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I am proud to announce that Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment is now available on SSRN. I co-authored this article with Ilya Shapiro from Cato. It should be published in the Georgetown Journal of Law & Public Policy on a blistering expedited schedule in January 2010, right in time for Oral Arguments in McDonald. This article is cited in an amicus brief to the Supreme Court in McDonald. I can’t say which one, but when they are released on Monday, you will be sure to hear about it here.

I will blog about this in some detail soon, as well as my general thoughts on McDonald and privileges or immunities.

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.

I welcome all comments, suggestions, critiques, and any other feedback.

David Bernstein at Volokh sketches out his argument for how the Court can hold that the Privileges or Immunities Clause protects a right to bear arms:

(a) the Court should take this opportunity to start to move its individual rights jurisprudence from the Due Process Clause to the P or I Clause;
(b) The problem with the D.P. Clause is that it traditionally prohibits “arbitrary” infringements on liberty, but arbitrariness is in the eye of the beholder, as is what is meant by “liberty,” see in both contexts Roe v. Wade;
(c) worse yet, cases like Roe fail to give any real weight to the police power, the traditional brake on the D.P. Clause;
(d) by contract, through historical investigation, we can determine with some precision what rights were considered privileges or immunities of citizens.  Abortion, (right to die, etc.) was not one of them!;
(e) Justice Field and Justice Bradley were correct in their SlaughterHouse dissents that one p or i of citizenship is the right to pursue an occupation  free from government-sponsored monopoly, a much narrower right than the later Lochner due process right to be free from arbitrary restrictions on liberty of contract, and a right that goes way back in Anglo-American history;
(f) the ultimate holding of SlaughterHouse was still correct, because Louisiana had a legitimate police power interest in ensuring that its waterways didn’t carry disease, and the butchers who sued weren’t driven out of the profession, they just had to work in the safe location dictated by the government.

Our article, in the Georgetown Journal of Law & Public Policy, titled Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment touches (a), (b), (d).

David seeks to appeal “not just to originalism, but to the conservatives’ long-term political self-interest, and affinity for the conservative political coalition that put them in power.” This is precisely the tact we take.

The Court today more-or-less has 5 solid votes for incorporation. But as Justice Stevens and Ginsburg leave the Court, and Justice Scalia and Kennedy age, President Obama has the potential to totally transform the Judiciary. A future court could easily recognize a constitutional right to positive rights such as health care or social equality. Thus, we propose that the Court look to rights held as privileges or immunities during the time of Reconstruction, and not an evolving standard of rights (as articulated in Balkin’s work, and the Constitution in 2020 Project). If the Conservative majority takes a stand now, they can preserve an originalist jurisprudence for the forseeable future. If they punt, and let future Courts handle this, they are just waiting for Pandora’s Box to be opened.

At Volokh, Orin Kerr gazes into his crystal ball to predict how the Supreme Court will respond to Gura’s arguments regarding the Second Amendment and the Privileges or Immunities Clause.

In summary, he predicts:

• Thomas will vote in favor of P/I in light of his vote in Saenz
• Scalia will not vote for P/I; Scalia thinks that Substantive Due Process is wrong, but will not overrule it becuase of the reliance interest built up over the years
• Roberts and Alito, though Originalists, are not revolutionaries willing to give the judiciary the new power to “strike down legislation because it is inconsistent with’natural rights,’ including ‘the right to obtain happiness and safety,’ with some of those natural rights undefinable “in their entire extent and precise nature.”
• Kennedy is not an originalist, and will incorporate through Due Process.
• Stevens, Ginsburg, Breyer, and Sotomayor will view Gura breif as attempt to rehabilitate Lochner, and won’t buy it.

In an article I co-authored with Ilya Shapiro fortchoming in the Georgetown Journal of Law & Public Policy, titled Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment we deal with a lot of these points, so I will try to summarize the argument here (we will be posting a PDF of the article later this week).

First, I think Orin presents a binary choice; incorporate through Due Process OR incorporate through privileges or immunities.  The question presented asked about both routes of incorporation. Neither path is by necessity mutually exclusive. As Gura’s brief makes clear, the Court could incorporate through the Due Process Clause, and alternatively recognize that the right to keep and bear arms is also among the Privileges or Immunities of Citizenship.  The Court need not displace 100 years of substantive due process jurisprudence with this single case. And from a practical perspective, basically the entire Bill of Rights has been incorporated. So, unless some people start clamoring about states quartering troops in theirs homes, this would be a one time deal. Such a holding would do little to upset the apple cart, or as we put it, open Pandora’s Box.

Second, I think Orin over-simplifies Scalia’s views on originalism and stare decisis. Our article shows that Scalia, while on the Supreme Court, has never voted in favor of a substantive due process incorporation. The last such case was in 1982. Can Scalia really cite the doctrine that he excoriated in Lawrence, Casey, and elsewhere based solely on reliance interests?  It is no secret Scalia likes guns, and he wants to incorporate the 2nd Amendment. But he does not want to enlarge substantive due process. Is he stuck between a rock and a substantively hard place? The Privileges or Immunities Clause provides an alternative method for Scalia. He could write a classic originalist opinion tracing the right to bear arms during Reconstruction, and find that it applies to the State.

Third, the Court does not need to rehabilitate Lochner (another shameless plug for David Bernstein’s forthcoming book). In fact, the Court can take a narrow view of Privileges or Immunities solely as an incorporative methodology, and leave to a later day the protection of substantive rights.  But this possibility raises another issue. While Orin is quite right to say the liberal Justices would be afraid to bring back Lochner, in a different case, the Justices may see the Privileges or Immunities Clause as a means to constitutionalize certain positive rights (welfare, education, health care, etc.). There is a growing body of literature, springing from the Constitution in 2020 project, that aims to use P/I as a means to elevate positive social rights to constitutional rights.

So, while Justice Breyer may not be willing to recognize the right to keep and bear arms as a Privilege or Immunity, the Court in a few years, with a much different composition, may be willing to recognize a constitutional right to health care, for example. While these types of arguments failed under due process and equal protection, privileges or immunities jurisprudence will be written on a clean slate.

For these reasons, and others mentioned in our article, we ask the Court not to punt on P/I for future generations, but rather to assert an originalist jurisprudence; namely, adopt the Washington v. Glucksberg test. By looking at only those rights deeply rooted in our nation’s history, the Court can find the right to keep and bear arms is such a right, and thus incorporate it to the state.

Welcome to the first installment of Predictions of the 10^th Justice, brought to you by FantasySCOTUS.net. FantasySCOTUS.net, the premier Supreme Court fantasy league, has over 1,300 members, who have made predictions on all cases currently pending before the Supreme Court. In this feature, we analyze these predictions, and try to explain how the Supreme Court will resolve top cases.

The first case we will look at is Citizens United v. Federal Election Commission, commonly known as the Hillary Movie case.

Out of 286 predictions, 192 members (67%) predicted that the Supreme Court will likely reverse the lower court’s decision regarding the case, and 94 members (33%) predicted that the Court will affirm the lower court’s decisions. Next we will explore the decision vote distributions and how the Justices will vote.

On this bar graph, the 9-0 and 8-1 Affirm splits each garnered less than 5 votes, along with 7-2, 8-1, and 9-0 Reverse. This graph reinforces the predicted outcome from the first chart.  Most members are predicting a 5-4 Reverse, while those predicting an Affirm were more moderately split,  slightly favoring a 5-4 split over a 6-3 split. Overall, the 10^th Justice predicts a 5-4 decision reversing the lower courts holding.

But how will each Justice vote? Predictions, after the jump.

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It’s never too early to start looking for Festivus gifts. Underneath Their Robes has a fantastic suggestion:

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In true appellate fashion, memberships fees are three-tiered; they range from free (for students and the unemployed) to $10. If you’re a betting man, woman, or Groupie, Clerquette says: Christmas has come early this year! Indulge! If you’re searching for a gift that will keep on giving — at least from October to late June/early July — look no further! FantasySCOTUS.net will keep your favorite groupie busy, away from productive activity, and unable to engage in telephone conversations while formulating bets for months to come. Hey: at least there’s no draft.