery is the opposite of liberty, then the Thirteenth Amendment empowered Congress to police restrictions on fundamental liberties that amounted to a partial imposition of slavery.
The comment about slavery being the opposite of liberty is a point Barnett has made before in a few lectures. It is a really deep and profound point that should not be glossed over.
Next the brief discusses precedent and stare decisis and concludes that Slaughterhouse is wrong, has been undermined by subsequent application of most of the Bil of Rights to the states, and should be overturned
This Court should follow the text, history, and original public meaning of the Privileges or Immunities Clause of the Fourteenth Amendment to protect an individual right to bear arms. Previous decisions notwithstanding, it is never too late to adhere to the text of the Constitution.Slaughter-House And Its Progeny Were Wrong As A Matter Of Text And History And Have Been Completely Undermined By This Court’s Subsequent Application Of Most Of The Bill Of Rights To The States.
Next the brief addresses an important issue, and argues that Reviving The Privileges Or Immunities Clause Will Not Prejudice The Constitutional Rights And Liberties Of Noncitizens. Amici believe the existing rights of noncitizens are fully protected by the Due Process and Equal Protection Clauses. State governments are required to provide noncitizens with a full range of procedural protections and need a constitutionally permissible reason for either restricting the liberties of noncitizens or discriminating against any “person” with regard to the fundamental rights accorded to citizens.
I’m not quite sure how persuasive I find this section from a strictly textual perspective, but practically it won’t make a difference. The Court would not exclude non-citizens from this right, regardless of the history.
On the whole, a fantastic brief. I hope the Court takes note.
For my thoughts on McDonald, see Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendmen
JoshCasts: Interview with Dave Kopel on McDonald v. Chicago
Nov 23rd
Dave Kopel, Research Director of the Independence Institute and frequent blogger of the Volokh Conspiracy took a few minutes to chat with me about the amicus brief he filed in McDonald v. Chicago. Dave presents some fascinating empirical data about the effects of handgun bans on crime, and presents an interesting argument how Meyer v. Nebraska compels striking down the Chicago ban.
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I am cited in Amicus Brief of Cato Institute and Pacific Legal to Supreme Court in McDonald v. Chicago
Nov 23rd
Just filed this morning, check out the Brief Amicus Curiae of Cato Institute and Pacific Legal Foundation in Support of Petitioners.
Cato and PLF cited Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment, forthcoming in the Georgetown Journal of Law & Public Policy.
I’ll blog a bit about the substance of the brief later, including a JoshCast with Tim Sandefur of the Pacific Legal Foundation, but I am still really pumped that my name made it into a Supreme Court brief!
Check out the table of authorities on p. vii. Ilya and I are sandwiched between Akhil Amar and Richard Aynes, and Robert Bork and Slaughterhouse.
And here is the actual citation on p. 23.
We were also directly quoted without attribution in footnote 7. It’s OK. I know how quickly these briefs are rushed off the printer. Oh well.
Justice Thomas, I hope you enjoy these footnotes.
McDonald and Overruling Slaughter-House. A Response to Professor Kerr
Nov 18th
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
Nov 17th
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).
Gura Files Petitioner's Brief in McDonald, Spends 7 Pages on Due Process, The Rest on Privileges or Immunities
Nov 16th
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.
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