In the National Law Journal, Tony Mauro has an article on the possible impact of the petitioner’s tactical decision to focus on the Privileges or Immunities Clause in McDonald v. City of Chicago. I think it’s just too early to know, as the decisions haven’t been written yet. If I had to guess, though, my guess would be that the three significant effects of that decision were (a) to revive interest in the original meaning of the 14th Amendment among court watchers, (b) to give Paul Clement 10 minutes of oral argument time, and (c) to get our readers nice and toasted from playing the the J. Aldridge/Bingham drinking game.
loki13 says:
I’ll drink to that!
And I’m guessing the over/under before a certain poster questions your ability to read tea leaves and/or know what the opinion is going to be is, oh, twelve posts.
March 10, 2010, 10:45 pmloki13 says:
As an aside, I happen to agree with Prof. Barnett’s analysis at the end of the linked article. I think there was an anchoring effect at play here. Compared to opening up the can of worms that is PorI, simple incorporation through SDP seems like the most mderate, sensible thing in the world- heck, a no-brainer. Of course, this is an ex-post analysis, so I can’t credit this as a brilliant strategy. More like Gura stumbled into this good luck (because, as he acknowledged in the article, he would rather Clement didn’t speak so he could’ve devoted more time to PorI… which would have provided observers with far more entertaining benchslaps, but little in the way of substantive discourse).
March 10, 2010, 10:52 pmJ. Aldridge says:
No one has explained to me why, after 200 years, there is such a need to incorporate the 2A at all costs, no matter what.
Pretty amazing when you consider the 14A was passed only to give effect to the civil rights bill which did enforce all of the privileges and immunities of U.S. citizens that did not include any of the first eight amendments.
March 10, 2010, 10:59 pmJ. Aldridge says:
Gura: “I’m not a kitchen sink litigator. I don’t bring in an argument unless I think it’s truly correct. It’s not something we just made up. It’s what the framers had in mind.”
No it was nothing the framers had in mind. You are misreading everything they said and the backdrop at the time. The mention of arms in Freedmen Bureau Act was because the former rebel states was then under the jurisdiction of the United States and not recognized states. Why did they feel armed black militias fulfilled the obligation of the 2A?
March 10, 2010, 11:19 pmtexasfox82 says:
is there any chance one might get a recommendation on a good book covering this whole privileges and immunities debate? i’m a bit confused on the whole matter as i am unable to take all the time that’d be necessary to read even the posts here at volokh, let alone any other material that’d be relevant. i suppose though that any book worth the reading has as yet not been published because of all the recent goings on.
March 10, 2010, 11:20 pmJ. Aldridge says:
Don’t know of a book off hand, but you can go here for a pretty short explanation.
March 10, 2010, 11:24 pmAnonymous says:
No State Shall Abridge
March 10, 2010, 11:43 pmMichael Kent Curtis
Gene Hoffman says:
*burp*
-Gene
March 11, 2010, 12:03 amOrenWithAnE says:
Neither has anyone explained to me how the MA State Constitution written contemporaneously with a bill that required all males to keep a working musket now apparently permits the State to require a permit to own a shotgun.
I have a sneaking suspicion that the answer to those two questions might, in fact, be related.
March 11, 2010, 1:51 amBrandon Combs says:
My liver hates when I read VC.
March 11, 2010, 4:09 amJ. Aldridge says:
Who was required to keep a musket and for what purpose? There was also a law that required the towns to provide those who were too poor to have a musket.
It couldn’t had been much of an individual right if you were required to keep a gun and could be fined or jailed if you didn’t. Me thinks the bearing of arms was really to provide for the military power of the state since no one wanted to maintain armies.
March 11, 2010, 4:36 amShag from Brookline says:
I’m curious about this:
” … (b) to give Paul Clement 10 minutes of oral argument time, ….”
What was the timing for taking some of Gura’s oral argument time? Was it before or after Clement’s role for NRA was publicly announced? And when were the Justices aware that Clement would – might – be hired by NRA? Is there an SG revolving door issue?
Or if this was “tongue in cheek,” whose cheek?
March 11, 2010, 6:42 amKharn says:
I’m still hungover from the last time I played the Bingham game…
March 11, 2010, 7:45 amMJG says:
I thought arguing PorI made perfect sense; it’s an alternative way you can win, and the Court hasn’t used due process incorporation in many years. Gura’s bold, and likely ultimately futile move, was to (a) put almost all his eggs in that basket (thus giving Clement more argument time), and (b) arguing that PorI not only sweeps in the Second Amendment, but basically ushers in a libertarian revolution of natural rights.
His brief cites a litany of these libertarian-esque rights, from economic freedoms and so on (with little emphasis on social freedoms or the jury trial in civil cases right, which is in the Bill of Rights), and when pressed — by Roberts, Scalia, and others — about whether his theory would open up the court to sweeping in an unforeseeable number of new rights, he said “Yes.”
People were offended by Scalia’s “darling of the professoriat” comment, but he was right: Judges and law professors are not the same thing, and even former law professor judges don’t think the same way. Some of that is the political aspect Orin has mentioned. (Think of Ambrose Bierce’s famous definition of a Judge: “A lawyer who knows a politician.”) Some of that is that judges decide cases, right now, with real people in front of them. They can use a narrower ground to incorporate the Second Amendment.
Look, if I wanted to bring back the PorI I’d challenge some other provision that we know is not incorporated and would have to come in if PorI was adopted, like the jury trial right in civil cases or I’d try to get the cases upholding non-unanimous juries overturned. To the Justices, I think they saw this case as a way to give effect to their ruling in Heller, which was pretty dramatic enough (recognizing a constitutional right that had been dormant for years, and then holding that it binds all the states).
I don’t think the Justices were as hostile to the *idea* of PorI and overruling Slaughterhouse was as some of the professors seem to think, I think they were just hostile to the idea that it must be done right then. Five-to-ten more years of scholarship for this modern court and a vehicle where that decision would really matter, and I think you might see something.
And if that happens, Gura’s bold decision will be remembered fondly as “planting the seeds” and so forth. But until then, his decision was a bold one that probably backfired a little bit. Yet, then again, did it? His decision I suppose was pareto optimal for his side: he basically knew the Second Amendment would be incorporated, and if he could get Slaughterhouse overruled, all the better.
March 11, 2010, 9:22 amDavid M. Nieporent says:
Absolutely. Just remember, when you do, that everything the site says is fabricated – by someone with no legal or historical background – and Bingham and Howard explicitly said that the first 8 amendments – were incorporated in the 14th amendment.
March 11, 2010, 9:34 amJ. Aldridge says:
You like repeating that but never offer any evidence when challenged. I guess that means you are only blowing smoke.
Howard never explicitly said the were, only they should. Neither did Bingham thru 1866-1871 and only for U>S citizens, not citizens of a state.
March 11, 2010, 9:38 amPubliusFL says:
Who are U.S. citizens?
March 11, 2010, 10:12 amruuffles says:
Do you have an area in mind where that vehicle might come from?
March 11, 2010, 10:24 amJ. Aldridge says:
For purposes of P&I’s they are citizens of a state in the several states, i.e., in a state, not of a state since a citizen of a state are under the protection of their state as citizens of that state.
March 11, 2010, 10:27 amPubliusFL says:
Why ignore the clear definition of U.S. citizen that’s in the same section as the PorI clause?
March 11, 2010, 10:29 amOrenWithAnE says:
All males 16-30, IIRC.
How do you figure? Civic rights and responsibilities go hand in hand.
No one trusted armies, but they still wanted the benefit of not being raided by brigands and Natives.
March 11, 2010, 10:31 amJ. Aldridge says:
Because the Comity Clause’s only purpose was to provide a general citizenship of citizens of the states whenever they ventured into other states. This general citizenship is often called national citizenship.
March 11, 2010, 10:39 amJ. Aldridge says:
You mean civic duty I think.
March 11, 2010, 10:41 amPubliusFL says:
That’s ipse dixit. The question is, if the framers of the 14th Amendment meant to use “citizens of the United States” to refer only only to state citizens who are outside of their home state, why did they put a different definition of “citizens of the United States” in the immediately preceding sentence without any indication that the two sentences are referring to different groups with the same term?
March 11, 2010, 10:50 amdclawyer says:
there should be more VC-induced drinking games.
March 11, 2010, 10:56 amJ. Aldridge says:
March 11, 2010, 11:02 amOrenWithAnE says:
I wrote what I meant and I meant what I wrote, thank you very much.
March 11, 2010, 11:16 amGene Hoffman says:
J. Aldridge
I’ve debunked your implication about Bingham’s 1871 speech before. I’ve also directly quoted Howard’s 1868 speech to the Senate explaining the newly introduced amendment as including the individual rights in the first 8 amendments.
You rely on omission to mislead. You ignore me when I refute you, but I post here as a warning to others that you play fast and lose with the actual source material.
-Gene
March 11, 2010, 12:40 pmShelbyC says:
Only two drinks so far? Geez.
March 11, 2010, 12:43 pmMark Field says:
It’s only 10 a.m. on the West Coast.
March 11, 2010, 1:07 pmAriel says:
OrenWithAnE,
Do you know which clause of the MA Constitution it was? I looked for “arm” and couldn’t find it.
March 11, 2010, 2:05 pmMJG says:
A challenge to one of the other rights specifically listed in the Bill of Rights not currently applicable to the states would be the most logical place, i.e. the jury trial right in civil cases or the requirement of unanimous juries. I think one of Gura’s problems was that he was so eager to sweep in new constitutional rights without first making the Justices comfortable with applying the other rights specifically listed in the Bill of Rights to the states which are currently not applicable to them. And by vehicle I mean a test case — McDonald and Heller were both “vehicles” in this sense so what’s the difference.
March 11, 2010, 2:06 pmOff Kilter says:
I suspect the legal future of PorI–whether or not it is permanently redacted from the Constitution–will hinge on Justice Thomas’ presumed separate concurrence.
March 11, 2010, 2:33 pmDavid M. Nieporent says:
Word soup.
March 11, 2010, 2:51 pmDonald Kilmer says:
Does it count if read this thread in my office and then reread it when I get to place that stocks liquor?
March 11, 2010, 5:31 pmCrunchy Frog says:
I have come to the conclusion there should be a corrolary to Godwin’s Law that says that any invocation of “the several states” immediately signals that the invoker can not be taken seriously.
March 11, 2010, 6:41 pmMichael Mahoney says:
By way of apologizing for uninformed questions, I admit to no legal training. So would someone please humor me, hold my hand a second and tell my why the Supremacy Clause doesn’t work in this case? Why is it ignored in the briefs?
March 11, 2010, 7:31 pmJ. Aldridge says:
If you call ignoring Bingham’s words “as contradistinguished from citizens of a State” in describing the PoI’s, then I suppose a deranged mind might consider that “debunking.”
As Paul Madison pointed out, why is he making a distinction between United States citizens and citizens of a state if there is no distinction between the two in PoI’s?
March 11, 2010, 7:49 pmDonald Kilmer says:
Since I haven’t got’n a ruling on whether re-reading this thread when I am near liquor constitutes a triggering event, or if I can only imbibe only upon virgin exposition of the issue, can you please hold the “Bingham’s” until I have a bottle of bourbon nearby.
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March 11, 2010, 9:42 pmGarrett says:
If true than why did not the Fourteenth Amendment explicitly say the first eight amendments were PoI’s of citizens of a state or, of the United States, or both? As Aldridge has correctly stated, the PoI’s were never considered to encompass the first eight amendments. Bingham and Howard would be forced to explicitly accomplish this through new language and not through repetition of the comity clause for which Bingham had forcibly asserted he had done.
March 11, 2010, 9:47 pmJ. Aldridge says:
I think Garrett just checkmated David.
I think they made one time reference to the federal amendments because these chiefly define what can be found in all state constitutions and which states were obligated to observe in the treatment of non-state citizens.
That places everything ever said on the subject into perfect harmony.
March 12, 2010, 1:07 amShag from Brookline says:
How many commenters here have read Prof. Kurt Lash’s recently published Part II on the P/I Clause of the 14th Amendment? Prof. Lash does not engage in “law office history.” Of course, we have to await Part III to get Prof. Lash’s understanding of the public understanding of the P/I Clause of the 14th.
March 12, 2010, 4:10 amJ. Aldridge says:
I have and found it pretty interesting that he surely has read Paul Madison since he brings up exactly the same fine points Madison has over the years.
Although his understanding of Bingham is flawed at times, like suggesting Bingham may not had prepared and wrote House Report No. 22 when everyone familiar with Bingham will tell you his fingerprints are all over it. And of course Butler said Bingham had personally wrote it.
Lash’s wondering why scholars embrace the idea that “Section One of the Fourteenth Amendment refers to the same privileges and immunities as those originally guarded under Article IV” was a good laugh.
It is still good reading full of good information and does discuss House Report No. 22 which most scholars love to pretend does not exist.
March 12, 2010, 5:30 amShag from Brookline says:
Also good reading is Prof. Lash’s Part I focusing on the antebellum meanings/understandings of “privileges” and “immunities.” Hopefully Lash will publish his Part III on a timely basis so that at least the Justices’ clerks may read it prior to the McDonald decision, concurring and dissenting opinions.
March 12, 2010, 7:47 am