Those who expect the Supreme Court to rethink and perhaps overturn the Slaughterhouse cases in McDonald v. City of Chicago often look to the scope of the cert grant to justify that prediction. The Justices could have granted cert only on the question of whether the Due Process clause incorporates the Second Amendment. But they didn’t. Instead, the Justices granted on both Due Process and Privileges or Immunities. Given that the Slaughterhouse cases seem to foreclose a ruling that the Privileges or Immunities clause incorporates the Second Amendment, doesn’t the broad cert grant clearly show that Slaughterhouse is in play?
We don’t know what the Justices were thinking with any certainty. At the same time, I think there are two plausible reasons why the Court would grant cert on both issues without intending to reopen the debate over Slaughterhouse. The first is mathematical and the second is historical.
1) The first reason is the need to get to five. When the Justices met to decide whether to grant cert in McDonald, they wouldn’t know how the votes would ultimately play out. Most importantly, they wouldn’t know if there would be five votes to incorporate under Due Process. The Justices would be aware of the possibility that there might be four votes in favor of incorporation by Due Process but against incorporation by Privileges or Immunities (presumably CJR, AS, SA, & AMK); one vote against incorporation by Due Process but in favor of incorporation by Privileges or Immunities (CT); and four votes against incorporation under either theory (presumably JPS, SGB, RBG, and SS).
If that’s the case — and we don’t know it is, only that it’s a possibility — it would be important to grant on both issues at once. If the Court granted only on Due Process and left Privileges or Immunities for another day, the Court would end up with five votes against incorporation and four in favor (presumably with a concurrence by Justice Thomas saying that he might or would reach a different result if the Privileges or Immunities issue were before the Court). Then the Justices would have the problem of how to get the P or I issue before the Court again, which would ultimately lead to an 8-1 decision against incorporation by P or I. The result would be two Supreme Court opinions holding that the Second Amendment is not incorporated despite five Justices favoring incorporation.
Given the possibility that the Justices might need both clauses to get to five, it makes sense to address both clauses at once.
2) A second plausible reason to grant on both issues is historical. The Supreme Court’s 19th Century precedents ruling that the Second Amendment does not apply to the states are based primarily on the Privileges or Immunities clause. See Presser v. Illinois, 116 U.S. 252 (1886); United States v. Cruikshank, 92 U.S. 542 (1875). At the time, the Privileges or Immunities Clause was considered the only plausible candidate for applying the Bill of Rights to the states: A decision ruling that the Privileges or Immunities clause did not incorporate the Second Amendment was considered a ruling that the the Second Amendment did not apply to the states period. Note how Justice Scalia described the present effect of those 19th Century privileges or immunities cases last year in DC v. Heller, with emphasis added:
With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894) , reaffirmed that the Second Amendment applies only to the Federal Government.
If you’re granting cert to determine whether the Second Amendment applies to the states, and answering “yes” would effectively overturn Cruikshank and Presser, it would be a bit unusual to grant cert in a way that would make the precedents to be overturned outside the cert grant. Given the shifting roles of the two clauses in the many decades since those precedents were handed down, it makes sense to look generally at whether the Fourteenth Amendment incorporates the Second Amendment rather than whether just one clause does.
To be clear, I’m not saying that either or both of these possibilities are clearly correct. As I said, we just don’t know. But I think either of these explanations could explain why the Court granted on both issues rather than limiting the cert grant to just the Due Process clause.
af says:
Your first scenario strikes me as more plausible than the second. If the Slaughterhouse cases weren’t in play, and the Court were intent on incorporating the Second Amendment under the DPC, I don’t see why granting cert in McDonald would be necessary. The Court has overruled the result of early P&I-clause incorporation cases many times on DPC grounds. They have generally done so in cases raising DPC challenges. They have not routinely granted cert on companion P&I cases in order to directly address the controlling P&I precedent. Or am I mistaken?
December 6, 2009, 9:11 pmKate Stith says:
Excellent analysis. I think you’ve got it. And the two points work together. Thanks for all.
December 6, 2009, 9:12 pmef says:
Hang on… so the Supreme Court, in part, accepts cases for the purpose of achieving a desired policy outcome? Who knew?
December 6, 2009, 9:19 pmKerr on Cert Grant in McDonald: Privileges or Immunities Question Presented Does Not Reveal Intent to Overrule Slaughterhouse. Or does it? | Josh Blackman's Blog says:
[...] Kerr writes at Volokh that the cert grant in McDonald, and the question presented asking about the privileges or [...]
December 6, 2009, 9:33 pmJosh Blackman says:
Professor Kerr,
I find the first explanation quite plausible. Regarding the second explanation, does the Supreme Court ever overturn precedents outside the cert grant? In other words, if the Supreme Court really wanted to overturn Presser and Cruikshank, would they really be limited by the Cert Grant? In the Hillary Movie case, for example, they did not decide the case based on the initial cert grant and original oral arguments, but sent the case back with a different question presented. In my mind, if the Court wanted to overrule those precedents, such a petty formality as the question presented would seem not to cabin them. http://joshblackman.com/blog/?p=2918
December 6, 2009, 9:34 pmOrin Kerr says:
Josh,
I don’t know; on such issues the Court is really a they, not an it. But I’m not trying to define the conditions under which Justices overturn cases; I’m merely suggesting why the Court might want a broader Question Presented if overruling is a possibillity.
December 6, 2009, 9:43 pmanti-troll says:
just a long way of saying, “there may not be a clear majority for either theory, but that doesn’t mean that Slaughter-House is in play.”
Under the same logic, substantive due process may not really “be in play,” either.
You sure assume a whole lot when you write that it is 4 for due process, 1 for privileges or immunities, and 4 for nothing. How do you KNOW that? Maybe the Justices were aware of the possibility that there’d be 9 votes to overrule Slaughter-House? Or maybe the Justices were aware of the possibility that there would be three votes for Privileges or Immunities and only two for Due Process?
Why not just come to terms with the fact that they granted this question, and you don’t really know what they’re thinking, instead working backwards from your assumptions to explain something you obviously don’t like [you have described yourself as "oakshottian," which is itself a form of bias: familiar over the unfamiliar, and all that.]
December 6, 2009, 9:54 pmaf says:
Is it also possible that some or all of the liberal justices voted to grant cert in McDonald, on the theory that if the 2A is going to be incorporated anyway why not try to overrule Slaughterhouse in the process?
December 6, 2009, 9:57 pmanti-troll says:
no, af, only crazy libertarians like Jack Balkin, Steven Calabresi, William Van Alstyne, and Ed Meese support overturning Slaughter-House, to name four people who have offered that view as amici.
December 6, 2009, 10:04 pmGuesty says:
AT,
Orin just gave one, plausible, explanation why the Court would have included P&I in its cert. grant but still have no intention or reversing Slaughterhouse.
He certainly didn’t claim to know what the Court was going to do. The Court could do anything.
What makes you think there are more than 2 votes for reversing Slaughterhouse?
December 6, 2009, 10:05 pmOrin Kerr says:
Orin Kerr:
Anti-troll, in response:
I believe I came to terms with that repeatedly in the post, so it’s kind of hard to answer why I wouldn’t come to terms with it.
December 6, 2009, 10:08 pmOren says:
He didn’t state it as a fact, only a possibility. Jeez, lighten up. I appreciate having Orin’s predictions to read, even though he does not (to my knowledge) have clairvoyance.
December 6, 2009, 10:12 pmanti-troll says:
But he only states possibilities that comport with his personal bias, even though the same logic would also support the exact opposite conclusion. Like a gambler who constantly tells you how great he’ll do if the coin flip shows heads, where tails is a no less valid possibility.
How about this for why the justices granted the question:
December 6, 2009, 10:20 pmThey are open-minded and want all the information. This is the possibility excluded by Kerr’s original prediction.
Brett Bellmore says:
I for one would believe that it’s a plausible lineup. We’ve got 3 Justices from the Heller minority, known to not want ANYBODY enjoying 2nd amendment rights. We’ve got a replacement of one of the minority, chosen by an anti-gun Democrat who knew the subject would be coming up. That’s four for finding the right not incorporated at all, unless The One screwed up again.
We’ve got the Heller majority still intact, probably not going to vote against incorporating a right they’ve already found to be fundamental. So, 5 for incorporation.
And I believe Thomas is already on record about P&I incorporation, so it’s going to be at least one. Maybe more.
So 4 not to incorporate, 5 to incorporate, and the real question is what proportion will go for P&I vs due process. Unless Obama screwed up his first Court nomination.
December 6, 2009, 10:24 pmOrin Kerr says:
anti-troll,
I am responding to a specific argument, which I describe at the beginning of the post, and which contends that the cert grant *clearly* shows the plan to reconsider Slaughterhouse. I am merely pointing out why the grant does not have a clear message one way or the other. If you agree that the cert grant does not send a clear message, then I think we are in agreement.
December 6, 2009, 10:26 pmJay says:
I haven’t followed this closely, but is it really so clear that all 4 liberals will vote against any sort of incorporation? I’m not trying to be faux-naive, but that seems a bit too political even for the Court. What would the justification be for treating this right differently from basically every other feature of the Bill of Rights, outside of trivia question fodder like the grand jury clause and the number of people on a jury? I could see Breyer, in particular, and also perhaps Stevens, saying something like, I dissented in Heller, but it’s the law now, so the right should be incorporated. And who knows, really, about SS.
December 6, 2009, 10:32 pmanti-troll says:
let’s dissect that statement: do you believe there is a clear message in the cert grant, that there is a “plan” to incorporate via due process?
the only clear message is that both arguments are equally on the table, whether the Court ultimately accepts either, both, or neither, in whatever unknowable proportion amongst the justices.
December 6, 2009, 10:36 pmOrin Kerr says:
Anti-troll,
Right, I agree. They are both on the table based on the cert grant.
December 6, 2009, 10:42 pmloki13 says:
anti-troll,
I agree. I that both are on the table, SDP as an actual possibility, and PorI as an inkblot to satisfy CT in his concurrence.
December 6, 2009, 10:54 pmAndrew says:
Orin, you wrote in your blog post: “Given that the Slaughterhouse cases seem to foreclose a ruling that the Privileges or Immunities clause incorporates the Second Amendment, doesn’t the broad cert grant clearly show that Slaughterhouse is in play?”
Perhaps at some point in your future blog posts on this subject, you would explain your reason for assuming that “the Slaughterhouse cases seem to foreclose a ruling that the Privileges or Immunities clause incorporates the Second Amendment.”
Are you aware that Justice Hugo Black joined by several other justices (in Adamson v. California) adamantly denied this assertion of yours? Black pointed out that the right in question in Slaughter-House was not an enumerated constitutional right. In contrast, the 2A is an enumerated constitutional right. You apparently find this distinction of no significance. Why is that?
If you’re a fan of substantive due process, and would like the Court to keep the Privileges or Immunities Clause dead, then please come right out and say so, instead of coloring the issues in this case. You must realize that the brief of Respondent NRA calls (at pages 38-43) for incorporating the 2A using the Privileges or Immunities Clause WITHOUT overturning Slaughter-House. Do you find that position of the NRA to be absurd for some reason? If not, then why exclude it from every one of your blog posts on this topic (and your comments in the comment threads too)?
December 6, 2009, 10:57 pmloki13 says:
I’m just curious, anti-troll. When you gather with friends to discuss upcoming football games, and people start discussing what they think will happen, and the point spread, and doing the trash-talkin’…. do you just stare at them and keep saying:
We can’t talk about this. Games are unknowable. You aren’t allowed to have opinions about games that haven’t been played yet. You’re not even allowed informed opinions.
*sigh* (FWIW, I agree with basic way OK presented this, and I posted a comment in a previous thread about why I thought the 7th Cir. holding made the framing of the cert grant more likely).
December 6, 2009, 10:57 pmloki13 says:
Andrew,
OK almost always posts on descriptive, not normative, matters. I have no idea what he believes (or if he is an anarcho-libertarian like Barnett!) but he is describing the current state of the law, and, based on his ideas about, what he think is likely.
I happen to agree with him on that. I also think that Slaughterhouse waswrongly decided. I think PorI, not SDP, is the historically correct way to incorporate the BoR. *But* I think SCOTUS will incorporate the 2d like they have every other right- through SDP. That has nothing to do with what I think is correct.
(Of course, OK can speak for himself)
December 6, 2009, 11:01 pmAndrew says:
Loki13, Orin wrote that “the Slaughterhouse cases seem to foreclose a ruling that the Privileges or Immunities clause incorporates the Second Amendment.” Multiple sources take a different view. I am simply asking Orin to address that difference, instead of consistently overlooking the plain fact that the Court could incorporate the 2A using PorI without overturning Slaughter-House.
December 6, 2009, 11:07 pmOrin Kerr says:
Andrew,
I was just describing an argument that has been made to me many times in the last few weeks: I didn’t mean to endorse it, to suggest I love or hate it, or to really do anything with it. It’s just part of the argument for why Slaughterhouse is now in play.
As an aside, it’s interesting to me how many commenters want me to offer grand constitutional theories about the true meaning of the 14th Amendment in these threads. I don’t teach or write in the area, and I am not a grand constitutional theorist. So it would be pretty weird for me to offer such theories here if I had them, which I don’t. (It’s also interesting that this topic has drawn such nastiness, both on blog and in personal e-mails to me, but I guess that’s another issue.)
December 6, 2009, 11:10 pmloki13 says:
Andrew,
Agai, are you asking for a mainstream view or not? You can find “multiple sources” tha point out SCOTUS never explicitly ruled corporations were “persons” under the 14th Am. in the 19th Century- good luck with that! You can find multiple sources that the EPC was never reverse-incorporated against the Federal Government in Bolling. Worth a shot! And you canmake a plausible claim (distinguish!) Slaughterhouse re: PorI. But that is not the commoly accepted view.
I’d recommend broadening your sources.
December 6, 2009, 11:12 pmAndrew says:
Multiple amici and Respondent NRA are taking the position that I described. Multiple Supreme Court justices have taken the same position. It would be one thing to say that the current Court is unlikely to take that position, but quite another to incorrectly assert that the position is not “mainstream” and therefore not worth discussing at all.
It also seems very relevant that the only reason Orin has given as to why they would go with DP incorporation is because of not wanting to overturn Slaughter-House and thereby open a can of worms. That reason is not applicable to the position I have described.
December 6, 2009, 11:20 pmAndrew says:
Orin, you mentioned that “It’s also interesting that this topic has drawn such nastiness, both on blog and in personal e-mails to me, but I guess that’s another issue.)”
Would you mind clarifying whether that comment was directed at me, or not?
Also, I am not asking you for any grand constitutional theory. I am simply asking why you don’t think the justices would be inclined to incoprorate via PorI without overturning Slaughter-House? You haven’t mentioned that possibility, as far as I have noticed, and I do not understand why not. On the contrary, you seem to dismiss the possibility out of hand (“the Slaughterhouse cases seem to foreclose a ruling that the Privileges or Immunities clause incorporates the Second Amendment”).
December 6, 2009, 11:32 pmloki13 says:
Andrew,
I neve said it wasn’t worth discussing. Discuss away! If you feel marginalized by my thinking that it is “commonly accepted” (which is different than mainstream, but whatever), then empower yourself! As I stated above, I think PorI is the correct avenue for incorporation. I just don’t think it will win. I also don’t think the commonly accepted view of Slaughterhouse (and Cruikshank) is that they allow the 2d to be incorporated through PorI. See Heller, see also 7th Cir. opinion, see generally any ConLaw textbook or treatise.
That people think this is wrong, or that they want to distinguish it, is not surprising- that’s *one avenue to get it incorporated*. To do anything else is to give up! That wouldn’t be doing a very good job from an advocate’s perspective.
But I think your sense of entitlement (that your ideas have to be right, that they have to be mainstream, and that you are owed a constitutional debate, and perhaps a beer, from OK) may be a little misplaced. YMMV.
December 6, 2009, 11:32 pmjuris imprudent says:
Thanks Orin, since I know I was one of “those” questioners!
Then the Justices would have the problem of how to get the P or I issue before the Court again
This statement has me puzzled though. Why would this be a problem for the Justices (and which ones) when your inclination is that none of them (save CT) want to touch P or I at all? Would I be asking too much for you to expand on that thought?
December 6, 2009, 11:36 pmAndrew says:
Loki13, you previously said, “are you asking for a mainstream view or not?” If you want to change the adjective “mainstream” then that’s fine with me. You can use whatever adjectives you like. And for someone who said “Of course, OK can speak for himself,” you are doing a lot of speaking. :-)
December 6, 2009, 11:40 pmloki13 says:
Andrew,
Since you are curious, I will give you a quick reply to my (not Orin’s) thoughts as to why SCOTUS will not follow the NRA’s “minimalist” position.
1. They have already incorporated (almost) all the BoR through SDP.
2. They now have the last fully unincorporated enumerated right (except the Third).
3. This will be the last good chance to re-visit PorI.
4. They need to make a decision- either go PorI, or go SDP.
5. If they go SDP, then all of our jurisprudence is as it was, with the exception that the 2d is now incorporated.
6. If they don’t, even in a minimalist way, they have opened a whole can of worms. Whether they only minimally open it or maximally open it, they open it. You will begin to see a flood of scholarship and litigation about whether the scope of an incorporated right incorporated through PorI might be different (larger/smaller) than it is through SDP. You might say to yourself- but it shouldn’t make a difference! Then you’ve never met a litigator… or a law professor.
7. Because of 6, they’ll incorporate through SDP. But hey- I could be wrong. When I saw the trailers for Titanic, I loudly proclaimed that no one would see that movie, because we all knew how it ended.
I have a feeling you’re a true believer (as opposed to a semi-jaded watcher like me) so good luck.
December 6, 2009, 11:40 pmloki13 says:
And notice that I didn’t even include all the stuff about unenumerated rights! Just wait to you get to abortion and freedom to contract (which is the maximalist effect you get if you read between the lines of thge Gura brief).
Well, it will be interesting times.
December 6, 2009, 11:42 pmAndrew says:
Interesting times.
December 6, 2009, 11:48 pmOrin Kerr says:
Sure, I’d be happy to. My thought was that it’s splitless, given the existing precedents, so the Court wouldn’t normally take it. Also, it would look odd taking a random case just to see how many votes there are for a losing position. It’s totally doable in theory, just something the Court wouldn’t normally do.
December 6, 2009, 11:59 pmAndrew says:
In this comment, Orin said to me: “It’s also interesting that this topic has drawn such nastiness, both on blog and in personal e-mails to me, but I guess that’s another issue.”
Please either strike out the comment or indicate whether there is an allegation that I’ve been nasty, both on-blog and in emails. Thanks.
December 7, 2009, 12:00 amDave N. says:
I agree with your analysis. It seems logical that the purpose of the P & I cert. grant isn’t to overrule the Slaughterhouse Cases but to find a way to overrule Cruikshank and Presser.
December 7, 2009, 12:01 amOrin Kerr says:
Oh, and my guess is basically the same as Loki13′s: I think most of the Justices think that incorporation is basically a 1960s debate, and that the 1960s are over. So decide this one case on narrow grounds and move on. That’s my best sense of their views, at least.
December 7, 2009, 12:02 amOrin Kerr says:
Andrew,
No, I am not making an allegation that you were nasty to me. Rather, I was reflecting on dozens of blog comments and several remarkable personal e-mails I have received over the last few weeks from many other people. I was reminded of that point by the tone and aggressiveness of your comments — which I thought rather uncalled for, especially given that I helped you with your cert-stage brief in this case. But no, I don’t think you were nasty to me. If you like, I can amend the earlier comment and delete the posts on this to make that clear.
December 7, 2009, 12:10 amAndrew says:
Orin, you did help me with the first paragraph of the Summary of Argument in the merits stage brief, and you also made several helpful comments about the cert stage brief. For that assistance, I am happy to thank you publicly right now.
As for an aggressive tone, it’s true that I have been aggressively attempting to try to get you to explain yourself. If that attempt was excessive, then I apologize. It’s your blog, after all, and you can use the blog however you like. If it were my blog, I would explain statements like “the Slaughterhouse cases seem to foreclose a ruling that the Privileges or Immunities clause incorporates the Second Amendment.”
When I was a blogger, I felt that part of the job of a good commenter was to hold the bloggers’ feet to the fire a little bit. Cheers.
December 7, 2009, 12:16 amOrin Kerr says:
Thanks, Andrew. I’m puzzled, though: You realize I did explain the statement, right? Here’s what I wrote about an hour ago, many comments back:
I guess I don’t understand why that’s not enough.
December 7, 2009, 12:22 amAndrew says:
Orin, I guess that part of your comment got overshadowed in my mind by the last sentence of the same comment.
In any event, your blog posts have extensively explained why the Court would be unlikely to buy Gura’s argument for overturning Slaughter-House, and I personally would be very happy to see a smidge of a blog post explain why the Court would also be unlikely to buy the NRA’s argument for incorporating via PorI without overturning Slaughter-House. To say in a comment thread that this is the 2000s instead of the 1960s doesn’t quite cut it for me, especially because the Court below correctly explained that DP incorporation would require overturning a binding precedent.
December 7, 2009, 12:33 amOren says:
I’m not sure the Heller minority will want to weaken incorporation. Doing so would surely bite them in the ass if the conservative majority ever decides to start rolling back the incorporation precedents.
Moreover, it’s quite a leap from wanting people to enjoy the RKBA to believing that the 2A protects the same. Many people have enough room in their brain to believe that something might be a good policy without being mandated by the Constitution.
She seems to be more pro-government/pro-prosecutor than RBG or JPS, but I’m not sure.
Incidentally, this is Scalia’s position on SDP itself — he doesn’t like it but it’s precedent and there are huge reliance interests on it.
December 7, 2009, 12:39 amOrin Kerr says:
Andrew,
I think the reason is that it would create major uncertainty. I suspect that reviving P or I but not cabining it will be seen by several of the Justices as akin to loading a gun and leaving it on the table for a future Supreme Court to use. You just never know what use that future Supreme Court might come up with. The Justices would see that as inviting judicial activism for some future court, and that’s not what they want to do. (I realize that you see it the exact opposite way — that it would be activist to treat it under DP — but I don’t think they see it the way you do, as resolving this under DP would let them just follow existing DP doctrine.)
December 7, 2009, 12:42 amAndrew says:
Orin,
Isn’t there a way to revive P or I while cabining it? For example, cabining it to enumerated rights only? That’s the whole attraction of the NRA argument.
December 7, 2009, 12:46 amanti-troll says:
Whoaa… Orin Kerr helped write that ‘ArmsKeepers’ brief?
for real?
December 7, 2009, 12:46 amAndrew says:
Just one paragraph. :-)
December 7, 2009, 12:48 amJasonF says:
Forgive me if this has been explained before, but what is the practical effect of overruling the Slaughterhouse Cases, as opposed to simply continuing to incorporate through the substantive due process clause? If the Slaughterhouse Cases were taken off the books, is there anything that any government (federal, state, or local) would thereafter be prohibited from doing that it is currently permitted to do, or vice versa?
December 7, 2009, 12:50 amAndrew says:
JasonF, that was discussed here.
December 7, 2009, 12:55 amOrin Kerr says:
It seems to me it’s possible, but I think it’s a lot harder to do that. It would require the Court to (a) recognize a change in the law and then (b) announce that it was deciding all future cases now — including overruling some modern cases — by limiting P or I to enumerated rights. It’s possible, but it seems considerably less likely to me that they would do that given the preference for one-case-at-a-time minimalism among the current Justices.
December 7, 2009, 1:36 amAndrew says:
Sometimes it’s necessary and appropriate to determine the meaning of a law by a “process of elimination.” In other words, the meaning of the law can be determined by ruling out implausible meanings. If such a deductive approach is necessary and appropriate in the present case (and I believe it is), then an incidental benefit would be a holding that tightly cabins the PorI Clause.
Besides, the Court often decides future cases now. For example, Heller gave the lower courts tons of guidance as to how future Second Amendment cases must be decided.
December 7, 2009, 1:46 amarbitraryaardvark says:
I think Orin’s analysis is plausible. One more conceivable factor: the grant on both points gives more room for logrolling and negotiation.
December 7, 2009, 1:52 amLet’s say you are CJR, and you want a consensus opinion of at least 6 votes for a narrow ruling incorporating Heller’s mild version of the 2nd. You can say, look, I’ve got 5 votes, and if you guys don’t go along I’ll assign the opinion to Clarence….
Meanwhile, I would be interested in anyone’s opinion about whether the P+I clause currently protects voting in federal elections, and if so is there any articulated standard of review.
Orin Kerr says:
Andrew,
I agree it’s possible to do it: I just think it’s harder and less likely. That’s especially true because the DP analysis is so straightforward; the minimalist answer is just to apply the Duncan v. LA test, incorporate via DP, and move on without rocking the boat.
December 7, 2009, 1:55 amAndrew says:
Heaven forbid they should actually look at the original intended meaning of the DP Clause, which directly contradicts the Duncan v. LA test. :-) Thanks for your comments, Orin.
December 7, 2009, 2:00 amRich Rostrom says:
Is it possible for the Court to issue a ruling where a majority agrees on the substantive result, but the members of the majority disagree on the reasoning?
I ask because OK’s speculation about the cert vote suggests that the result might be (say) 6-3 for McDonald, with four Justices filing an opinion that says the 2nd Amendment is incorporated under SDP, and two Justices filing a concurring opinion that says it’s incorporated under PorI.
Can they do that?
Or suppose there was a case with three ways to make the ruling. All nine Justices concur in the ruling, but no five agree on the reasoning. Are they stuck? Is that party screwed?
A jury doesn’t have to agree on their reasons. A jury could acquit because one juror believes the defense’s alibi witness, one thinks the defense’s alternate theory is highly plausible, one thinks the prosecution’s eyewitness is confused, one thinks the forensic evidence is ambiguous, and so on – even though in on each point, all eleven other jurors disagree.
Could an 3 judge appellate panel issue a 2-1 finding of “ineffective counsel”, when each of the two majority judges finds a completely different fault in the counsel, and rejects the other’s finding?
December 7, 2009, 4:44 amBrett Bellmore says:
Oh, I quite agree on that general point, (There are certainly rights I think should be protected, but which aren’t mentioned in the Constitution, and I’m not about to pretend they are.) but not with the application of it in this instance. The problem in this instance being that the right of the people to keep and bear arms IS in the Constitution. You only deny that with the 2nd amendment staring you in the face precisely if you DON’T want people to enjoy that right.
We’ve got a fair collection of constitutional scholars who liked gun control, but came around to admitting it was unconstitutional anyway. I can’t think of any traffic in the opposite direction, and the Heller minority certainly aren’t examples.
December 7, 2009, 5:09 amMartinned says:
Isn’t the first possibility foreclosed by the custom of giving a courtesy fifth vote for cert if there are already four votes on the table? (i.e. the fact that in practice you only need four votes to grant cert?)
December 7, 2009, 6:14 amMonday Round-up | SCOTUSblog says:
[...] the Volokh Conspiracy, Orin Kerr offers some alternative theories to explain the broad scope of the cert. grant in [...]
December 7, 2009, 8:48 amCVMe says:
Martinned: There is no such policy. It only takes four votes to grant cert.
There used to be a custom of a courtesy fifth vote to stay an execution when there were four votes to grant the petition, because otherwise the person dies before the case is heard, though I think that custom is no longer routinely followed, if I recall properly a dissent from the denial of a stay application a few years ago.
December 7, 2009, 10:20 amAlice says:
Yes, the Court can do that. And, yes, that is what Orin Kerr says the Court can do.
As folks go back to the words that were written over 100 years ago, perhaps it would be good to look at the words that were written recently, the words that the Justices voted to use when they certified the issue before the Court in McDonald:
That “whether” question can be answered with a simple “yes” or a simple “no.”
The only “either/or” question is whether the 2nd Amendment is incorporated through the 14th Amendment. The “either/or” question is not Privileges or Immunities versus Due Process.
December 7, 2009, 10:29 amDonald Kilmer says:
This concept may have been posted earilier, or in some other thread. I apologize if I am being redundant.
Has anyone considered the possibility that incorporation of the Second Amendment via 14th Amendment P&I may be the last best hope for reviving 14th Amendment P&I? Along with all that that implies?
Gun rights and gun control are certainly national issues of great weight. Can you imagine as much attention being devoted to — say — incorporation of civil jury trials, or grand jury indictements? DP incorporation has nearly exhausted the list of enumerated rights, once that list is complete the very doctrine of federal enforcement of constitutional rights becomes a closed universe with (maybe) some of the already established unenumerated rights (e.g., abortion, marriage, privacy, etc.) joining the enumerated ones as a substantive limit on federal rights applicable to the states.
It is possible that the only recourse after Second Amendment incorporation to an expansion of substantive rights will be amending the Constitution itself, rather than relying on a kind of constitutional common-law development of judge-made law based on implied rights.
So constitutional liberals don’t want the list of rights truncated, therefore they favor adding another weapon to the arsenal of expanding rights. Constitutional conservatives favor going back and “doing it (incorporation) right” in order to strengthen their ideas on federalism and state power by closing the courthouse doors to any more rights without constitutional amendment.
My prediction is that P&I incorporation will carry a begrudging majority (maybe as high as 8-1), with concurrances from the Heller minority stating that they still believe that Heller was wrongly decided.
December 7, 2009, 10:38 amanti-troll says:
Wrong Alice, that is not the question presented.
Try looking here:
December 7, 2009, 10:39 amhttp://origin.www.supremecourtus.gov/qp/08-01521qp.pdf
Doug Kendall says:
Orin,
I agree that it is dangerous to read too much into how the Court granted cert. here, but you are only addressing one part of evidence that suggests that the Court was interested in the P or I argument. Specifically, you address the fact that the Court did not limit the question presented as suggested by the City of Chicago, but you do not address the fact that the Court granted the McDonald petition and held the NRA petition. The McDonald petition relied far more heavily on P or I than the NRA petition, particularly in its reply brief. The greater emphasis on P or I is why my organization, Constitutional Accountability Center, which filed a cert. stage brief on behalf of a diverse group of preeminent scholars including Volokh’s own Randy Barnett, filed only on behalf of the McDonald petitioners. The NRA petition raised the P or I argument, so it would have been in the case for Justice Thomas (which is important according to your theory), but granting that petition would have focused the case far more on Due Process, rather than P or I.
So why, if the Court’s wants to avoid the P or I argument, does it grant McDonald and hold NRA? Maybe they don’t want this to be a “NRA” case, maybe they like Alan Gura as an advocate. True, we just don’t know. But it is the combination of these two pieces of evidence — the fact that the Court refused Chicago’s suggestion to narrow the question presented and the fact that they granted the McDonald petition and held the NRA petition — which makes those of us who are advocating for a reconsideration of Slaughterhouse optimistic that the Court may finally get this critical part of our Constitution’s text and history right. Doug Kendall
December 7, 2009, 10:39 amFederal Farmer says:
Seems like the justices have a lot of leeway in their decision. They can concur in part and dissent in part, etc.
Thanks Orin, for this. Just wanted you to know that some people understood your position from the get go.
I think some people are emotionally attached to this case. I get that. But Orin has always struck me as a 4th Amendment guy…I’d expect more out of him if this were that kind of case.
Incorporation under DP will be pretty huge as it is. We have a slate of laws ripe to challenge in IL under that ruling.
Incorporating under P+I would dwarf that. Hey, aim for the trees is my philosophy. That scene from Tin Cup where Kostner keeps whacking golf balls into the water because he should be able to hit the green is one of my favorites.
All that said, I don’t expect many justices to be heavily in favor of limiting governmental power. Government rarely gives back any power it assumes.
December 7, 2009, 10:55 amTweets that mention The Volokh Conspiracy » Blog Archive » Does the Cert Grant in McDonald Suggest the Court Will Rethink Slaughterhouse? -- Topsy.com says:
[...] This post was mentioned on Twitter by Todd Inman, Eugene Volokh. Eugene Volokh said: Does the Cert Grant in McDonald Suggest the Court Will Rethink Slaughterhouse?: Those who expect the Supreme Co.. http://bit.ly/6kCKtw [...]
December 7, 2009, 10:58 amFederal Farmer says:
Excellent Mr. Kilmer. If only.
The problem we have today is that we’ve gradually evolved into a society where only that which is expressly allowed is legal instead of only that which is expressly disallowed is illegal.
I know that has been said much better somewhere else, but I don’t recall.
December 7, 2009, 11:00 amPubliusFL says:
I’d think not, at least not on originalist grounds. I seem to recall reading a fair bit of discussion in Congress from the late 1860s about how the states had always controlled the electoral franchise, and the 14th Amendment didn’t change that, except that Section 2 of the 14th Amendment would reduce the congressional representation of any state that inappropriately denied the franchise to any male 21+ citizens.
December 7, 2009, 11:24 amAlice says:
anti-troll is, of course, correct. The question presented by the Court is
My error came from trying to recall the question on my own. I assure you that I stated the question correctly in the amicus brief that I put before the Court. Apologies for my error of memory here.
However, it remains that the “whether” question can be answered with a simple “yes” or a simple “no.”
The only “either/or” question is whether the 2nd Amendment is incorporated through the 14th Amendment. The “either/or” question is not Privileges or Immunities versus Due Process.
But, thank you to anti-troll for catching the mis-quote. The last thing needed is more confusion.
December 7, 2009, 11:36 amAlice says:
Regarding Doug Kendall’s question, one reason that the Court did not grant cert in the NRA petition may have been that there may have been an issue of standing in the case. And standing can be raised at any time.
December 7, 2009, 11:40 amFederal Farmer says:
Maybe. That is probably why Gura went to great lengths to document that his plaintiffs had attempted to register handguns and been denied.
Luckily Chicago plaintiffs don’t have the same issue that DC plaintiffs had. In DC you can’t purchase a handgun in the City as they had no FFLs and you can’t purchase one in a bordering state due to Federal Law. Too bad no one has challenged that law.
December 7, 2009, 11:46 amAndrew says:
FFL=Federal Firearms License.
December 7, 2009, 12:21 pmSuperSkeptic says:
When I first saw the trailer for Titanic, I loudly proclaimed that no one would go to see that movie because of the absurdity of Billy Zane running through the ship shooting guns. I was fairly sure that such an over-dramatization of an already sufficiently drama-filled event would ruin it’s plausibility and thus the quality of the story-line and the film. Clearly, I underestimated the public, Billy Zane, James Cameron, Leonardo DiCaprio, Kate Winslet (and her breasts), the cinematographers, Celine Dion, and myself – since I wound up watching it twice in the theaters. Which is a convoluted way of saying that I agree with you and your “semi-jaded watcher” point-of-view; but hey, life is often stranger than fiction.
December 7, 2009, 1:14 pmloki13 says:
Doug Kendall,
You presented a valid competing theory as to why the Court may have granted cert with the question presented. However, IMO, your reasoning is biased by your own internal prejudices (iow, your normative preferences of what the law should be), in the same way that Prof. Kerr’s reasoning is prejudiced by his more classically conservative descriptive analysis (this is what the law is). Neither is wrong, as they are opinions. And opinions are like digestive tracks- everyone has one.
That is why we are all engaged in our amateur Kremlinology. I think that the vehemence directed towards Orin is a result of many people having a vested desire for a revolution in the law, which they think he doesn’t support. However, he is simply analyzing what he thinks the Court is likely to do without giving his opinion on what the Court *should* do. We won’t really know what the Court does until the opinion is given, and probably won’t know why the question presented was written like that for many, many years.
My own two cents are as follows- I think Orin is right in that the Court prefers incremental change. If anything, I think a brief like Gura’s does a disservice to the PorI argument because of the emphasis on how explosive the change might be (as opposed to the NRA brief, which cabins the issue much better). People want the Court to “change everything” with one fell swoop, but that’s not how it works- look at how long (from the 70s until today) it took to just get the 2d Am. recognized, look at the litigation strategy of the NAACP leading up to (and post) Brown, look at Rehnquist and the 10th Am. Incementalism is slow and tedious work, but it tends to be successful.
December 7, 2009, 1:14 pmOrin Kerr says:
Doug,
Can you say more about the differences between McDonald and the NRA case? I don’t know how much of a difference it is to say that there was a different emphasis in which arguments were used. Also, what was the timing of the two cases — which petition was filed first?
Orin
December 7, 2009, 3:49 pmFederal Farmer says:
I’ll chime in. NRA was filed at SCOTUS about a week prior to McDonald. Both were combined in the lower court.
The NRA brief only treats the P+I argument briefly (no pun intended) and focuses on DP. McDonald is vice-versa. Taken together they serve quite well.
I wonder at the machinations at SCOTUS that enabled NRA (and Oak Park) to be respondents despite not being granted cert. Makes me wonder if not granting cert was simply a way to snub NRA.
December 7, 2009, 3:54 pmDoug Kendall says:
Federal Farmer is right in terms of the timing and focus of the petitions: NRA’s petition came first and is mostly focused on Due Process or incorporation generally, with only a brief argument about P or I, starting on page 36 of a 40 page brief that begins: Should this
Court wish to reevaluate its jurisprudence under the
Privileges or Immunities Clause, this would be an
appropriate case in which to do so.” The NRA reply brief says very little about P or I.
Both the McDonald Petition and Reply are very heavily weighted towards P or I and there was, in addition, the scholars brief, CAC filed, which put forth the scholarly consensus in favor of incorporation through P or I.
It is of course possible, as I acknowledge in my first post, that the Court chose the McDonald petition for other reasons, such as a preference for Alan Gura as an advocate over the NRA. Alice above adds another possibility, “standing,” though this is not mentioned as far as I’ve been able to determine in either the opinion below or the opposition filed by Chicago, so it’s a little hard to imagine this would have been seen by the Court as a big obstacle to granting the NRA petition.
I agree with both Orin and Loki13 that the Court likes to work incrementally. In the foreword to CAC’s Gem of the Constitution report I explain the risks for both conservatives and liberals in restoring the P or I Clause and suggest these risks will “powerfully push each side toward maintaining the constitutional status quo.” Those forces still exist, and I wouldn’t be at all shocked if the Court ended up incorporating through the DPC. But I do think that the cert. grant here is decent evidence that suggests something more important is afoot here.
December 7, 2009, 4:56 pmJ. Aldridge says:
I don’t think people ever enjoyed the so-called right. It was a duty of citizenship like with paying taxes. It required drills which was hated. It could require compulsory laws and fines. It was clearly a declaration of the fact standing armies was hated and the public defense was in the hands of the people.
December 7, 2009, 6:37 pmSimon Jester says:
You forgot those “crazy” libertarians at Institute for Justice…
William H. Mellor
Clark M. Neily III*
Robert J. McNamara
“Amicus respectfully urges the Court to begin that
process by overruling Slaughter-House and holding
that the right to arms is among the privileges or
immunities of United States citizenship that no state
may abridge.”
If that’s crazy – the inmates should be running the asylum.
-SJ
December 7, 2009, 7:53 pmJ. Aldridge says:
More to it than that. They gotta show where in history it was ever viewed the P&I’s of United States citizens had anything to do with a state and its own resident citizens.
I don’t think justices on the court are that stupid to ignore this very important distinction.
December 7, 2009, 8:34 pmKharn says:
Should we drink if Bingham is implied?
December 7, 2009, 10:03 pmjuris imprudent says:
I must be a tad dense here, because I’m still not following the idea that some, undetermined set of Justices might want to revisit P or I when you are pretty clear that only CT would. The implication being the rest are quite content to leave it dead letter. So, who would want to revisit this (other than CT) and why, if there is such fear of opening a Pandora’s box? Certainly CT might have written dicta in a DP concurrence that P or I should’ve been considered. But they hardly risked losing his vote, nor would it seem they stand to gain any from the opening given.
If just for the purpose of overturning Cruikshank and Presser, why couldn’t they do that under SDP? And isn’t that what you actually expect? That was the tack with Brown which [unfortunately IMO] did not mount a frontal assault on Plessy. The bad decision was overturned without the Court having to say how flawed that precedent was – which seems to be a courtesy the Court overly extends.
December 7, 2009, 10:23 pmSgtDad says:
Let’s see. The “liberal” justices will against an expansion of personal liberty. The “liberal” justices will vote against allowing the people all the liberties the Constitution was intended to guarantee. Sorta makes a mockery of the word “liberal.”
I am not sure sure. Reviving the P or I clause is a good route to getting certain civil liberties on the books that have been popular with “liberals.” That argument could easily get a vote or two. Frankly, I think they’ll only need one vote to get there.
December 8, 2009, 11:53 amDon Kates says:
[NOTE: Lochner v NY (1905) held a 60-hour maximum workweek law invalid as an infringement on the right of bakers to work longer hours. The doctrine is so long discredited that probably few lawyers or even law professors will remember the case clearly. Likewise few will remember the names of the majority justices though the disenters are memorable-- Holmes and Harlan.]
For decades anti-gun visionaries have dreamed of a world w/o guns. When I run into such people, I want to ask them why they don’t go all the way: If you want to live in a dream world, why don’t you dream up a world where there are no criminals and terrorists? Then guns wouldn’t ever be a problem.
Now, after Heller and in the face of McDonald, libertarian visionaries dream of reversing Slaughterhouse and bringing back “economic substantive due process” to the point of Lochner and beyond. It would be a waste of time to discuss the legal merits of Lochner. When I run into such libertarian visionaries, I ask them why they don’t go all the way: If you want to live in a dream world, why don’t you dream up one where the Libertarian candidate wins the presdency. Then your president can appoint Supreme Court justices. Until there is a Libertarian president, talk of bringing back “economic substantive due process” is mere mental masturbation.
This is the first decade of the 21st Century not the 20th. Lochner is as dead as the justices who decided it a century ago. Not one of the current justices would vote for a return to “economic substantive due process.” Even if some justices could be persuaded to theoretically overturn SlaughterHouse, they would simultaneously repudiate “economic substantive due process.”
Get real. If you want to maturbate, do it in your hand, not your mind.
December 8, 2009, 11:57 amSgtDad says:
Methinks Mr. Kates is projecting a bit. Methinks also Mr. Kates should cut it out, as it is unpersuasive and puerile.
December 8, 2009, 12:21 pmGene Hoffman says:
You assume that Lochner would have been rightly decided in a world where Slaughterhouse was overturned. Even Bushrod Washington recognized that the police power limits economic liberty. Economic liberty probably actually means that states can’t simply regulate e.g. hair braiders unless they can show an actual public health or public safety issue. Just like anti-gunners talk about how many felons shot felons to ban firearms for the law abiding, existing businesses talk a lot about made up harms to justify anti-competitive barriers to entry. Nail salons tend to actually spread nasty diseases so nail salon regulation falls pretty squarely under the police power.
-Gene
December 8, 2009, 3:14 pmFederal Farmer says:
Aw, SgtDad, we are just funnin’!
Seriously, I take many of Don Kates points to heart and appreciate someone of his caliber in the civil rights world joining the discussion!
December 8, 2009, 3:35 pmSgtDad says:
Ah, the road to incivility is paved with many a misinterpreted jest.
Mr. Kates’ argument is well worth reading & glad I am that he posts here. That closing shot, however, was not just puerile & uncalled for, it was an overt ad hominem.
The comment is especially uncalled for as it is not clear that he is right. There were many that thought Plessy was forever, as well. Heck, we’re having this discussion because a bunch of lawyers in Chicago were convinced the 2A was a dead letter.
The right to work and practice a profession are among the traditional English liberties. “Liberty” as in “liberty interest,” meaning strict scrutiny, i.e., compelling state interesting & narrow tailoring. That is precisely what the Framers meant when they referred to “privileges & immunities.
Prof. Aynes has a new piece out making some of this clear: 11 U Penn J Con Law 1295.
December 8, 2009, 4:53 pmDan Goodman says:
To all,
I wish to state that the Supreme court, in the Slaughterhouse Cases, held that because of the Fourteenth Amendment there were now two separate and distinct citizens under the Constitution of the United States; a citizen of the United States, under the Fourteenth Amendment and a citizen of the several States, under Article IV, Section 2, Clause 1 [FOOTNOTE]:
“We think this distinction and its explicit recognition in this Amendment (the 14th Amendment) of great weight in this argument, because the next paragraph of this same section (first section, second clause), which is the one mainly relied on by the plaintiffs in error, speaks only of privileges and immunities of citizens of the United States, and does not speak of those of citizens of the several states. The argument, however, in favor of the plaintiffs, rests wholly on the assumption that the citizenship is the same and the privileges and immunities guaranteed by the clause are the same.” 83 U.S. 36 (1873), page 74.
And:
“In the Constitution of the United States, which superseded the Articles of Confederation, the corresponding provision is found in section two of the fourth article, in the following words: ‘The citizens of each State shall be entitled to all the privileges and immunities of citizens OF the several States.’ ” 83 U.S. 36 (1873), page 75.
The last was later reaffirmed in Cole v. Cunningham:
“The intention of section 2, Article IV (of the Constitution), was to confer on the citizens of the several States a general citizenship.” Cole v. Cunningham: 133 U.S. 107, 113-114 (1890).
The privileges and immunities of citizens of the several states are those described by Corfield, cited in the Slaughterhouse Cases. This is reaffirmed in Hodges v. United States:
“In the Slaughter House Cases, 16 Wall. 36, 76, in defining the privileges and immunities of citizens of the several States, this is quoted from the opinion of Mr. Justice Washington in Corfield v. Coryell, 4 Wash. Cir. Ct. 371, 380.” Hodges v. United States: 203 U.S. 1, at 15 (1906).
So there are now two citizens under the Constitution of the United States. One needs to find out information on both. For a citizen of the United States that is easy. Just about anywhere. For a citizen of the several States one will have to begin here:
http://citizenoftheseveralstates.webs.com/index.htm
____________
FOOTNOTE
The Effects of the Fourteenth Amendment on the Constitution of the United States
http://www.australia.to/index.php?option=com_content&view=article&id=15882
Also,
A Look At Corfield (On Citizenship)
http://www.australia.to/index.php?option=com_content&view=article&id=16868
____
December 19, 2009, 6:43 amDan Goodman says:
To all,
I am writing to inform you that the links I provided in my prior comment (Dan Goodman December 19, 2009 6:43am) no longer work. The new locations for them are:
____________
FOOTNOTE
The Effects of the Fourteenth Amendment on the Constitution of the United States
http://www.australia.to/2010/index.php?option=com_content&view=article&id=327
Also,
A Look At Corfield (On Citizenship)
http://www.australia.to/2010/index.php?option=com_content&view=article&id=331
____________
There is also the following which I think would be appropriate.
Comment on Petitioner’s Brief: McDonald v. City of Chicago
http://www.australia.to/2010/index.php?option=com_content&view=category&layout=blog&id=91&Itemid=126
http://www.americanchronicle.com/articles/view/136777
____________
January 24, 2010, 1:16 amThe NRA Muscles into McDonald v. Chicago - Reason Magazine says:
[...] legal scholars such as The Volokh Conspiracy’s Orin Kerr, who never believed the Supreme Court would seriously consider overturning Slaughterhouse, the Court giving the NRA [...]
February 10, 2010, 4:30 pmMichael Ejercito says:
The United States Supreme Court does not have to revisit the privileges and immunities clause; the due process clause should be sufficient justification. (Chicago’s laws violate the right to a liberty (keeping and bearing arms) without due process of law)
If the Slaughterhouse cases were overturned, how would it affect the same-sex “marriage” cases currently in federal courts? I know that in Baker v. Nelson , the United States Supreme Court rejected an appeal ( PDF format ) of a Minnesota Supreme Court decision upholding the denial of a marriage license to a same-sex couple for want of a substantial federal question. The appeal alleged that the Minnesota Supreme Court’s decision violated the 14th Amendments due process and equal protection clauses; it did not allege a violation of the privileges and immunities clause. Would an allegation that a ban on same-sex “marriage” violates the privileges and immunities clause constitute a substantial federal question?
February 10, 2010, 6:59 pm