The Volokh Conspiracy

Thirty two amicus briefs in McDonald v. Chicago have been filed so far, and they are all available at the Chicago Gun Case website, run by the Second Amendment Foundation (which is one of the parties in McDonald). My brief is also available on SSRN. The next brief (Chicago’s) is not due until Dec. 30, so we have all of Thanksgiving, Advent, and the first 5/12 of the Twelve Days of Christmas to examine the amicus briefs so far.

Today, let’s take a look at the brief of Philosophy and Criminology professors. It’s co-written by Don Kates (one of the founders of modern scholarship of the Second Amendment) and Marc Ayers. The pair had teamed up in Heller to write an excellent brief arguing that DC’s handgun been had been a failure, and probably counter-productive, in terms of public safety.

The new Kates-Ayers brief begins with a survey of the 17th-18th century philosophical view, with which the American Founders agreed, that self-defense was among the most fundamental of all rights, that it was also a duty, and that the right necessarily implied the right to use arms in self-defense. This Part of the brief rebuts the 7th Circuit’s assertion in McDonald that self-defense is merely a “gloss” on the criminal law, and could be abolished by statute.

Next, the brief provides a litany of evidence showing that most murderers are not otherwise law-abiding citizens who impulsively kill because a gun happens to be available. To the contrary, murders overwhelmingly tend to have prior records of serious crime and mental illness. This particular topic has been a long-running theme of Kates’ three decades of scholarship on firearms policy.

A long section titled “Research makes gun ban advocates recant” provides a history of the social science debate on gun control in the U.S. since the 1960s. Some of the most prominent scholars who have been critical of gun control started out as gun control advocates, but changed their mind because of the evidence. These include James Wright, Gary Kleck, Marvin Wolfgang, and Hans Toch (a member of the 1968-69 Eisenhower Commission which had promised that reducing handgun availability would reduce crime).

Finally, there are several pages responding to a recent study (by Branas et al. from Penn) claiming that guns are ineffective for protection in an urban environment because gun carriers are supposedly more likely to be shot than non-carriers.

Regarding another brief…Orin’s Monday post, “Against Congressional Briefs,”  argues that, out of respect for separation of powers, Congresspeople should not file briefs in Supreme Court cases. However, it should be remembered that the Court does look to Congressional intent and action–not just in interpreting federal statutes, but also in momentous constitutional cases. For example, in Frontiero v. Richardson, 411 U.S. 677 (1973)(equal protection clause applies to sex discrimination), Justice Brennan’s plurality opinion listed some recent actions that Congress had taken against sex discrimination (Civil Rights Act of 1964, Equal Pay Act of 1963, sending the Equal Rights Amendment to the states for ratification in 1972), and declared: “Thus, Congress itself has concluded that classifications based upon sex are inherently invidious, and this conclusion of a co-equal brand of Government is not without significance to the question presently under consideration.”

Accordingly, it seems to me appropriate that in Heller and McDonald, large majorities of Congress signed briefs reminding the Court of a century-and-a-half of Congressional actions taken to protect the individual Second Amendment right from federal, state, and local infringement. And, in the McDonald brief, to point out that some local infringements violate not only the Second Amendment, but also the Supremacy Clause, because they interfere with congressional exercise of its enumerated militia power.

Eugene has written a post about the brief which Chuck Michel filed on behalf of 34 California District Attorneys, and other law enforcement officials. In light of the speculation about the DAs and their motives, it seems useful to provide some background. In Heller, 29 elected California District Attorneys joined the brief that Chuck and I co-authored. That brief explicitly stated: “strict scrutiny is the appropriate standard of review for most gun controls.” (p. 39).

Available on SSRN. (This is the abstract page. To read the full brief, click “Download,” then on the new screen click the button for which city’s server you will use for the download.) The brief is filed on behalf of the two major police training organizations in the United States: the International Law Enforcement Educators and Trainers Association (ILEETA) and the International Association of Law Enforcement Firearms Instructors (IALEFI). Additional law enforcement amici are the Southern States Police Benevolent Association, Texas Police Chiefs Association, and Law Enforcement Alliance of America. The brief is also joined by the Congress of Racial Equality, the Claremont Institute, the Independence Institute, and several scholars.

The brief presents new empirical research, conducted by Prof. Carl Moody of William & Mary, about the criminological results of changes in handgun ban policies. In 1965, South Carolina repealed its 1902 ban on handgun sales. We show that, relative to the rest of the United States, South Carolina suffered no statistically significant increase in crime rates. In 1983, Chicago’s handgun ban went into effect. Chicago crime rates rose immediately and significantly. Post-ban Chicago is much more dangerous, relative to the 24 other largest U.S. cities, than it was before the ban. The differences are very large, and sustained, and the possibility that they are due only to random fluctuations in less than 1 in 100,000. During the 32 years studied, Chicago was the only top-25 city with a handgun ban during any part of the period.

Thanks to my hardworking intern Joshua Austin of Denver University Law School, the brief also presents data from 1996-2008 showing that Chicago’s rate of police homicides is 79% greater than the U.S. average, and that Chicago’s police homicide problem is the sixth-worst among large American cities.

The brief addresses various claims that were made by amici in the Seventh Circuit in support of the ban, including: that Chicago’s population density is a unique reason to ban handguns in the home; that enforcement of the Second Amendment would prevent the use of NYC-style stop-and-frisk tactics of gangsters who are carrying illegal guns; or that NY state case law supports handgun prohibition.

Part V surveys eleven Supreme Court cases, from 1893-1921, which expressly vindicated the right of armed self-defense.

Finally, Part VI, which relies on input from the police trainers, explains why handguns are often the superior choice for home defense, especially in an urban setting. As the brief explains, there is no perfect gun for every situation, and the choice of any particular gun necessarily involves trade-offs. First Amendment cases, as well as Meyer v. Nebraska, teach us that aldermen and similar officials do not have the authority to micro-manage how individual families choose to exercise their constitutional rights. “A fortiori, the decision of parents, and other law-abiding individuals, to choose the best tool to defend their lives and their families is an inherent, fundamental, and natural liberty.”

Counsel of record is Clark Neilly, who was Alan Gura’s right-hand man in Heller. The most important part of the brief is Part III, which begins: “To enslave a class of people requires three basic things: destroy their self-sufficiency, prevent them from fighting back, and silence any opposition.” The brief then goes on to argue that the the Court should resist suggestions that it hold that the Privileges or Immunities clause makes the first eight amendments applicable against the states, but does nothing else.

Thus, for example, many states adopted laws that kept blacks from practicing trades or even leaving their employer’s land without permission; others adopted vagrancy laws that, in practice, made it illegal to be unemployed, and therefore illegal to look for work

….

And the animating purpose of the Privileges or Immunities Clause, the elimination of constructive servitude, could not be achieved by enforcing only the narrow set of rights already enumerated in the existing Constitution. This last point is best illustrated by the sheer variety of laws invented by Southern governments to prevent freed slaves from enjoying the personal autonomy that was to have been theirs upon ratification of the Thirteenth Amendment. To take just one example, starting with Virginia in 1870, Southern states began to pass increasingly restrictive regulations of “emigrant agents”—people who attempted to recruit freedmen to leave their plantations by promising higher wages and better working conditions on understaffed Western plantations, eventually making it illegal or practically illegal for people to even offer these economic opportunities to poor workers. Those and other laws had the express (though not always expressed) purpose of binding former slaves to the very same plantations they had worked during slavery, and upon essentially the same terms.

In short, the protection of at least some economic rights (the right to choose where to work, the right to choose not to work, and the right to learn about work opportunities) was among the rights which the Privileges or Immunities clause was specifically intended to protect.

IJ does not ask the Court in McDonald v. Chicago, to take any affirmative steps to protect those rights. The IJ simply urges that the McDonald Court enforce the Second Amendment via the Privileges or Immunities clause, and not create any dicta prematurely restricting the scope of P/I.

Available here. An outstanding brief, as one might expect. The bulk of the brief (21 pages, comprising Part I) shows that from the Founding Era into through the framing of the Fourteenth Amendment, national citizenship was paramount to state citizenship. Part II briefly argues that Slaughterhouse violated canons of constitutional construction–such as by interpreting the Privileges or Immunities Clause to make it nothing more than a reiteration of the Supremacy Clause.

Finally, Part III (pp. 27-33) argues that enforcing the Privileges or Immunities Clause will not undermine the Court’s prior so-called “substantive due process” jurisprudence. The brief shows that long before the 14th Amendment, “due process” was understood to mean that certain inherently unfair government actions were beyond the scope of lawful government powers–even if the government had followed proper procedures, such as public hearings. In the Supreme Court, the doctrine is as old as Daniel Webster’s argument in the 1819 Dartmouth College case, was always solidly established in American understanding of “due process,” and was so understood by the Framers of the Fourteenth Amendment.

Lead author on the brief is Timothy Sandefur of the Pacific Legal Foundation, which is also a party on the brief. You can listen to a podcast with Sandefur discussing the brief. The PLF’s Liberty Blog has some very interesting posts on the historical background of the Slaughterhouse cases.

United States v. Cruikshank, which was decided a few years later, finished off the job of judicial nullification of the Privileges or Immunities clause. Since that Court allowed some white domestic terrorists get away with mass murder of armed blacks who had assembled in a Louisiana courthouse, Cruikshank might appropriately have been captioned Slaughterhouse II.

Let’s say someone hired me to write an amicus brief in the McDonald Second Amendment case, and my goal was to get the Court to overrule the SlaughterHouse Cases (holding that the Privileges or Immunities Clause is a virtual nullity) and get the Court to hold that the Clause protects a right to bear arms, how would I go about it?

First, I would recount the scholarly consensus that SlaughterHouse was incorrectly decided, in that the P or I Clause was meant to provide substantive protection for individual rights beyond the extremely narrow category of rights enumerated in SlaughterHouse.

Second, I would explain why I think it’s important to decide this case on P or I grounds.  My argument would be that in due process incorporation cases, the Court has consistently (and thoughtlessly) determined that the scope of the right against the states is precisely the same as the scope of the right against the Federal government.  This is problematic in the context of the right to bear arms because of the confusion over what the “militia” language in the Second Amendment means.  Heller came out the “right” way, but by a bare 5-4 majority, with much dispute about whether the Second Amendment was meant to protect an individual right to bear arms.  By contrast, it’s entirely clear that the Framers of the Fourteenth Amendment thought that the P or I Clause protected an individual right to bear arms.  In particular, they understood that African Americans and “carpetbaggers” needed weaponry to protect themselves from assaults by armed Southern terrorist groups.

Third, I would try to craft an argument that would appeal to the Court’s four conservatives, by far my most likely votes.  I would conclude that originalism isn’t  nearly enough–as witnessed by Antonin “Mr. Originalism” Scalia’s appalling concurrence in the Raich v. Gonzalez.  Indeed, it’s unlikely that judicial, as opposed to political, ideology, ever persuades more than a Justice or two on a previously settled issue.

So what are the conservatives’ concerns that need to be addressed? (1) Further undermine Roe v. Wade, and certainly don’t create a free-floating liberty interest under P or I that can be abused by liberals; (2) Don’t bring back the dreaded Lochner.

The argument would go like this: (a) the Court should take this opportunity to start to move its individual rights jurisprudence from the Due Process Clause to the P or I Clause; (b) The problem with the D.P. Clause is that it traditionally prohibits “arbitrary” infringements on liberty, but arbitrariness is in the eye of the beholder, as is what is meant by “liberty,” see in both contexts Roe v. Wade; (c) worse yet, cases like Roe fail to give any real weight to the police power, the traditional brake on the D.P. Clause; (d) by contrast, through historical investigation, we can determine with some precision what rights were considered privileges or immunities of citizens.  Abortion, (right to die, etc.) was not one of them!; (e) Justice Field and Justice Bradley were correct in their SlaughterHouse dissents that one p or i of citizenship is the right to pursue an occupation  free from government-sponsored monopoly, a much narrower right than the later Lochner due process right to be free from arbitrary restrictions on liberty of contract, and a right that goes way back in Anglo-American history; (f) the ultimate holding of SlaughterHouse was still correct, because Louisiana had a legitimate police power interest in ensuring that its waterways didn’t carry disease, and the butchers who sued weren’t driven out of the profession, they just had to work in the safe location dictated by the government and pay a license fee to the slaughterhouse owner.

So, by deciding McDonald on P or I grounds, the conservatives can (1) help ensure the survival of the individual right to bear arms, and ground it in a much less controversial historical context, while leaving more room for federal than for state regulation of firearms; (2) start the process of transferring liberty jurisprudence from the D.P. Clause to the P or I Clause, which should help undermine Roe v. Wade and other rights with no historical basis as of 1868; and (3) allow some room for the Court to engage in serious review of a very narrow category of abusive economic regulations, along the lines of the cases brought by the Institute for Justice (requiring hairbraiders to take a two-year cosmetology course, creating a government-imposed cartel in funeral caskets, etc.)

In short, I would appeal not just to originalism, but to the conservatives’ long-term political self-interest, and affinity for the conservative political coalition that put them in power.

And I should add that I do not in any way mean to disparage or criticize any of those who are writing or have written briefs in this case.

UPDATE: Josh Blackman makes a good point in the comments: if the conservatives don’t define (and limit) the scope of the P or I Clause while they have a majority, the liberals may do so in the future, with very unconservative consequences.