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.

Before I begin, it is worth noting that this brief frequently cites Ken’s articles to support major arguments. In fact, in the 24 pages of the summary section, I counted 16 citations.

First, in order to justify his argument that the Privileges or Immunities Clause only refers to certain federal rights, and not rights of state citizenship, ACRU makes great hay out of the fact that among the privileges Justice Miller enumerated in Slaughter-House were the right of assembly and the right to petition grievances.

“Slaughter- House then adds that “the right to peaceably assem- ble and petition for the redress of grievances . . . are rights of the citizen guaranteed by the Federal Constitution.” Id. at 79. This is critical in that these are both express rights in the First Amendment. Klukowski, Citizen Gun Rights, supra, at 229 n.322. This in turn suggests that the “privileges or immunities” incorporated by the Fourteenth Amend- ment are those rooted in the constitutional text. Rights such as assembly and petition are expressly secured by the text. Slaughter-House then noted that it also recognized a right to travel across the nation to Washington, D.C., Crandall v. Nevada, 73 U.S. (6 Wall.) 36, 44 (1868), and found such a right necessary to exercise the right to petition the government. 83 U.S. (16 Wall.) at 79. Thus rights such as the right to interstate travel that are not expressly granted in the Constitution are among “privileges or immunities” if they are essential to exercising the express rights. Either way, rights inhering in federal citizenship, applicable to the states through Privileges or Immunities, must be derived from the constitutional text.”

This is ipse dixit. Why must they be derivable merely from the text simply because two of those listed are in the text? ACRU provides no reason why all rights inhering in federal citizenship must be derived from the Constitutional text.

The right to travel to the Nation’s Capital, I suppose can be “necessary to exercise the right to petition the government.” But, in addition to the rights to petition and assemble, Justice Miller lists the “right to use the navigable waters of the United States” and the right of protection of “property when on the high seas?” What part of the constitutional text do these rights derive from? Maybe the commerce clause? I’m not sure, and ACRU does not address this obvious point. While Miller mentions the writ of habeas corpus among the privileges or immunities of citizenship, even though it is not in the Bill of Rights, ACRU explains this inclusion as follows:

And third, the writ of habeas corpus— which although it is not a provision of the Bill of Rights is nonetheless an enumerated right in the Constitution—also anteceded the Constitution’s creation. See Boumediene v. Bush, 128 S. Ct. 2229, 2244–51 (2008) (Scalia, J., dissenting).

Yet, this seems to be a distinction without a difference. Why make an exception for Habeas and not other rights mentioned in the Constitution,and not the Bill of Rights? ACRU  argument only applies to a few of the rights Miller mentions in Slaughter-House, but it fails to consider all of them.

Because ACRU doesn’t explain the rights to use the navigable waters or the right to protection on the high seas, like the proverbial house of cards, everything flowing from this “critical” distinction, in my opinion, falls apart. To borrow some Twitter Talk, this argument fails, epically.

Second, ACRU brushes off the actual words of Slaughter-House that cut against its position, and a Century of scholarship construing Slaughter-House, and by labeling these statements as dicta. I have written on the meaning of dicta (See Much Ado About Dictum; or, How to Evade Precedent Without Really Trying: The Distinction Between Holding & Dictum) and I find that labeling something as a dictum is often nothing more than a weak attempt to disregard precedents one does not care for. ACRUprovides none of the rationales Courts use to explain why certain statements are dicta. Rather, it merely labels them as such. The sources ACRU uses to establish that “much”OF  Slaughter-House is dicta do not support that proposition.

“Admittedly, Slaughter-House did state that “rights which are fundamental . . . have always been held to be in the class of rights which the state governments were created to establish and secure.” 83 U.S. (16 Wall.) at 76 (dictum) . . . But these problematic statements share the common characteristic that they are all dicta. Klukowski, Citizen Gun Rights, supra, at 231–32.” (p. 24)

What are these “problematic statements”? On p. 231 of his article, Ken writes:

“Much of the Slaughter-House opinion is dicta.”

To support this proposition, ACRU cites four sources. Unfortunately, none of these four sources actually support the proposition that “much” of the opinion is dicta. Furthermore, none of these sources label the quote “rights which are fundamental . . . have always been held to be in the class of rights which the state governments were created to establish and secure” as a dictum.

The first source, Chief Justice Rehnquist’s dissent from Saenz v. Roe, reads:

“The Slaughter-House dicta at the core of the Court’s analysis specifically condition a United States citizen’s right to “become a citizen of any state of the Union” and to enjoy the “same rights as other citizens of that State” on the establishment of a “ bonâ fide residence therein.” 16 Wall., at 80, 21 L.Ed. 394 (emphasis added).”

Elsewhere, Chief Justice Rehnquist wrote:

Indeed the same dicta from the Slaughter-House Cases quoted by the Court actually treat the right to become a citizen and the right to travel as separate and distinct rights under the Privileges or Immunities Clause of the Fourteenth Amendment. See id., at 79-80.”

These quotes refer to specific clauses, and do not say that “most” of the opinion is dicta. Further, the quotes Rehnquist cites from Slaughter-House are not the types of “problematic statements” ACRU argues are dicta.

Second, ACRU cites David P. Currie, The Reconstrnction [sic] Congress, 75 U. CHI. L. REV. 383, 400 n.108 (2008). Footnote 108 reads:

“See also Slaughter-House Cases, 83 US (16 Wall) 36 (1872), stating in dictum: Its sole purpose was to declare to the several States, that whatever those rights, as you grant or establish them to your own citizens, or as you limit or qualify, or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other States within your jurisdiction.”

This quote referred to the Article IV Privileges and Immunities Clause. Not the Fourteenth Amendment Privileges or Immunities Clause. This citation is totally inapposite.

Third, ACRU cites Michael Kent Curtis, Historical Linguistics, Inkblots, and Life After Death: The Privileges or Immunities of Citizens of the United States, 78 N.C. L. REV. 1071, 1072–75 (2000):

“The Slaughter-House majority also mentioned the right to assemble and petition the government, [FN14] though the Court soon restricted its dicta to the right to petition the national government. [FN15].”

This footnote does not support his argument. It speaks of different rights as dicta than those ACRU references. Furthermore, the very rights Ken labels as critical to his argument, the right to assemble and petition, Curtis, one of the foremost scholars on Privileges or Immunities, labels as dicta.

Fourth,ACRU cites William J. Rich, Taking “Privileges or Immunities” Seriously: A Call to Expand the Constitutional Canon, 87 MINN. L. REV. 153, 196-98 (2002). The only reference to dictum in the article deals not with Slaughter-House, but with a citation to a different case. Rich writes “In dictum [in Twining], the Court gave a grossly distorted account of the holding in Slaughter-House: “Privileges and immunities of citizens of the United States . . . are only such as arise out of the nature and essential character of the National Government, or are specifically granted or secured to all citizens or persons by the Constitution of the United States.” Id. at fn. 273.

Later in the brief,ACRU repeats:

“Indeed, most of the Slaughter-House opinion is dicta. Saenz, 526 U.S. at 516 (Rehnquist, C.J., joined by Thomas, J., dissenting); Michael Kent Curtis, Historical Linguistics, Inkblots, and Life After Death: The Privileges or Immunities of Citizens of the United States, 78 N.C. L. Rev. 1071, 1072–75 (2000).

Again, none of these sources support the proposition that “most” of the opinion is dicta. In fact, these sources, at best, consider a clause or two dicta.

Third, ACRU bifurcates the Second Amendment into two rights; a right of self defense, and a political right. Further, ACRU argues that political rights, like voting, should only be extended to citizens.

“As a political right pos- sessed only by citizens, therefore, the Second Amendment should be extended to the states through the Privileges or Immunities Clause . . . So just as voting is a political right to install government officials, the Second Amendment secures a means to remove them if they seek to retain power after the people have affirmatively rescinded their consent via the democratic process.” (p. 20)

While I think the textual argument that privileges or immunities should be extended to only citizens is persuasive, I think ACRU’s rationale for not extending the Second Amendment, which ACRU characterizes as a “political right” is lacking. Analogizing installing government officials by the right to vote with removing government officials by the use of arms, to quote Justice Scalia in Heller, is “grotesque.”

Judge Kozinski characterized the Second Amendment as a “doomsday provision” in Silviera v. Lockyer. In other words, when all other processes fail, the right of the people to be armed to overthrow a despotic tyrant remains. But, when such a state occurs, and society is in a state of bedlam, the entire political structure and our system of government will have collapsed. At that point, any distinction between the rights of self-defense and political rights disappears. While the Second Amendment can serve as a Damoclean Sword, and a potential “doomsday provision,” to say the Second Amendment serves as a form of recall is a bit much.

Fourth, and finally, I disagree with ACRU on jurisprudential grounds. The brief concludes with a policy argument:

“However, overturning the Slaughter- House Cases would essentially relegate the Privileges or Immunities Clause to the status of a tabula rasa, enabling this Court to redefine Privileges or Immunities in whatever fashion this Court chooses in the ensuing decades.”

While I agree with ACRU that if the Supreme Court reinvigorates Privileges or Immunities, they will be writing on a clean slate, ACRU’s above policy justification is inherently contradictory. ACRU is afraid of an “activist” court. I won’t even bother defining “Activist,” because I think it is an asinine and pejorative term, but basically ACRU does not want the Court striking down laws enacted by legislatures or defining new unenumerated rights.

But, for the Court to follow ACRU’s request, they must ignore the original public meaning of the Fourteenth Amendment and abide by a wrong precedent (Ken’s argument notwithstanding, as the universal consensus is that Slaughter-House was wrong).

Clark Neily and Bob McNamara have written that Slaughter-House is among the most activist opinions ever written. For the Court to uphold Slaughter-House because they won’t like the effects of that decision is itself activist. Courts should not adhere to selective originalism.

ACRU wants to trade one form of activism (judicially creating rights) for another form of activism (abiding by a false precedent out of concern for possible effects). If you are opposed to activist judges, be consistent. Heller can be considered an activist opinion. Justice Scalia struck down a law. ACRU filed a brief to support the Supreme Court striking down the D.C. gun ban. They want the Supreme Court to strike down the Chicago gun ban. Why are these positions not activist? I would argue these opinions are faithful to the proper judicial role, as they seek to respect the original meaning, as the Constitution, the 2nd and 14th amendment respectively, commands those results. But here,ACRU wants the Court to ignore this history, because they are afraid of more activism. I just don’t get it.