Pandoras Box and Privileges or Immunities
Originalism at the Right Time in McDonald v. Chicago
Jun 29th
Professor Alison LaCroix has an interesting blog post at SCOTUSBlog about the proper interpretive baselines. She asks “when is the relevant ‘original’ moment for the justices?
The second point concerns the Court’s shifting interpretive baseline. Just when is the relevant “original” moment for the justices? At least three possible moments suggest themselves as possibilities: (1) the Constitutional Convention; (2) the congressional debates over the Civil Rights Act of 1866 and the Fourteenth Amendment in 1868; or (3) the Court’s own twentieth-century cases dealing with incorporation of the Bill of Rights against the states.
This is very much the same question Ilya and I posed in Pandora’s Box. We counseled the Court to consider Originalism at the Right Time.
Interpreting the Second Amendment based on how people understood its text in any year other than 1791—the year of its ratification—would be similarly unhelpful. The Supreme Court faithfully executed this strategy in Heller. But what about the Interpreting theSecond Amendment based on how people understood its text in any year other than 1791—the year of its ratification—would be similarly unhelpful. TheSupreme Court faithfully executed this strategy in Heller. But what about the right to keep and bear arms as applied to the states? Federal protection against state encroachments on individual liberty began with the ratification of the Fourteenth Amendment. 1868 is thus the proper temporal location for applying a whole host of rights to the states, including the right that had earlier been codified as the Second Amendment as applied against the federal government. 259 Interpreting the right to keep and bear arms as instantiated by the Fourteenth Amendment—based on the original public meaning in 1791—thus yields an inaccurate analysis. The respondents make this mistake in their McDonald brief, however, recounting the history of the Second Amendment in 1791 as dispositive of the meaning of the right to keep and bear arms in 1868.260
To answer Professor La Croix’s question, the proper baseline should be 1868, not the revolution or the 20th century.
Analyzing the meaning of the right to keep and bear arms in 1791 was proper inHeller, because the Second Amendment in that case only applied to the federalgovernment. In McDonald, however, the key year is 1868, and the Court shouldlook at evidence from the time of Reconstruction, not the time of the Revolu-tion. To the extent that the common-law right of self defense existed from time immemorial, through the Revolutionary era, earlier evidence is relevant only to the extent it affected mid-nineteenth-century understandings. To put it another way, McDonald asks not so much whether the Second Amendment applies to the states, but whether the right to keep and bear arms—independent of its codification in the Bill of Rights and as understood in 1868—is protected against state infringement by the Fourteenth Amendment.
Professor La Croix notes that the Court fails to consider the Reconstruction era cases that discuss this issue–Cruikshank, Presser, and Miller–simply noting that these cases “all preceded the era in which the Court began the process of ‘selective incorporation,’”
But this neat conclusion conceals an important circularity. The opinion offers no account of how this nonoriginalist interpretation with respect to incorporation (tossing out this trio of major cases) can be reconciled with the overall commitment to originalism (valorizing the congressional debates). Moreover, Cruikshank and Presser were decided in 1876 and 1886, respectively, putting them roughly in moment (2): the Reconstruction period. Yet the Court rejects the possibility that the cases might offer any insight on the question before it, even as it seizes on congressional debates from no more than a decade before as objective evidence of late-nineteenth-century original meaning.
Professor La Croix is correct to note that the Court did not give these precedents the proper consideration. But the Court’s biggest failure was to disturb the one precedent that really mattered–The Slaughter-House cases. If the Court had the temerity, fortitude, and principle to reverse this precedent that nearly everyone agrees was wrongly decided, the Court could have grounded the incorporation of the 2nd amendment in a truly originalist jurisprudence–the Privileges or Immunities Clause. This is precisely what Justice Thomas did. Thomas did not have to engage in such “circularity.”
Instead, the Court took a logically faulty route to achieve this result, by selectively reading the precedents and late 19th century debates. By abstaining from the original meaning of the Privileges or Immunities Clause, the “originalist” Court became selective originalists.
Pandora’s Box and McDonald v. Chicago
Jun 28th
In January, Ilya Shapiro and I published an ambitious article 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. This article discussed how the Court in McDonald can use the Privileges or Immunities Clause to protect the right to keep and bear arms. I repeat parts of the introduction, which proved somewhat prescient.
This stark departure in constitutional jurisprudence can be traced back to one seminal case: 2010’s blockbuster McDonald v. Chicago. McDonald asked whether the Second Amendment should be “incorporated” against the states using either the Due Process or the Privileges or Immunities Clause—and the Court’s answer was “yes.” Two justices signed onto a concurring opinion arguing that the Privileges or Immunities Clause was the way to go, and that Slaughter-House should be overturned. One wrote a concurring opinion contend- ing that the Privileges or Immunities Clause does not so much incorporate the Second Amendment as guarantees certain pre-existing substantive rights— among which are the right to keep and bear arms—regardless of whether they appear in the Bill of Rights.
In 2010, these concurring opinions stood as a minor footnote in an important but expected decision that extended the individual Second Amendment rights to the people of the several states. But in the years following McDonald, litigants seized on those seemingly quixotic concurrences, arguing that the Privileges or Immunities Clause protects a variety of unenumerated rights. Following the trend in the law reviews, courts began to adopt these arguments. By 2020, with the High Court’s composition radically changed from that of the early Roberts Court, the seminal moment for privileges or immunities arrived and the land- scape of constitutional law would never be the same.
Back in the present day, the year is 2010. The Court is about to hear argument in McDonald. Tellingly, the Court selected among several cert petitions present- ing the Second Amendment incorporation issue the one that invoked the Privi- leges or Immunities Clause. To wit, the question presented in McDonald v. Chicago asks, “Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment’s Privileges or Immunities or Due Process Clauses.”5 The Court could have simply asked whether the Second Amendment should be incorporated—presumably through the Due Process Clause, as almost all other parts of the Bill of Rights have been. Instead, at least four justices decided to inquire into the Privileges or Immunities Clause. Recognizing this question, the Petitioners, represented by Alan Gura, spent almost all of their brief discussing the Privileges or Immunities Clause.6 Mc- Donald thus presents the strong possibility of restoring the lost Privileges or Immunities Clause—while also preventing The Constitution in 2020’s dys- topia.7
In Saenz v. Roe, Justice Thomas expressed his willingness to revisit the original meaning of the Privileges or Immunities Clause in the “appropriate case.” With the McDonald question presented, the Court has answered Justice Thomas’s call in Saenz, as well as the requests for clarification from the Seventh8 and Ninth Circuits,9 and extended an invitation to reconsider the Fourteenth Amendment. We graciously accept that invitation. This article hum- bly submits that, in light of its question presented, McDonald is the perfect case to reverse the ignominious mistake of The Slaughter-House Cases, begin the journey towards rehabilitating the Privileges or Immunities Clause,10 and thereby protect our most fundamental liberties.11
These six propositions set the stage for McDonald, The Constitution in 2020, and the future of the Privileges or Immunities Clause. If the Court ignores Justice Thomas’s admonition, its “failure to consider these important questions raises the specter that the Privileges or Immunities Clause will become yet another convenient tool for inventing new rights, limited solely by the ‘predilections of those who happen at the time to be Members of this Court.’ ”4 2 1 If the originalists on the Court fail to wrest back the wayward Fourteenth Amendment jurisprudence, Pandora’s Box will not remain sealed for long.Reviving the Privileges or Immunities Clause can begin the process of aligning the Constitution with notions of protecting our most sacred and funda- mental liberties. Failing to do so now invites an alternative vision of the Constitution that further departs from the original meaning of the Fourteenth Amendment. Now is the time—and McDonald is the case—to advance an originalist framework that enforces the Privileges or Immunities Clause and keeps Pandora’s Box closed.42
Seldom does a case present itself to the Supreme Court so ideally suited to restore the original meaning of the Constitution. In 1988, before he was a judge of any kind, Clarence Thomas wrote, “the natural rights and higher law argu- ments [embodied in the Privileges or Immunities Clause] are the best defense of liberty and of limited government. Moreover, without recourse to higher law, we abandon our best defense of judicial review—a judiciary active in defending the Constitution, but judicious in its restraint and moderation.”452 McDonald gives the Court an opportunity to fulfill this higher calling and defend liberty for all.
And seldom does such a case draw support from across the ideological spectrum.453 This consensus, backed by a near-universal academic agreement regarding the meaning of the Privileges or Immunities Clause, provides a unique opportunity to bring the clause back into the forefront of our constitu- tional jurisprudence. By extending the Washington v. Glucksberg framework to recognize rights deeply rooted in our Anglo-American traditions, the provisions of the Bill of Rights would be applied to the states in a way consistent with the original meaning of the Fourteenth Amendment. Through this approach, the Supreme Court can be faithful to the Constitution and thereby keep Pandora’s Box sealed.
Kagan Memo to Marshall on DeShaney, Positive Rights under 14th Amendment, and Posner
May 16th
Jess Bravin has a great article on a memo Kagan wrote to Justice Marshall for DeShaney v. Winnebago County.
With respect to granting cert–Judge Posner wrote the opinion for CA7 finding that the state had no duty to protect Joshua DeShaney– Kagan cautioned Marshall about granting cert:
Ms. Kagan believed the Seventh Circuit got it wrong, but advised Justice Marshall to vote against hearing the appeal unless he was certain to have four other justices—making up a majority—on his side. Without such assurance, “I only worry that a majority of this court will agree with Judge Posner that ‘the Constitution is a charter of negative rather than positive liberties’ and will thereby preclude the approach” of the Third and Fourth circuits.
Very shrewd analysis. In a related case, Kagan embraced a positive vision of 14th amendment rights :
In a November 1987 memo to Justice Marshall, Ms. Kagan characterized that position as “considerably more tenuous” than liability based on an explicit statute. “Some members of this [Supreme] Court will doubtless object” to the holding that the 14th Amendment “imposes such affirmative obligations on state officials.” Nonetheless, she concluded, “I think the holding is correct and that this court should let it stand.”
And this analysis certainly has implications for the Privileges or Immunities jurisprudence.
I find the notion of positive rights under the 14th Amendment troubling. As I wrote in Pandora’s Box:
While libertarian scholars have long called for a restoration of the “lost Constitution”104—which would include overruling Slaughter-House—academic attention has come increasingly from the progressive voices who seek to infuse the Privileges or Immunities Clause with a host of positive rights. To satisfy ourselves that reinvigorating Privileges or Immunities will not in the long run effect a sub rosa constitutional rewrite, we must first understand what that purported Pandora’s Box contains.
…
Our framework foreceloses the recognition of modern—or post-modern!— rights under the Privileges or Immunities Clause, such as the positive “right” to health care, education, and welfare that the Fourteenth Amendment framers could never have fathomed. The Glucksberg Court describes our “Nation’s history, legal traditions, and practices” as providing the “guideposts for respon- sible decisionmaking” to cabin discretion when dealing with substantive unenu- merated rights. History, tradition, and practices are hallmarks of originalism. The Glucksberg tests thus lends itself well to an originalist inquiry and is ideally suited to consider the rights protected under the Privileges or Immunities Clause.
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]
New Article: Can Congress Overturn Kennedy v. Louisiana? The Fallacy of the “National Consensus”
Jan 6th
Forthcoming in the Harv. JLPP, Can Congress Overturn Kennedy v. Louisiana? The Contingency of Recent Eighth Amendment Jurisprudence,” and here is the abstract by Richard Re(H/T Sentencing Blog):
As recently illustrated by Kennedy v. Louisiana, the Supreme Court regularly interprets the Eighth Amendment based on the perceived existence of “national consensus.” While this practice has been the topic of extensive commentary and criticism, the existing debate has overlooked the most natural implication of the Court’s consensus-based argumentation – namely, the possibility that recent Eighth Amendment jurisprudence is subject to federal legislative override. This Article argues from existing case law that Kennedy should be susceptible to democratic correction via countervailing federal legislation. Such legislation would demonstrate that no “national consensus” supports the Court’s holding, thereby suggesting that the punishment in question does not actually violate the Eighth Amendment. One might respond that Kennedy would have found a constitutional violation based on the Court’s “independent judgment,” regardless of whether a supportive national consensus existed. But even assuming that is true, federal legislation could address the concerns that underlie the Court’s independent judgment analysis. Either way, Kennedy’s contingent reasoning would permit at least some correction by the democratic branches. Exploring these possibilities allows us to better understand and justify recent Eighth Amendment jurisprudence, as well as recent substantive due process cases like Lawrence v. Texas that also look to state and federal practice as sources of constitutional law. Ultimately, though, the most important consequence of appreciating Kennedy’s democratic reversibility has more to do with the President than with the professoriate. As a candidate for President, Barack Obama pointedly criticized Kennedy’s holding. If this Article is correct, then the President and Congress now have an opportunity to engage the Court in a dialogue regarding the Eighth Amendment’s contemporary practical meaning.
Re provides a very good explanation, and critique of Kennedy’s approach.
I discuss the fallacy of the “national consensus” in Pandora’s Box, pp. 57-62 beyond the context of the 8th Amendment. The “national consensus” is one of the approaches Professor Balkin and the Constitution in 2020 crowd seek to use to recognize new rights and evolving standards of decency.
The fallacy of recognizing national consensuses is highlighted by the aftermath of Kennedy v. Louisiana. If the Supreme Court could not properly analyze the extent of the consensus among state laws governing the sentencing of child rapists, an area that any first-year law student could understand with the proper Lexis search, how can we expect judges to understand consensuses on nebulous and polarizing social issues—on which public opinion ebbs and flows—such as the right to health care, the right to education, or reproductive rights?
Balkin himself acknowledges that “[i]n 1973, when Roe was decided, the right to abortion was not a privilege or immunity of national citizenship” because only four states had adopted the rules Roe laid down. He counters, however, that “most of the public now regards a basic abortion right as among the guarantees of citizenship” and, in the long run, “it should eventually be protected under the declaratory model of the Privileges or Immunities Clause.” But how is the Court to determine society’s views to a point that gives them constitutional authority?—particularly in light of the complications in as comparatively simple a task as surveying state laws regarding capital punishment for child rapists. Kennedy v. Louisiana thus belies Balkin’s attempt to portray the right to abortion as a privilege or immunity of national citizenship by virtue of a national consensus.
Moreover, what constitutes a national consensus? Half the population? Two thirds? Ninety percent? To paraphrase Justice Brennan’s quip, why not whatever five duly confirmed justices think? Should the Court commission its own Gallup Poll? What standard should the consensus be based on? How long should it exist? These are inherently subjective determinations, not reducible to judicially or legislatively manageable standards.
Finally, and perhaps most significantly from a constitutional perspective, for a court to determine that simply because “most of the public” considers some right to be among the privileges or immunities of citizenship—not that the public thinks in terms of “privileges or immunities” or any other constitutional terms of art—ignores the rights of minorities. That is, the Constitution is countermajoritarian in many ways—as would be expected from a charter that establishes a republic, not a pure democracy. The Constitution provides for the indirect election of the president through an electoral college and, before the Seventeenth Amendment, for state legislatures to select senators. Impeachment requires super-majorities, as does the constitutional amendment process—which is why Balkin, Ackerman, and others propose constructive amendment theories. All these provisions reflect a fear of oppressive majority rule and aim to prevent factions from seeking economic advantage and overwhelming our system of liberty.
Finally, why limit this analysis to consensus among states? Why not consider consensuses among nations? For example, Justice Kennedy has looked to foreign and international law to establish norms with respect to executing minors—and thus confirm his understanding of the Eighth Amendment. Why then not look to European conventions and treaties to recognize consensuses on rights among modern, progressive peoples to confirm our understanding of the Fourteenth Amendment? These are such divisive and controversial issues that, ultimately, a consensus model would “just [be] giving effect to the [Court’s] own preferences.”
This discussion of national consensuses is closely related to my previous posts about whether the Constitution has a geography clause? Should the meaning of the Constitution change based on what legislators do, or based on different circumstances in different locations? Or is it fixed? Even self-proclaimed originalists seem to accept these doctrines without challenging them on originalism grounds. Stay tuned. I’m working on it.
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.
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 Makes SSRN Top 10 List for Legal History
Dec 23rd
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 was honored on the SSRN Top 10 List for Legal History.
I’m pretty honored to be on the same list as Professors Lund, Schauer, Mashaw, and others.
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.
Updated Version of Pandora’s Box Uploaded to SSRN
Dec 17th
Ilya and I just finished our final rounds of edits, and uploaded the article to SSRN.
Here is the abstract:
The purpose of this article is to provide a roadmap to welcome the Privileges or Immunities Clause back into our modern constitutional jurisprudence. The Slaughter-House Cases “sapped the [Privileges or Immunities Clause] of any meaning” but the Supreme Court now has the opportunity correct this mistake. Heeding Justice Thomas’s call, we “endeavor to understand what the framers of the Fourteenth Amendment thought” the Privileges or Immunities Clause meant, and seek to restore that original meaning. This framework ensures that the Privileges or Immunities Clause is not manipulated to constitutionalize certain modern “rights” that lack deep roots in our nation’s history and traditions. No, the Constitution cannot be properly read to protect positive rights. Pandora’s box will thus remain sealed.
This article proceeds as follows: In Part I, we discuss the history of the Privileges or Immunities Clause starting with the Articles of Confederation and continuing through the Clause’s untimely demise with the Slaughter-House Cases, its re-emergence in legal scholarship, and its potential rebirth in Supreme Court jurisprudence. In Part II, we discuss the meaning of the Second Amendment as it relates to the states by considering District of Columbia v. Heller and subsequent litigation.
In Part III, we explore the Progressive vision of the Privileges or Immunities Clause as it fits into the “Constitution in 2020” paradigm. This model recognizes rights according to national and international consensus, evolving standards, and the enactment of so-called landmark legislation. We show why privileges or immunities serves as the desired weapon of choice to achieve the “Constitution in 2020” by way of its superiority over Substantive Due Process and Equal Protection. Through the Privileges or Immunities Clause, progressives seek to reconceptualize the provision of education, health care, welfare, and other positive entitlements as inviolable constitutional rights. Thus, Pandora’s Box is cracked ajar, with all manner of governmental guarantees and policy preferences spewing forth.
In Part IV, we contend that the Second Amendment could be incorporated through the Due Process Clause, though this approach is historically deficient. In light of Justice Antonin Scalia’s opinion in Heller, and applying modern selective incorporation jurisprudence, the Court is likely to find that the Second Amendment is “necessary to an Anglo-American regime of ordered liberty” and should thus be extend to the states.
In Part V, we show that, instead of dutifully treating the Second Amendment as it has almost all the other parts of the Bill of Rights, the Court should find the underlying rights to be among the privileges and immunities directly protected by the Fourteenth Amendment. Accordingly, this article is not so much concerned with why the Second Amendment should be incorporated but instead provides the Court a roadmap to protecting the right to keep and bear arms for defense of person and property through the Privileges or Immunities Clause. Indeed, the notion of “incorporation” would have been anachronistic, and considered a constitutional deviation at the time of the Fourteenth Amendment’s ratification. Historical accounts of the ratification debates reveal that the Privileges or Immunities Clause was meant to protect both more and less than the Bill of Rights. Thus reconceptualized, the clause should be viewed not as a mechanical incorporator of the first eight amendments, but rather as a limitation of the power of the states to infringe certain liberties. In 1868, these liberties were referred to as privileges or immunities.
What are these privileges or immunities, and what relationship do they have to the Second Amendment? To resolve this query we answer Justice Thomas’s call in Saenz, and seek to “understand what the framers of the Fourteenth Amendment thought that it meant.” We propose extending the Glucksberg framework for recognizing substantive rights that are deeply rooted in our nation’s history and traditions to understand how privileges or immunities were understood in 1868. By applying the Glucksberg test and adapting Judge Diarmuid O’Scannlain’s opinion in Nordyke v. King, we find that the right to bear arms for the defense of person and property – independent of its enumeration in the Second Amendment – was considered a privilege or immunity of citizenship in 1868.
Part VI concludes by echoing Justice Thomas and implores originalists not to shy away from the Privileges or Immunities Clause for fear that it will become the camel’s nose of positive rights into the constitutional tent. Instead, resurrecting the Privileges or Immunities Clause can continue the process of aligning the original meaning of the Constitution with the protection of our most sacred liberties. This process will also eliminate the “current [state of] disarray” of our Fourteenth Amendment jurisprudence. Failing to take control of the Privileges or Immunities narrative invites an alternative vision of the Fourteenth Amendment that further departs from the original meaning of the Constitution. Now is the time, and McDonald is the case, to advance an originalist vision of the Privileges or Immunities Clause. Only by correcting the historical record and claiming it for our own can we keep Pandora’s Box sealed.
Balkin Opens Pandora’s Box: Health Care, Constitutional Moments, the Constitution in 2020, and Privileges or Immunities
Dec 17th
At Balkinzation, Jack Balkin has a very interesting post about Constitutional Moments and Health Care.
Balkin argues that President Obama is faced with a Constitutional Moment because several moderate Republicans and moderate Democrats are blocking passage of his health care bill. 50 votes isn’t enough according to modern Senate procedures. In reality, the Senate needs 60 votes.
We are at such a moment now. The political impasse is over health care reform. The institution is the United States Senate. The question is whether the Democratic Party led by Barack Obama, will threaten unconventional adaptation so that the Senate (in this case, a small number of moderate Democratic Senators) will back down and allow passage of health care reform by a simple majority, creating a new precedent for Senate practices. If Obama does not make this threat credibly, opponents of reform will succeed and the Senate– and particularly the power of the Republican minority and Blue Dog Democrats in the Senate– will become more powerful than ever. It is, in other words, a match to the death between Obama’s promise of a new politics and the existing forms of politics.
Faced with such a Constitutional moment, what is President Obama to do?
Thus, time is of the essence. Obama must win big or he will surely lose bigger. It is time, in short, for unconventional adaptation. Obama and the Congressional Leadership have been pushed against the wall. They must win now or be decimated politically . . . It is precisely these desperate circumstances that lead to unconventional adaptations in American politics. If Obama can route around the 60 vote requirement through unconventional adaptation, and pass health care reform, he can go to the American public for ratification of his actions in the 2010 and 2012 elections. If he cannot do this, then he puts himself at the mercy of Joe Lieberman and Ben Nelson, which means a very watered down bill that may not pass because of opposition from his left.
While this unconventional adaptation would not truly be of a Constitutional nature, as the 60-vote requirement is a matter of procedure and not Constitutionally required, Balkin’s invocation of a “Constitutional Moment” in the health care debate falls into line with a prediction that Ilya Shapiro and I made in our article, Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment. We just uploaded a revised version to SSRN reflecting Balkin’s blog post. From page 51:
In contrast to the historical approach that this article advances, the landmark legislation/constitutional moment theory no longer restricts the Court to canonical texts like the Declaration of Independence or Blackstone’s Commentaries, but leads it to consider acts Congress passes to establish new privileges or immunities. Would there be a constitutional right to Social Security, to food stamps, to subsidized housing, to Medicaid—to health insurance (whether or not a “public option” ever passes)? Professor Balkin would say yes—and even considers the potential passing of President Obama’s health care bill, over the opposition of stalwart moderate Democrats and virtually all Republicans, a “constitutional moment” forcing the president and the Senate to engage in an “unconventional adaptation of American politics.” Health care reform is precisely the type of landmark legislation that would create constitutional rights under The Constitution in 2020.
According to Ackerman and Balkin’s work, when Congress passes significant pieces of legislation, such as health care reform, this can generate a Constitutional moment. In our article, we contend that when such a moment occurs according to Balkin’s work, Congress essentially creates, or “instantiates” this right as a privilege or immunity of national citizenship. Once a right is protected as a constitutional right, it is permanently entrenched, and cannot be abrogated by future legislatures.
By not rooting the rights protected under the Privileges or Immunities Clause in our nation’s history and traditions, the Court can consider constitutional moments, national consensus, and social movements as signs that society recognizes new rights. This post presages Balkin’s future arguments if the Supreme Court fails to properly interpret the Privileges or Immunities clause in McDonald v. Chicago. If a public option passes, it will be of such monumental status that a right to health care will be considered a privilege or immunity of national citizenship, and thus a constitutional right. Pandora’s Box is no longer sealed.
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.
Kerr on Cert Grant in McDonald: Privileges or Immunities Question Presented Does Not Reveal Intent to Overrule Slaughterhouse. Or does it?
Dec 6th
Orin Kerr writes at Volokh that the cert grant in McDonald, and the question presented asking about the privileges or immunities clause, may not mean that the Court is primed to overruled Slaughter-House.
We don’t know what the Justices were thinking with any certainty. At the same time, I think there are two plausible reasons why the Court would grant cert on both issues without intending to reopen the debate over Slaughterhouse. The first is mathematical and the second is historical.
1. The first reason is the need to get to five. f the Court granted only on Due Process and left Privileges or Immunities for another day, the Court would end up with five votes against incorporation and four in favor (presumably with a concurrence by Justice Thomas saying that he might or would reach a different result if the Privileges or Immunities issue were before the Court). Then the Justices would have the problem of how to get the P or I issue before the Court again, which would ultimately lead to an 8–1 decision against incorporation by P or I. The result would be two Supreme Court opinions holding that the Second Amendment is not incorporated despite five Justices favoring incorporation.
2. A second plausible reason to grant on both issues is historical. f you’re granting cert to determine whether the Second Amendment applies to the states, and answering “yes” would effectively overturn Cruikshank and Presser, it would be a bit unusual to grant cert in a way that would make the precedents to be overturned outside the cert grant.
I find the first explanation quite plausible. Regarding the second explanation, does the Supreme Court ever overturn precedents outside the cert grant? In other words, if the Supreme Court really wanted to overturn Presser and Cruikshank, would they really be limited by the Cert Grant? In the Hillary Movie case, for example, they did not decide the case based on the initial cert grant and original oral arguments, but sent the case back with a different question presented. In my mind, if the Court wanted to overrule those precedents, such a petty formality as the question presented would seem not to cabin them.
Magliocca on Why the Incorporation of the Bill of Rights Failed, and Why Slaughterhouse Does Not Foreclose Incorporation
Dec 2nd
Take a look at Why Did the Incorporation of the Bill of Rights Fail in the Late Nineteenth Century?
This Article examines the failure of the incorporation doctrine following the ratification of the Fourteenth Amendment and draws some lessons from that experience for the live issue of whether the Second Amendment should apply to the States.
The analysis reaches three main conclusions. First, the Slaughter-House opinion did not foreclose the application of the Bill of Rights to the States. A careful review of the cases and commentary interpreting Slaughter-House from 1873 until 1900 shows that almost nobody thought that the case spoke to the issue. Second, courts reviewing incorporation litigation in this era distinguished between procedural claims, where there was little support for the concept, and substantive claims, where there was support. Unfortunately for advocates of incorporation, virtually all of these initial cases were about procedural issues, which created negative momentum for the whole concept. Third, enthusiasm for applying substantive provisions (e.g., free speech, free exercise of religion, freedom from unreasonable searches and seizures, or cruel and unusual punishment) to the States disappeared in the mid-1890s because of fear created by a surge in protests from Populist activists and labor leaders. Just as civil liberties have traditionally retreat in wartime, the same dynamic retarded the expansion of the Bill of Rights in a period of domestic discord. Based on these conclusions, the analysis holds that the historical evidence supports the incorporation of the right to bear arms.
There is a lot of good stuff in here, and I will be working to incorporate it into Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment, (forthcoming Georgetown Journal of Law & Public Policy)
And from the article:
Far less atten- tion is given to the question of why courts almost uniformly re- jected the extension of the Bill of Rights to the states in the decades after the Fourteenth Amendment’s ratification.9 If the original understanding supporting incorporation was so clear, why did contemporary judges reject the idea so overwhelming- ly?10 The most common response is that the Supreme Court gave the Privileges or Immunities Clause of the Fourteenth Amendment a stingy and erroneous reading in the Slaughter- House Cases11 and set back incorporation for decades.12 Indeed, Slaughter-House is one of those rare decisions, like Dred Scott v. Sandford13 or Buck v. Bell,14 that constitutional lawyers of all ideological stripes love to hate.15
This Article rejects the conventional interpretation of Slaughter-House and offers another explanation for incorpora- tion’s demise that rests in equal measure on an unlucky sample of cases and on the unintended consequences of constitutional politics in the 1890s.16 A careful examination reveals nothing in Slaughter-House that is inconsistent with incorporation.17 In- deed, no federal opinion prior to 1900 construed the case as contrary to extending the Bill of Rights to the states. The anti- incorporation reading did not emerge until Maxwell v. Dow, which was decided three decades after Slaughter-House.18 By this time, though, incorporation had been undermined by two independent developments.
First, virtually all of the cases that squarely raised incor- poration between 1873 and 1900 involved procedural claims.19 In other words, the Court rarely dealt with litigants seeking protection for religious freedom, for free speech, or from unrea- sonable searches and seizures. Instead, the Justices got a steady diet of cases seeking to invoke a right to a civil jury trial or grand jury indictment, both of which are still not applied to the states.20 This pattern was significant because lawyers at this time drew a sharp distinction between substantive rights, which were fundamental and unalterable, and procedural forms, which were subject to improvement and should not be constitutionally fixed.21 Thus, the initial cases that raised in-corporation drew from a distorted sample—in the area where support for the idea was at its ebb—and created precedents that made it easier for the Court to reject the entire concept later.
Of particular interest, the article contends that Slaughterhouse does not foreclose the doctrine of incorporation. Rather, the later precedent of Maxwell v. Dow (1900) accomplished that task.
The other interpretation is that Slaughter-House’s discus- sion of national rights was illustrative and not exhaustive, which if correct would not undermine incorporation. Indeed, the Court’s statement that it was describing “some” of the privi- leges or immunities protected by the Fourteenth Amendment supports this open-ended construction.
But in no case did a federal court say that Slaughter-House meant that the Bill of Rights was not in- corporated by the Fourteenth Amendment. This raises an ob- vious question: where did that interpretation come from? The answer is that the Justices themselves arrived at this view in Maxwell, a 1900 case rejecting the claim that a state conviction rendered by a jury of eight—instead of the tradition- al twelve—was invalid because the Sixth Amendment right to a jury trial was a privilege or immunity under the Fourteenth Amendment.53 Petitioner contended that “all the provisions contained in the first ten amendments, so far as they secure and recognize the fundamental rights of the individual as against the exercise of Federal power, are . . . to be regarded as privileges or immunities of a citizen of the United States . . . .”54 In response, the Court quoted extensively from Slaughter- House and concluded in the opinion’s crucial section on national rights that “[a] right, such as is claimed here, was not men- tioned, and we may suppose it was regarded as pertaining to the State, and not covered by the amendment.”55 Thus, Max- well endorsed the “exhaustive” reading of Slaughter-House and fixed the Court’s hostility toward the Bill of Rights for the next century.56
The article continues to discuss the incorporation doctrine from the ratification of the Fourteenth Amendment until Maxwell in 1900.
The most notable fact about these cases is that they largely concerned the procedural parts of the Bill of Rights (such as the grand jury, civil jury, and petit jury) rather than the substantive ones (for example, free speech, right to bear arms, and freedom of reli- gion).57 This pattern is significant because courts were reluc-tant to bind the states with procedures that were considered relatively unimportant and subject to improvement.58 Thus, most litigants who brought incorporation claims did so on the weakest possible grounds and created precedents that proved harmful to the broader idea.
These incorporation precedents indicate that procedural rights were viewed less favorably than substantive privileges for two reasons. First, procedure was just a means to an end that could vary between jurisdictions without doing much harm.71 Second, these forms were not sacrosanct because, in what today might be called “living constitutionalism,” there was a strong belief that they could be improved with expe- rience.72 While these two arguments are treated more skepti- cally today, they still retain some force in the sense that there is no clamor for overruling Walker or Hurtado to incorporate the civil and grand jury requirements. In these cases, there re- ally is a sense that the Bill of Rights is protecting a form that is not essential (or even good) for achieving justice.73
While the article only tangentially discusses McDonald and incorporation, the article concludes in favor of incorporation:
What do these principles tell us about how the Supreme Court should view a Second Amendment incorporation claim? First, this is one of the few substantive portions of the Bill of Rights that have not overcome the hostility toward incorpora- tion generated by the backlash against the Populists and la- bor.174 This exception is hard to justify more than a century af-ter William Jennings Bryan’s defeat in the 1896 campaign. Second, a review of the Court’s Second Amendment decisions from the 1870s until the 1890s, which are the only ones that address incorporation, shows that there is no holding rejecting the idea.175 Consequently, this historical inquiry counsels in fa- vor of a conclusion that the Second Amendment should be ex- tended against the states to join its compatriots in textual free- dom.
McDonald v. Chicago (2nd Amendment Incorporation) set for Arguments on March 2, 2010
Nov 30th
Circle the date on your calendar. Best of luck to Alan Gura. For my thoughts on McDonald v. Chicago, check out my previous posts.
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