Archive | McDonald v. City of Chicago

McDonald, Constitutional Theory, and the Confirmation Process

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 […]

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More on the McDonald Argument: A Reply to Randy

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 […]

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“Reasonable regulation” and McDonald

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 HellerHeller 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  […]

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The Incorporation Doctrine

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


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A Few Thoughts on the McDonald Argument

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 […]

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First News Report on the McDonald Argument

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


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The Line for Oral Arguments in McDonald v. City of Chicago

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 […]

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Philip Hamburger Responds on the Original Meaning of the Privileges or Immunities Clause

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:


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 […]

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Hamburger’s “Rough Draft” on Privileges or Immunities

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 […]

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Hamburger and McDonald[s]?

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.) […]

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The story of the armed community organizers

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 seemed to draw 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 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.”
Unfortunately, neither version is available on-line, so I will provide a summary.
In the mid-1960s, Salter was a full-time community organizer for the Southern Conference Educational Fund, in the very poor and highly segregated North Carolina black belt. Klan activity was heavy, and “Local law enforcement was almost completely dominated by the United Klans of America.” Klan dues were collected at the police station in Enfield.
Having received many death threats, Salter carried a Smith & Wesson .38 special in his attaché case. One night, on a long stretch of isolated country road, a Klan vehicle tried to force Salter’s car into a high-speed chase, by tailing him nearly bumper-to-bumper. “But I continued to drive sedately, mile […]
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NRA Gets Oral Argument Time in McDonald v. City of Chicago

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


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Respondent’s Brief in McDonald v. City of Chicago

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.


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