Predicting McDonald

Below, my colleague Orin offers his predictions as to whether the Supreme Court will restore the “lost” Privileges or Immunities Clause to constitutional law. He may well be correct in predicting but a single vote for that proposition, but I remember when many predicted Angel Raich would get 0-1 votes for her Commerce Clause challenge to the Controlled Substances Act. Instead, in addition to Justice Thomas’s vote, she also received the support of Chief Justice Rehnquist and Justice O’Connor–in a “marijuana case” no less. True, her challenge did fail, as widely predicted, but she definitely beat the spread.

But note that, by Orin’s count, only one Justice is willing to follow the text of the Constitution. According to him, the others will decide the case based on stare decisis–i.e. their own ancient decisions (Scalia), the potentially revolutionary implications of reviving the actual text of the Constitution (Roberts & Alito, the latter of whom gave a speech just last week on the importance of Justices following the actual text as it appears to the naked eye), his personal “style” (Kennedy), and undesirable results (Breyer, Ginsburg, Stevens & Sotomayor). How sad it is that one can implicitly criticize a brief to the Supreme Court of the United States for relying on the text of the Constitution. Although Alan Gura’s brief does stress both original public meaning and original intent, under the relevant precedent Orin thinks the Court will or should (?) follow, the alternative is not that the Privileges or Immunities has a modern meaning but has no meaning whatsoever!

I wonder how Orin would have predicted the grant of cert, which stated the question presented as follows:

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.

When choosing between the two pending cases in the Seventh Circuit, why would four Justices grant cert on the McDonald case in which the challenge was focused on the Privileges or Immunities Clause and deny cert on NRA case, which confined its argument to the Due Process Clause? Why would they have rejected the City of Chicago’s proposal which limited the question presented to Due Process?

Faced with this background and the actual question presented, I wonder how would Orin have briefed the case. Would he have offered any of the analysis in his post? Would he have told the Court just to ignore the Privileges or Immunities Clause? Or might he not have assumed as an experienced litigator that the Justices could write a Due Process Clause “incorporation” opinion in their sleep–heck, their clerks could write that opinion in their sleep–and then devoted the bulk of his brief to describing the meaning of the Privileges or Immunities Clause in context?

Ultimately, Orin’s analysis is based in what he thinks will be the Justices’ dislike for the interpretation of the Privileges or Immunities Clause described in the brief. The conservatives will hate the references to “natural rights” while the liberals will hate the references to “property.” Fair enough. But notice that the brief does not offer Alan Gura’s theory of the Privileges or Immunities Clause. All the phrases to which Orin objects are taken from quotes from the historical sources. Was Gura supposed to conceal these sources from the Court or faithfully report them? Orin may think this case is a hoot, but for the parties and the Court it is serious business.

To see where the references to “natural” and “property” originate consider the rights protected from state discrimination by the Civil Rights Act of 1866, which the Privileges or Immunities Clause was intended, in part, to constitutionalize:

to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property

Or consider this portion of Bushrod Washington’s opinion in Corfield v. Coryell identifying “privileges and immunities” to which Art. IV, sec 2 refers, a quote repeatedly offered in Congress to help identify “privileges or immunities”:

What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole.

Washington merely borrowed the canonical formulation of natural rights expressly affirmed in numerous state constitutions at the time of the founding and leading up to the Civil War (each of which became or was admitted as a free state):

Massachusetts: “All men are born free and equal, and have certain natural, essential and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.” New Hampshire: “All men have certain natural, essential, and inherent rights; among which are—the enjoying and defending life and liberty—acquiring, possessing and protecting property—and in a word, of seeking and obtaining happiness.” New York: “We hold these Truths to be self-evident, that all Men are created equal; that they are endowed by their Creator with certain unalienable Rights; that among these are Life, Liberty, and the Pursuit of Happiness.” Pennsylvania: “That all men are born equally free and independent, and have certain natural, inherent and unalienable rights, amongst which are, the enjoying and defending of life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety.” Vermont: “That all Men are born equally free and independent, and have certain natural, inherent and unalienable Rights, amongst which are the enjoying and defending Life and Liberty; acquiring, possessing and protecting Property, and pursuing and obtaining Happiness and Safety.” Ohio: “That all men are born equally free and independent and have certain natural, inherent and unalienable rights; among which are the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety. . . .” Indiana: (1816): “That the general, great and essential principles of liberty and free government may be recognized and unalterably established; we declare that all men are born equally free and independent, and have certain natural, inherent, and unalienable rights, among which are the enjoying and defending life and liberty, and of acquiring, possessing and protecting property and pursing and obtaining happiness and safety.” Illinois (1818): “That all men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, and of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.” Iowa (1846): “All men are by nature free and independent, and have certain unalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursing and obtaining safety and happiness.” Wisconsin (1848): “All men are born equally free and independent, and have certain inherent rights, among these are life, liberty and the pursuit of happiness. . . .”

This is scary stuff indeed.

Of course, all that is before the Court is the protection of the right to keep and bear arms. In this case, the Court need not decide how or even whether the other privileges or immunities of citizens should be judicially protected. But the Court now has rich doctrinal resources by which it can protect both the rights enumerated in the Constitution and unenumerated fundamental rights that are as “deeply rooted in our nation’s tradition and history” as are these rights. As the Supreme Court, they may not be as afraid to transfer these constitutional doctrines over to the correct clause as Orin predicts. Of course, that is not likely to happen unless the parties or amici inform the Court of the meaning of the now-lost Privileges or Immunities Clause. The sort of “legal realist” analysis offered by Orin in his post would simply be of no assistance to the Court in reaching its decision. Nor would it help much in oral argument. But who knows? As a mere prediction, it could turn out right, in which case Orin can say he told us so.

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