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.
Cato Files Brief to Extend Second Amendment Rights, Provide Protections for Privileges or Immunities
Last year, in District of Columbia v. Heller, the Supreme Court confirmed what most scholars and a substantial majority of Americans long believed: that the Second Amendment protects an individual right to keep and bear arms. Heller led to the current challenge to Chicago’s handgun ban, which raises the question of whether the Fourteenth Amendment protects that right against infringement by state and local governments. The Seventh Circuit answered the question in the negative, finding itself foreclosed by 19th-century Supreme Court decisions. The Supreme Court agreed to review the case — after Cato filed an amicus brief supporting the cert petition — and specifically consider whether the Fourteenth Amendment’s Due Process Clause or its Privileges or Immunities Clause is the proper provision for incorporating the Second Amendment right to keep and bear arms as against the states.
Now Cato, joined by the Pacific Legal Foundation, has filed a brief supporting those challenging the handgun ban — who are represented by Alan Gura, the lawyer who successfully argued Heller — and calling for an overruling of the Slaughter-House Cases, which eviscerated the Privileges or Immunities Clause in 1873. Slaughter-House narrowly circumscribed the rights protected by the Privileges or Immunities Clause, contrary to the intentions of the Amendment’s framers and in direct contradiction to the developments in legal theory that underlay its adoption.
We also argue that in addition to ignoring the history surrounding the Fourteenth Amendment, the Slaughter-House majority violated basic rules of constitutional interpretation. Finally, restoring the Privileges or Immunities Clause would not result in the demise of substantive due process because the idea at the core of that doctrine — that the Due Process Clause imposes something more than mere procedural limits on government power — was widely accepted when the Fourteenth Amendment was enacted and its authors rightly believed that the Due Process and the Privileges or Immunities Clauses would provide separate but overlapping protections for individual rights.
Again, go here to read Cato’s brief in McDonald v. City of Chicago. Related, Josh Blackman and I have put up on SSRN our article, “Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment,” which comes out in January in the Georgetown Journal of Law & Public Policy. I will be blogging more about “Pandora” — and, of course, the McDonald case — in future.
How Will the Court Vote on “Incorporating” the Second Amendment?
Yesterday I described the brief Alan Gura filed on behalf of the petitioners challenging Chicago’s gun ban in the Supreme Court — asking the Court to apply the individual right to keep and bear arms to the states.
Late last night, Orin Kerr at the Volokh Conspiracy sketched out his predictions of whether the individual justices would go for Gura’s main argument: that the indefensible Slaughter-House Cases should be overturned and thus that the Court should “incorporate” the rights at issue via the Privileges or Immunities Clause. (Cato supports this argument, as we’ll show in the brief we’ll be filing next week.) He concludes that Justice Thomas is the only vote available for this claim. According to Orin, the Chief Justice and Justices Scalia and Alito are too enamored with stare decisis to overturn an 1873 precedent, Justice Kennedy isn’t an originalist and likes substantive due process too much, and the other four are too afraid of Lochner and Institute for Justice-style economic liberty arguments to go there.
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.
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