My Reply to Washington Times Op-Ed, “A gun case or Pandora’s box?” Imitation is the Most Sincere Form of Flattery.

December 11th, 2009

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 [email protected]. 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.