Chicago Still Disrespects Second Amendment
That’s the upshot of a recent decision by the Seventh Circuit Court of Appeals in the case of Ezell v. City of Chicago. This was a challenge to the new regulations the city enacted in the wake of McDonald v. City of Chicago case, which applied the Second Amendment to the states.
In an attempt to circumvent the Supreme Court’s clear holding, Chicago’s ordinance first mandates that would-be gun owners receive training at a firing range but then prohibits firing ranges from operating in the city. The court, in a striking opinion by Judge Diane Sykes (put her on your Supreme Court shortlist for the next Republican administration), tells the city to go back to the drawing board.
I won’t go into the details, but the court applied something greater than intermediate (but “not quite strict”) scrutiny and found that Chicago has not presented anything approaching a compelling reason for its restriction. Here’s an analysis of the opinion by Josh Blackman and some follow-up commentary from Cato associate policy analyst Dave Kopel.
Gratifyingly, Judge Sykes cites the Pandora’s Box article that Josh and I published early last year in the run-up to the McDonald argument (see footnote 11 on page 31). It’s quite an honor to appear in the same footnote as Randy Barnett, Steven Calabresi, Brannon Denning, Glenn Harlan Reynolds (the Instapundit), and many other noted scholars — including Akhil Amar, who in the wake of our Obamacare debate and bet may not appreciate it as much.
Congratulations to the intrepid Alan Gura (who also litigated McDonald and Heller v. District of Columbia) and to all the citizens of Chicago!
A Few More Points on McDonald
I still haven’t finished reading the full 214-page opinion, but a few points to add to the statement I made yesterday:
- Justice Alito’s plurality opinion, joined by the Chief Justice and Justices Scalia and Kennedy, is a tight 45-page discussion of the history of the right to keep and bear arms and how it relates to the Court’s “incorporation” doctrine under the Fourteenth Amendment’s Due Process Clause. No excess verbiage, no policy arguments, and, notably, no denial or disparagement of the Privileges or Immunities Clause — just denying to take up the issue in light of the long line of Substantive Due Process incorporation.
- Justice Thomas provides a magisterial 56-page defense of the Privileges or Immunities Clause, resurrecting a long-beleaguered constitutional provision. While he doesn’t cite Keeping Pandora’s Box Sealed, Josh Blackman and I are proud to have tracked quite closely the arguments Thomas makes. Note that without Thomas’s vote, there is no majority extending the right to keep and bear arms to the states. That means P or I is relevant and enters the casebooks and Court precedent.
- The dissents by Justices Stevens and Breyer, respectively (the latter joined by Justices Ginsburg and Sotomayor), rest almost exclusively on pragmatic arguments. They seem to think that the right to keep and bear arms is an inconvenient part of the Constitution in our modern (particularly urban) age. This may or may not be correct as a matter of policy or social science — the evidence I’ve seen seems to point against them — but it’s irrelevant to the legal analysis. If the dissenting justices wish to propose a constitutional amendment, I would welcome the ensuing debate. As it stands, however, their arguments are disturbingly devoid of principled constitutional interpretation. Note also that neither dissent goes into privileges or immunities analysis, though Justice Stevens argues that the Clause’s meaning is “not as clear” as the petitioners (our side) suggest.
- Relatedly, both Justice Stevens and Justice Breyer invoke but misunderstand the infamous Footnote Four of the 1937 Carolene Products case, which bifurcated our rights, privileging political rights over economic liberties and property rights and deferring to the legislative branches when at all possible. One of the points Footnote Four made, however, was that enumerated rights have to have the strongest possible constitutional protection: “There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth.” The Second Amendment, then, if anything has to have at least as much protection as the right to privacy and other unenumerated rights.
- Finally, it is startling that not only does a fundamental constitutional right hang by a one-vote thread, but its application to the states is similarly tenuous. There but for the grace of God goes any right — and any limitation on government power. As I said yesterday, “Thank God that vote is Justice Thomas’s.”
For more McDonald reaction, see Josh Blackman’s remarkable series of blogposts.
More on Property Rights (Plus Privileges, Immunities, Due Process)
Yesterday I blogged about the Florida property rights case, which I now consider the best unanimous opinion against my position I could ever imagine. Although the property owners lost, four justices stood for the idea that courts no less than legislatures or executive bodies are capable of violating the Takings Clause (Fifth Amendment), while two others endorsed remedying such violations via Substantive Due Process (Fourteenth Amendment), and the remaining two didn’t express an opinion one way or the other. For more on the case, see the blogposts of Cato adjunct scholars Tim Sandefur, Ilya Somin, and David Bernstein.
An interesting side note involves Justice Scalia’s excoriation of Substantive Due Process (and Justice Kennedy’s use of it):
Moreover, and more importantly, JUSTICE KENNEDY places no constraints whatever upon this Court. Not only does his concurrence only think about applying Substantive Due Process; but because Substantive Due Process is such a wonderfully malleable concept, see, e.g., Lawrence v. Texas, 539 U. S. 558, 562 (2003) (referring to “liberty of the person both in its spatial and in its more transcendentdimensions”), even a firm commitment to apply it would bea firm commitment to nothing in particular.
…
The great attraction of Substantive Due Process as a substitute for more specific constitutional guarantees is that it never means never—because it never means anything precise.
Scalia also calls Kennedy’s method “Orwellian” — after having said that Justice Breyer uses a “Queen-of-Hearts” approach “reminiscent of the perplexing question how much wood would a woodchuck chuck if a woodchuck could chuck wood?” Really, this is classic Scalia, a delight to read (and you should, here).
Gun Control After McDonald
I recently appeared on the Patt Morrison Show in southern California opposite Paul Helmke of the Brady Campaign to Prevent Gun Violence in a segment that begs the question of what gun control laws will look like if the Supreme Court incorporates the Second Amendment with the McDonald v. Chicago case. The audio of the program is here, but the issue merits a more detailed discussion than I could get into on the radio.
The litigation over the boundaries of the Second Amendment in the District of Columbia previews the kinds of gun laws that will face court scrutiny.
First, certain restrictions on the purchase of firearms will likely be overturned. California maintains a “safe gun roster” of handguns that manufacturers have successfully submitted for safety testing. Following the Heller decision, the District adopted California’s roster. The roster is very specific, and handgun models are certified “safe” right down to the color. The District rejected applications to register two-tone guns, discontinued models, and guns not on the California roster. Three plaintiffs filed suit, alleging that this policy violated constitutional protections against irrational administrative regulations. The District relented, expanding its roster to include the “safe handguns” listings for Maryland and Massachusetts.
California courts are likely to reach similar conclusions. The Calguns Foundation has a plaintiff who wants to register a Glock handgun. The state has certified the right-handed but not the ambidextrous version, and the Calguns plaintiff was born without a right arm below the elbow. This compelling case, along with others parallel to the DC plaintiffs, will force California to open up its roster.
Second, jurisdictions will be forced to allow some form of handgun carry, either open or concealed. Outright bans on concealed carry cited in cases from the mid-1800’s come from a time when it was assumed that only brigands carried handguns concealed, and it was an unquestioned right of the people to carry arms openly wherever they went. States and localities will not be able to delete the right to bear arms from the right to keep and bear arms.
My colleague Tom Palmer is currently litigating this issue in the District of Columbia (complaint here), and states will have to confront the plain text of the Second Amendment and clear historical recognition of a right to be armed outside the home.
California allows open carry as long as the handgun is unloaded, but Los Angeles and other jurisdictions in the state refuse to issue concealed handgun permits. California will probably opt for concealed carry when push comes to shove. Public views have shifted to an “out of sight, out of mind” mentality, and concealed carry is the rule in most states. A California police officer recently put a comment up on Facebook that proposes intimidating open carriers with violence. “Haha, we had one guy last week try to do it! He got proned out and reminded where he was at and that turds will jack him for his gun in a heartbeat!” Turds indeed.
This brings us back to the Starbucks controversy that prompted the radio segment. Gun control proponents asked Starbucks to ban firearms from their coffee shops, and gun rights activists asked that they continue their current policy of following the law of the jurisdiction where each franchise is located.
The call-ins to the radio show expressed a willingness to boycott Starbucks if it keeps its “follow the law” policy, but that’s a rationale to boycott gas stations, grocery stores, and restaurants across the nation. If self-defense scares you that much, the best advice is to stay home. Or venture out and be a good victim.
Callers also expressed concerns about off-duty cops brandishing guns while intoxicated, and this is something we should take seriously. As I’ve said before, no magical powers accrue to a sworn officer. That’s a great case for barring everyone from carrying and drinking in public, law enforcement officers included. Federal law does this – the Law Enforcement Officers Safety Act allows current and retired law enforcement officers to carry concealed nationwide but requires that they not be under the influence while doing so. The same can’t be said for some state laws that make law enforcement officers a higher class of citizens than everyone else. Virginia allows retired law enforcement officers from any jurisdiction to imbibe while armed, but citizens with concealed handgun permits must transition from concealed carry to open carry when entering an establishment that serves alcohol for on-premises consumption. Better to treat permit holders and officers alike, and allow carry in restaurants but bar alcohol consumption while armed.
It’s unclear what the patchwork of gun laws across the nation will look like in ten years, but Eugene Volokh gives a framework for analysis in this article. Cato held an event the day before oral argument of the McDonald case, and our brief is available here. Ilya Shapiro and Josh Blackman discussed the application of the Privileges or Immunities Clause in this excellent article, and provided some post-argument commentary.
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.
Tuesday Links
- Kids these days…New study shows that most Millennials think “the government should do more to solve problems.” But if you take a closer look at the data there’s also some good news.
- Al Gore’s latest global warming whopper.
- David Rittgers: Why both the Left and Right are wrong about using drones to counter terrorism worldwide.
- The case for reviving the “Privileges or Immunities” clause.
- Podcast: “Why McDonald Matters” featuring Timothy Sandefur.
UPDATE:
Cato Vice President for Legal Affairs Roger Pilon can scarcely believe it himself: The New York Times got it (mostly) right on the gun case argued today before the Supreme Court, while The Wall Street Journal missed the main point.
In a piece for National Review Online, Pilon discusses a subtle but critical point: Conservatives—including the ones on the Supreme Court—are right on guns, but they’re wrong on rights.
Cato VP for Legal Affairs Roger Pilon can scarcely believe it himself: the New York Times got it (mostly) right on the gun case argued today before the Supreme Court, while the Wall Street Journal missed it.
Roger explains why in a terrific post over at National Review Online [hyperlink—you’re right, NRO is down!].
Roger’s post is the best discussion we’ve seen yet of a subtle but critical point: conservatives—including the ones on the Supreme Court—are right on guns, but they’re wrong on rights.
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.
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).
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 - I will be giving a statement to the media scrum on the marble steps afterward]
- 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).
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.)
Properly Extending the Right to Keep and Bear Arms to the States
I recently blogged about an interesting op-ed in which Ken Klukowski and Ken Blackwell of the American Civil Rights Union argue that the Supreme Court need not overturn The Slaughter-House Cases while “incorporating” the right to bear arms against the states. (Josh Blackman fisked the article in more depth here.) This piece was essentially a distillation of the ACRU’s amicus brief in McDonald v. City of Chicago, which ultimately argues, like Cato’s brief, that Chicago’s gun ban is unconstitutional.
It has come to my attention, however, that I mischaracterized one aspect of the Kens’ op-ed (sorry about that): while they are indeed against overturning Slaughter-House, the authors still seek to apply the Second Amendment right through the Privileges or Immunities Clause (like Cato and most libertarians), rather than through the Due Process Clause (like many conservatives and gun rights proponents). This is the ACRU’s main argument, and it is based largely on Ken Klukowski’s recent law review article – indeed, the brief’s body cites Klukowski article some 20 times, often for propositions that find no further support in case law or academic literature. (Josh has also provided a short critique of the ACRU brief/Klukowski article, so I won’t do that here.)
In any event, this clarification gives me an opportunity to name and outline the five possible ways a justice could come down in the McDonald case:
Read the rest of this post »
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.
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