The Volokh Conspiracy

The first law school textbook on the Second Amendment is now available from Aspen Publishers. The co-author are Nick Johnson (Fordham), Michael O’Shea (Oklahoma City), George Mocsary (Connecticut), and me. Here’s the publisher’s page for the textbook, from which professors can request a free review copy. The book is also available for civilian purchase from Amazon.

We also have our own website for the book. There, you can read the detailed Table of Contents, and the Preface. The website is in an early stage of development; eventually, it will include detailed research guides and topic suggestions for students who are writing seminar papers. If you a professor and one of your students writes a seminar paper which makes a genuine contribution to knowledge about a topic, we invite you to send the us paper for publication on the website.

The textbook will have an accompanying Teacher’s Manual. We are currently finishing that up, and aim to have it available before the Fourth of July. (It’s free for professors who get a review copy, and forbidden for anyone else.)

Besides the 11 chapters in 1,008 pages of the printed book, there will also be four more on-line only chapters, available to purchasers of the printed book. These chapters will be: 12, Social science about firearms policy. 13, International law. 14, Comparative law. 15, A detailed explanation of firearms and their function. (Chapter 1 of the printed book provides a brief explanation of firearms and their function; the on-line chapter will go into much greater detail [e.g., what is a lever action gun?], and will have illustrations and photos.)

Finally, Firearms Law is the first law school textbook to be the subject of a podcast series. The published podcasts are: Chapter 3, The Colonies and the Revolution. Chapter 2, Antecedents of the Second Amendment: From Confucius to the British Whigs. Chapter 1, An introduction to firearms laws and firearms function. As the summer progresses, we will be adding more, and some chapters may have more than one. Thus far, all the podcasts are interviews of me, but as we make our way through the book, other co-authors will also appear in the podcasts.

So explains John Lott, in an opinion column for Foxnews.com. Not a surprising result. The McDonald v. Chicago amicus brief I wrote for the International Law Enforcements Educators & Trainers Association (and other law enforcement organizations, and criminologists) showed that after Chicago enacted its handgun ban, its violent crime rate rose sharply. Pre-ban, Chicago had a violent crime rate 1.12 times greater than the violent crime rate of the 24 other largest cities. (That is, Chicago’s violent crime rate was 12% higher than that of the 24 other cities.) Post-ban, Chicago’s crime rate soared immediately, and remained 67% higher than the other large cities. The possibility that Chicago’s sudden and long-standing deterioration compared to other large cities is less than 1 in 100,000. Details are presented at pages 17-22 of the brief, and the appendices.

On Tuesday I testified before the U.S. House subcommittee on Crime, Terrorism, and Homeland Security, regarding H.R. 822, which would set up a national system of interstate reciprocity for concealed handgun carry permits. My 24-page written testimony is here. The video of the subcommittee hearing is about and hour and 45 minutes. Nearly all members of the 21-member attended the hearing, and used their opportunity to ask 5 minutes worth of questions. Most of the questions posed to George Mason Law’s Prof. Joyce Malcolm, Philadelphia Police Commissioner Charles Ramsey, and me, were quite thoughtful. Some congressional hearings are just a form of kabuki theater, but in Tuesday’s hearing, Representatives of both parties, and on both sides of the gun issue, seemed to be sincerely trying to learn more. The bill currently has 243 House co-sponsors.

Filed earlier this week by Stephen Halbrook, in the case of Williams v. Maryland. In short, Maryland bans all handgun transportation or carry without a permit, and has a permitting process which formally declares that it will deny permits to almost everyone. As the petition explains, “the Maryland State Police, the Maryland Handgun Permit Review Board, and the Maryland courts have consistently interpreted these provisions [state regulations] to require the applicant to document, typically with police reports, that he or she has been the victim of assaults, threats, or robberies, except for applications involving certain occupations.”

Williams was peaceably transporting his handgun from his girlfriend’s home to his own home. He has been convicted, and sentenced to a year in prison. The state’s highest court, the Maryland Court of Appeals, rejected Williams’ Second Amendment challenge, because, supposedly, the Heller and McDonald affirmations of a general right to carry handguns (except in “sensitive places”) is mere dicta which the Maryland court will not follow unless a future U.S. Supreme Court cases formally announces “we meant what we already said.”

As Halbrook points out, “When the Framers intended that a provision of the Bill of Rights related to a house, they said so. [3d and 4th amendments.] They did not recognize a limited right to keep and bear arms only in one’s house. Despite this plain textual reference prohibiting infringement on the right to ‘bear arms,’ the Maryland court argued that the right need not be recognized at all because this Court has not decided cases directly on point. ‘But general statements of the law are not inherently incapable of giving fair and clear warning .. . .’ United States v. Lanier, 520 U.S. 259, 271 (1997).2 [note 2:] ‘The easiest cases don’t even arise. There has never been . . . a section 1983 case accusing welfare officials of selling foster children into slavery; it does not follow that if such a case arose, the officials would be immune from damages [or criminal]
liability.’ Id.”

Further, Heller’s right to carry language is not dicta, according to McDonald: “our central holding in Heller: that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home.” As Halbrook points out, this inescapably “implies a right to bear arms outside the home (even if not quite as ‘notably’ as in the home).”

Williams had not applied for a permit, which would have been futile in light of Maryland’s established policy of permit denials. The Maryland Court of Appeals held the Williams therefore lacked standing to challenge the statute. Halbrook responds:

This is completely unfounded given Petitioner’s criminal conviction. Under this Court’s precedents, it is not a requirement for standing to challenge an allegedly unconstitutional permit requirement that one must apply for the permit and be denied. A long line of cases have invalidated permit requirements to exercise First Amendment rights in which the defendants who were convicted did not apply for permits. One of the more recent cases is Watchtower Bible & Tract Society of New York, Inc. v. Village of Stratton, 536 U.S. 150, 156 (2002) (invalidating permit requirement even though “Petitioners did not apply fora permit.”).

…

even if there were some general requirement for Petitioner to submit an application in order to challenge the permit statute, that requirement would be eliminated here under the doctrine of futility. This court has made it clear in various contexts that litigants are not required to perform a futile act. See,
e.g., Palazzolo v. Rhode Island, 533 U.S. 606, 625-26 (2001) (where limitations imposed by wetland regulations were clear, and there was no indication
that kind of use sought by landowner would have been allowed, court did not require submission of “futile applications” with other agencies);

 Eugene Volokh’s analysis of the Maryland ruling is here.

When the Supreme Court for the first time recognized the existence of an individual right to bear arms in District of Columbia v. Heller in 2008, I warned that the decision might well end up giving gun owners very little new protection against regulation:

The Supreme Court may have endorsed an individual right under the Second Amendment to bear arms. But
the District of Columbia certainly isn’t leaping to implement that right…..

History shows that mere judicial recognition of a right doesn’t guarantee that the right will get meaningful protection. It is especially unlikely if the right is supported by jurists on only one side of the political spectrum. Judicially recognized rights also can get short shrift if the Supreme Court defines their scope narrowly.

To the delight of some and the distress of others, both these factors may limit the impact of the newly recognized individual right to bear arms.

Earlier this year, McDonald v. City of Chicago ruled that the Second Amendment applies to state governments as well as the feds. Nonetheless, it is far from clear that the ruling will have much effect. McDonald left intact Heller’s expansive list of “presumptively lawful regulatory measures,” which includes restrictions on the sale of guns, bans on carrying guns in “sensitive” locations, bans on ownership by felons (which in most states includes a wide range of people who have not been convicted of any violent crime), and others.

A recent ABA Journal [HT: Josh Blackman] article on lower court decisions applying McDonald and Heller seems to bear out my prediction:

Proponents hailed Heller and McDonald as setbacks for gun control advocates. They predicted a shift in gun policy throughout the country.

But so far it hasn’t happened that way. While there have been challenges throughout the country to local, state and federal gun laws, few have been successful.

In fact, critics of the decisions say the cases have failed to provide a concrete framework to help lower courts determine the constitutionality of challenged gun control laws…..

As I predicted, mere judicial recognition of the existence of a right doesn’t necessarily lead to meaningful protection for it. Such protection is particularly unlikely when a substantial part of the judiciary (most liberal judges) is hostile to the very idea that this right deserves protection at all.

This doesn’t mean that Heller and McDonald will be completely without effect. The two decisions do ensure invalidation of laws that completely forbid gun possession in the home or come very close to doing so. They thereby forestall any potential move towards total gun prohibition, though such an outcome was improbable anyway, given the political power of gun owners and the NRA. The rulings also have an important symbolic value.

Finally, it’s certainly possible that the Supreme Court will hear more cases in this field and eventually impose tougher scrutiny on gun laws. However, any such move seems unlikely in the near future. With the four liberal justices categorically opposed to Heller and McDonald in the first place, whatever protection gun rights get will track the lowest common denominator of what the five conservatives can agree on. It seems to me unlikely that all five will agree on any high level of scrutiny. Indeed, the list of exceptions in Heller is probably a roughly accurate barometer of the level of protection that can get five votes in today’s Court.

UPDATE: I suppose I should note the obvious point that lower court litigation over Heller and McDonald is far from over, and it’s still possible that some lower court judges will apply these decisions more aggressively than has happened to this point. But the dominant trend so far suggests that such cases are likely to be the exception rather than the rule.

Peruta v. San Diego is one of several cases challenging sheriff misapplication of California’s concealed handgun carry licensing statute. The case features Chuck Michel as lead attorney for plaintiffs. The case does not assert that California’s statute requiring a license to carry a concealed handgun for protection is unconstitutional. Rather, the argument is simply that the statute specifies that licenses should be issued to qualified applicants (training, good moral character) who have “good cause.” Pursuant to Heller, lawful self-defense is not only good cause, it is the best possible cause. The case has already survived a motion to dismiss.

Along with Prof. John Eastman, I filed an amicus brief on behalf of the Independence Institute, Law Enforcement Alliance of America, Doctors for Responsible Gun Owners, and the Center for Constitutional Jurisprudence. The arguments are:

 I. The case can be decided without a standard of review, because near-total prohibition of a constitutional right is never constitutional.
II. A “reasonable” regulation is one that does not eliminate the exercise of a right, but instead is narrowly tailored, is based on a significant government interest, and leaves ample alternatives.
III. The state court cases approvingly cited in Heller expressly affirm the right to carry.
IV. Twentieth century state courts decisions affirm the general right to carry for lawful self-defense.
V. McDonald specifically addresses and prohibits mass deprivation of the right to bear arms.

The more I participate in discussions on the constitutionality of the indivdiual mandate, the more it feels to me like a replay of last year’s discussions on the Privileges or Immunities Clause on the road to McDonald v. City of Chicago.

In both cases, the issue is whether the Supreme Court will adopt limitations on the scope of government power that are greatly desired by libertarians and supported from an originalist perspective, but that Supreme Court doctrine hasn’t shown any particular sign of adopting as a a matter of constitutional law. In both cases, much of the commentary in favor of the limitation seems aimed at fostering a sense of the legitimacy of those limitations with the hope that this will make it more likely for the Supreme Court to adopt them. In both cases, I find myself at odds with my co-bloggers on the likelihood that the Supreme Court would take that step — with my co-bloggers seeing it as a quite realistic possibility, and me seeing it as extremely unlikely. (In both cases, I saw it from the outset as a likely 8-1, with only Justice Thomas on board.) And in both cases, many commenters are extremely passionate about what they believe the correct constitutional answer must be — with commenters seemingly lining up in the same way on the two issues.

There are differences, of course. The debate over McDonald was more for law geeks than the public: It concerned the likelihood an argument would win in a known case, not even the result in that case, and it lacked the broad political movement that exists over the individual mandate. Still, I can’t avoid the sense of deja vu.

It was delivered in late June to the Second Amendment Task Force, a group of Republican Senate aides. (Unfortunately, the Senate’s protocals of partisanship prevent organizations like this from having aides from both parties.) My presentation is here (22 minutes). The presentation by Hans Von Spakovsky, Senior Research Fellow at The Heritage Foundation, is here. And Stephen Halbrook’s presentation is here.

Available here. See paragraphs 19-28 for description of which parts of Chicago’s legal regime are being challenged. The National Rifle Association is helping with the funding of the case, but is not a party. Lead attorney is Charles Cooper, so it is certain that the presentation of the plaintiffs’ arguments will be outstanding.

[youtube]http://www.youtube.com/watch?v=1ffBXm7kJkk[/youtube]

A wonderful song at all times, and especially around Independence Day, especially this year.

“The Battle Cry of Freedom” was written during the Civil War, and sung by Union troops going into battle. This video pays tribute to Ulysses Grant, the General most responsible for winning the war for the Union. Elected President of the U.S. in 1868 and re-elected in 1872, U.S. Grant vigorously enforced federal civil rights laws to protect the freedmen. Not until Lyndon Johnson in 1963-69 would an American President work with such determination for civil rights. After leaving the White House, Grant served as the 8th President of the National Rifle Association.

The National Rifle Association’s brief in McDonald v. Chicago quoted President Grant:

Subsequently, President Grant issued a report on enforcement of the Civil Rights Act which noted that parts of the South were under the sway of the Klan, which sought “to deprive colored citizens of the right to bear arms,” and to reduce them “to a condition closely akin to that of slavery * * *.” Ex. Doc. No. 268, 42nd Cong., 2d Sess., 2 (1872).

The brief  likewise quoted a report from General Grant about the conditions in Mississippi which had helped convince Congress of the necessity of the Fourteenth Amendment, to make the Second Amendment applicable to all state and local governments:

“The statute prohibiting the colored people from bearing arms, without a special license, is unjust, oppressive, and unconstitutional.” Cong. Globe, 39th Cong., 2d Sess., 33 (1866).

McDonald v. Chicago brings the United States an important step closer to accomplishing a central purpose of the Fourteenth Amendment: making all of the Bill of Rights applicable to every state and local government in America. It was a national tragedy that the Supreme Court essentially nullified much of the Fourteenth Amendment for so long. It is a national blessing that America’s many civil rights organizations were able, over the long term, to revitalize the Fourteenth Amendment, and change the Supreme Court from a nullifier of the Amendment into an enforcer of the Amendment.

In the discussion of the McDonald case a few weeks ago, I posted a link to Philip Hamburger’s manuscript, Privileges or Immunities. His forthcoming article, which will be published by the Northwestern Univ. Law Review, is now online in a version that may be cited and quoted.

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.

A lot of VC readers who have followed McDonald v. City of Chicago were quite disappointed last week by what they saw as the Supreme Court’s likely unwillingness to revisit the Privileges or Immunities Clause. At oral argument, the Justices seemed focused on the practical problems of reviving PorI, not on whether such a revival was correct. None of the Justices who spoke seemed particularly interested in how a normatively proper constitutional theory applied to the case. A lot of readers were thinking, “What’s the point of the Supreme Court if they’re not committed to getting it right as a matter of first principles?”

These certainly are fair criticisms. But it seems to me that if you really want to change things, you should direct at least part of your criticism to the Constitution itself — specifically, Article II, Section II. This section explains how people get on the Supreme Court: the President nominates, the Senate confirms, and the President then appoints. In other words, Supreme Court Justices must be nominated, confirmed, and appointed by politicians.

When politicians are responsible for determining who gets a significant power, they are not likely to favor someone who they think will exercise the power of the office in unexpected ways. They generally won’t want someone who will follow a theory to radical implications. Indeed, they probably won’t want “theorists” at all. They’ll want people who exercise the power of the office with a sense of consequences, of cause and effect, and of the realities of institutional power. That is, practical people. And that means that the Justices we’re likely to get are likely to have that sense, and are unlikely to be the kind of purists who will follow theories even if it leads to radical implications.

I’m not saying this is a good or a bad thing. Opinions differ, and it’s beyond the scope of this post. My point is only that it’s the system the Constitution gave us. The Framers bestowed responsibility upon politicians for nominating and confirming Justices, and that choice means that the Justices we’re likely to get are likely to be more practical people than constitutional theorists. So if you’re disappointed that the Justices are not committed enough to constitutional first principles, it is of course fair to criticize the individual Justices, and the broader legal culture. But I think at least part of your criticism should be directed to the Framers for giving responsibility to politicians for who ends up a Justice.

Given Randy’s earlier response to my initial prediction on how the Court might respond to Alan Gura’s Privileges or Immunities argument, I was hoping Randy might weigh in with his thoughts on the McDonald oral argument.  I am pleased to see that he has.  In this morning’s post, Randy writes:

Hey Orin. Given that you insist you have no expert view on the original meaning of the Privileges or Immunities Clause, how do you know that Richard L. Aynes, Jack M. Balkin, Steven G. Calabresi, Michael Kent Curtis, Michael A. Lawrence, William Van Alstyne, Adam Winkler (none of whom are dreaded libertarians, so far as I know) and my reading of the Privileges or Immunities Clause is wrong? And doesn’t the failure of the justices who were obviously hostile to the Privileges or Immunities argument to ask any question challenging the accuracy of this reading strongly confirm its correctness as a matter of original meaning? Had there been a hole in that claim, do you think Justice Scalia would have hesitated to mention it to puncture the originalist analysis of “the professoriate”? Hearing none, can we take this claim of original meaning as presumptively established and go on from there?

Two responses:

First, to be clear, I have never argued, and I don’t know, that Randy’s view of the original public meaning of the Privileges or Immunities Clause is wrong. I love legal history, but I’m not a trained legal historian who has gone through all the original materials myself. And as best I can tell, legal historians simply disagree on the question. Given that, I can read their works with interest and sometimes get a vague sense of what seems more or less plausible. But self-awareness requires me to admit upfront that I have no deep insight into who is right or wrong. (As an aside, I find this particularly frustrating in my area of Fourth Amendment law: If you care about legal history, as I do, but are not a trained historian — and the historians in the field disagree amongst themselves — you’re left uncertain as to the answers to questions that you would really like to know. But I guess that’s just one more entry on the long list of things I wish I knew, but don’t.)

Randy’s second question is whether the absence of the Justices trying to poking holes in his view at oral argument “strongly confirm[s] its correctness as orignal public meaning” and indeed “presumpively established” its correctness. With all due respect to Randy, I don’t think it does. As best I can tell, the Justices didn’t ask any questions about the original public meaning of the Privileges or Immunities clause not because they all saw Randy’s views as correct, but because they saw the question as beside the point. Based on the transcript, it seems that the Justices clearly had it in mind to incorporate the Second Amendment via Due Process, and they thought the Privileges or Immunities arguments were a bit of an oddity. Presumably that’s why the Justices took the extraordinary step of giving Paul Clement 10 minutes of the Petitioner’s oral argument time. Only Justice Scalia really engaged with the PorI issues, and that was mostly to express his view that stare decisis forecloses the inquiry. Given that the Justices’ attention was elsewhere, I don’t think we can read their silence on the issue as a strong sign of their views — assuming that they have views of the original public meaning of PorI, which may or may not be the case.

The following exchange took place during James Feldman’s oral argument today, on behalf of the Chicago government, in McDonald v. Chicago:

JUSTICE SOTOMAYOR: Would you be happy if we incorporated it and said, reasonable regulation is part of the incorporation? And how do we do that?

MR. FELDMAN: Well, there is the reasonable regulation standard, there is an article by Professor Winkler that we cite in our brief that goes very extensively through the ways that State courts have dealt with their own rights to keep and bear arms and have adopted, really by overwhelming consensus, that kind of a reasonable regulation standard, which generally recognizes

JUSTICE GINSBURG: I thought that Heller –Heller allowed for reasonable regulation.

MR. FELDMAN: Excuse me.

JUSTICE GINSBURG: I thought that the Heller decision allowed for reasonable regulation and it gave a few examples as Justice Scalia mentioned.

MR. FELDMAN: Right. Well, it’s just our view would be that what Chicago has done here, which is permit you to have a — permit you to have long guns but ban handguns, is the kind of regulation that throughout our history jurisdictions in their own — that are most familiar with their own particular needs and their own particular problems, and in a position to balance the -the need for self-defense with the risk to the use of firearms — for violence, for accidental death and or suicide — that the City of Chicago has come up with something that is well within our tradition.

Some clarification here. Heller never adopted a “reasonable regulation” standard.  Heller allows for machine gun bans under theory that they are not part of the Second Amendment (that is, they are not Second Amendment “arms”). Restrictions on gun carrying in “sensitive places” are not explained doctrinally, but they are easily comparable to First Amendment “time, place, and manner” rules. Heller says that concealed carry may be banned; in the states, the dominant theory for this restriction was that concealed carry was not part of the right. Finally, Heller‘s allowance for conditions and qualifications on the commercial sale of guns was expressed without being described as part of some kind of “reasonableness” test.

Feldman was astute to cite Winkler’s Michigan Law Review article, since that article argued that state RKBA cases use a “reasonableness” standard, which Winkler  interprets as meaning that almost any anti-gun laws (including a handgun ban) are alright, as long as people are allowed to own some type of firearm.

In a forthcoming Santa Clara Law Review article, Clayton Cramerand I argue that Winkler overstates the degree of state judicial deference to anti-gun laws; we also argue that the weak standard of review cases are plainly invalid as Second Amendment guides post-Heller–since the D.C. ban itself would have been upheld under the standard Winkler describes (and for which he advocated in a Heller amicus brief along with Erwin Chemerinsky).

In McDonald, BTW, Winkler joined the all-star professors team whose amicus brief advocated for Privileges or Immunities enforcement of the right to arms.

Regarding today’s oral argument, I thought that all three attorneys did a good job arguing on behalf of their respective positions. As it turned out, only Paul Clement found a majority of the Court favorable to his core argument, but that’s no strike against the skills of Gura or Feldman as Supreme Court advocates.

Since the incorporation doctrine is in the news today, I thought I’d share a relevant excerpt from Rehabilitating Lochner (forthcoming, U. Chicago Press, Spring 2011):

The Supreme Court … gradually applied most, but not all, of the Bill of Rights to the states, on a case-by-case basis. To blunt criticism that they were emulating their discredited pre-New Deal predecessors, the Justices and their defenders asserted that the liberty of contract cases involved illegitimate “substantive due process,” while “incorporation” cases did not.

Conceptually, however, the liberty of contract line of cases involved an exercise of what historian G. Edward White calls “guardian review,” policing the limits of state power, not “substantive due process.” The concept of “substantive due process” was primarily a post-New Deal innovation that did not become firmly established in American jurisprudence until the 1950s. Even if the Lochner line of cases could accurately be described as examples of substantive due process, exempting the incorporation cases from that moniker defied logic. For example, enforcing the First Amendment right of freedom of speech against the states via the Due Process Clause is literally an exercise in protecting a substantive right through that clause, and therefore is “substantive due process.”

In practice, the post-New Deal Court was doing precisely what its predecessor had done before it: identifying which rights it deemed fundamental to American liberty, and decreeing that the Due Process Clause protected those rights against the states. The Court, in fact, eventually out-Lochnered Lochner. Before the New Deal, the scope of liberty of contract and other Fourteenth Amendment due process rights recognized by the Supreme Court, including freedom of expression, was constrained by the states’ police powers. After the New Deal, police power considerations were eventually replaced with the test of whether government infringement on freedom of speech served a “compelling interest,” a significantly stricter test. The right to freedom of expression under the Due Process Clause, which the Court deemed a “preferred freedom,” quickly became far broader than the right to liberty of contract ever had been.

Nor did “incorporation” prevent the Justices’ from exercising discretion based on their ideological proclivities. First, the Court engaged only in “selective incorporation.” The rights not incorporated, such as the right to a grand jury hearing and the right to bear arms, were the rights that the Justices either didn’t approve of or thought were unimportant. Second, the Court interpreted some incorporated rights, such as the Fifth Amendment’s ban on taking private property without just compensation, and some other rights found explicitly in the Constitution’s text, such as Article I, Section 10’s ban on states impairing contractual obligations, far more narrowly than it interpreted rights favored by liberal intellectuals, such as freedom of expression. In short, if Lochner and other liberty of contract cases were examples of dubious “substantive due process” based on the Justices’ ideological proclivities, then so, a fortiori, were the incorporation cases.

Based on a quick read of the oral argument transcript, a few things stood out:

1.  The Privileges or Immunities arguments never really got off the ground.  None of the Justices seemed in favor of that approach, at least based on the questions. (Justice Thomas, as is his custom, asked no questions.)   Only about 10-12 minutes of the questioning even concerned the P or I route, and the questioning seemed mostly focused on trying to understand the nature of the claim. For my VC co-bloggers and many VC commenters who hoped today would signal the beginning of the libertarian constitutional revolution, there doesn’t seem to be much room for optimism.

2.  Justice Stevens, often the liberal Justices’ primary strategist, seemed to have a plan to join on the theory of incorporation by Due Process but then to water it down as applied to the states.  This revisits an old debate on the incorporation doctrine about whether incorporation applies the Bill of Rights to the states “jot for jot” or only applies the core protections of the right to the states.  Given Stevens’ questioning, my guess is that the liberal Justices may try to band together and offer Kennedy a less protective version to apply to the states.  I read Justice Kennedy’s questions at the bottom of page 13  and on pages 53-54 to suggest he is pretty skeptical of that approach.

3.  I thought Justice Ginsburg had an interesting point in her questioning at page 9, when she suggested that an originalist approach to Privileges or Immunities would have the Court adopt a right that was pretty antiquated — specifically, it would give men a lot of rights, but deny those rights to women.  Gura’s response suggested, as best I can tell, that the Court should be originalist in its identification of the right but be modern in its interpretation of them.  Thus, for example, the Court should say that there is a right to contract based on the original understanding, but should reject the original understanding of this right to contract in favor of a more enlightened standard (such as one that does not discriminate by gender).  To my mind, that’s one of the oddities of Gura’s originalist argument: It is 100% originalist but only 50% of the time.  That is, it is originalist with some aspects of the Fourteenth Amendment, but then argues that the Court should not be originalist with other aspects, such as the preexisting Due Process cases on the books.  I understand the appeal of this approach from a libertarian perspective:  libertarian rulings get stare decisis protection while non-libertarian precedents don’t.  But unless you believe, as does my co-blogger Randy, that the Constitution if properly construed mandates libertarianism o’er the land, it seems like a pretty result-oriented approach.

It’s brief, but here’s what Lyle Denniston has posted at SCOTUSblog:

The Supreme Court on Tuesday seemed poised to require state and local governments to obey the Second Amendment guarantee of a personal right to a gun, but with perhaps considerable authority to regulate that right. The dominant sentiment on the Court was to extend the Amendment beyond the federal level, based on the 14th Amendment’s guarantee of “due process,” since doing so through another part of the 14th Amendment would raise too many questions about what other rights might emerge.

As more detailed reports emerge, please feel free to add links to the stories in the comment thread. (It’s probably best to add only one link per comment, however, as more than that tends to trigger the spam filter..)

UPDATE: Josh Blackman adds: “The Court was not at all receptive to arguments on Privileges or Immunities but incorporation on Due Process is a slam dunk. More commentary soon.”

ANOTHER UPDATE: Tony Mauro chimes in with the first extended discussion over at the BLT:

[O]ne thing appears clear: the justices are not yet ready to open what seems to them to be a can of worms by invoking the “privileges or immunities” clause of the Fourteenth Amendment as the way to apply the right to bear arms to states and localities. The more traditional route of the “due process” clause seems almost certain to be Court’s chosen path.

Alan Gura, who was arguing for the “privileges or immunities” route, ran into skepticism almost from the moment he began, when Chief Justice John Roberts Jr. said Gura had a “heavy burden” because his approach entailed striking down the Slaughterhouse cases of 1873.

Justice Antonin Scalia piled on by asking Gura why he’d take this more difficult path “unless you’re bucking for some place on a law school faculty.” The privileges or immunities clause, Scalia added sarcastically, has become the “darling of the professoriate.” Justice Stephen Breyer also seemed to opt for caution, asking Gura questions about the implications of using a new part of the Constitution to apply the Second Amendment to states.

The justices seemed almost to sigh in relief when former solicitor general Paul Clement, representing the National Rifle Association on the same side as Gura, rose to reassure the justices that using the due process clause was a “remarkably straightforward” way to apply the Second Amendment that would not involve upsetting precedent.

ANOTHER UPDATE: Lyle Denniston has expanded his post over at SCOTUSblog, and it now concludes as follows:

The first argument to collapse as the argument unfolded was the plea by the lawyer for gun rights advocates, Alan Gura of Alexandria, VA, that the Court should “incorporate” the Second Amendment into the 14th Amendment through the “privileges or immunities” clause. In the first comment from the bench after Gura had barely opened, Chief Justice John G. Roberts, Jr., noted that the Court had essentially scuttled that argument with its ruling in the SlaughterHouse Cases in 1873. And within a few minutes, Justice Antonin Scalia — the author of the Heller opinion and the Court’s most fervent gun enthusiast — was sarcastically dismissing the “privileges or immunities” argument. . . . Scalia noted that the “due process” clause — an open-ended provision that he has strongly attacked on other occasions– was available as the vehicle for incorporation, and added: “Even I have acquisced in that.” Gura somewhat meekly said “we would be extremely happy:” if the Court used the “due process” clause to extend the Second Amendment’s reach.

Justice Ruth Bader Ginsburg, one of the dissenters in Heller, then moved in to press Gura on just what “unenumerated rights” would be protected if the Court were to revive the “privileges or immunities” clause. It was a theme that would recur often thereafter, solidifying the appearance that the argument had virtually no chance of succeeding. (In fact, when Gura near the end of the argument returned to the podium for his rebuttal, his time was used up by Justices Ginsburg and Anthony M. Kennedy exploring what other rights might come into being if the Court gave new life to the “privileges or immunities” clause. He responded that he could not provide a full list, to which Justice Scalia retorted: “Doesn’ t that trouble you?” It was obvious that it troubled the Court.)

The transcript will be up this afternoon, and I’ll probably blog some thoughts about it when I get a chance to read it.

Here it was at 11pm:

I thought of trying to get one of the first-come, first-served seats provided to members of the Supreme Court bar, but I figure it’s a lot of lost sleep for 20 minutes of sparks given that we’ll get the transcript anyway. (For some reason, the Justices refused to release the audio. I don’t understand why, but perhaps today was just generally a day of irrational Supreme Court orders.)

Thanks to Mike Sacks (featured in the video) for the link: Mike has more video and more pictures of the McDonald line over at FIRST ONE @ ONE FIRST

I asked Philip Hamburger if he wished to respond to Friday’s blog posts here at the VC about his new draft article, Privileges or Immunities. He graciously agreed to respond. I have reposted his response below:

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I am grateful to Jim for linking my paper, to Orin for starting the conversation, and to Randy for his analysis. For what it’s worth, I will add my own two cents–first by explaining the argument in my paper.

1. The Argument. My thesis focuses on free blacks. Since at least 1821, there was a nationally prominent dispute as to whether free blacks were entitled to the benefit of the Comity Clause. In this controversy, both sides ended up agreeing that Comity Clause rights belonged only to citizens of the United States. In this context, opponents of slavery asserted the Comity Clause rights of free blacks in terms of “the privileges and immunities of citizens of the United States,” and the Fourteenth Amendment’s Privileges or Immunities Clause constitutionalized this interpretation of the Comity Clause.

This conclusion rests on a simple methodological point: context matters. For example, in the context of arguments on behalf of slaves and abolitionists, some publications urged that such persons had First Amendment and other federally protected rights against states–the explanation being that these were among “the privileges and immunities of citizens of the United States.” At the same time, however, in the context of arguments for the rights of free blacks, the phrase was more used in another way: as a label for their Comity Clause rights. The phrase thus had different meanings in different contexts, and it is therefore important to inquire about which context led to the adoption of the phrase in Fourteenth Amendment.

There is much evidence that the relevant context was the debate over the Comity Clause rights of free blacks. Indeed, one can trace a direct line from the Comity Clause debate to the adoption of the Fourteenth Amendment–a line that, toward the end, included the demands of free blacks in 1858, Bingham’s speeches in 1859 and 1866, and Shellabarger’s 1866 Privileges and Immunities Bill. Thus, once it is recognized that the phrase “the privileges and immunities of citizens of the United States” was used in different ways in different contexts, a direct genealogy of context, text, and meaning can show how it was used in the Fourteenth Amendment.

Although the existing scholarship is very learned, it unfortunately misses much significant evidence and mostly fails to acknowledge the significance of context. For example, it completely misses the racism and real significance of the fundamental rights language in Corfield. It focuses so much on what the Comity Clause protected that it almost entirely misses the debate over who was protected, which was what mattered so profoundly for blacks. The scholarship also largely misses the Privileges and Immunities Bill, which is a key piece of evidence about the drafting of the Fourteenth Amendment. Last but not least, the scholarship fails to recognize the importance of the national movements in the 1870s for amendments that would incorporate the First Amendment against the states. These movements are revealing because, beginning in 1870, the demands for such amendments were based on the assumption that the Constitution had not already incorporated the Bill of Rights.

In short, my thesis rests on a familiar methodological point about context and an unfamiliar range of evidence. And if the incorporation theory is correct, it needs to deal with all of this evidence, including the evidence about contextual distinctions.

2. Randy’s Objections: The 1866 Speeches. It is gratifying to engage with Randy on the Privileges or Immunities Clause. Here, as always, his persuasive powers are formidable, but whether the evidence really supports his objections is another matter.

Randy’s main objection to my paper is that it treats the Fourteenth Amendment’s words “the privileges or immunities of citizens of the United States” merely as a label for Comity Clause rights. This, however, is how the phrase was used by anti-slavery campaigners in disputes about the rights of free blacks. These disputes were the central, nationally debated context in which Americans used the phrase. And in these controversies, free blacks and whites–not least, John Bingham–clearly used the phrase to refer to Comity Clause rights.

Randy does not question any of this, but relies on the later, 1866 speeches by Bingham and Howard to suggest that “the privileges or immunities of citizens of the United States” alluded not only to Comity Clause rights but also to the Bill of Rights. To be sure, Bingham and Howard mentioned the Bill of Rights, but it is worth pausing to consider the context in which they made these allusions. Just because they talked about the Bill of Rights does not mean they were talking about it in the context of the Privileges or Immunities Clause.

Continue reading ‘Philip Hamburger Responds on the Original Meaning of the Privileges or Immunities Clause’ »

As Jim Lindgren has noted, on the eve of the argument in McDonald v. Chicago, Philip Hamburger has posted on SSRN what is labeled a “rough draft” of a new paper entitled, Privileges or Immunities. This timing is unfortunate. Given that this is a serious work of scholarship by a serious scholar, it demands serious attention before its argument can be fully evaluated. Yet it is posted now with a reference to the McDonald case in its very first paragraph.

I have only had a chance to peruse it quickly and have some initial impressions. The article focuses on antislavery uses of the Privileges and Immunities Clause of Article IV ([what Hamburger calls "The Comity Clause"), as do I in my new paper, Whence Comes Section One: The Abolitionist Origins of the Fourteenth Amendment. In the latest version of my paper posted earlier this week, I make it clear that this Clause was typically invoked by antislavery lawyers and activists on behalf of free blacks. Hamburger correctly stresses this point as well. So far so good. [For the record, unlike Hamburger, I make no claim that my paper has any bearing on the McDonald case and I deny the evidence I examine is dispositive of the original meaning of Section One.]

But Hamburger’s thesis is that all the Privileges or Immunities Clause of Section One accomplishes is to provide federal enforcement of the Article IV Privileges and Immunities Clause AND NO MORE. By the way, he seems not to have noted that this aspect of his thesis is completely inconsistent with Justice Miller’s opinion in The Slaughter-House Cases which consigns the protection of these fundamental natural or civil rights to the states free of federal protection. Hamburger is not very precise about what he is claiming to be the meaning of the Privileges or Immunities Clause, but the thrust of his argument about the Article IV establishes that the Slaughter-House Cases were wrongly decided and the dissenters were right.

Yet, while Hamburger is right that the Privileges or Immunities Clause provided federal enforcement of the Privileges and Immunities Clause Article IV, there is considerable evidence it did more. In his rough draft, Hamburger ignores most of this evidence to focus solely on statements by Bingham and Howard. According to the rough draft, readers are not allowed to quote or cite this paper, so I won’t be able to provide direct quotes. (Another reason why posting a rough draft at this time is unfortunate.) Moreover, I do not have the space or time for a comprehensive treatment of all his evidence or claims. Two examples will have to suffice for now.

On February 28th, 1866, John Bingham gave a speech in which he asserted that the privileges or immunities of citizens of the United States included those protected by Article IV and also those in the Bill of Rights. The problem was a lack of federal power to enforce these rights against the states. In this speech, Bingham cited both Barron v. Baltimore and Livingston v. Moore as judicial barriers. Many readers will know that these two cases concerned the federal enforcement of the Bill of Rights, not the Article IV. Having shown that “these decisions of your courts . . . ruled the existing amendments are not applicable to and do not bind the States,” he quoted Daniel Webster for the proposition that these rights nevertheless apply to the states, though are solely dependent on the voluntary compliance of state officials who take an oath to uphold the Constitution rather than any federal power of enforcement. Bingham then asked: “Why, I ask, should not the ‘injunctions and prohibitions,’ addressed by the people in the Constitution to the States and the Legislature of States, be enforced by the people through the proposed amendment? By the decisions read the people are without remedy?” Bingham, therefore, proposed the following constitutional amendment:

The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities of citizens in the several States, and to all persons in the several states equal protection in the rights of life liberty and property.

Hamburger claims that all of Bingham’s references to the protection of the Bill of Rights in this speech are clearly to the equal protection clause of this proposal and not to the privileges or immunities clause, and that Bingham somehow was referring to the equal protection of state bills of rights. I find this claim counter-intuitive if not bizarre; it is certainly under-defended given its centrality to the debate over whether “privileges or immunites” included the personal guarantees in the Bill of Rights in addition to those fundamental natural or civil rights to which Article IV was taken to refer. How Hamburger’s nondiscrimination-in-state-bills-of-rights theory would relate to Bingham’s invocation of Barron and Livingston goes unexplained since he omits the fact that Bingham cited these cases in this pivitol discussion of Bingham’s speech.

How then does Hamburger treat Senator Jacob Howard’s widely reported speech to the Senate on May 23, 1866, in which he says:

“To these privileges and immunities [in Article IV Privileges and Immunities Clause which Corfield v. Coryell described] whatever they may be—for they are not and cannot be fully defined in their entire extent and precise nature—to these should be added the personal rights guarantied and secured by the first eight amendments of the Constitution; such as the freedom of speech, . . . and the right to keep and to bear arms . . . . [H]ere is a mass of privileges, immunities, and rights, some of them secured by the second section of the fourth article of the Constitution, which I have recited, some by the first eight amendments of the Constitution. . . .

Hamburger again bizarrely concludes that Howard was here referring to nondiscrimination of state bills of rights under the Equal Protection Clause.

There is much in this 79 page paper with which I agree and, given my interest in abolitionist constitutional thought, I found it interesting to read. But Hamburger is actually rather fuzzy about what he thinks the Privileges or Immunities Clause did mean. And with respect to its central thesis–that the privileges or immunities of citizens of the United States did not ALSO include the personal guarantees contained in the Bill of Rights, he simply fails to establish his claim or even attempt to examine all the evidence that cuts against his thesis. Instead, he is content to rely on his antislavery narrative about the Commity Clause and his implausible reading of these two speeches by Bingham and Howard.

So everyone needs to bear in mind that this is a self-described “rough draft” which is not to be cited or quoted. Therefore, despite its coincidental timing, neither should it be given any weight in the Supreme Court’s deliberations in McDonald until it has been carefully vetted by other scholars who are familiar with all the evidence of original meaning. My guess is that Philip Hamburger himself, who I have known for many years, would agree.

UPDATE: I should probably clarify that the term “Comity Clause” is Hamburger’s preferred label for the Privileges or Immunities Clause of Article IV, and a misleading one since it was invoked to protect the fundamental rights of citizens coming into a state from another state. “Comity” suggests some relationship between states themselves. Nor was this term widely used by abolitionists. Indeed, I recall no one of those I surveyed ever calling it by this name. Nor, for that matter, did Bingham and Howard. And of course the term “comity” is not found in the wording of the so-called “Committee Clause.” A very quick word search for “comity” in his 79 page argument turned up no original source who referred to the Privileges and Immunities Clause of Article IV by this name. Perhaps someone did, but apparently no one who considered it a guarantee of fundamental rights. Of course, if you want to diminish rhetorically the force of what abolitionists considered a guarantee of fundamental rights against the states, “Comity Clause” might be the label one would prefer. Consequently, I have edited my original post to reduce my own repetition of this misleading label.

Thanks to Jim for posting Philip Hamburger’s very interesting new paper on the original meaning of the privileges or immunities clause. With the oral argument in McDonald just a few days away, I’m curious what readers who follow these issues closely think of Hamburger’s paper. I’m not enough of a historian to have a firm sense of which side is right, so I’m interested in what our readers think. (Oh, and sorry for the post title: I know, I know, I really shouldn’t have done that, but I just couldn’t help myself.)

A few weeks ago, I linked to a picture of civil rights activist John Salter being attacked by a mob during a lunch counter sit-in during the 1960s. I also linked to a newspaper op-ed in which Salter explained how he and other civil rights workers used firearms for protection from Klansmen and other terrorists—when Klansmen knew that a homicide would not be witnessed by the news media. Since that blog post drew great interest from the readers, I thought that some persons might be interested in the longer version of Salter’s history of the role of armed self-defense in the Civil Rights Movement.

The longer version is John R. Salter, Jr., “Social Justice  Community Organizing and the Necessity for Protective Firearms,” which is chapter 2 of The Gun Culture and Its Enemies , pp. 19-23 (William R. Tonso, editor, Merril Press,  1990.) (Merril Press is the press for the Second Amendment Foundation.) The chapter was first published as an article by Salter in Against the Current, July/August 1988. The magazine describes itself as an “analytical journal for the broad revolutionary left.” Since neither version is available on-line, I will provide a summary. Continue reading ‘The story of the armed community organizers’ »

The Blog of Legal Times notes that the Supreme Court granted the NRA’s contested motion for oral argument time in McDonald v. City of Chicago. The NRA had asked for argument time to make sure the Due Process arguments were fully made, in light of the fact that McDonald’s counsel Alan Gura had focused so heavily on the Privileges or Immunities argument. Gura had opposed the motion on the ground that it was his case and it would be extremely unusual to grant divided time in such circumstances. Paul Clement, former SG, will argue for the NRA.

We can’t read too much into the Court’s decision to divide argument time, but I tend to see it as somewhat supporting my theory that the grant in McDonald on both PorI and Due Process was not a sign the Court wants to overturn the Slaughterhouse cases. As I have written before, the Petitioner’s brief in McDonald is extremely unusual: It’s asking for a revolution in constitutional law, with the stakes of that particular case almost an afterthought to the brief. If the Court was on board the revolution, as most libertarian bloggers seem to think, presumably the Justices wouldn’t carve away some of the precious 30 minutes needed to make the case for the revolution for the much more humdrum and precedent-based argument featured in the NRA brief. On the other hand, if the Justices just want to decide the case before them, and see a revolution as unlikely, then it makes sense to make sure Paul Clement is there to focus on the narrower and more direct arguments for incorporation.

UPDATE: The end of the BLT post includes some interesting commentary by both Clement and Gura. First, Clement comments:

“I think the grant of the NRA’s motion may signal that the Court is interested in ensuring that all the avenues to incorporation, including the due process clause, are fully explored at the argument. Of course, I look forward to working with Alan.”

Gura responds, showing his typical civility and grace:

“The suggestion that I wouldn’t present all the arguments to the Court was uncalled for. I hope that this time Paul understands that handgun bans are unconstitutional.”

As the BLT notes, the dig against Clement reflects the brief he filed as Solicitor General in 2007 arguing on behalf of the United States that the D.C. handgun ban was not necessarily unconstitutional.

The brief is available here. (H/t) An excerpt:

Overruling Slaughter-House and its progeny, and overturning the settled law governing the application of the first eight amendments to the States, should require an overwhelming justification. Petitioners’ position was rejected by the post-Civil War Justices, who were in the best position to understand the meaning of the Privileges or Immunities Clause. Far from showing that the Court that decided Slaughter-House and its progeny was mistaken, the historical record demonstrates a wide array of views, from within the halls of Congress and beyond, on the meaning of the Clause. The current scholarship on the subject reveals an equally wide divide.