Counsel of record is Clark Neilly, who was Alan Gura’s right-hand man in Heller. The most important part of the brief is Part III, which begins: “To enslave a class of people requires three basic things: destroy their self-sufficiency, prevent them from fighting back, and silence any opposition.” The brief then goes on to argue that the the Court should resist suggestions that it hold that the Privileges or Immunities clause makes the first eight amendments applicable against the states, but does nothing else.
Thus, for example, many states adopted laws that kept blacks from practicing trades or even leaving their employer’s land without permission; others adopted vagrancy laws that, in practice, made it illegal to be unemployed, and therefore illegal to look for work
….
And the animating purpose of the Privileges or Immunities Clause, the elimination of constructive servitude, could not be achieved by enforcing only the narrow set of rights already enumerated in the existing Constitution. This last point is best illustrated by the sheer variety of laws invented by Southern governments to prevent freed slaves from enjoying the personal autonomy that was to have been theirs upon ratification of the Thirteenth Amendment. To take just one example, starting with Virginia in 1870, Southern states began to pass increasingly restrictive regulations of “emigrant agents”—people who attempted to recruit freedmen to leave their plantations by promising higher wages and better working conditions on understaffed Western plantations, eventually making it illegal or practically illegal for people to even offer these economic opportunities to poor workers. Those and other laws had the express (though not always expressed) purpose of binding former slaves to the very same plantations they had worked during slavery, and upon essentially the same terms.
In short, the protection of at least some economic rights (the right to choose where to work, the right to choose not to work, and the right to learn about work opportunities) was among the rights which the Privileges or Immunities clause was specifically intended to protect.
IJ does not ask the Court in McDonald v. Chicago, to take any affirmative steps to protect those rights. The IJ simply urges that the McDonald Court enforce the Second Amendment via the Privileges or Immunities clause, and not create any dicta prematurely restricting the scope of P/I.
DJ says:
Is there any reason to believe that this Court’s current line-up will be particularly receptive to these sort of arguments? Like Prof. Kerr, I can see Justice Thomas buying in–and I’d add, perhaps, Justice Kennedy if he’s in a particularly grandiose mood. But Scalia? Roberts? Have they shown any appetite in upsetting the long-established apple cart of 14th Amendment jurisprudence? I’m pretty sure the answer to that is no. So why are Alan Gura and the IJ going all in on this one?
November 23, 2009, 4:11 pmp.d. says:
Gotta love an “Interest of Amicus Curiae” statement that includes “Properly understood, the Privileges or Immunities Clause is neither a bottomless font of unenumerated rights nor an incomprehensible inkblot.”
November 23, 2009, 4:14 pmJ. Aldridge says:
Bingham, 1866 & 1870: “This guarantee is of the privileges and immunities of citizens of the United States in, not of, the several States.”
Bingham, House Report No. 22, January 30, 1871: “It had been judicially determined that the first Eight Amendments of the Constitution were not limitations on the power of the States, and it was apprehended that the same might be held of the provision of the second section, fourth article.”
November 23, 2009, 4:17 pmOrin Kerr says:
DJ,
I attended an IJ summer program back in 1997 in which the IJ folks (I think Clint Bolick in particular) said that IJ’s ultimate goal in its litigation projects was the overthrow of the Slaughterhouse Cases to restore serious judicial review and oversight of economic regulations.
Assuming my recollection is accurate, and that goal continues, I imagine it must be hard not to swing for the fences and write the dream brief you have always wanted to write when that brief is plausibly responsive to the questions presented.
Also, my sense is that the victory in Heller has persuaded some who participated in that case that the Supreme Court is on the verge of an originalist revolution that may end up mandating libertarianism throughout the land. I think that’s way off, but I have no doubt that this belief is genuinely and passionately held by some.
November 23, 2009, 4:26 pmOrin Kerr says:
J. Aldridge,
Can you estimate how many comments you have made over the years here at the VC that quote or mention John Bingham? There must be well over a hundred.
November 23, 2009, 4:27 pmAnon21 says:
Laying aside the weirdness of this whole litigation strategy, this:
…seems to have missed the boat, a bit. If anything, such dicta would be very postmature.
November 23, 2009, 4:27 pmJ. Aldridge says:
Missouri Governor, Claiborne F. Jackson, declared in 1863 the citizens of Missouri had the right to “keep and bear arms in conformity to the State laws and to form a well regulated militia necessary to the security of a free State.”
St. George Tucker, Lectures on Constitutional Law (1843), said to bear arms is a duty of citizenship like a duty to pay taxes: “There was no one right which the citizen could exercise, and no one duty which he could be called on to perform, except as a citizen of some particular state. In that character alone could he own real estate, vote at elections, sue or be sued; and in that character alone could he be called on to bear arms, or to pay taxes.”
Patrick Henry: ”The great object is that every man be armed. … But we have learned, by experience, that, necessary as it is to have arms, and though our Assembly has, by a succession of laws for many years, endeavored to have the militia completely armed, it is still far from being the case. When this power is given up to Congress without limitation or bounds, how will your militia be armed?”
Judge Advocate General of the Army (C. 1169, May 27, 1910) held the word “arms” under the Second Amendment “refers to the arms of the militia or soldier and does not authorize the carrying of weapons not adapted to use for military purposes.”
November 23, 2009, 4:31 pmChrisIowa says:
I hope someone will eventually blog about the coordination of so many briefs and the issues covered by each, as well as the strategies involved, and how it was all accomplished. Though that probably has to wait until arguments at the earliest.
November 23, 2009, 4:32 pmJ. Aldridge says:
Can you estimate how many VCers misquote his statements in order to support incorporation of the U.S. bill of rights of citizens of a state and their own state of residence?
November 23, 2009, 4:35 pmyankee says:
I haven’t read the brief, but all of those issues you mention in your post seem like they could be straightforwardly addressed as 13th and/or 14th Amendment violations, or as violations of the right to travel. So they don’t seem like very persuasive arguments for economic PorI.
November 23, 2009, 4:47 pmDavid Nieporent says:
None. Bingham explicitly said that the point of the 14th amendment was incorporation. He explicitly said that the point was to overrule Barron. Why you think an obscure reference to choices of prepositions which doesn’t at all say anything about the point somehow overrides an explicit statement is beyond me.
November 23, 2009, 4:48 pmwolfefan says:
I’m glad the drinking game hadn’t started when I began reading this thread.
November 23, 2009, 5:01 pmDJ says:
Prof. Kerr, that’s decidedly the mission of the IJ. I’ve heard Clint Bolick and others repeat the “repeal Slaughterhouse” refrain countless times. I expected for a time that the name “IJ” would be changed to “P&I”.
For what it’s worth, I agree that the strategy here clearly has a swing-for-the-fences feel. Now, to be sure, I’m sympathetic to the argument: My own study of the Civil War amendments has convinced me that the Slaughterhouse case was wrongly decided. (I’ve got some bona fides here. In law school, believe it or not, I studied the jurisprudence of Noah Swayne.) But it all comes across as a bit over-eager and amateur. Naive, even. And it’s likely to end, I fear, with deafening silence on the Court.
Better, I think, to have followed a more cautious route by arguing the the Framers of the 14th Amendment clearly intended the Amendment to protect an individual right to bear arms, that wholesale incorporation of the Second Amendment isn’t a clean doctrinal vehicle for preserving that right (because of the essentially republican purpose of the Founders to preserve the state militias against central government encroachment) and that substantive due process isn’t the right way to go because of the reasons Clement spelled out in the Congress amicus brief. Slaughterhouse, indeed, could have been dealt with on its own terms, and Cruikshank and Presser preserved because (as Clement points out) neither of those cases considered whether the right to bear arms was protected by the 14th Amendnent.
This sort of cautious approach was, of course, the one that the NAACP followed when challenging segregation laws and Ruth Bader Ginsburg urged in the sex discrimination cases of the 1970s. It seems that libertarians haven’t been paying much attention. Maybe they’d prefer to be right and lose?
November 23, 2009, 5:02 pmJ. Aldridge says:
Could you provide a quote of him explicitly saying he wanted to make the entire first eight amendments binding against a state and its own citizens?
November 23, 2009, 5:07 pmOrin Kerr says:
DJ,
Purely from a litigation strategy, I agree it’s too early: I would think you want to give the Justices something to nibble on at this stage that helps open the door to your view without creating a big target to reject. The problem with going all out now is that you might get an opinion that flatly rejects your view now, making it harder to build back to that position.
But that all depends on how you read the tea leaves, and I suppose different people read them differently.
As for whether folks want to lose, I don’t think so. The hard part is knowing the right time. With Obama in charge, and his nominees not likely to be very interested in serious judicial scrutiny of economic regulations, they may be figuring it’s now or never: Maybe, just maybe, the combination of Heller and the cert grant on P or I is a signal from inside the court that this is the right time to bring out the serious cannon and start firing.
November 23, 2009, 5:10 pmFoxtrot says:
DJ (and other skeptics of the P or I strategy the petitioners are using),
Doesn’t the fact that cert was granted on the P or I question (when the court could have only accepted the DP question, or even granted exclusively in the NRA case and kept Gura out of it) indicate that Justices are interested in reconsidering Slaughterhouse?
November 23, 2009, 5:16 pmShelbyC says:
Going from memory, but didn’t Presser explicitly find that the RKBA wasn’t a P or I? or maybe it was Criukshank. And it found the Due Process arguement to ridiculous to consider.
November 23, 2009, 5:27 pmDJ says:
Did you mean canon or cannon, Professor?
The cert grant means, of course, that only 4 justices are interested in the question. Right? And some of them might be interested in putting to bed the P&I argument once and for all. They might be sick of getting amicus briefs from IJ calling for overruling Slaughterhouse. A cri de coeur from Antonin Scalia: “Enough already!”
I’ve no doubt that IJ and our other libertarian friends don’t want to lose this one. They’ve been nursing a grudge against Samuel Miller and the Slaughterhouse majority for a generation now. But maybe the problem is that they’re too used to losing. And too good at it. The Kelo setback really juiced their coffers and put them on the forefront of advocating in the states for staturoy fixes to takings abuse. But we shouldn’t be mistaken here: Persuading the Supremes to add yet another ink blot to the privileges or immunities clause won’t lead to any sort of happy consequences.
November 23, 2009, 5:34 pmDJ says:
No, Shelby, Presser didn’t even mention the 14th Amendment. It simply concluded that the 2nd Amendment only applies to the general government. And that was the Cruikshank court’s essential holding too. It limited its 14th Amendment analysis to whether the state acted arbitrarily or not.
November 23, 2009, 5:39 pmAnonymous says:
Why is it “swinging for the fences” to argue that the p or I clause means “X” and only once you understand what it means can you see how it applies in this case. You just don’t like the argument, so you keep poo pooing it by claiming it is extreme or bad strategy. It is simply logical, you just don’t like the result of the analysis.
November 23, 2009, 5:44 pmOrin Kerr says:
Foxtrot asks:
Good question. It’s possible that it suggests that some Justices were interested in the question. On the other hand, there are other possible explanations.
1) If you’re John Roberts, granting on P or I may help you forge a clear majority down the road: The grant on both questions makes the incorporation-by-DP argument seem like the easy and narrow path by comparison. You may be figuring that opening the door on both makes it more likely you’ll get a clear majority in favor of the narrower door.
2) Some Justices might have thought it would be a little odd to grant on only if one clause of the 14th Amendment incorporates the 2a while excluding whether another clause of the 14th does the exact same thing.
3) Finally, ome Justices might have been worried that if the Court granted cert and ruled that the 2nd Amendment was *not* incorporated by DP, then you would still have the question of whether another clause does the same, leading to lots more litigation. They may have figured it makes sense to look at the broad question.
Who knows which of these, if any, are right. But I don’t see the scope of the cert grant as a clear sign that there are more than one votes to overturn Slaughterhouse.
November 23, 2009, 5:51 pmDJ says:
No, Anonymous. I like the argument. I think, frankly, it’s really incontestable. It’s also contrary to over a hundred years of settled law. The Justices aren’t going to blithely accept the argument–even, believe it or not, if they think it’s right. They’ll need a really good reason to raise the P or I clause from the dead. “Slaughterhouse was wrongly decided”, in my view, isn’t good enough.
(To be fair, the proponents of reviving privileges or immunities haven taken pains to explain why, pursuant to the Casey methodology, overturing Slaughterhouse is justified. But to my eyes at least, it seems to boil down to this: The constitution plainly requires it. Is this rallying cry enough to sustain a consitutional revolution? I don’t think these judges believe it is.)
If you want to win this thing in the long run, appealing to natural rights ain’t gonna do it. That’s why, I’m afraid, this approach is bad news for those of us who care about the correct meaning of the 14th Amendment.
November 23, 2009, 5:54 pmloki13 says:
Foxtrot-
The 7th Cir. decision in NRA v. Chicago explicitly refers to Cruickshank, Presser, and Slaughterhouse as the basis for its decision. Since they relied on precedent that found that PorI did not incorporate the 2d in their holding, it would make sense for SCOTUS to ask for the parties to brief on that issue as well as SDP. I think that it is foolish to waste much time on it (although I personally believe that PorI is the correct avenue for incorpoation), but it explains why the Court wanted it briefed, since it formed an important part of the lower court’s reasoning.
IOW- The lower court held that:
1) It was explicitly barred from PorI through precedent.
2) They weren’t going to touch SDP with a 10′ pole (“How arguments ofthis kind will affect proposals to “incorporate” the second amendment are for the Justices rather than a court of appeals.”)
So those are the two things it makes sense for SCOTUS to ask about.
November 23, 2009, 5:54 pmOrin Kerr says:
Anonymous writes:
I describe it as “swinging for the fences” because it tries to achieve a decades-old ideological goal of a group of libertarian lawyer-activists quite apart from the case at hand. Of course, that’s not necessarily criticism: Sometimes you should swing for the fences. But I believe the label is accurate in this case.
November 23, 2009, 6:00 pmAnthony says:
It seems to me that a section starting with “To enslave a class of people requires three basic things: destroy their self-sufficiency, prevent them from fighting back, and silence any opposition.” is marking itself as being a political polemic rather than a serious legal argument, and thus creating an immediate skeptical bias towards any remaining comments. Is there reason to think the court is susceptible to this sort of argument?
November 23, 2009, 6:18 pmAnonymous says:
Nice try prof kerr but you don’t answer the question. The petitioners and IJ make clear that the right to arms is proteced by p or I because it is one of those scary natural rights you seem to have a problem with. Why is it swinging for fences to define p or I to include the right to arms? That’s the whole point of the case. You just dismiss things that seem implausible to you without examning whether they seemed so to the people who enacted the amendment. If the ij and petitioners arguments explain why the right to arms is among the p or I definition it isn’t crazy. You may prefer a different definition of the clause, why not offer one instead of trashing the work of people who have obviously given it more thought than you have.
November 23, 2009, 6:26 pmArthurKirkland says:
That would seem to be bad news for drug warriors, those who wish to prevent others from using morning-after pills, people who believe citizens should be told to mouth homage to a God while pledging allegiance to their nation, and other anti-libertarians.
Some people must be intensely conflicted.
November 23, 2009, 6:27 pmCrunchy Frog says:
I keep reading this argument, but I’ve yet to see a list of what ‘settled law’ (besides Slaughterhouse) would come under suspicion if PorI was affirmed.
If we’re worried about upsetting the apple cart, shouldn’t we first determine if it holds any apples? And if so, are any of them worth saving?
November 23, 2009, 6:33 pmDJ says:
Try engaging my arguments instead of picking a fight with the good professor.
November 23, 2009, 6:34 pmbystander says:
It was once pointed out to me that answering a legitimate question with a question is the first strategy of a person that can not support their argument.
November 23, 2009, 6:36 pmCrunchy Frog says:
Because the Reconstruction-Era South provides the perfect as-applied test as to the result of denying 2A incorporation.
November 23, 2009, 6:37 pmOrin Kerr says:
Anonymous,
I don’t understand your criticisms. The phrase “swinging for the fences” is a baseball reference; it refers to trying to hit a home run. In baseball, hitting a home run scores runs in one play rather than merely advances one step in a broader goal of scoring runs. Thus, “swinging for the fences” is generally understood to mean “trying to achieve a major goal at once rather than in small steps.” Or so I have understood it.
Your criticism of my use of the phrase “swinging for the fences” does not seem relevant to the meaning of the phrase: I understand you to be critical of me, but I’m not sure why you object to the phrase “swinging for the fences.”
November 23, 2009, 6:41 pmAnthony says:
Even if I assume you’re right (any group that isn’t disturbed by committing murder is unlikely to be disturbed by violating people’s right to bear arms), so what? Constitutionality is not a function of outcome.
November 23, 2009, 6:45 pmDJ says:
Well, for starters, what does a revived P or I clause mean for substantive due process? Does it survive as a method of protecting fundamental civil rights? If not, what happens to all of the cases decided under that doctrine–not the least of which, of course, is Roe v. Wade? There’s more: Does the P or I clause apply only to American citizens or to any person subject to state action? Is the clause a limitation on judicial authority–does it, for example, foreclose courts from discerning unemerated rights that weren’t explicitly contemplated by the drafters and ratifiers of the 14th Amendment? What sort of economic rights are protected under the clause? Does the “right to contract” mentioned in the Corfield case contemplate an economic liberty that could revive Lochner?
And those are just off the top of my head.
November 23, 2009, 6:50 pmKirk Parker says:
Same here; neither my budget nor my liver could afford it.
November 23, 2009, 6:50 pmJay says:
The Justices aren’t going to blithely accept the argument–even, believe it or not, if they think it’s right. They’ll need a really good reason to raise the P or I clause from the dead. “Slaughterhouse was wrongly decided”, in my view, isn’t good enough.
So, I guess I’m a little confused about what could possibly be a good enough reason to reconsider precedent if this case isn’t it. Slaughterhouse was flatly at odds with the text, history, and purpose of the Fourteenth Amendment. Constitutional scholars and historians of every stripe agree with this (even if there is some disagreement about exactly what P or I should have meant). The evisceration of the Privileges or Immunities clause caused massive suffering throughout the Jim Crow era, it continues to result in the denial of rights that are firmly grounded (and limited) by the original understanding of the Fourteenth Amendment, and it has caused massive confusion in the Court’s subsequent case law. Recognizing this error and taking one very modest step toward giving this clause its proper meaning would provide a meaningful basis for the Court’s otherwise meandering and often contradictory rights jurisprudence. It would help restore the Court’s integrity, provide a counter to century-old cries of “judicial activism,” and provide an intelligible, objective grounding for consideration of future cases.
The fact that it is “extreme” and “unprecedented” to consider the plain text and discernible history of the Fourteenth Amendment is just a reflection of how absurd the current state of the law is. It is simply an indication that this is precisely where the Court should be most receptive to reconsidering its old mistakes. Now, if there are those who think IJ’s argument from text and history is simply wrong, that’s fine. I would love to see a counter-argument. But if the claim is just that you would be unhappy with the results if the Court finally gave meaning to this clause, then that is far more brazen “activism” then anything IJ has ever asked for.
November 23, 2009, 7:07 pmDJ says:
Jay, I agree with almost everything you wrote. But just because something is WRONG, doesn’t mean the Supreme Court will decide to fix it. At least not in one fell swoop. My concern with the IJ strategy is that they’ve got it right on the merits, but they might scare off some of the judges (read: Roberts) who at least claim to stake their jurisprudence in workmanlike incrementalism.
I mean, like it or not, Slaughterhouse is as settled law as Marbury v. Madison or Ex parte Young. Even if there were a clear scholarly consensus that those cases were wrongly decided 9I’m not saying they were…but some serious people do!), I wouldn’t expect the court to have much interest in overturing them in toto without building up some precedent that makes the result obvious.
I hope I’m wrong. I’d like to see the P or I clause restored to its rightful place. Hell, I’d like to see John Bingham on the $1 bill. I’d like to see the San Diego Padres win a World Series in my lifetime. But just because they’re deserving doesn’t mean it’s gonna happen.
November 23, 2009, 7:21 pmGaryC says:
IANAL, but I suspect that Plessy v Ferguson would be threatened.
November 23, 2009, 7:49 pmJay says:
But just because something is WRONG, doesn’t mean the Supreme Court will decide to fix it. At least not in one fell swoop. My concern with the IJ strategy is that they’ve got it right on the merits, but they might scare off some of the judges (read: Roberts) who at least claim to stake their jurisprudence in workmanlike incrementalism.
Okay, fair enough. I mean, I’ve obviously got my fingers crossed, as it is far from obvious that the Court will actually do something about this. But unless the Court never intends to deal with Privileges or Immunities, it is hard to imagine a better case than this, or for that matter, a case that would more comfortably allow for “workmanlike incrementalism.” After all, it seems pretty clear that the Second Amendment is going to be incorporated one way or another, so it would not really have much immediate effect if the Court decided to go through the P or I route. They don’t have to address any other issues in this case, and in fact, I think it would be unwise for them to do so.
All the Court has to do is recognize that the right to keep and bear arms applies to the state via P or I. They can hold off on addressing questions of precedent, how this decision interacts with SDP, whether it implicates economic liberty, what the implications are for Roe v. Wade, etc. They can wait to decide those issues in later years, get full briefing on the relevant questions, and then take those issues one small step at a time. Contrary to some suggestions on this blog, IJ is not asking the Court for the libertarian revolution. Read their brief — they’re only asking that the Court not rule in advance that P or I has no meaning outside of incorporation.
To put it another way, if you think that IJ is right on the merits but is being “too bold,” I’d be curious about what you think the right strategic decision would have been. It seems like the only option more modest than this one would have been to ignore P or I entirely.
November 23, 2009, 7:52 pmJosh Blackman says:
Orin, you are quite right that Clark and IJ are swinging for the fences, as they should. Slaughterhouse, as well as Carolene Products fn. 4, and Wickard, have been the bane of IJ for years. Whenever they get the chance, they will take it and try to go yard.
I think one of the more interesting aspects of Clark’s brief is the notion that the Fourteenth Amendment does not “incorporate” (with Dr. Evil quotes), but rather protects pre-existing right to arms. This is a point I make in a forthcoming article (discussed here http://joshblackman.com/blog/?p=2534), and I sincerely hope the Court reconsiders, if not revisits incorporation doctrine, which has always seemed like a complete mess.
November 23, 2009, 8:33 pmloki13 says:
Jay-
You said you read the IJ brief. Personally, I believe that PorI is the correct vehicle for incorporation, and I think the court made a wrong turn in Slaughterhouse that they attempted to correct through SDP. But even I think they went way overboard. Don’t you think a better brief would have been narrowly focused on simply looking at the original expected application of PorI *with respect to* the Second Amendment and incorporation? I think OK is exactly right about it being a swing for the fences- if it works, they get what they want, but I think it is more likely to foreclose the possibility of PorI ever being a vehicle for incorporation or substantive rights (except travel).
November 23, 2009, 8:34 pmJay says:
loki13 says:
Don’t you think a better brief would have been narrowly focused on simply looking at the original expected application of PorI *with respect to* the Second Amendment and incorporation?
So, my reading of the brief is that this is basically all that IJ is asking the Court to do (along with refraining from issuing dicta barring future applications of P or I before those cases arise). They’re not asking the Court to issue broad declarations about what P or I will protect. They’re just asking the Court to incorporate the Second Amendment through the right clause.
Perhaps you mean that it would have been better if IJ had argued for incorporation of the Second Amendment in a manner that did not suggest that P or I should have effects that go beyond incorporation. It’s obviously pretty clear that they would like to preserve the possibility of securing other rights through this doctrine, so I guess this style of argumentation is more “ambitious.”
Fair enough, I suppose, but I’m not sure how IJ could have avoided this problem and still made their argument. After all, it would be disingenuous (and possibly harmful to the narrow Second Amendment argument) to argue that the only right worthy of protection under P or I is the right to keep and bear arms. That claim is clearly false. This case is best defended by pointing to the actual history of the P or I clause, and that history makes itself pretty clear. And it’s not just IJ making this point. The petitioners themselves are basically making the same broad argument, claiming that privileges or immunities “encompass[es] a broad range of rights believed naturally inherent in human beings and secured by any free government” and that “SlaughterHouse’s illegitimacy has long been all but-universally understood . . . [and] deserves to be acknowledged by this Court.” The Second Amendment just happens to be included in all of this.
Sure, there’s some risk that the Court might ignore P or I entirely because they’re afraid of where it might lead. But it would arguably be worse if the Court said “yes, incorporation through P or I, but seriously, that’s all it does — don’t bring us any other claims.” If you want to win in the end, you can’t start by compromising yourself.
Of course, it’s possible that I’m misunderstanding what you’re saying, so feel free to correct me.
November 23, 2009, 9:00 pmloki13 says:
Jay-
I think you’re misunderstanding me. My reading of the brief is that they’re not just leaving the door open, they knocked it down and have told the court about all the friends they’re going to be inviting in for dinner.
I think that it would have been better to have simply provided the justification for the 2d Am. through P or I and left the rest ambiguous (to be determined at a future date). That’s the kind of incremental approach that the CJ would like more kindly upon. Instead, this brief is basically telling the court- guess what, rule for us on this issue and we’ve got natural law and Lochner II coming right down the pipeline.
November 23, 2009, 9:20 pmGene Hoffman says:
Let me be crass. Absent P or I, this is a boring case. If SCOTUS simply wanted to incorporate the 2A now that the question was squarely in front of it, it could have written per curiam and copy and pasted from the Nordyke opinion via substantive due process. In the alternative it could have granted NRA v. Chicago which only raised substantive due process.
It did neither. This isn’t swinging for the fences. It’s running the score up by leaving Jordan in up 40. The petitioners don’t lose this case. The 2A will be incorporated via the 14A. However, name me a case that puts a fundamental enumerated right squarely in front of SCOTUS that could overturn Slaughterhouse? Somehow I don’t see troops quartered anytime soon and Engblom v. Carey already incorporated the 3rd in the Second Circuit meaning I doubt we’d end up with a circuit split.
No. The judicial rule on guns – that only they create a rule of law free zone in courtrooms – would allow such core constitutional BS to actually get to SCOTUS…
If Jordan misses the dunk to go up by 42, his team still wins.
-Gene
November 23, 2009, 10:51 pmFederal Farmer says:
It could be that asking for a broad PorI will get you a PorI narrowly crafted to ‘real’ fundamental rights. I think answering the problems with Slaughter-House cases now, with the court we have, is preferrable to waiting for it to be stacked with more liberal justices that might be more interested in writing new law.
November 24, 2009, 10:01 amAnthony says:
A legitimate point that IJ seems to ignore is that a broad reading of PorI doesn’t mean that whatever concepts of fundamental rights the court comes up with will be ones they like. In general, liberal justices are more likely to discover new rights than conservatives. Under an expansive PorI clause, Roe v Wade would be a perfectly sensible decision (whatever you think of the outcome, it’s a stretch under due process).
However, it’s not obvious why asking the court for a new, narrow ruling is superior to the status quo.
November 24, 2009, 1:08 pmWhat’s that Smell? « Conservative Libertarian Outpost says:
[...] David Kopel The Volokh Conspiracy November 23, 2009 http://volokh.com/2009/11/23/institute-for-justice-brief-in-mcdonald-v-chicago/ [...]
December 23, 2009, 8:53 amDave Kopel’s Second Amendment Newsletter | The American Jingoist says:
[...] David Kopel The Volokh Conspiracy November 23, 2009 http://volokh.com/2009/11/23/institute-for-justice-brief-in-mcdonald-v-chicago/ [...]
December 31, 2009, 7:34 pm