McDonald v. Chicago
Gura, Shapiro, & Blackman Present “The Tell-Tale Privileges or Immunities Clause”
Aug 23rd
Alan Gura, Ilya Shapiro, and I just submitted our article on McDonald v. Chicago to the 2010 Cato Supreme Court Review. The article is titled The Tell-Tale Privileges or Immunities Clause. Here is the abstract:
Help is on the way! That’s the Supreme Court’s most readily obvious message for those Americans living in the small handful of states that don’t respect the right to keep and bear arms. It should not have been a surprise. Two years ago, in striking down the District of Columbia’s handgun and functional firearms bans, the high court provided a none-too-subtle message to recalcitrant politicians unwilling to obey national civil rights standards. Ancient cases refusing to apply the right to arms against the states, said the Court, had also failed to apply the First Amendment, and were based on obsolete thinking. This term, in McDonald v. City of Chicago, Heller’s wink-and-nudge became a shove, finally dragging anti-gun politicians into the late 19th century.
But at exactly what part of the late-19th century have we arrived? The heady days of the Fourteenth Amendment’s first five years, when it was understood that states were actually bound to respect Americans’ basic rights? Or the century’s last three years, with the Fourteenth Amendment’s central guarantee of freedom having been parodied into a dead letter, the Supreme Court setting about to pick and choose which rights are worth securing, and to what extent? It is this answer to this question, more than the result applying the right to arms, which promises to make McDonald an enduring landmark of American liberty for years to come.
Justice Stevens Gives Shout-Out to Charlton Heston in McDonald Dissent
Jul 19th
Not sure how I just noticed this, but in a footnote in his McDonald dissent, Justice Stevens gives a serious shot-out to Charlton Heston:
Millions of Americans have answered this question in the affirmative, not infrequently because they believe they have an inalienable right to do so—because they consider it an aspect of “the supreme human dignity of being master of one’s fate rather than a ward of the State,” Indiana v. Edwards, 554 U. S. 164, 186 (2008) (SCALIA, J., dissenting). Many such decisions have been based, in part, on family traditions and deeply held beliefs that are an aspect of individual autonomy the government may not control.29
29 Members of my generation, at least, will recall the many passionate statements of this view made by the distinguished actor, Charlton Heston.
The more I read Stevens’ dissent, the more I like it (not that I agree with it). It is still befuddling by Breyer, Ginsburg, and Sotomayor did not join it.
Anyway, in honor of Charlton Heston, please watch obligatory “From my cold dead hands” clip.
Justice Stevens on “Transcend[ing]” Liberty
Jul 18th
In McDonald, here is how Justice Stevens describes liberty protected by the “liberty clause” of the Constitution:
Implicit in Justice Cardozo’s test is a recognition that the postulates of liberty have a universal character. Liberty claims that are inseparable from the customs that prevail in a certain region, the idiosyncratic expectations of a certain group, or the personal preferences of their champions, may be valid claims in some sense; but they are not of constitutional stature. Whether conceptualized as a “rational continuum” of legal precepts, Poe, 367 U. S., at 543 (Harlan, J., dissenting), or a seamless web of moral commitments, the rights embraced by the liberty clause transcend the local and the particular.
I still think Kennedy did a better job in Lawrence v. Texas:
The instant case involves liberty of the person both in its spatial and more transcendent dimensions.
Stevens in McDonald v. Blackman/Shapiro in Pandora’s Box. We agree, Kinda!
Jul 18th
I previously remarked that sections of Justice Thomas’ concurring opinion resembled some of the ideas Ilya Shapiro and I developed in Pandora’s Box. Looks like Justice Stevens may have also taken a few pointers from Pandora, though he seems to have confused using substantive due process rather than the privileges or immunities clause.
Stevens in McDonald v. Chicago:
It follows that the term “incorporation,” like the term “unenumerated rights,” is something of a misnomer. Whether an asserted substantive due process interest is explicitly named in one of the first eight Amendments to the Constitution or is not mentioned, the underlying in- quiry is the same: We must ask whether the interest is “comprised within the term liberty.” Whitney, 274 U. S., at 373 (Brandeis, J., concurring).
Blackman/Shapiro in Pandora’s Box:
Indeed, “incorporation” is a misnomer, a constitutional malapropism. The concept of “incorporation” was anachronistically inserted into our constitutional jurisprudence decades after the ratification of the Fourteenth Amendment. 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—but in any event not the eight particular amendments as such. 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.
No citation. Just saying.
Dennis Henigan of Brady Campaign Agrees with me on US v. Skoien at HuffPo
Jul 16th
I previously blogged about the en banc opinion from United States v. Skoien, noting that it illustrates the failure of the Heller and McDonald Court to provide the lower courts with any guidance as to what kinds of gun control laws are constitutional.
Unsurprisingly, Dennis Henigan of the Brady Campaign agrees with me.
He writes at the Huffington Post:
It is easy to understand why libertarian bloggers like Josh Blackman are upset about the Skoienruling, which he cites as evidence of the “epic failure” of both Heller and McDonald to truly establish a constitutional basis for the gutting of America’s gun laws. Blackman frets that Judge Easterbrook’s opinion in Skoien sets forth “a framework that will likely be relied upon by most courts.” If he’s right, and I think he is, strong gun control laws have little to fear from the Second Amendment.
While I think Dennis gets the thrust of Skoien about right, I think his conclusion is not necessarily correct.
Dennis writes:
Significantly, Judge Easterbrook’s opinion reads the Heller language not as created a “comprehensive code” of permissible regulations, but rather as standing for the broader proposition that it remains proper to bar gun possession by some categories of persons, “leaving it to the people’s elected representatives the filling in of details.”
I agree this is how Easterbrook characterized Heller. Unfortunately, I think this reading is irreconcilable with the nature of the right described in Heller. Easterbrook fashions a balancing test to consider gun control laws that only requires a “substantial relation”–a burden the Court, and not the government, proves by producing ample empirical research. This stands in direct contrast with McDonald’s holding that balancing tests are inappropriate for this fundamental right. The plurality opinion in McDonald categorically rejected any balancing test.
Municipal respondents assert that, although most stateconstitutions protect firearms rights, state courts have held that these rights are subject to “interest-balancing” and have sustained a variety of restrictions. Brief for Municipal Respondents 23–31. In Heller, however, we expressly rejected the argument that the scope of the Second Amendment right should be determined by judicialinterest balancing,
Although the Supreme Court took major strides towards providing meaningful protection of the right to keep and bear arms, it will be up to the lower courts, and soon enough the Supreme Court, to vindicate this fundamental right in the future.
Justice Thomas on the use of legislative history in McDonald
Jul 14th
Before considering that record here, it is important to clarify its relevance. When interpreting constitutional text, the goal is to discern the most likely public understanding of a particular provision at the time it was adopted. Statements by legislators can assist in this process to the extent they demonstrate the manner in which the public used or understood a particular word or phrase. They can further assist to the extent there is evidence that these statements were disseminated to the public. In other words, this evidence is useful not because it demonstrates what the draftsmen of the text may have been thinking, but only insofar as it illuminates what the public understood the words chosen by the draftsmen to mean.
The Epic Failure of Heller and McDonald
Jul 14th
Update: I address Dennis Henigan’s Huffington Post blog post, which cites this post, here.
I previously lamented the failure of McDonald to clarify the nature of permissible gun regulations. Without setting any tier of scrutiny, or noting which party bears the burden of proving a constitutional violation, the lower courts would be left uncertain. This is the epic failure of Heller and McDonald.
The Court merely reaffirmed the holding in Heller that “longstanding prohibitions” and bans in “sensitive places” are still permisisble. Unfortunately, we learn nothing new about the types of gun control regulations that are constitutional.
The majority opinion categorically rejected any balancing test. But this standard would not last long.Judge Easterbrook’s en banc opinion yesterday in United States v. Skoien proves my point.
Municipal respondents assert that, although most stateconstitutions protect firearms rights, state courts have held that these rights are subject to “interest-balancing” and have sustained a variety of restrictions. Brief for Municipal Respondents 23–31. In Heller, however, we expressly rejected the argument that the scope of the Second Amendment right should be determined by judicialinterest balancing,
Inevitably, all judicial review requires some form of balancing tests. The Court has never accepted Justice Black’s admonition that the First Amendment demands that Congress shall make no law–that is any law whatsoever–abridging the freedom of speech. The failure to provide any contours to the right not only invites, but practically demands that lower courts do so.
Easterbrook quickly discounts the dicta in Heller, and notes that it the courts should grant wide deference to the “people’s elected representatives” in order to fill in the details. The rather anti-majoritarian holding of Heller–where the Court rebuffed the laws of the popularly elected representatives of DC–becomes an ode to the majority, as the same bodies that routinely infringe second amendment rights now get to “fill[] in . . . [the] details” on the proper types of categorical limits.
More after the jump.
Thomas in McDonald v. Blackman/Shapiro in Pandora’s Box
Jul 13th
Justice Thomas in McDonald v. Chicago:
With the inquiry appropriately narrowed, I believe this case presents an opportunity to reexamine, and begin the process of restoring, the meaning of the Fourteenth Amendment agreed upon by those who ratified it.
Blackman & Shapiro in Pandora’s Box:
The purpose of this article is to provide a roadmap to welcome the Privileges or Immunities Clause back into 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. Taking up Justice Thomas’s gauntlet, 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.
Just saying.
My Op-Ed in the Richmond Times Dispatch- McDonald v. Chicago: Opening the Door to More Liberty
Jul 11th
Ilya Shapiro and I published an Op-Ed in the Richmond Times Dispatch on McDonald v. Chicago titled Opening the Door to More Liberty. Here is a segment:
McDonald thus paints a bright picture for the future of constitutional liberty, and opens the door to reviving a long-ignored but powerful provision of our Constitution. Thomas’ clarion call for a liberty-focused originalism provides a step on which to build in the future.
In the annals of Supreme Court history, solo opinions that introduce novel ideas often start a trickle of discussions. These arguments swirl and strengthen — and over time flow into a paradigm shift in constitutional law. Look no further than the monumental significance of Justice John Marshall Harlan’s dissent in Plessy v. Fergusson, which argued that separate is not equal. Harlan’s lone voice was crucial in starting the court on a jurisprudential crescendo culminating in Brown v. Board of Education.
Thomas’ opinion in McDonald v. Chicago — even more noteworthy, because he was the decisive fifth vote for the majority opinion rather than a dissenter — has planted a similar seed, paving the way for the Privileges or Immunities Clause to protect our most basic freedoms.
Excellent Post about the Voting Paradox in McDonald v. Chicago
Jul 9th
Definitely take a look at this post by Professor Cohen on the Voting Paradox in McDonald v. Chicago.
Before McDonald, it was basic blackletter constitutional law that the incorporated rights from the Bill of Rights were incorporated through the Due Process Clause. Although some scholars and jurists supported incorporating the Bill of Rights through the Privileges or Immunities Clause, the Supreme Court had squarely rejected that approach and had limited that clause to have a very narrow effect. Nonetheless, the lawyers challenging Chicago’s handgun ban included the Privileges or Immunities Clause argument in their briefing, making it their primary argument before the Supreme Court. The decision was questioned by some, as the lawyers virtually ignored the Due Process Clause argument that was grounded in the currently-existing law about incorporation and instead focused on an argument that no one could possibly imagine getting a majority of the Court.
I’ll quibble with one element of this argument, as the Petitioners did not “ignore” the due process argument, though they spent very little time on it in their briefs.
Cohen also provides an interesting example of how the votes could have resolved in Gonzales v. Carhart if the Doctors had also briefed a Commerce Clause argument:
Without changing the Justices’ opinions on the due process issue, the lawyers for the doctors could have won their case and convinced the Court to strike down the federal law by introducing a second argument — that the federal law went beyond Congress’ enumerated powers under the Commerce Clause. Although the Court has only struck down two laws since 1937 as going beyond Congress’ powers under this clause and there was no real argument that the federal abortion law was like those two laws, at least one Justice probably would have found that the federal law was not authorized by the Commerce Clause. Justice Thomas has written extensively about limits on Congress’ powers under the Commerce Clause, going so far as writing that “wholly intra state, point-of-sale transactions” are not within Congress’ authority and that “health laws of every description” are beyond Congress’ authority as well. If he had remained faithful to these previous pronouncements, he would have voted to strike down the federal law under the Commerce Clause even though he believed it was constitutional under the Due Process Clause. That he wrote a concurrence in Carhart specifically explaining that he was not reaching the Commerce Clause issue because it was not raised by the parties drives this point home.
Definitely worth a read.
Oregon Public Defender Seeks to Incorporate 6th Amendment Unanimous Verdict Requirement, relying on Due Process and Privileges or Immunities
Jul 8th
Think the 6th Amendment right to Criminal Trial by Jury is incorporated? Kinda. Oregon has an odd rule that criminal verdicts need not be unanimous. The Supreme Court in Apodaca v.Oregon upheld this deviant practice on a 4-1-4 split. Though, the Court in McDonald noted that “not an endorsement of the two-track approach to incorporation.”
With the 2nd Amendment now incorporated, the Oregon Public Defender bar seeks to set the stage to challenge this ruling.
From the 9th Circuit Blog (H/t Sentencing Blog):
The Supreme Court’s opinion in McDonald, which extended the federal Second Amendment protections in identical form to the States, should finally bring an end to Oregon’s deviant non-unanimous jury rule. Assistant Federal Public Defender Renée Manes has been campaigning against the injustice of non-unanimous juries in what is probably the least friendly forum for such challenges: federal habeas corpus under the extremely restrictive standards of the Antiterrorism and Effective Death Penalty Act of 1996. Now, McDonald gives us a new road map for state and federal court litigation:
Interestingly, the public defenders are willing to rely on Due Process AND Privileges or Immunities in their challenges.
The Privileges And Immunities Clause Provides Additional Support For Striking Down The Verdicts Of Non-Unanimous Juries. . . .But the alternative route of overruling Privileges and Immunities Clause precedent persuaded Justice Thomas, so we need to be sure to preserve and argue this ground. Some or all of the other Justices may now agree that, in the Sixth Amendment context, the federal and state protections are identical under the due process clause, but we may need Justice Thomas’s vote both on the certiorari grant and on the ultimate merits in the Supreme Court. Interestingly, only now-retired Justice Stevens defended two-track incorporation in his solo dissent, and even he noted that “there can be significant practical, as well as esthetic, benefits from treating rights symmetrically with regard to State and Federal Governments.”
Since the Court has already rejected this argument under Due Process in Apodaca (kinda), why not use Privileges or Immunities?
We can expect to see much more incorporation litigation following McDonald, which makes the Privileges or Immunities analysis quite important .
Scalia Joined an Opinion That Cited Legislative History — And Lots of It. Hypocritical? I argue no.
Jul 7th
Justice Scalia prides himself on refusing to cite legislative history. In fact, he will usually refuse to join parts of an opinion that include citations, as he did several times this term (see here and here).
As he concurred in United States v. Carr this term:
I join the Court’s opinion except for Part III–C. I do not join that part because only the text Congress voted on, and not unapproved statements made or comments written during its drafting and enactment process, is an authori-tative indicator of the law. But even if those preenact-ment materials were relevant, it would be unnecessary to address them here.
Yet, in one case this term, he signs onto an opinion that is LOADED with legislative history–McDonald v. Chicago. I count at least a dozen citations to the Congressional Globe–the legislative history journal back in the 19th century. For example:
In debating the Fourteenth Amendment, the 39th Congress referred to the right to keep and bear arms as a fundamental right deserving of protection. Senator Samuel Pomeroy described three “indispensable” “safeguards of liberty under our form of Government.” 39th Cong. Globe 1182. One of these, he said, was the right to keep and bear arms:
“Every man … should have the right to bear arms for the defense of himself and family and his homestead. And if the cabin door of the freedman is broken open and the intruder enters for purposes as vile as were known to slavery, then should a well-loaded musket be in the hand of the occupant to send the polluted wretch to another world, where his wretchedness will forever remain complete.” Ibid.
So what gives? I thought “only the text Congress voted on, and not unapproved statements made or comments written during its drafting and enactment process” have the authority of law? Why is Scalia citing legislative history here? Is this hypocritical? I argue no.
I addressed this issue at some length in my article, This Lemon Comes as a Lemon. The Lemon Test and the Pursuit of a Statute’s Secular Purpose, 20 Geo. Mason U. Civ. Rts. L.J. ____ (2010). SSRN. I argue that legislative history of an older vintage–such as the legislative history written during Reconstruction–is more reliable than legislative history of the modern era. Reliance on the former is more permissible than reliance on the latter. The reliability is due to the incentives to fabricate the record. Thus Scalia is not being hypocritical in McDonald (in this context at least).
From my article:
In District of Columbia v. Heller, a dissenting Justice Stevens called Justice Scalia to task for relying on historical documents subse- quent to the ratification of the Second Amendment, characterizing such statements as mired in “pitched political debates” and better characterized as “advocacy than good-faith attempts at constitutional interpretation.”166 Justice Stevens accused Justice Scalia of being hyp- ocritical for eschewing modern legislative history, while firmly embracing historical atextual sources, a lineal ancestor of modern leg- islative history.167 But is Justice Scalia being hypocritical? No.
Over time, has the nature of contemporary historical sources changed such that their reliability as indicia of original meaning has diminished? Is it possible that contemporary historical sources from earlier times are indicative of the meaning of a statute, whereas more recent contemporary sources are less indicative of the meaning of a law? As Justice Powell noted in Nixon v. Fitzgerald, not all historical sources are created equal.168 Justice Powell discounted Justice White’s dissent as relying on “fragmentary” historical sources and observed that “historical evidence must be weighed as well as cited.”169 Not all historical sources are created equally.
Although Justice Scalia has never mentioned it, he follows Justice Powell’s logic. Implicit in Justice Scalia’s reliance on some atextual sources but rejection of others is the presumption that not all historical sources are created equal.
From later in the article:
For this reason, older legislative history, where this incentive to fabricate did not exist, is more reliable than legislative history of recent vintage, where the incentive to fabricate is quite strong.189
This is an idea I only introduced in this article, but I hope to develop in future scholarship. I’m glad to see Scalia is giving me some fodder to work with.
Barone: Thomas’ principled jurisprudence in arms case
Jul 7th
Michael Barone has an excellent piece in today’s Washington Examiner, praising Justice Thomas’ principled approach to relying on the Privileges or Immunities Clause, rather than the Due Process Clause in McDonald v. Chicago.
The only alarming thing about the McDonald decision was that it was decided by only a 5-4 margin and could conceivably be reversed later by the court. As a practical matter it allows reasonable restrictions on firearms while eliminating laws that attempt, futilely, to ban them altogether.
Thomas’ colleagues, like many legal scholars, were evidently unwilling to join him in overturning the Slaughter-House Cases and based their decisions on the privileges and immunities clause, presumably because that might undercut other precedents.
But Thomas, in my view, has the better logical argument. “The notion,” he writes, “that a constitutional provision that guarantees only ‘process’ before a person is deprived of life, liberty or property could define the substance of those rights strains credulity for even the most casual user of words.”
As he points out, the court has used the due process clause to find rights — notably the right to an abortion — that are not specified in the Constitution, while at the same time four current justices have also used it to argue that a right specified in the Second Amendment does not apply to the states.
Thomas’ concurring opinion points the way to a more principled jurisprudence, based more clearly on the text of the Constitution, while at the same time making the strongest of possible cases that Second Amendment rights are fundamental.
Read the entire thing.
Barone makes several of the same points Ilya Shapiro and I made in our Op-Ed published earlier this week in the Detroit News.
McDonald thus paints a bright picture for the future of constitutional liberty, and opens the door to reviving a long-ignored but powerful provision of our Constitution. Thomas’ clarion call for a liberty-focused originalism provides a step on which to build in future.
In the annals of Supreme Court history, solo opinions that introduce novel ideas often start a trickle of discussions. These arguments swirl and strengthen, and over time flow into a paradigm shift in constitutional law. Look no further than the monumental significance of Justice John Marshall Harlan’s dissent in Plessy v. Fergusson, which argued that separate is not equal. Harlan’s lone voice was crucial in starting the Court on a jurisprudential crescendo culminating in Brown v. Board of Education.
Thomas’s opinion in McDonald v. Chicago — even more noteworthy, because he was the decisive fifth vote for the majority opinion rather than a dissenter — has planted a similar seed, paving the way for the Privileges or Immunities Clause to protect our most basic freedoms.
While detractors of Privileges or Immunities continue to poo poo the clause, I beg to differ. To paraphrase Twain, the rumors of its death have been greatly exaggerated.
Why did Justice Alito write McDonald v. Chicago? Perhaps Alito is more receptive to Privileges or Immunities than we thought…
Jul 5th
Something still isn’t sitting right about the assignments in McDonald v. Chicago. During oral arguments, Chief Justice Roberts and Justice Scalia were ripping apart the Privileges or Immunities Clause with a reckless abandon. Yet, the Plurality, Justice Scalia’s opinion, Steven’s dissent, and Breyer’s dissent spent a mere 270 words on the Privileges or Immunities Clause. How could something so significant, and so potentially damaging–if you take Roberts and Scalia at their face value–be totally ignored in their opinion?
There is a dog that didn’t bark here.
Initially, I thought that the Plurality handled Privileges or Immunities with kids gloves because they were afraid of losing Justice Kennedy.
I could imagine the Court taking this quiet approach if they were trying to keep Justice Thomas from breaking off. But he did just that. Why would Justice Alito be so curt about P or I. If it was so horrible, why not shoot it down. If there is no legitimate basis, why would he merely say that due to the vagaries of the doctrine, and settled precedent, the Court would not disturb precedent. When the Court wants to destroy a doctrine, they do so. See Justice Scalia’s opinion in Stop the Beach.
The wildcard here, of course, is Justice Kennedy. Perhaps he would not join an opinion that rips apart Privileges or Immunities. Maybe in some future case involving liberty–that is not a gun case, but a case involving Kennedy’s favorite forms of personal autonomy and liberty–Kennedy would want to rely on it? Perhaps.
After some more reflection, I don’t think they were worried about losing Justice Kennedy. I think the Chief was afraid of losing Justice Alito? Think about it. If Kennedy threatened to fracture, the Chief would likely give Kennedy the opinion, as he does with so many 5-4 decisions. Kennedy is the author of so many contentious 5-4 opinions. If the Chief does not assign Kennedy the opinion for a 5-4 case, you can expect a classic Kennedy concurrence that significantly limits the holding. Think of his concurrence in Parents Involved. It severely curtailed the Chief’s opinion. The Chief knows this well. Yet here, even though Kennedy did not write the opinion in a tight 4-1-4, he did not concur!
This makes me think that perhaps, Justice Alito was the Justice most likely to fracture off.
How does this sound? The Chief, not wanting to lose another Justice, as Thomas had already concurred in judgment only, decided to give Alito the opinion. As a compromise, the plurality, as well as Scalia’s concurring opinion, would not bash privileges or immunities. This would permit the privileges or immunities clause to live another day.
Using P or I to protect enumerated rights is quite limited. Challenges to grand jury indictments, civil juries, and hell, even quartering of troops are likely to come. But those aren’t sexy and won’t engender much interest. But, the future of the privilege or immunities clause litigation lies in unenumerated rights. Roberts knows this. Scalia knows this. Thomas knows it. And, I contend, Alito knows this.
Indeed, after reviewing transcripts from oral arguments, I am starting to think this makes more sense–specifically with respect to the enforcement of unenumerated rights under the Privileges or Immunities Clause.
MR. GURA: We can’t give a full description of all unenumerated rights that are going to be protected by the Fourteenth Amendment. Either
– JUSTICE SCALIA: It doesn’t trouble you.
MR. GURA: No, it does not, and it shouldn’t trouble the Court because the Court addresses due process cases all the time without saying we’re –
JUSTICE ALITO: Well, does it include the right to contract?
MR. GURA: The right to contract –
JUSTICE ALITO: Isn’t that an unenumerated right?
MR. GURA: That is literally understood by the framers to be an unenumerated right under the privileged immunities. We know that because in the Civil Rights Act of 1866, that’s the very first right that they mentioned as something that people in the South should be enjoying, because they were not allowed to pursue a livelihood.
CHIEF JUSTICE ROBERTS: Your approach — your original approach would give judges a lot more power and flexibility in determining what rights they think are a good idea than they have now with the constraints of the Due Process Clause.
Whether Alito is willing to protect an unenumerated right, like the right to contract, is unclear. But, we can be sure this is on his mind. And his line of questioning was not dismissive, as were the Chief and Scalia.
As Ilya and I argued in our op-ed:
Although Justice Alito did not adopt Justice Thomas’s approach, his opinion took great pains not to reject or criticize it. The plurality simply did not feel the time was right to bring the Privileges or Immunities Clause back into the forefront of constitutional jurisprudence. Due to prudential concerns for precedent, the Court took what it saw was a simpler route instead of revisiting an older debate.
McDonald thus paints a bright picture for the future of constitutional liberty, and opens the door to reviving a long-ignored but powerful provision of our Constitution. Thomas’ clarion call for a liberty-focused originalism provides a step on which to build in future.
I now see Justice Thomas, as well as Justice Alito, as Justices willing to reinvigorate the Privileges or Immunities Clause–if presented with the right case in the future.
As McDonald goes back to the 7th Circuit, what about Nordyke v. King in the 9th Circuit?
Jul 4th
In McDonald v. Chicago, the Supreme Court reversed and remanded the case back to the 7th Circuit, where Judges Posner, Easterbrook, and Bauer will get another bite at the apple, and this time, incorporate the 2nd amendment. But what about Nordyke v. King from the 9th Circuit? Nordyke was decided in April, 2009, and Judge O’Scannlain found that the 2nd Amendment should be incorporated through the due process clause. It would seem, after McDonald, that O’Scannlain was correct.
In July, the 9th Circuit vacated the panel opinion, and agreed to rehear Nordyke En Banc. That en banc oral argument was originally scheduled to take place during the week of September 21, 2009. On September 24, 2009, the Supreme Court deferred consideration of Nordyke until the Supreme Court disposed of Maloney, McDonald, and NRA v. Chicago. Here is Chief Judge Kozinski’s order:
Submission is vacated pending the Supreme Court’s disposition of Maloneyv. Rice, No. 08-1592, McDonald v. City of Chicago, No. 08-1521, and National Rifle Ass’n of Am., Inc. v. City of Chicago, No. 08-1497.
Cert was granted in McDonald v. Chicago on September 30, 2009, and the case was decided on June 28, 2010.
It would seem that the Supreme Court has disposed of Maloney, McDonald, and NRA. So what is the 9th Circuit’s next step?
The 9th Circuit already vacated the panel opinion (even though that opinion matches the holding in Heller). WIll the 9th Circuit just remand to the District Court to proceed in accordance with McDonald? We shall see.
Update: Welcome Instapundit Readers. Please take a look at all of my McDonald v. Chicago posts and consider subscribing to my RSS Feed or following me on Twitter.
Update #2: Don Kilmer, who is counsel of record for the Nordykes and argued this case before the 9th Circuit commented below:
McDonald helps Nordyke in at least two ways.
(1) McDonald puts to rest the false distinction between “individual rights” and “fundamental rights.” The 3-judge panel rejected that argument in April 2009, but McDonald keeps the rest of the en banc panel from resurrecting it. Without any direct help from SCOTUS, this may be the only thing the Nordykes have to support a fresh look at the scrutiny question as it applies to the 2A in their case. (2) By rejecting the dissent’s “laboratory of democracy” argument when it comes to fundamental rights, it may be possible to get the 9th Circuit to take fresh look at the preemption argument that we lost back in 2002.
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.
Kagan Testifies on Heller & McDonald
Jun 29th
From SCOTUSBlog LiveBlog:
EK: I have not read all the way through the McDonald decision b/c it came out yesterday. But I suspect that going forward the Court will need to decide what level of constitutional scrutiny will apply to gun regulations.
Nothing is meant to suggest unconstitutionality of longstanding gun regulations, such as felon-in-possession law. My work in Clinton White House was all pre-Heller, didn’t apply this kind of scrutiny; what President Clinton was trying to do was propose a set of regulations that had strong support to keep guns out of the hands of criminals and insane. It was anti-crime.
Kagan noted that the proper decision of scrutiny–whether strict or intermediate, as teh Heller majority ruled out rational basis scrutiny–will come before the supreme court
Kagan noted that nothing in Heller suggested unconstitutionality of long-standing prohibitions, and that list is not exhaustive. There is some real work for court to do in this area.
Kagan noted that her work in Clinton white house was before Heller, so she didn’t apply this kind of scrutiny to gun control decisions. Her goal was to keep guns out of the hands of criminals, insane people (is that P.C?). Her focus was on crime. She did not consider those cases through the Heller prism. These cases may come before the Court and the Court will consider “regulation by regulation which meets the standard.”
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.
Summary of my McDonald v. Chicago Posts
Jun 28th
Here is a summary of all of my posts today for this landmark Second Amendment case:
- Instant Analysis: McDonald v. Chicago
- Scalia’s Double Standard on Substantive Due Proces
- The Future of the Privileges or Immunities Clause after McDonald v. Chicago
- Stevens Solo Dissent Exits With a Whimper, Hands the Torch to Breyer
- Justice Thomas on the Privileges or Immunities Clause, Substantive Due Process, Stare Decisis, and the Right to Keep and Bear Arms
- We learn nothing new about “Longstanding Prohibitions” and “Sensitive Places” After McDonald v. Chicago
- McDonald Dissenters Footnote Four Fail
- Why did Alito, Breyer, and Stevens spend only 270 words on Privileges or Immunities?
- Guns and Liberty
- McDonald v. Chicago – The 2nd Amendment Does Not Have a Geography Clause
Stay tuned for more.
McDonald v. Chicago – The 2nd Amendment Does Not Have a Geography Clause
Jun 28th
I have argued in numerous posts that the Constitution does not have a Geography Clause. That is, how can a right in the Constitution mean one thing in one place, and mean a different thing in a different place. The Supreme Court has attached a geography clause in the context of First Amendment obscenity and Fourth Amendment reasonableness.
In today’s opinion, Justice Breyer would seek to place a geography clause on the 2nd amendment:
Third, the ability of States to reflect local preferencesand conditions—both key virtues of federalism—here hasparticular importance. The incidence of gun ownershipvaries substantially as between crowded cities and uncon-gested rural communities, as well as among the differentgeographic regions of the country. Thus, approximately 60% of adults who live in the relatively sparsely populated Western States of Alaska, Montana, and Wyoming report that their household keeps a gun, while fewer than 15% of adults in the densely populated Eastern States of RhodeIsland, New Jersey, and Massachusetts say the same.The nature of gun violence also varies as between ruralcommunities and cities. Urban centers face significantlygreater levels of firearm crime and homicide, while rural communities have proportionately greater problems with nonhomicide gun deaths, such as suicides and accidents. And idiosyncratic local factors can lead to two cities find-ing themselves in dramatically different circumstances:For example, in 2008, the murder rate was 40 timeshigher in New Orleans than it was in Lincoln, Nebraska.It is thus unsurprising that States and local communi-ties have historically differed about the need for gun regu-lation as well as about its proper level. Nor is it surpris-ing that “primarily, and historically,” the law has treatedthe exercise of police powers, including gun control, as“matter[s] of local concern.” Medtronic, 518 U. S., at 475 (internal quotation marks omitted).
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.”).
The geography clause argument perverts Justice Brandeis’ argument that the states can function as laboratories.
I blogged about this issue here in some detail, but here is a snippet of my response:
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.
Because the dissenters lost the battle in Heller and McDonald, if they cannot overturn these precedents, I expect future opinions to start putting limitations on this right based on the exigencies of the locality. The analogies from Second Amendment to First Amendment doctrine are quite strong. I intend to write on this much more in the future.
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