The Petitioner’s Reply Brief in McDonald v. City of Chicago has an interesting passage in which the Petitioners urge the Court not to rule in their favor on grounds argued by the NRA, which will be sharing argument time with the Petitioners:
NRA’s novel theory, at 40, that Cruikshank did not bar the Second Amendment’s application to the States, contradicts over a century of understanding. See, e.g., Heller, 128 S. Ct. at 2813 (“States, we said, were free to restrict or protect the right under their police powers”). Erroneous precedent should be overruled, not tortured further to achieve politically desirable results.
I understand that there is a lot of bad blood between the Petitioners and the NRA. And I have no opinion of the NRA’s argument, not having read its brief. Still, it’s rather unusual to see a passage in a legal brief asking a court not to accept an argument in its favor.
ruuffles says:
What would have happened if the NRA didn’t have a separate suit? Would the court still be able to consider incorporation, rather than P&I?
January 29, 2010, 7:09 pmAnonymous says:
The brief argues that rights aren’t created by the government. If the right here is a slaughter-house right that may not be very helpful down the road
January 29, 2010, 7:23 pmRoscoe says:
Not so unusual, in my opinion. In three of my arguments at the Ninth Circuit, I or the other counsel expressly rejected a potential rationale for a decision in our favor. In all three cases, the Ninth Circuit used this exact basis to rule in favor of the party who said he (or she) wasn’t seeking a ruling on that basis. (All three in published opinions).
I shouldn’t complain, however, given that I was two out of three in the mix.
January 29, 2010, 8:10 pmOrin Kerr says:
Roscoe,
If I can ask for an explanation, why did you expressly reject a rationale for a decision in your favor? Were you rejecting the arguments because they seemed to broad, and you didn’t think you could win on the broader ground? And who were the Ninth Circuit judges that wrote the decisions?
I’m reminded of a case that I saw when I was a circuit court law clerk. The lawyer for the defendants was terrible, and he kept arguing a position that didn’t make sense and was foreclosed by precedent. The lawyer had completely missed a line of cases with a different rationale on which he should clearly win. At oral argument, after hitting him over the head with why his argument didn’t work, the judges finally just asked him if he thought they could rule in his favor on a different ground — the ground that he had totally missed. The lawyer was so clueless he actually said that no, they should not rule in his favor on the other ground. The judges decided to follow the law despite his request and ruled in his favor in the ground that he rejected.
That kind of argument strikes me as different; it was a case of a lawyer not understanding the law. Obviously that is not happening in McDonald.
January 29, 2010, 8:36 pmDavid Nieporent says:
I was struck by the same passage just a few minutes ago when I was reading the brief. I did a double-take, and checked to make sure I was reading the right brief, rather than the Mayors’ amicus brief that I had open in another tab.
January 29, 2010, 8:46 pmSuperSkeptic says:
The linked blog makes this claim:
(emphasis added).
Presumably Roscoe hasn’t been disbarred or sanction; how is this ethical? Would it turn on your subjective rationale for arguing against yourself? I’m curious too.
January 29, 2010, 9:02 pmSteve says:
It’s all about what the client wants. If the client cares more about winning on a specific ground than about winning, period, it’s they’re call in the end.
On the other hand, this is why we have standing requirements and such, to avoid instances of someone throwing the case because they were more interested in pushing their pet argument.
January 29, 2010, 9:12 pmRoscoe says:
Orin:
First time I was working for the government. Defendant absented himself from trial, and was convicted in absentia. He was caught about 15 years later, and I was opposing his appeal from the conviction.
One of my potential arguments was prejudice to the government. We would not be able to retry him if we lost on appeal, due to stale evidence caused by the defendant’s lengthy absence. But I checked with the original prosecutor, who told me that he couldn’t have retried him anyway. Apparently the informant who would be necessary for any re-trial had been caught doing something dirty.
Anyway, I was asked about this at argument, and told the Court that I wasn’t relying on prejudice to the government (you know, the old “strike hard blows, but fair” thing.) I offered to go outside the record to explain, but the panel declined to hear me. And then they ruled for us, based on prejudice to the government.
The second case was a civil matter, involving the proper way to try an ERISA case. Plaintiff’s counsel and I stipulated to a procedure (there really wasn’t a right way to do it back then, which was later rectified by a decision by an en banc panel). I lost below, and filed an appeal.
At argument, the panel clearly had a problem with the procedure we had used, but I didn’t have any choice but to live with the stipulation I had made below. Ethics aside, I was going to have to see the district judge again.
The third case it was the other lawyer who was rejecting a particular ground for decision in her client’s favor. She was just being an idiot. (On the other hand, she did win).
January 29, 2010, 9:14 pmJimmy says:
My favorite contradiction is the NRA backing up on the English right to “have arms.” Compare the NRA’s opening brief to their reply and you will see they completely contradict themselves. Not to mention, Gura argued that the “right to keep and bear arms” was an English predecessor. I also like how the NRA quoted Tucker very narrowly, but left out how the two rights are synonomous other than that that English right is conditioned on qualifications: “the right of the people to keep and bear arms shall not be infringed…and this is without any qualification as to their condition or degree, as is the case in the British government.” Tucker was not the only commentator to make this statement. Many late eighteenth and early nineteenth century tracts made similar statements.
January 29, 2010, 9:28 pmAntiGura says:
Gura has one real goal, reworking the understanding of the P&I clause so that the Federal Courts will have another vehicle to enact liberaltarian PC hedonistic garbage via judicial activism. His advocacy for the 2nd Amendment is secondary to the greater goal.
This is really about empowering the courts to legislate from the bench from a liberaltarian perspective. Gura is under the delusion that the P&I clause will make the court legislate from the liberaltarian perspective. He seems not to understand that if you empower the court to legislate from the bench, they will act like a legislature and will not be confined to any one particular area in that legislation.
Pandora’s box can’t be shut once it is opened.
January 29, 2010, 9:46 pmGene Hoffman says:
Orin,
That NRA argument is particularly odd. It’s neither P or I nor Due Process. Arguing that Cruikshank doesn’t foreclose incorporation while ignoring the holding in Slaughterhouse doesn’t make much sense. Such a textually tortured argument on both basic theories reintroduces the Miller effect to gun rights…
-Gene
January 29, 2010, 9:51 pmRoscoe says:
Orin:
I forgot to answer your second question. The first opinion was by Hall. The second opinion was by McKeown.
January 29, 2010, 9:53 pmdavid says:
The amicus brief for Gun Owners is, IMO, more coherent:
http://www.lawandfreedom.com/site/firearms/McDonald_Amicus.pdf
January 29, 2010, 9:55 pmCH says:
The McDonald Petitioners’ brief does an excellent job taking apart Chicago and amicis briefs. I particularly like NRA’s use of the Brady and NAACP amici in the first footnote in their brief.
January 29, 2010, 10:52 pmKharn says:
GOA’s brief was so far out there I’m ashamed Maryland Shall Issue (an otherwise great organization) signed onto it:
January 29, 2010, 10:56 pm” Indeed, as the Heller Court pointed out, the right to
keep and bear arms, like the right to constitute the
government and the privilege to vote, does not extend
to “persons,” as such, but to “‘a class of persons who
are part of a national community or who have
otherwise developed sufficient connection with this
country to be considered a part of that community.’”
Id., 128 S.Ct. at 2791 (quoting from United States v.
Verdugo-Urquidez, 494 U.S. 259, at 265 (1990)).
Therefore, the Second Amendment does not extend the
right to keep and bear arms — and hence, the
derivative right to possess a handgun in one’s home
for self-defense8 — to, for example, a foreign national
who is in the United States on a tourist, student, or
other temporary visa. Nor is that right secured to a
documented alien or, much less, an undocumented,
and therefore, illegal alien. Rather, it is a right
secured to “all Americans.” ”
They even quote Verdugo-Urquidez and then try to claim resident aliens do not have a right to arms equal to citizens?
So much for equal protection under the law…
Anthony says:
While one can predict either good or dire consequences, I’d bet on just replacing substantive due process with P&I in arguments, and little meaningful difference in outcome.
January 29, 2010, 10:57 pmFederal Farmer says:
Yeah…dual citizenship plus no guns for non-citizens? no thanks.
January 29, 2010, 11:11 pmCH says:
Gura had to take GOA and ACRU to task to distance the Petitioners from them. I wish he didn’t have to waste the words but he had no choice.
January 29, 2010, 11:21 pmJohn Thacker says:
It does seem to be the done thing these days, since the bugbear that the President and his allies are scaring up is that foreigners might think that they have the First Amendment rights of Americans and organize collectively to buy advertising, make a movie, or publish a book that could affect Americans’ thought.
January 29, 2010, 11:27 pmMike McDougal says:
That happens all the time, for instance, in insurance coverage cases. If you’re a repeat player, you probably want the ruling to be on the “right” basis.
January 29, 2010, 11:34 pmAnon says:
I’m sure you’re right. He couldn’t possibly believe that the P. or I. Clause ACTUALLY protects unenumerated natural rights from state infringement, or that the Republicans who won the debate over the reconstruction amendments really wanted courts to take those rights seriously. Everyone knows those folks were REALLY worried about access to federal subtreasuries and navigable waterways. Why else would we have fought the Civil War if not to ensure the inviolability of those two most-precious rights.
January 29, 2010, 11:48 pmSoronel Haetir says:
I do have a hard time seeing resident aliens as being beyond Verdugo-Urquidez’ umbrella. However, given the Heller dicta I’m not real hopeful about this Court. About the best I expect is that Heller’s admonishment against arbitrary and capricious regimes will hold and be applied against state action.
January 29, 2010, 11:49 pmBama 1L says:
Lincoln revealed in his correspondence that his chief war aim was to ensure that “[t]he Father of Waters again goes unvexed to the sea.”
January 29, 2010, 11:58 pmAnon says:
See, that PROVES it! In the wake of the Civil War, recognizing the obvious insufficiency of the Commerce and Supremacy Clauses for the task of ensuring free access to the most important artery of commerce in the country against state intrusion, the Reconstruction Republicans proposed a new amendment to correct this problem, cleverly disguised in the contemporary language of natural rights. Sly dogs.
(Sarcasm aside, I think it’s a stretch to say that Lincoln’s letter to Conkling identifies access to the Mississippi as his “chief war aim.”)
January 30, 2010, 12:32 amTRE says:
I haven’t delved into the details in this case, but as an officer of the court petitioner could have an obligation to expose what he saw as an incorrect or misleading argument.
January 30, 2010, 2:29 amGene Hoffman says:
Orin,
For someone who really doesn’t care about McDonald or P or I incorporation it’s interesting that you have two posts in one day on a mundane reply brief.
Is there another supreme court case that has gotten this much attention from any Volokh Conspirator? I may be off by a couple of posts, but displeasure or disagreement with the Petitioners in McDonald seems to have merited 6-8 posts on this blog alone.
It’s not popular to claim the emperor has no clothes, but the effort by an uninvolved blogger to undermine a “no clothes” argument seems disproportionate. You’d almost think a blogger had become a party to the case…
-Gene
January 30, 2010, 4:42 amJoe says:
A layman might argue that it sometimes is strategically advisable to reject arguments you think are lousy (like a lawyer who puts forth a narrow argument, noting — without totally rejecting it — that some broader argument is simply not what s/he is arguing) in that it makes you look reasonable. I assume there are problems with this approach, both ethically and pragmatically.
The non-citizen arms thing is — whatever these guys are arguing — is as many here probably know is not a necessarily a problem under the P&I Clause. Justice Kennedy, e.g., in Verdugo-Urquidez noted:
Given the history of our Nation’s concern over warrantless and unreasonable searches, explicit recognition of “the right of the people” to Fourth Amendment protection may be interpreted to underscore the importance of the right, rather than to restrict the category of persons who may assert it.
The same arguably can be said about P&I, an approach I believe John Hart Ely suggested at some point as well.
January 30, 2010, 10:04 amjnheath says:
January 30, 2010, 10:10 amkrs says:
Gene Hoffman’s comment is really weird.
January 30, 2010, 10:23 amJoe says:
I’d add that the easiest way to deal with the citizenship issue might be the Equal Protection Clause.
January 30, 2010, 10:28 amMark Field says:
He seems weirdly obsessed by Prof. Kerr.
January 30, 2010, 11:15 amOrin Kerr says:
Gene,
Don’t you think McDonald is the most interesting case on the Court’s docket this term? I find it fascinating. It’s kind of like the Bush Administration’s Article II theories that I blogged about a lot in 2005-2007; it offers a whole new way of looking at a major question of constitutional law that had long thought to have been settled. But unlike the Article II issues, this an actual case on the Court’s docket, and the Petitioner’s argument is dramatically more far-reaching; while Congress could essentially contract around a new understanding of Article II, the Petitioner’s argument in McDonald would render large parts of the modern regulatory state unconstitutional and restructure the basic role of the judiciary in American society. Plus, it has all sorts of interesting angles; the role of constitutional theory, libertarian legal thought, etc. The case is fascinating, I think, resulting from the unsusual way that the petitioners decided to brief the issues. So I think that makes it a pretty important case; for a law blog, maybe even one worth 6-8 blog posts or more. (Although I still think I’m behind David Kopel on the number of McDonald-related posts so far.)
January 30, 2010, 12:22 pmOrin Kerr says:
[Gene Hoffman] seems weirdly obsessed by Prof. Kerr.
I suspect any perceived weirdness is explained by the fact that Gene is directly involved in these issues: He is the Chairman of CalGuns, a California gun rights group that filed an amicus brief in favor of the Petitioners in McDonald that you can read here.
January 30, 2010, 12:36 pmCarl from Chicago says:
AntiGura says:
Gura has one real goal, reworking the understanding of the P&I clause so that the Federal Courts will have another vehicle to enact liberaltarian PC hedonistic garbage via judicial activism.
Jesus.
January 30, 2010, 12:52 pmMark Field says:
I didn’t know that, but his comments still seem a little, shall we say, intense.
January 30, 2010, 1:14 pmGene Hoffman says:
Mark,
I’m just an intense supporter of broad construction of civil rights instead of a more narrow construction.
-Gene
January 30, 2010, 1:37 pmGene Hoffman says:
Absent petitioner’s argument to overturn Slaughterhouse, McDonald would be a pretty boring case – certainly not much more exciting than Nordyke. Simple Due Process incorporation of the Second Amendment is less interesting to the history of constitutional law than Citizen’s United.
-Gene
January 30, 2010, 1:42 pmAnonsters says:
Not to mention that it has no chance of succeeding: “But there is no need to deceive ourselves as to what the original Second Amendment said and meant. Of course, properly understood, it is no limitation upon arms control by the states.” Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 137 n. 13 (1998).
January 30, 2010, 2:06 pmOrin Kerr says:
Absent petitioner’s argument to overturn Slaughterhouse, McDonald would be a pretty boring case — certainly not much more exciting than Nordyke.
That’s a pretty huge caveat, though, given that this is the part of the case I have been blogging about.
January 30, 2010, 2:12 pmOrin Kerr says:
Anonsters,
I believe Scalia was just talking about the Second Amendment itself; The Due Process clause is part of the 14th, not the Second.
January 30, 2010, 2:13 pmHenry Heymering says:
I was the Maryland Shall Issue board member who was asked to read the GOA brief, so I was responsible for our signing on. I am happy and proud that we signed on to the brief, and I am also happy to have Gura address and rebut the brief’s view of incorporation through the P&I clause.
As you note, the GOA brief quotes the Heller decision’s view as to who is covered by the second amendment (“a class of persons who are part of a national community), likewise the P&I clause of the 14th states that “No state shall … abridge the privileges or immunities of CITIZENS of the United States….” [emphasis added] Your view that the 14th, through the P&I clause, protects non-citizens is not clearly or directly apparent.
So, while I find nothing “far out there” or to be ashamed of in the GOA brief, I’m also happy to have Gura use the opportunity to explain why the 2nd applies to all persons. While I agree that the 2nd was written to include all persons, and was meant to be the natural rights of man, the P&I clause by itself does not support that … maybe combining that with the equal protection clause it does.
I’d love for Gura to address the Heller decision’s comment that arms “in common use” are the only ones protected. The Chicago brief gloms onto that and interprets that as though the statement means that only those weapons currently in use by citizens are protected. If that is the case then any new weapons will not be protected by the 2nd. That is idiocy. If that were the case we’d only have muskets protected, and an unorganized militia would be a joke. The arms protected have to include all arms in common use BY THE MILITARY – as also supported by the Miller case.
January 30, 2010, 3:00 pmJosh Blackman says:
I provide a full analysis of this brief here, http://joshblackman.com/blog/?p=3903 , but in response to Orin’s comment about Gura’s unusual argument, I do not necessarily agree.
From the outset, Gura has maintained that incorporation of the 2nd Amendment, while maintaining the Slaughterhouse-Cruickshank-Presser line of precedents, makes the right to arms very week. In other words, even if the right is incorporated, but Cruickshank et al are still good law, in all likelihood, the Chicago gun ban would stand. What good is incorporation if the most draconian ban in the country can remain?
Once you understand this point, contrary to Kerr’s remark, Gura’s strategy doesn’t seem that strange. In fact, in major constitutional law cases, the “Mend it, don’t end it” approach isn’t always the best strategy.
In Jeff Toobin’s book, The Nine (starting at around p. 30), he recounts the litigation strategy of Kathryn Kolbert in Planned Parenthood v. Casey. Many at Planned Parenthood wanted Kolbert to take a cautious litigation strategy, and ask the Court merely to find that the Pennsylvania law fits within the Roe framework, and should be upheld. In other words, mend it, don’t end it. Kolbert refused this tact, and basically forced the Court into a corner where they would either strike down the regulations, or overturn Roe. She did not seek a middle ground.
In PP’s cert petition, the question presented was:
Here is how Toobin described Kolbert’s Supreme Court strategy:
Here is a segment from Kolbert’s arguments.
Now, I do not think Gura is taking nearly as aggressive a stance as Kolbert did. Gura concedes that the 2nd amendment could be incorporated through the due process clause. However, the privileges or immunities clause would be a more historically accurate approach. What Gura is aiming to do is to make sure that the right as incorporated is as strong as possible, and provides meaningful protection to gun owners. If Slaughterhouse et al is upheld, gun owners may not be much better off than they are today.
January 30, 2010, 3:05 pmGene Hoffman says:
Scalia wrote this at footnote 23 in Heller:
That lead pretty directly to the holding in Nordyke that the Second Amendment was incorporated via substantive due process jurisprudence.
I seems that much of the disagreement with the petitioner’s substance and argument is based on a desire by many to not have Slaughterhouse overturned based on agreement with the actual outcome of Slaughterhouse. That’s an argument that can be made, but it seems more noble to be direct about it.
-Gene
January 30, 2010, 3:06 pmTom Huff says:
How so? I’m a bit confused by this claim.
Wouldn’t the Petitioners’s argument simply take much of what the Court has already done in the name of so-called “substantive” due process and move it under the category of “Privileges or Immunities?” After all, the brief suggests that the Court could continue to use the Glucksberg test, which is exactly what the Court already uses–along with Palko–for substantive due process.
Shifting from “substantive” due process to privileges or immunities would be a major doctrinal shift, to be sure, but mostly one of semantics. I don’t quite follow how this would restructure the role of the judiciary.
(Note: I readily confess my bias for the Petitioners, but I’m just speaking for myself here.)
January 30, 2010, 3:07 pmOrin Kerr says:
Tom,
I don’t think that’s right. The Petitioner’s view is that there is only one correct way to read the P or I clause, and that is as reading the Fourteenth Amendment as adopting Corfield — and with it, as adopting natural law theory that would essentially restore the Lochner-era test but expand the Lochner approach beyond mere economic regulations. As I read the reply brief, the sugestion as to Glucksberg is that the Court could follow a Glucksberg-like approach outside the specific rights identified in Corfield — but if you look at Corfield, it says that you can’t comprehensively list the rights and names a lot of general categories as a non-exclusive list.
January 30, 2010, 3:23 pmOrin Kerr says:
It seems that much of the disagreement with the petitioner’s substance and argument is based on a desire by many to not have Slaughterhouse overturned based on agreement with the actual outcome of Slaughterhouse. That’s an argument that can be made, but it seems more noble to be direct about it.
Of course, those who disagree with the petitioner’s substance and argument presumably have exactly the same criticism of the other side.
January 30, 2010, 3:28 pmMark Field says:
I happen to agree that Slaughterhouse was wrongly decided and should be overruled, but I think there’s a legitimate argument against that; in other words, reasonable people can differ on this. More significantly, I think Prof. Kerr is very likely right that the Court will not do so. It just struck me that your posts seemed to show an emotional reaction to Prof. Kerr rather than to the Court or the issue.
January 30, 2010, 3:44 pmAlan says:
Berger and Fairman discredited? That’s a new one on me. Granted, I realize that their arguments have been rejected, but discredited seems way too strong.
January 30, 2010, 4:55 pmAnonsters says:
Fair enough. I guess I shouldn’t weigh in when I’m not really paying attention at all (for lack of interest) to the topic or the discussion. :P
January 30, 2010, 5:05 pmTom Huff says:
Prof. Kerr,
Thanks for your reply. But I don’t read the Privileges or Immunities arguments as implicating a demolition of the modern administrative state.
Corfield is definitely offered as one of several historical “guideposts” (pg 26) that could be used to figure out if an asserted right is a privileges or immunity. That makes pretty good sense to me, considering that Corfield interpreted some very similar language from Article IV. But I see no reason why these guideposts couldn’t be kept within the Glucksberg framework–which already protects rights that are “deeply rooted in this Nation’s history and tradition.” The brief just offers some ratification-era guideposts (ones that were historically-tied to the terms ‘privileges’ and ‘immunities’) for fleshing that test out.
True, the Corfield was pretty vague, and even concluded that privileges and immunities were unenumerable. But isn’t that the state of affairs we already have under the Glucksberg/Palko framework for substantive due process? In other words, hasn’t the Court had to create those tests for determining fundamental rights precisely because it’s had no way of enumerating them?
As I see it, the Court already protects unenumerable fundamental rights. But the privileges or immunities clause would give them a sound textual basis, as opposed to the concept of ‘substantive’ due process, which often invites disparagement.
January 30, 2010, 5:06 pmGene Hoffman says:
Correct. I’ve certainly never hidden my involvement in filings in this case…
-Gene
January 30, 2010, 5:06 pmDissenting Reason says:
I agree with Tom that Corfield is just a guidepost.
January 30, 2010, 5:27 pmAlan says:
But that was language about privileges and immunities of state citizenship, whereas the Fourteenth Amendment is about the privileges and immunities of national citizenship.
I guess I’ll just be the voice in the wilderness on this issue. I think Slaughter-House was exactly right. ::sigh::
January 30, 2010, 5:32 pmjrose says:
I don’t see how the petitioner’s view of “[p]rotection 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” comports with how Glucksberg has been applied.
January 30, 2010, 5:35 pmjrose says:
Wouldn’t you then conclude that the petitioners win because of Article IV, and the libertarians looking to revive the result in Lochner do too?
January 30, 2010, 5:37 pmDissenting Reason says:
I don’t see how the petitioner’s view of “[p]rotection 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” comports with how Glucksberg has been applied.
The “sweet mystery of life” passage in Lawrence does not comport with how Lawrence has been applied. So what?
January 30, 2010, 5:41 pmMark Field says:
I think the more usual term is “dishonest”. As in their analysis is “dishonest”.
January 30, 2010, 5:51 pmjrose says:
I’m not sure there is a sufficient history to conclude how Lawrence has been applied, but assuming you are correct, that would mean we can ignore that dicta. To the contrary in this case, the petitioner’s explictly quoted Corfield’s dicta in their brief.
January 30, 2010, 5:53 pmOrin Kerr says:
Dissenting Reason,
Perhaps you meant to say that the “sweet mystery of life” passage in the three-Justice plularity opinion in Casey isn’t consistent with how the Supreme Court has interpreted privacy rights, except for perhaps Romer, Lawrence, and a few other cases? If so, that seems like a puzzling argument, as that passage was a phrase in a discussion that at most was an explanation for a holding, not actually a proposed constitution test. In contrast, the argument here is a proposed constitutional test.
More broadly, I appreciate the efforts to try to make the Petitioner’s argument seem less far-reaching. But I recommend listening to the podcast David Kopel posted in which he interviewed counsel for Petitioner about what his argument means; he makes clear it is a far-reaching argument indeed. (See, for example, the open question about whether the Fourteenth Amendment would allow a state to have a monopoly on slaughterhouses.) I should also add that I greatly admire Gura’s refusal to shy away from the far-reaching implications of his argument: His view is that this is what the Constitution truly means, and it doesn’t matter if it is far-reaching or not. Good for him.
January 30, 2010, 5:59 pmdebauched_sloth says:
Perhaps Alan finds something unseemly in the NRA’s attempt to persuade the Court to vindicate a right on the basis of a constitutional doctrine that its leadership has repudiated in other settings. Perhaps Alan thinks the wisest approach to initiating an entirely new line of jurisprudence (i.e., 14th Amendment RKBA) is to base it on what he considers to be the most intellectually defensible reading of the Constitution, as opposed to a tactically efficacious but intellectually indefensible legal principle that has been systematically mocked and belittled by those who now seek to deploy it in the service of a right they happen to care about. Perhaps Alan considers it his duty as a citizen and an advocate to try to ensure that the Supreme Court bases its decision on the most faithful reading of the Constitution and not merely the most expedient. Perhaps he even explained that goal to his clients and obtained their enthusiastic and wholehearted approval. Perhaps.
January 30, 2010, 6:17 pmDissenting Reason says:
Perhaps you meant to say that the “sweet mystery of life” passage in the three-Justice plularity opinion in Casey isn’t consistent with how the Supreme Court has interpreted privacy rights, except for perhaps Romer, Lawrence, and a few other cases
No. Romer is pre-Lawrence.
The “sweet mystery of life” passage was criticized by the Lawrence dissenters, including Scalia, who heralded the end of all public morals legislation. That has not happened. Lawrence has not ushered in Scalia’s parade of horribles, and the “sweet mystery of life” passage has not been used to much effect. Thus, ” The ‘sweet mystery of life’ passage in Lawrence does not comport with how Lawrence has been applied.”
Likewise, criticize the citation to Corfield all you want, but it seems to me like Justice Scalia bemoaning the end of laws banning masturbation.
January 30, 2010, 6:26 pmDissenting Reason says:
Another example would be SG Clement arguing that any restrictions on machine-guns would be nullified by an individual right to keep and bear arms. That didn’t happen, either.
January 30, 2010, 6:34 pmOrin Kerr says:
Dissenting Reason,
There are four fairly obvious rejoinders. The first rejoinder is that a dissent’s claim about the implications of a majority opinion is not the same as the majority’s opinion. The second is that the Supreme Court has not had a chance to apply Lawrence yet. The third is that this passage was from Casey, which predates both Romer and Lawrence, and that seems to have actually had a continuing role in those case. The fourth is that the reasoning of an opinion is distinct from its holding.
In any event, I am not criticizing the citation to Corfield. I am simply pointing out that the reasoning of Corfield is very broad and far reaching: The petitioner’s argument is not a symbolic one, but rather one that would rethink the basic role of the 14th amendment.
January 30, 2010, 6:35 pmKharn says:
Henry Heymering:
The problem is the GOA brief reads as if they do not believe non-citizens should have a right to arms (a ‘not born here, go home’ type feeling is what I got from reading that section). The 2A says ‘the people’, Verdugo states that term means everyone associated with the American people (by citizenship, by residency inside the US or other substantial connection), yet GOA claims that the 2A is limited to only citizens, a misreading of Verdugo. They also do not consider the equal protection clause, properly applied, if a citizen has the right to own and carry arms a permanent resident also has the right.
debauched_sloth:
January 30, 2010, 6:37 pmRobert Levy made it clear his motivation with funding Heller wasn’t about guns, but about expanding Constitutional rights. Gura is continuing the same path trying for P&I revitalization, but in less weirdo terms than Antigura uses.
Orin Kerr says:
Oh, and I should add, Dissenting Reason, that I don’t think there is other than an extremely remote chance that the Supreme Court would adopt the argument of the Petitioners about the meaning of P or I. Thus, if your argument is simply a predictive one that if the Supreme Court adopted it, they would then construe it narrowly to not change much, as a predictive matter I think the argument gets stuck on the first step of whether they would adopt it. (If it doesn’t change anything, they will wonder, why bother?)
January 30, 2010, 6:38 pmAlan says:
I wouldn’t. As far as I’m aware, this case doesn’t involve discrimination against out-of-staters. My impression is that the challenged law denies everyone the freedom here argued for.
January 30, 2010, 6:46 pmAlan says:
No, I’m talking about the arguments themselves, which I hope the Court doesn’t adopt, because I don’t want to see a whole new era of Lochnerizing, even if it leads to the invalidation of laws that I oppose as a matter of policy and fairness. I didn’t write the Constitution.
The only criticism of the NRA in which I indulged myself was the use of the word “discredited,” and even then I wasn’t criticizing the statement as something that a lawyer shouldn’t write on behalf of a client with a cause I don’t fully agree with; I was criticizing it just because I substantively disagreed with it, much as I would do a brief by Leroy Carhart’s lawyer in an abortion case. Just because I disagree with one or more points in a legal brief doesn’t mean I’m saying that the brief’s author should disregard an ethical obligation to a client.
If you’re going to be that condescending, you should at least first be clear that you know what I’m saying, which here you didn’t.
January 30, 2010, 6:52 pmDissenting Reason says:
The first rejoinder is that a dissent’s claim about the implications of a majority opinion is not the same as the majority’s opinion.
In a world in which dissents may become majority opinions in the future, is this really a valid rejoinder?
The second is that the Supreme Court has not had a chance to apply Lawrence yet.
Lower courts have, and none of them have extended Lawrence or applied it as the dissent forewarned or the sexual autonomy lobby hoped. The one exception I can think of to that description is Witt.
The Supreme Court could have taken up the the sex toys Circuit split. It chose not to.
The third is that this passage was from Casey, which predates both Romer and Lawrence, and that seems to have actually had a continuing role in those case.
Fair enough, but the “liberty is spatio-temporal in all its dimensions” passage is of a piece. Casey‘s broad language didn’t foreclose Ayotte, either.
The fourth is that the reasoning of an opinion is distinct from its holding.
The rationale is essential to the holding; when the rational is eviscerated, the holding falls, too. For example, the fate of Austin in Citizens United. Gura makes this point in his Reply brief.
In any event, I am not criticizing the citation to Corfield. I am simply pointing out that the reasoning of Corfield is very broad and far reaching: The petitioner’s argument is not a symbolic one, but rather one that would rethink the basic role of the 14th amendment.
Sure, but when Circuit Judge Silberman cited to Dred Scott in Parker, he wasn’t affirming that African-Americans aren’t citizens. Gura’s citation to Corfield is limited by and proposed to be consistent with Glucksberg. My read is that you’re saying he’s coloring outside of the lines; he seems to be saying he’s not.
January 30, 2010, 6:57 pmDissenting Reason says:
(If it doesn’t change anything, they will wonder, why bother?)
Arguably, Citzens United didn’t change much of anything; neither did Heller.
January 30, 2010, 7:03 pmFederal Farmer says:
I think where you come down on P+I is reflective of where you come down on Statism v. Individualism. Too much freedom is too much for some to handle.
January 30, 2010, 7:06 pmdebauched_sloth says:
Essentially everyone who is knowledgeable about the history of the 14th Amendment (and is not an anti-gun partisan) recognizes that it protects the right to keep and bear arms — indeed, it may be that no other right was more often mentioned during the drafting and ratification of the Amendment and, given the relevant history (all that ugly disarmament and lynching and so forth), more clearly intended to be protected. But there are only two real choices for how to do that: substantive due process or the Privileges or Immunities Clause. All things considered, Privileges or Immunities is a far more plausible choice than substantive due process.
Orin — do you disagree with that as a matter of principle (as opposed what you think the Supreme Court will most likely do)? Or are you remaining ambiguously agnostic on the subject? I still can’t tell.
January 30, 2010, 7:10 pmOrin Kerr says:
Dissenting Reason,
If you think that Gura’s case is really just about a symbol — symbolically replacing P or I where DP used to be — then I think we’re going to have to agree to disagree (assuming that Gura doesn’t want to weigh in himself to resolve these uncertainties).
January 30, 2010, 7:11 pmAlan says:
Perhaps that’s true for you, but that doesn’t make it true for other people, especially not for textualists. I think that much (I can’t say all) gun control is stupid. As a matter of policy, I would prefer to see the government lose this case. If I’d written the Constitution, I would’ve made it a lot longer and a lot more detailed, and one of the details would’ve been a right to keep and bear arms, protected as against the states as well as the federal government.
January 30, 2010, 7:12 pmOrin Kerr says:
Dabacuhed,
Which principle do you mean? Do you mean the principle of original intent? The principle of public meaning originalism? The principe of stare decisis? The principle of incorporation? Or are you asking me what course of action I would recommend if I were a law clerk for one of the Justices?
January 30, 2010, 7:15 pmAlan says:
[Deleted by OK on civility grounds. Be nice, everyone.]
January 30, 2010, 7:17 pmDissenting Reason says:
If you think that Gura’s case is really just about a symbol — symbolically replacing P or I where DP used to be — then I think we’re going to have to agree to disagree (assuming that Gura doesn’t want to weigh in himself to resolve these uncertainties).
I don’t think it is symbolic. But I don’t think that what adopting the P & I argument would mean in the future as courts apply the McDonald precedent is necessarily as expansive as you claim it would be. Neither one of us has a crystal ball.
January 30, 2010, 7:19 pmOrin Kerr says:
True. I did spend about 40 minutes discussing this issue with Alan Gura the weekend before he filed his brief, so I guess I feel I have a sense of where he wants to go. But it’s true that the Court could in theory adopt Corfield but then construe it very differently than the Petitioners want.
January 30, 2010, 7:27 pmOrin Kerr says:
[Oh, and Alan, I read that comment by Debauched Sloth as being a defense of Alan Gura, not an attack on you.]
January 30, 2010, 7:31 pmAlan says:
You know what?
I was being a thousand times more of a jerk and an idiot than I believed anyone else was.
Whether or not my initial impression were correct.
I just assumed and then jumped. I was both very stupid and very rude to do so.
January 30, 2010, 7:34 pmOrin Kerr says:
Alan,
No problem at all. I can understand the misreading, as there are multiple Alans here. (On the other hand, thanks for the apology — that almost never happens, and it’s appreciated.)
January 30, 2010, 7:35 pmAlan says:
I have to say something else.
I don’t deserve and don’t expect anyone’s forgiveness, but I do owe an apology to everyone here. I am very, very sorry for being such a jackass.
January 30, 2010, 7:37 pmDissenting Reason says:
But it’s true that the Court could in theory adopt Corfield but then construe it very differently than the Petitioners want.
Ah-ha! Victory is mine!
Oh snap!
January 30, 2010, 7:42 pmOrin Kerr says:
Dissenting Reason,
Of course, it’s also true in theory that the Supreme Court could overturn Brown v. Board, start wearing togas instead of robes, and issue an album of a cappella versions of show tunes. My point is about what the Petitioners are asking for, not what the Court might in theory give them.
January 30, 2010, 7:51 pmAnonsters says:
Hey, don’t worry. I spouted off while not paying attention or really thinking about it. Together, we’d make an ignorant jackass! Go team!
January 30, 2010, 7:52 pmDissenting Reason says:
Of course, it’s also true in theory that the Supreme Court could overturn Brown v. Board, start wearing togas instead of robes, and issue an album of a cappella versions of show tunes. My point is about what the Petitioners are asking for, not what the Court might in theory give them.
The notion that the Court stakes out positions broader, narrower, or slightly different than the arguments presented to them is not novel. Indeed, Stevens’ dissent criticizes the majority in Citizens United for resolving unnecessary constitutional questions; and Prof. Hasen recently characterized Chief Justice Roberts’ narrow statutory opinion in NAMUNDO as a dodge of the constitutional question that should have been answered. But that isn’t really my point.
I’m glad you raised Brown. Though Brown was good law, the “all deliberate speed” language led to a much slower implementation of desegregation policy than was expected. That’s a perfect example of a litigant asking for X, getting an opinion than grants it, but the implementation not matching perfectly the expectation. Likewise, there are some scholars who criticized the Parents Involved plurality for its distortion of Brown; one might argue credibly that when Brown was argued, Thurgood Marshall was not arguing for the outcome in Parents Involved.
January 30, 2010, 8:06 pmdebauched_sloth says:
Orin — Let’s try it this way. Suppose I represented the controlling vote for your nomination on the Judiciary Committee and I simply asked you how Judge (or Justice) Kerr would rule, and — since we’re just pretending — imagine further that it was still the custom for nominees to give straight answers to straight questions and that I concluded by saying, “And if I can’t get a reasonably straightforward answer to my question, Professor Kerr, then I’m afraid I can’t give you my vote. I’m just really curious to know whether you think the right to keep and bear arms is more plausibly protected by substantive due process, the P or I Clause, or none of the above.”
Which, in fact, I am.
January 30, 2010, 8:15 pmOrin Kerr says:
DR,
I’m not sure who you think disagrees with you on those points. But I would add another uncontroversial point that is particularly relevant here: It’s common for a litigant to ask for a major change and for the Court to say “no.” As Alan Gura has explained, “you win constitutional litigation by framing issues in as narrow a manner as possible.”
January 30, 2010, 8:15 pmDissenting Reason says:
As Alan Gura has explained, “you win constitutional litigation by framing issues in as narrow a manner as possible.”
According to the NRA Reply Brief, their P & I argument is uncontested by Respondents and narrower than their DP argument.
The Court has before it a range of scopes for a P & I argument.
The P & I argument is not necessarily broader than the DP argument, and we don’t know how narrow or broad a P & I argument accepted by the Court would be.
I imagine we will find out during oral argument.
January 30, 2010, 8:24 pmAnonsters says:
Axiomatic, my good sir.
See Citizens United.
Wait…
January 30, 2010, 8:29 pmSteve2 says:
As I noted in the other thread, which seems to have gone dead in favor of this one, I thought there isn’t a Nordyke holding since they decided to rehear en banc, which put the panel opinion in the memory hole, and then the 9th decided to stay the en banc hearing until after McDonald gets decided? Did something happen in Nordyke that I missed?
January 30, 2010, 8:39 pmOrin Kerr says:
Debauched,
Here’s what I would say:
January 30, 2010, 8:42 pmjrose says:
I don’t think so. All Orin claimed was “the Petitioner’s argument in McDonald would render large parts of the modern regulatory state unconstitutional and restructure the basic role of the judiciary in American society.” He wasn’t commenting on what the Court would do.
January 30, 2010, 8:46 pmDissenting Reason says:
All Orin claimed was “the Petitioner’s argument in McDonald would render large parts of the modern regulatory state unconstitutional and restructure the basic role of the judiciary in American society.” He wasn’t commenting on what the Court would do.
The Petitioner’s argument would not render large parts of the modern regulatory state unconstitutional and restructure the basic role of the judiciary in American society if the Court did not effectuate it that way in subsequent cases.
January 30, 2010, 8:49 pmjrose says:
Then I confused about what your position with regard to Artice IV versus the 14th P/Is. It appears you believe Article IV’s PIs only require a state to not discriminate against citizens of other states (which I think matches current case law, and rejects Corfield’s view). Assuming I have that correct, what are the 14th’s PIs, and what is the signficance of state versus national citisenship?
January 30, 2010, 9:09 pmjrose says:
Yes, but that has no relevance to Orin’s claim, which is limited to how the Petitioner’s desire subsequent cases to be effectuated, not how they will be.
January 30, 2010, 9:16 pmdebauched_sloth says:
Orin — thanks for your thoughtful response. Seriously. While I would go with the text of the Constitution over stare decisis in this instance, for what it’s worth, I totally respect your position. And the good grace and humor with which you expressed it. You would have my vote.
January 30, 2010, 9:17 pmDissenting Reason says:
which is limited to how the Petitioner’s desire subsequent cases to be effectuated
I probably shouldn’t respond to this, but I will. That is not Orin’s position. His position is the Court won’t accept a P & I argument, regardless of the Petitioner’s desires. That is why he wrote: It’s common for a litigant to ask for a major change and for the Court to say “no.”
January 30, 2010, 9:34 pmjrose says:
Yes, Orin claims/predicts the Court will reject the P or I argument. But, that has no relevance to his other claim about what the Plaintiffs desire. Somehow you concluded the one contradicts the other?
January 30, 2010, 9:54 pmTom Huff says:
Wow, lots of new comments. Just a quick response before this post disappears into the aether.
Yes, Corfield has broad language about rights to happiness and property and so on. But it also qualifies those rights as being “. . . subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole.” Since Corfield didn’t claim those rights were absolute, I think it’s entirely appropriate to view Corfield as a mere guidepost.
I also don’t see Corfield as being any more troublesome than the existing Glucksberg/Moore test, which itself uses very broad/abstract language that purports to protect those rights deeply rooted in our nation’s history/tradition. After all, a belief in natural law and Lockean-style property rights was at the heart of our nation’s founding. And an inalienable right to pursue happiness is found in our Declaration of Independence. Still, no court would take seriously an effort to use Glucksberg to invalidate legislation under such broadly-stated rights. I can’t imagine one would in the name of privileges or immunities either.
January 30, 2010, 10:00 pmTom Huff says:
Prof. Kerr,
I had listened before to that Kopel/Gura podcast, which I agree is quite interesting. But your link to it also has me a bit confused, because Alan Gura seems to reject (rather than embrace) any return to Lochner throughout that podcast.
For example, at around the 28:40 mark, Alan specifically says that he has no desire to bring back Lochner. And around the 29:15 mark, he says that he doesn’t quarrel with the outcome in SlaughterHouse; just its reasoning.
I’m definitely not hearing an agenda to smash the regulatory state. Am I missing something?
January 30, 2010, 10:09 pmTom Huff says:
(p.s. – I’m not ordinarily one to use “LOLs,” but the American Samoa/Traffic Magistrate thing literally made me laugh out loud.)
January 30, 2010, 10:24 pmDissenting Reason says:
Somehow you concluded the one contradicts the other?
No. My conclusion is your statements have no relevance to anything in this thread.
January 30, 2010, 10:25 pmjrose says:
Tom,
I agree that Gura’s comments in the podcast contradict Orin’s sweeping claim about that the petitioners desire to broadly attack the modern regulatory state through the judiciary and restore Lochner-era tests.
On the other hand, Gura implicilty rejects a Glucksberg-like P or I test near the end of the podcast when he remarks that the standards used to decide what is a fundamental right under Due Process (implicating Glucksberg) aren’t based in original meaning. To the contrary he argues, we already know what the originalist standard is for P or I (Corfield), and that isn’t Glucksberg.
So, the modern regulatory state may survive because the government may abridge a P or I in the name of the “general good of the whole”, but not because P or Is are limited to Glucksberg fundamental rights. To be more specific, Glucksberg excludes liberty of contract, and the petitioners argue P or I must include it.
What would be interesting to explore at orals is what economic regulations Gura feels the government cannot justify for “general good of the whole”, or at least who should have the burden for proving such a general good (e.g., would the government merely have to provide a rational basis).
January 30, 2010, 11:24 pmDissenting Reason says:
To the contrary he argues, we already know what the originalist standard is for P or I (Corfield), and that isn’t Glucksberg.
Gura mentions Glucksberg in his Reply brief and says Corfield can be made consistent with it.
January 30, 2010, 11:32 pmjrose says:
As I read the brief, Gura thinks Glucksberg’s “deeply rooted in this nation’s history” should include liberty of contract (i.e., Glucksberg should be expanded to conform with Corfield, rather than Corfield narrowed to confrom with Glucksberg). The real test is what Gura believes the standard should be that permits a law to abridge liberty of contract.
January 30, 2010, 11:54 pmDissenting Reason says:
As I read the brief, Gura thinks Glucksberg’s “deeply rooted in this nation’s history” should include liberty of contract (i.e., Glucksberg should be expanded to conform with Corfield, rather than Corfield narrowed to confrom with Glucksberg).
Can you provide any textual support in Gura’s brief for that reading? I honestly did not interpret it that way, and since this is the crux of the debate, I’d love to see your reasoning.
January 31, 2010, 12:13 amjrose says:
Dissenting,
From the petitioner’s rebrief: “In the end, the process for enforcing the Privileges and Immunities of citizenship may not differ much from that enunciated in Glucksberg [...] By extending (my emphasis) this existing jurisprudence, the Court may find well-established ‘guideposts for responsible decisionmaking in this unchartered area’”
The full quote from Glucksberg: “But we ‘ha[ve] always been reluctant to expand (my emphasis) the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open ended.’”
I read the petitioner arguing for a responsible method of expanding the reach of what has been protected by Due Process, only doing so through P or I, where one of the enabling guideposts is Corfield: “Obvious historical ‘guideposts’ for defining Privileges or Immunities include those rights as described by Corfield, rights that Congress sought to protect in Reconstruction legislation, …”
January 31, 2010, 9:12 amjuris imprudent says:
FF said Too much freedom is too much for some to handle.
Just wow. So everyone should be treated as the lowest common denominator? I mean, for some ANY freedom is too much to handle.
January 31, 2010, 1:48 pmGene Hoffman says:
I think you misread FF. I read him saying that some people don’t wish to allow others to have too much freedom.
-Gene
January 31, 2010, 3:42 pmDissenting Reason says:
The full quote from Glucksberg: “But we ‘ha[ve] always been reluctant to expand (my emphasis) the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open ended.’”
I read the petitioner arguing for a responsible method of expanding the reach of what has been protected by Due Process, only doing so through P or I, where one of the enabling guideposts is Corfield: “Obvious historical ‘guideposts’ for defining Privileges or Immunities include those rights as described by Corfield, rights that Congress sought to protect in Reconstruction legislation, …”
Alright, but Glucksberg is referring to substantive due process. Gura is not arguing that substantive due process should be expanded. Gura is saying this case is unlike substantive due process, because in this case, unlike in a substantive due process case, we have reasonable guideposts: Corfield. So, Corfield is consistent with Glucksberg. His argument is that a P & I argument is a sounder one than a substantive due process one.
January 31, 2010, 4:07 pmjrose says:
… and that Corfield argues for more rights to be protected than what has so far been done under Due Process, namely for example liberty of contract.
January 31, 2010, 4:13 pmGene Hoffman says:
The 9th Circuit did hold the en-banc case for the completion of McDonald. Nordyke can’t be cited as an authority in the 9th Circuit. However it’s persuasive legal reasoning that 3 9th Circuit judges agreed that the Second Amendment is incorporated against the states via substantive due process based on SCOTUS’ existing jurisprudence.
-Gene
January 31, 2010, 4:18 pmDissenting Reason says:
Corfield argues for more rights to be protected than what has so far been done under Due Process, namely for example liberty of contract.
Liberty of contract is not at-issue in McDonald. As I explained earlier in my colloquy with Orin, the mere fact that the Court may use Corfield as a guidepost in the P & I arena does not mean that in future cases it will resurrect Lochner. Your argument that Gura’s use of Corfield is inconsistent with Glucksberg is false; and your prediction of the Court’s future behavior in a hypothetical case about minimum wage laws affecting female workers is totally unwarranted.
January 31, 2010, 5:06 pmjrose says:
I haven’t brought up that, or any other hypothetical.
January 31, 2010, 5:49 pmDissenting Reason says:
Liberty of contract implicit in due process
With regard to minimu wages of female employees
January 31, 2010, 6:45 pmDissenting Reason says:
http://en.wikipedia.org/wiki/West_Coast_Hotel_Co._v._Parrish
January 31, 2010, 6:48 pmjrose says:
Dissenting,
You lost me. I didn’t bring up West Coast Hotel, nor make any predicitions on how the Court would rule on it if the matter were once again brought before it.
January 31, 2010, 6:55 pmAndrew says:
Regarding “NRA’s novel theory, at 40, that Cruikshank did not bar the Second Amendment’s application to the States,” the NRA is entirely correct. There was no state action in Cruikshank, and obviously the 14th Amendment only forbids state action.
Given that there have been numerous blog posts here about this case, I wish that at least one blog post would mention that the Court has been presented with an argument to incorporate via the Privileges or Immunities Clause WITHOUT OVERTURNING SLAUGHTER HOUSE. This argument was made in the NRA’s brief. It was also made in a brief submitted by the American Civil Rights Union, joined by the Committee for Justice, and the Family Research Council. And this argument was also made in a third brief (that I wrote on behalf of Arms Keepers).
February 11, 2010, 12:14 am