Scalia Can No Longer Call Himself an Originalist

As I blogged last week, the Supreme Court didn’t seem amenable to Privileges or Immunities Clause arguments in last week’s gun rights case, McDonald v. Chicago. This is unfortunate because the alternative, extending the right to keep and bear arms via the Due Process Clause, continues a long-time deviation from constitutional text, history, and structure, and reinforces the idea that judges enforce only those rights they deem “fundamental” (whatever that means).

It was especially disconcerting to see Justice Antonin Scalia, the standard-bearer for originalism, give up on his own preferred method of interpretation — and for the sole reason that it was intellectually “easier” to use the “substantive due process” doctrine.

Josh Blackman and I have an op-ed in the Washington Examiner pointing out Scalia’s hypocrisy. Here’s a choice excerpt:

Without the Privileges or Immunities Clause … the Court must continue
extending the un-originalist version of substantive due process to protect the
right to keep and bear arms. To give original meaning to the Second Amendment,
it must ignore the original meaning of the Fourteenth Amendment!

Yet this is the line Scalia took last week: Instead of accepting the plain
meaning of the Privileges or Immunities Clause—which uncontrovertibly protects
the right to keep and bear arms—the justice chose a route that avoids disturbing
a 140-year-old precedent rejected by legal scholars of all ideological
stripes.

In 2008, Scalia wrote, “It is no easy task to wean the public, the
professoriate, and (especially) the judiciary away from [living
constitutionalism,] a seductive and judge-empowering philosophy.” But at the
arguments in McDonald, he argued that while the Privileges or Immunities Clause
“is the darling of the professoriate,” he would prefer to follow substantive due
process, in which he has now “acquiesced,” “as much as [he] think[s it is]
wrong.”

Put simply, if the opinion Scalia writes or joins matches his performance last week, he can no longer be described as an originalist (faint-hearted or otherwise). A liberty-seeking world turns its weary eyes to Justice Clarence Thomas — who has expressed an openness to reviving the constitutional order the Fourteenth Amendment was designed to create — to convince his wayward colleague that the way to interpret legal text is to look to its original public meaning.

Read the whole thing. CP: Cato's blog

Gun Rights Secure, Liberty Less So

This morning the Court heard argument in McDonald v. Chicago, the case asking whether the right to keep and bear arms extends to protecting against actions by state and local governments. Just as importantly, it asked whether the best way to extend that right would be through the Due Process Clause of Privileges or Immunities Clause of the Fourteenth Amendment (because the Second Amendment doesn’t apply directly to the states).

From the initial questioning through the end, it was quite clear that those living in Chicago — and, by extension, New York, San Francisco, and other places with extreme gun restrictions — will soon be able to rest easy, knowing that they will be able to have guns with which to protect themselves. Unfortunately, the Court did not seem inclined to adopt the arguments propounded by petitioners’ counsel Alan Gura (and supported by Cato) that the Privileges or Immunities Clause was the way to go. Chief Justice Roberts expressed reluctance at having to overturn the 1873 Slaughterhouse Cases and other justices joined in concerns over how activist judges would use the Clause if the Court revived it — even if that were the path that hewed more closely to the constitution’s true meaning.

This turn of events is unfortunate because reviving the Privileges or Immunities Clause, far from giving judges free reign to impose their policy views, would actually tie them closer to the text, structure, and history of the Constitution. As it stands now — and as it seems will be the case after McDonald is decided — many of our most cherished rights are protected only to the extent that judges are willing to label them as sufficiently “fundamental” to warrant such protection. That is an unprincipled jurisprudence and one that hurts the rule of law.

In short, it is a shame that the Supreme Court seems to be wasting a perfect opportunity to bring constitutional law closer to the Constitution. It is an even greater shame that it is wasting this chance to use guns to protect liberty.

CP at Cato's blog

Using Guns to Protect Liberty

Tomorrow the Supreme Court will hear oral argument in McDonald v. Chicago — the Second Amendment case with implications far beyond gun rights. The Court is quite likely to extend the right to keep and bear arms to the states and thereby invalidate the Chicago handgun ban at issue, but the way in which it does so could revolutionize constitutional law.

In response to the oppression of freed slaves and abolitionists in southern and border states after the Civil War, the Fourteenth Amendment’s drafters sought to protect individual rights from infringement by state and local governments. The amendment’s Due Process Clause and Privileges or Immunities Clause provided overlapping but distinct protections for these rights. The Court decided in the 1873 Slaughter-House Cases, however, that the Privileges or Immunities Clause only protected Americans’ rights as national, not state, citizens. This reactionary holding eviscerated the clause, rendering it powerless to protect individual rights from state interference.

McDonald provides the Court an opportunity to overturn the Slaughter-House Cases and finally restore the Privileges or Immunities Clause to its proper role as a check against government intrusion on individual rights. Doing so would secure Americans’ natural rights, such as the freedom of contract and the right to earn an honest living, without enabling judges to invent constitutional rights to health care or welfare payments. For a more detailed discussion of McDonald’s potential implications, and how the Court should rule, see my recent op-ed here.

I will also be participating in several public events this week on McDonald, the Fourteenth Amendment, and firearm regulation. Today at 4:00 p.m., I will be speaking at a Cato policy forum, which will be broadcast live on C-SPAN and which you may watch online here. Tomorrow at 3:30 p.m., I will participate in a post-argument discussion of McDonald at the Georgetown University Law Center, which event is cosponsored by the Federalist Society and the Georgetown Journal of Law and Public Policy (where Josh Blackman and I recently published a lengthy article on the subject). And on Wednesday at noon, I will be participating in a Cato Capitol Hill briefing on McDonald and the future of gun rights at the Rayburn House Office Building, room B-340 (more information here).

CP at Cato's blog

Keeping Pandora's Box Sealed

The moment everyone was waiting for has arrived: The article Josh Blackman and I wrote, “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,” has officially come out in the Georgetown Journal of Law & Public Policy. (I previously blogged about this article here, among other places, and here’s a recent reference on Reason’s blog.) The journal thought enough of our work to publish it on page 1 of issue 1 of this year’s volume.

We’re also grateful to the journal editors for expediting the editing and publication process generally so that the article would come out in time for the McDonald v. Chicago argument. Indeed, that strategy is already paying off, with “Keeping Pandora’s Box Sealed” having been cited in the petitioners’ reply brief — not to mention Cato’s amicus brief. The Georgetown JLPP has been cited in Supreme Court opinions the past two terms, so we’re cautiously optimistic about our chance to continue this trend.

In addition to reading the article (also available on SSRN), you can also attend various presentations I’m giving in the next two weeks about McDonald v. Chicago and properly extending the right to keep and bear arms to the states:

• Feb. 23 at lunch – University of New Mexico Law School (sponsored by the Federalist Society) – “McDonald v. City of Chicago and Properly Extending the Right to Keep and Bear Arms”
• Feb. 25 at 1:30pm EST/10:30 PST – ABA Continuing Legal Education Teleconference – “Beyond Gun Control: McDonald v. City of Chicago and Incorporation of Bill of Rights” (registration fee, 1.5 hours of CLE credit)
• Mar. 1 at 4pm – Cato Institute Policy Forum – “McDonald v. Chicago: Will the Right to Keep and Bear Arms Apply to the States?“
• [Mar. 2 at 10am - Supreme Court argument in McDonald]
• Mar. 2 at 3:30pm – Georgetown University Law School – Post-Argument Discussion of McDonald and “Keeping Pandora’s Box Sealed” (sponsored by the GJLPP and the Federalist Society)
• Mar. 3 at 12pm – Cato Institute Hill Briefing in B-340 Rayburn House Office Building - “McDonald v. Chicago: The Fourteenth Amendment and the Future of Gun Rights“

You can also listen here to a half-hour podcast about “Keeping Pandora’s Box Sealed” that I recently recorded with the Independence Institute’s David Kopel (also a Cato associate policy analyst).

CP at Cato's blog

NRA Shoots Itself in the Foot

I previously blogged about the NRA’s misbegotten motion, which the Supreme Court granted, to carve 10 minutes of oral argument time away from the petitioners in McDonald v. Chicago. Essentially, there was no discernable reason for the motion other than to ensure that the NRA could claim some credit for the eventual victory, and thus boost its fundraising.

Well, having argued that petitioners’ counsel Alan Gura insufficiently covered the argument that the Second Amendment should be “incorporated” against the states via the Fourteenth Amendment’s Due Process Clause, the NRA has now filed a brief that fails even to reference the four biggest cases regarding incorporation and substantive due process. That is, the NRA reply brief contains no mention of Washington v. Glucksberg (1997), Benton v. Maryland (1969), Duncan v. Louisiana (1968), or Palko v. Connecticut (1937). (The NRA did cite those cases in its opening brief.) What is more, it also lacks a discussion of Judge O’Scannlain’s magisterial Ninth Circuit opinion in Nordyke v. King (2009), which the Supreme Court might as well cut and paste regardless of which constitutional provision it uses to extend the right to keep and bear arms to the states!

I should add that the petitioners’ reply brief does cite all of those aforementioned cases (as well as the “Keeping Pandora’s Box Sealed” law review article I co-authored with Josh Blackman). I leave it to the reader to determine whether it is Alan Gura or the NRA who is better positioned to argue substantive due process — or any other part of the McDonald case.

For more on the rift between the McDonald petitioners and the NRA, see this story in today’s Washington Post (in which I’m quoted, full disclosure, after a lengthy interview I gave the reporter last week).

(Full disclosure again: Alan Gura is a friend of mine and of Cato, and I suppose I should also say that I’ve participated in NRA-sponsored events in the past.)

CP at Cato's blog.

NRA Cares More about NRA Than Gun Rights, Liberty, Professional Courtesy

Yesterday the Supreme Court granted the NRA’s motion for divided argument in McDonald v. Chicago. What this means is that Alan Gura’s 30 minutes of argument time on behalf of Chicagoland gun owners just became 20, with 10 going to former Solicitor General Paul Clement, whom the NRA hired at the last minute to pursue this motion and argument. (Full disclosure: Alan Gura is a friend of mine, and of Cato.)

The NRA’s motion was premised on the idea that Alan had not fully presented the substantive due process argument for selective incorporation of the Second Amendment — presumably out of an outsized concern for the Privileges or Immunities Clause arguments about which I’ve previously blogged and written a law review article. This is a highly unusual argument and is a facial slap at Alan’s abilities as an advocate. Sadly, it’s also typical of how the NRA has behaved throughout this case and before that during the Heller litigation — sabotaging Alan at every turn and showing again and again that, even in the face of winning arguments that fully support its legal positions, the NRA prefers to seek glory for itself rather than presenting the strongest case for its purported constituency of gun owners.

Alan rightfully opposed the NRA’s motion because the group’s participation at argument adds nothing substantive to the case. No one will ever know why the motion was granted, as the Court need not (and did not) provide any reasons. Nonetheless, it’s a safe bet that this is solely a testament to Clement’s talent and reputation (notably, the motion was not filed by any of the NRA’s other excellent attorneys, who briefed and argued their case in the lower courts and in a cert petition and brief before the Supreme Court).

I have great respect for Paul Clement, and have worked with him by filing amicus briefs in two cases he’s already argued this term, but I do take issue with his repeated suggestion that the motion’s purpose — and the reason behind its granting — was so that “all the avenues to incorporation, including the due process clause, are fully explored at the argument.” This kind of comment — again impugning Alan’s litigation strategy — is uncalled for, and renews concerns over the NRA’s conduct.

Throughout this case, Alan has consistently and forcefully advocated for the Second Amendment’s incorporation under the Due Process Clause. That didn’t change when his case was taken up by the Supreme Court. The thing is that the due process arguments are not all that complex, and simply do not merit the same care and attention in the briefs as arguments based on the Constitution’s actual text and history. A first-year law student who’s taken constitutional law – let alone a Supreme Court clerk – could write a due process incorporation argument in her sleep! In any event, the oral argument will be driven by the justices’ questions, not by any long soliloquies by counsel. Alan’s — and all attorneys’ — job is to be ready for anything.

If the NRA were concerned about the final outcome of the case, it would be unlikely to attack Alan’s strategy or question his preparation (an odd way to be “helpful” to one’s side). It is not a stretch to predict that this case will be favorably decided at least in part on due process grounds, however, so what we are seeing here is likely an attempt by the NRA to position itself as responsible for such a victory – and that Alan isn’t.

Ultimately, then, the NRA is engaging here in fundraising, not liberty-promotion or ethical lawyering.

CP at Cato's blog

Keeping Pandora's Box Sealed

In today’s Washington Times, Ken Klukowski and Ken Blackwell co-authored an op-ed about McDonald v. Chicago and the Privileges or Immunities Clause titled, “A gun case or Pandora’s box?”

If that title sounds familiar, it should. Josh Blackman and I have co-authored a forthcoming article called “Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment." As Josh put it in his reply to the Kens, “imitation is the most sincere form of flattery.”

Going beyond the title, there are several errors in the piece, which I will briefly recap:
First, the Kens argue that the Supreme Court should uphold the Slaughter-House Cases, out of a fear that reversal — and thereby a reinvigoration of Privileges or Immunities — would empower judges to strike down state and local laws. What they neglect to mention is that it has been the role of the judiciary since Marbury v. Madison to strike down laws that violate the Constitution. There is near-universal agreement across the political spectrum that Slaughter-House was wrongly decided, causing the Supreme Court to abdicate its constitutional duty by ignoring the Privileges or Immunities Clause for 125 years. The Kens want to continue this mistaken jurisprudence.

Next, the Kens describe the Privileges or Immunities Clause as a general license for courts to strike down any law they do not like. This is not accurate. Neither the Privileges or Immunities Clause nor any other part of the Fourteenth Amendment empowers judges to impose their policy views. Instead, “privileges or immunities” was a term of art in 1868 (the year the Fourteenth Amendment was ratified) referring to a specific set of common law, pre-existing rights, including the right to keep and bear arms. The Privileges or Immunities Clause is thus no more a blank check for judges to impose their will than the Due Process Clause — the exact vehicle the Kens would use to “incorporate” the Second Amendment.

To set the record straight, Josh and I 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. To see our arguments in greater detail, read our article and Cato’s McDonald brief, both of which I’ve previously blogged about here , here, and here.

CP: Cato's blog

Heller Counsel Argues for an Originalist Revolution

Alan Gura, who successfully defended the individual right to keep and bear arms under Second Amendment in District of Columbia v. Heller has now filed his brief in the case that seeks to apply that right to the states, McDonald v. City of Chicago. (Cato earlier filed a brief supporting Alan’s cert petition, the background to which you can read about here.)

The question presented in this case is: 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. Remarkably, only 7 of the brief’s 73 pages are devoted to the Due Process Clause, which is the constitutional provision by which almost all the the Bill of Rights has been “incorporated” against the states. Indeed, the brief argues that the Due Process Clause “has incorporated virtually all other enumerated rights” and so there is no reason to make the Second Amendment an exception.

The rest of the brief is far more interesting, arguing for overturning the ill-fated Slaughter-House Cases, which eviscerated the Priviliges or Immunities Clause in 1873. Slaughter-House forced the Court to start protecting natural rights and fundamental liberties under the oddly named “substantive due process” doctrine — and it remains a bugaboo for legal scholars of all ideological stripes. Overturning it would potentially open the door to challenges against legislation that violates a host of unenumerated rights, such as the right to enter into contract or to earn an honest living.

Understandably, libertarians are excited at the prospect of Privileges or Immunities’ revival. But so too are liberals, at the thought of potentially filling an empty constitutional vessel with positive rights (to health care, education, pensions, etc.). I believe this to be an overstated threat from the perspective of constitutional interpretation — as opposed to legislation – and have an article coming out with Josh Blackman in the Georgetown Journal of Law and Public Policy in January making this point. (The article, titled “Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment,” will shortly be up on SSRN, but for now you can read the abstract/introduction here.)

In any event, P or I (as it’s known) is a vastly superior way of giving people in the states the right to keep and bear arms for self-defense. But it’s ambitious to argue this way rather than settle for the traditional jurisprudence. As Orin Kerr says at the Volokh Conspiracy, “It’s certainly an attention-getting way to brief the case. It’s not just arguing for a win: It’s arguing for a revolution.”

For further discussion of Alan’s McDonald brief — which Cato will be supporting with an amicus brief next week – see Lyle Deniston’s write-up at SCOTUSblog.

CP: Cato's blog

Yes, California, There is an Individual Right to Keep and Bear Arms

Last June, the Supreme Court ruled in District of Columbia v. Heller that the Second Amendment protects an individual’s right to keep and bear arms, at least in the home for self-defense. While the Court’s ruling was a watershed in constitutional interpretation, it technically applied only to D.C., striking down the District’s draconian gun ban but not having a direct effect in the rest of the country.

Well, today the Ninth Circuit (the federal appellate court covering most Western states) ruled that the Second Amendment restricts the power of state and local governments to interfere with individual right to have guns for personal use. That is, the Fourteenth Amendment “incorporates” the Second Amendment against the states, as the Supreme Court has found it to do for most of the Bill of Rights. I rarely get a chance to say this, but the Ninth Circuit gets it exactly right.

Here’s the key part of Judge Diarmuid O’Scannlain’s opinion:

We therefore conclude that the right to keep and bear arms is “deeply rooted in
this Nation’s history and tradition.” Colonial revolutionaries, the
Founders, and a host of commentators and lawmakers living during the first one
hundred years of the Republic all insisted on the fundamental nature of the
right. It has long been regarded as the “true palladium of liberty.” Colonists
relied on it to assert and to win their independence, and the victorious Union
sought to prevent a recalcitrant South from abridging it less than a century
later. The crucial role this deeply rooted right has played in our birth
and history compels us to recognize that it is indeed fundamental, that it is
necessary to the Anglo-American conception of ordered liberty that we have
inherited. We are therefore persuaded that the Due Process Clause of the
Fourteenth Amendment incorporates the Second Amendment and applies it against
the states and local governments.

In short, residents of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington now join D.C. residents in having their Second Amendment rights protected. And courts covering other parts of the country — most immediately the Seventh Circuit, based in Chicago — will have their chance to make the same interpretation in due course.

Just as interesting — and potentially equally significant — is the footnote Judge O’Scannlain drops at the end of the above text in response to arguments that the right to keep and bear arms, regardless of its provenance as a fundamental natural right, is now controversial:

But we do not measure the protection the Constitution affords a right by the
values of our own times. If contemporary desuetude sufficed to read rights out
of the Constitution, then there would be little benefit to a written statement
of them. Some may disagree with the decision of the Founders to
enshrine a given right in the Constitution. If so, then the people can
amend the document. But such amendments are not for the courts to ordain.

Quite right.

[Cross-posted at Cato's blog.]