Prof. Doug Berman (Sentencing Law & Policy) has an interesting post on this, focusing on the six states that don’t have state constitutional right to keep and bear arms provisions. I would add to that list Massachusetts, which has a provision that has been interpreted as not securing an individual right, and Hawaii, which has a provision that has not been interpreted definitively one way or the other; both of these are relatively high-regulation states, and thus more likely to have potentially vulnerable gun control laws.
Posts tagged ‘McDonald v. City of Chicago’
If I were a criminal defense lawyer in Oregon or Louisiana, I’d use McDonald as a reason to challenge those states’ practice of allowing non-unanimous criminal juries. In Apodaca v. Oregon (1972), the Supreme Court held that the Sixth Amendment requires unanimity for a verdict — but that the Fourteenth Amendment does not carry this rule over to the states, and that even 9-3 verdicts are constitutionally permissible. The Jury Trial Clause is thus the one Bill of Rights clause that is neither completely incorporated against the states via the Fourteenth Amendment, nor completely not incorporated. (Recall that the Bill of Rights originally applied only to the federal government, and has been applied to the states only through the Fourteenth Amendment.)
Interestingly, Apodaca was a 4-1-4 decision, in which both of the groups of 4 Justices took the view that the rule should be the same for federal and state trials. Only one Justice, Lewis Powell, believed that the rule should differ; but since he was the swing vote, his position became the law. And the McDonald majority (this part of Justice Alito’s opinion did get five votes) didn’t have anything good to say about Apodaca:
[T]he Court [has] abandoned “the notion that the Fourteenth Amendment applies to the States only a watered-down, subjective version of the individual guarantees of the Bill of Rights,” stating that it would be “incongruous” to apply different standards “depending on whether the claim was asserted in a state or federal court.” Instead, the Court decisively held that incorporated Bill of Rights protections “are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.”[Footnote: There is one exception to this general rule. The Court has held that although the Sixth Amendment right to trial by jury requires a unanimous jury verdict in federal criminal trials, it does not require a unanimous jury verdict in state criminal trials. See Apodaca v. Oregon; Johnson v. Louisiana. But that ruling was the result of an unusual division among the Justices, not an endorsement of the two-track approach to incorporation. In Apodaca, eight Justices agreed that the Sixth Amendment applies identically to both the Federal Government and the States. Nonetheless, among those eight, four Justices took the view that the Sixth Amendment does not require unanimous jury verdicts in either federal or state criminal trials, and four other Justices took the view that the Sixth Amendment requires unanimous jury verdicts in federal and state criminal trials. Justice Powell's concurrence in the judgment broke the tie, and he concluded that the Sixth Amendment requires juror unanimity in federal, but not state, cases. Apodaca, therefore, does not undermine the well-established rule that incorporated Bill of Rights protections apply identically to the States and the Federal Government.]
The Court has in recent years refused to reconsider Apodaca (see, e.g., Lee v. Louisiana, discussed here). But I think McDonald ought to embolden lawyers to try again. Standing alone, a request to revisit Apodaca might well have struck the Justices as not worth focusing on. The issue is relevant only in the same two states that were involved in Apodaca and its companion case — Oregon and Louisiana — since those are the only ones that provide for nonunanimous juries. There is a precedent on it, however fractured the opinion might be. The Justices might have been reluctant to revisit the incorporation debates in this odd context.
But now, there’s a fresh precedent pretty solidly condemning the Apodaca approach of incorporating a right against the states, but only partly. Justice Thomas is especially on the record against selective incorporation generally, but the other four conservatives are on the record against partly incorporating a clause in a way that leaves it less applicable to states than to the federal government. And even the McDonald dissenters might be willing to revisit Apodaca; only Justice Stevens generally supported a partial-incorporation approach in McDonald, and he will now be off the Court.
What’s more, preserving for appeal a challenge to the nonunanimous jury provisions shouldn’t be that hard, and any eventual certiorari petition can borrow heavily from the past ones. And if you have a case in which this is teed up, and don’t want to do the certiorari petition, just e-mail me — I might well be able to step in myself.
In his dissent in McDonald, signed by three liberal justices, Justice Breyer argues that gun rights deserve little or no judicial protection at least in part because they put lives at risk:
Unlike other forms of substantive liberty, the carrying of arms for that purpose [self-defense] often puts others’ lives at risk…. And the use of arms for private self-defense does not warrant federal constitutional protection from state regulation.
This argument ignores social science evidence suggesting that extreme gun bans like those of DC and Chicago cost at least as many innocent lives than they save. Still, gun rights probably do cause at least some deaths that might otherwise have been prevented.
In that respect, however, they are no different from numerous other constitutional rights. Justice Breyer’s argument in McDonald is actually very similar to Justice Antonin Scalia’s dissent in Boumediene v. Bush, where Scalia warned that giving habeas corpus rights to War on Terror detainees “will almost certainly cause more Americans to be killed.” That argument didn’t move Breyer, who voted with the majority to extend those rights. Similarly, the enforcement of Fourth Amendment rights and Fifth Amendment rights allows at least some violent criminals to escape punishment, which in turn leads to some number of murders that might otherwise have been prevented. Pro-lifers certainly argue that the right to abortion kills far more people and in a far more direct way than gun ownership does.
But the really big skeleton in this particular closet is freedom of speech. Political speech and organization by communists, Nazis, racists, radical Islamists, and others has led to vastly more preventable deaths than private ownership of handguns. If the Russian Provisional Government of 1917 had suppressed the Bolshevik Party (as it could easily have done at various times during that year), millions of lives would have been saved. The same goes for the Weimar Republic and the Nazis. Closer to home, many black lives could potentially have been saved if the federal government had suppressed neo-Confederate and segregationist political speech in the South in the aftermath of the Civil War, thereby preventing “Redeemer” forces from regaining political power in the region and suppressing black rights.
One could argue that these other rights don’t endanger lives as directly as guns do. Action, not speech or procedural rights, is what really kills people. Perhaps the life-threatening effects of procedural rights and political speech can be forestalled without restricting these rights themselves. However, one could say the same of guns. As the NRA famously puts it, guns don’t kill people, people kill people.
Whether we are talking about guns, speech, or other rights, there are going to be cases where, as a practical matter, it is impossible to prevent death by measures short of restricting the right itself. For example, allowing Nazi speech in the Weimar Republic may have greatly increased the risk that the Nazis would come to power, by which point it was too late too prevent them from killing large numbers of people. Similarly, once free speech by Redeemers and ex-Confederates allowed them to seize control of southern states, it was politically impossible for the federal government to protect black rights against them – at least not without much greater violence than might have sufficed to prevent the Redeemers from organizing in the first place.
In making these comparisons, I do not mean to suggest that judges should allow severe restrictions on constitutional rights any time there is a plausible argument that doing so might save lives. To the contrary, I think judges should generally avoid doing so. The trade-off between lives and constitutional rights is one better made by the framers and ratifiers of the Constitution than by judges. Moreover, there are often risks to life on both sides. For example, gun ownership for self-defense purposes often prevents violent crime and thereby saves lives. Similarly, strong enforcement of the Fourth Amendment could sometime prevent abusive police behavior that itself endangers lives.
If we allow government to set aside constitutional rights whenever they “put… others’ lives at risk,” we soon won’t have many constitutional rights left. I also object to Breyer’s and Scalia’s more selective invocation of risks to life in cases involving rights for which they have little sympathy, while simultaneously ignoring very similar considerations when the right at stake is one they value more highly.
UPDATE: Breyer tries to limit his argument to “substantive liberty rights,” which may exclude procedural rights such as those protected by the Fourth Amendment or habeas corpus. However, it’s not clear why life-threatening procedural rights should be any more vigorously enforced than similarly risky substantive rights. After all, the purpose of most of the procedural rights is to provide indirect protection for “substantive liberty.” Moreover, as discussed above, freedom of speech is surely a “substantive liberty right,” and it sometimes poses serious dangers to life as well.
UPDATE #2: I should note that Justice Stevens’ separate dissent in McDonald makes a similar argument to Breyer’s (pp. 35-37 of the slip opinion). Thus, all four of the liberal justices have endorsed some form of this reasoning.
UPDATE #3: I should perhaps have pointed out that there is considerable academic controversy about the validity of criminologist Gary Kleck’s estimate, linked above, that there are 2.5 million defensive uses of guns per year in the United States. Some of the conflicting research is summarized here. I suspect that the Kleck estimate is probably overdrawn because of methodological problems such as those discussed here (though see Kleck and Marc Gertz’s response). But even the low-end estimates put forward by some of Kleck’s critics estimate some 100,000 defensive gun uses per year. Philip Cook, a prominent scholar general supportive of gun control, states that the truth is probably somewhere in between the 100,000 and 2.5 million figures, which seems plausible to me. In any event, my purpose is not to endorse any of the specific estimates, but simply to point out that defensive gun uses often do occur and sometimes save lives. Therefore, there are potential risks to life on both sides here.
The Supreme Court has now incorporated the Second Amendment against the states. But the impact of that decision may turn out to be fairly limited. In most states, there will be little if any change in the actual extent of gun regulation. The ideologically divided nature of the Court’s decision suggests that the legal status of the Second Amendment isn’t yet completely secure. That said, the decision will have a substantial practical impact in a few areas and it also represents a tremendous symbolic victory for gun rights advocates.
I. Limited Practical Impact.
On balance, I agree with scholars such as co-blogger Eugene Volokh and Jack Balkin who argue that McDonald will have only a limited practical effect. As Balkin puts it:
Complete bans on the use of handguns in the home for self-defense are likely to be held unconstitutional, as the Heller case suggested. But a wide range of other firearms regulations should be perfectly legal. The Supreme Court signaled as much in Heller and once again in McDonald.
The big difference between applying a constitutional right only against the federal government and applying it against state and local governments is that there are many more state and local regulations of firearms than federal regulations, and these regulations occur in many different varieties.
This increases the number of possible constitutional claims, and it also increases the opportunities for litigation. It does not, however, guarantee that Second Amendment rights will become too robust over time…
Federal courts tend to strike down mostly laws in outlier jurisdictions that are markedly different from the norm. That is what happened in the District of Columbia, and will likely happen in Chicago. More than 40 states already recognize an individual right to bear arms under their own constitutions. By and large, they have upheld most gun control laws under a loose standard of reasonableness. The federal courts will probably follow suit.
As I explained in this 2008 Legal Times article on Heller, Justice Scalia’s majority opinion in that case leaves numerous openings even for very broad gun control regulations:
Justice Antonin Scalia’s majority opinion in Heller firmly establishes the Court’s recognition of an individual right to bear arms. Yet it also outlines a large number of “presumptively lawful regulatory measures” restricting gun rights. These exceptions to the right to bear arms could potentially swallow the rule.
Most importantly, the presumptively valid “laws imposing conditions and qualifications on the commercial sale of arms” could easily be drafted in ways that make the purchase of firearms prohibitively difficult or expensive for most ordinary citizens. The exception for “prohibitions on the possession of firearms by felons and the mentally ill” could also be used to undermine the scope of Heller. Many states, as well as the federal government, define a wide variety of minor, nonviolent offenses as felonies.
The Scalia opinion seems to accept laws forbidding the carrying of firearms in “sensitive” locations such as schools
and government buildings. A government might define a large number of areas as “sensitive,” including, for example, entire neighborhoods with high crime rates….Governments could also act to limit gun ownership by imposing prohibitively burdensome requirements on gun registration, a type of regulation not considered in Heller. In short, Heller potentially leaves a lot of room for legislators and lower courts to eviscerate the individual Second Amendment right that the Supreme Court has recognized.
McDonald does nothing to clarify or pare back this language from Heller. Presumably, therefore, Heller’s strictures on the limits of gun rights remain intact and will apply to state as well as federal regulation.
As Balkin points out, only a few areas have truly draconian gun bans similar to Chicago’s, so the impact of McDonald may well be confined to a small number of atypical locations. That said, it is important that complete gun bans such as Chicago’s are on their way out. Millions of people live in Chicago and a few other similar jurisdictions.
I think it’s also likely that courts will turn a skeptical eye on regulations that allow gun possession in theory but essentially ban it in practice (as the new post-Heller DC regulations do). The fate of such subterfuges is likely to be the most significant issue lower courts will have to consider in the short-term aftermath of McDonald.
II. The Impact of Ideological Division.
Both Heller and McDonald were closely divided 5-4 decisions where the Court split along ideological lines. In Heller, the four liberal justices indicated that they do not believe that the Second Amendment protects an individual right robust enough to invalidate even the most extreme forms of gun control. As I see it, it’s even more telling that in McDonald they argued that the Second Amendment should not restrict the states in any significant way even if Heller were correct as to the federal government.
As I argued in this article on the status of property rights, it is difficult to achieve strong protection for constitutional rights if such protection is supported by judges on only one side of the political spectrum. Where that is the case, protection of those rights will rest on narrow majorities that could easily be changed. Moreover, lower court judges belonging to the opposite party are likely to interpret Supreme Court decisions defining the right as narrowly as they can. In this case, if even one pro-Heller/McDonald justice is replaced by a liberal, both decisions could well be overruled or interpreted so narrowly as to be effectively meaningless.
The ideological division on the Court need not be permanent. Outside the judiciary, leading liberal constitutional law scholars such as Akhil Amar, Jack Balkin, and Sandy Levinson have defended the idea that the Second Amendment protects an important individual right enforceable against all levels of government. It’s possible that the next generation of liberal judges will be influenced by such views.
III. Could Heller and McDonald Actually Lead to More Gun Control Regulation?
Assuming Heller and McDonald survive, it’s possible that they might actually increase the amount of gun control regulation in the long run. As Eugene Volokh points out:
[S]ubstantive constitutional limits on government power can be regulation-enabling, not just regulation-frustrating. A non-absolute constitutional right to get an abortion, to speak, or to own guns can free people to vote for small burdens on the right with less concern that these small steps will lead to broader constraints.
Some of those who oppose relatively moderate gun control regulations do so out of fear that they will lead to much broader ones. If Heller and McDonald take that possibility off the table, yet do not ban moderate gun control measures themselves, the net result could be an increase in political support for the latter. I emphasize, however, that this is only a possible outcome. Many other factors will influence the future politics of gun control.
I suspect that even after McDonald, most gun controls will be upheld, either on the theory that certain kinds of gun possession are outside the scope of the Second Amendment as interpreted in Heller (e.g., bans on gun possession by felons), or on the theory that the gun control imposes only a slight burden on the right to keep and bear arms for self-defense and thus doesn’t “infringe[]” that right. (See here for more on that.)
But what about limits on gun possession by 18-to-20-year-olds? New York City totally bars gun possession by 18-to-20-year-olds. Illinois bars gun possession by 18-to-20-year-olds, except with the permission of a parent, and sometimes not even then. Many other states bar handgun possession by 18-to-20-year-olds. See N.Y. Penal Law § 400.00; N.Y. City Admin Code § 10-303; NYPD, Permits | Rifle/Shotgun Permit Information; 430 Ill. Comp. Stat. Ann. §§ 65/2(a)(1), 65/4(a)(2)(i) (barring gun ownership or possession by under-21-year-olds unless they have the written consent of a parent or guardian, and the parent or guardian is not himself disqualified from owning guns, which entirely bars 18-to-20-year-olds from possessing a gun if their parents are dead, or if the living parent or parents are felons, nonimmigrant aliens, mental patients, or otherwise disqualified from owning a gun in Illinois); Conn. Gen. Stat. Ann. §§ 29-34, -36f (banning handgun possession by anyone under 21); N.M. Stat. § 30-7-2.2 (2004) (banning handgun possession by anyone under 18). Federal law doesn’t ban such possession, but it does bar gun dealers from selling handguns to 18-to-20-year-olds, which makes handguns available to 18-to-20-year-olds only by the good graces of a nondealer third party who is willing to sell to them.
As I noted, there’s a possible argument that gun possession by 18-to-20-year-olds is also outside the scope of the Second Amendment as interpreted by Heller, because historically the age of majority has been 21. But I doubt that this would work, because the pre-1970s cases that I’ve seen involving lesser constitutional rights for minors — lesser free speech rights, lesser religious freedom rights, and lesser criminal procedure rights — involved age cutoffs of 18 or less. Whatever setting the age of majority at 21 might have meant for purposes such as contracting, parental authority, and the like, it seems not to have affected those other constitutional protections. So my sense is that these laws might well be struck down, especially if courts take seriously the Court’s suggestion that “incorporation will [not] require judges to assess the costs and benefits of firearms restrictions and thus to make difficult empirical judgments in an area in which they lack expertise” and that instead “[t]he very enumeration of the right takes out of the hands of government — even the Third Branch of Government — the power to decide on a case-by-case basis whether the right is really worth insisting upon.”
I don’t have much that’s original or interesting to say about the historical and jurisprudential arguments made by the majority and the dissent in McDonald v. City of CHicago. But I did want to say a few words about the possible implications of McDonald. Let me begin with the question: How could McDonald affect the way that courts evaluate the constitutionality of gun controls, whether federal, state, or local (beyond the obvious point that there are now federal constitutional constraints and state and local gun laws)?
To begin with, let me repeat what I wrote about before, in my Implementing the Right to Keep and Bear Arms for Self-Defense article: Courts shouldn’t simply ask whether right-to-bear-arms claims should be subject to “strict scrutiny,” “intermediate scrutiny,” an “undue burden” test, or any other unitary test. Rather, as with other constitutional rights, courts should recognize that there are four different categories of justifications for a restriction on the right to bear arms:
- Limited Scope: A restriction might not be covered by the constitutional text, the original meaning of the text, the traditional understanding of the text’s scope, the background legal principles establishing who is entitled to various rights, or the categorical exceptions set forth by binding precedent (such as Heller‘s statement that bans on gun possession by felons, bans on concealed carry, and several other kinds of gun controls are constitutional).
- Slight Burden: A restriction might only slightly interfere with rightholders’ ability to get the benefits that the right secures, and thus might be a burden that doesn’t rise to the level of unconstitutionally “infring[ing]” the right.
- Reducing Danger: A restriction might reduce various dangers (in the case of arms possession, chiefly the dangers of crime and injury) so much that the court concludes that even a substantial burden is justified.
- Government as Proprietor: The government might have special power stemming from its authority as proprietor, employer, or subsidizer to control behavior on its property or behavior by recipients of its property.
But this having been said, the “reducing danger” justifications are indeed often evaluated under intermediate or strict scrutiny, and some lower federal courts dealing with Second Amendment challenges after Heller have indeed applied these standards of review. And while McDonald doesn’t purport to discuss what standard of review courts should apply, it might still affect the matter.
Continue reading ‘McDonald v. City of Chicago and the Standard of Review for Gun Control Laws’ »
In today’s Supreme Court decision incorporating the Second Amendment against the states, the four justice plurality opinion used the Due Process Clause of the Fourteenth Amendment to justify its ruling rather than the Privileges or Immunities Clause.
As various commentators, including co-blogger Randy Barnett, have pointed out, it is strange that four conservative justices supposedly committed to originalism should take this approach in the face of overwhelming evidence that the Bill of Rights was originally intended to be incorporated under the P or I Clause. It is also strange given their own, especially Justice Scalia’s, longstanding aversion to “substantive due process.”
Why did the plurality make this choice? They cite two reasons – the failure of the petitioners to explain the exact scope of the rights protected by the Privileges or Immunities Clause, and longstanding precedent:
In petitioners’ view, the Privileges or Immunities Clause protects all of the rights set out in the Bill of Rights, as well as some others, …, but petitioners are unable to identify the Clause’s full scope….. Nor is there any consensus on that question among the scholars who agree that the Slaughter-House Cases’ interpretation is flawed… We see no need to reconsider that interpretation here. For many decades, the question of the rights protected by the Fourteenth Amendment against state infringement has been analyzed under the Due Process Clause of that Amendment and not under the Privileges or Immunities Clause. We therefore decline to disturb the Slaughter-House holding.
Tellingly, these supposedly originalist justices offer no originalist justification for their conclusion. The precedent argument is at least understandable, though the Court has often been willing to reverse longstanding precedent when it believed that important constitutional rights were at stake. But the vagueness argument is extremely dubious.
It’s true that the petitioners in McDonald failed to provide a precise statement of the rights protected by the Privileges or Immunities Clause. That might be a defensible reason for preferring the Due Process Clause – if the Court’s approach to that Clause were at all clear itself. In reality, of course, the Court’s standard for recognizing rights under the Due Process Clause is notoriously unclear, and open to manipulation. That standard (endorsed once again by today’s plurality) is whether the right in question is “fundamental” to “our scheme of ordered liberty.” You don’t have to be a constitutional law scholar to recognize that judges with different political ideologies and judicial philosophies will have enormous disagreements over the question of which rights are truly “fundamental.” And in fact there are ongoing controversies over whether such rights as abortion, the right to die, various property rights and economic liberties, and a host of other rights are “fundamental” enough to warrant judicial intervention. More than a century of Supreme Court precedent hasn’t even come close to providing us with a clear rule that could settle these issues. To put it mildly, there is very little consensus over the correctness, meaning, and future application of such landmark Due Process Clause decisions as Griswold, Roe v. Wade, Glucksberg, and Lawrence v. Texas. Justice Scalia and other conservatives have repeatedly complained about this vagueness and subjectivity, using it as one of their main arguments against “substantive due process.” It’s possible that a Court applying the Privileges or Immunities Clause wouldn’t fare any better in the search for a clear rule. But it could hardly do worse.
Moreover, at least from the originalist point of view espoused by the conservative justices, using the P or I Clause does in fact promise at least somewhat greater precision than we now have under the “substantive due process” approach. As Justice Thomas points out in his concurring opinion today, there is a great deal of evidence on the original meaning of “privileges or immunities” and scholars from across the political spectrum have reached at least some degree of agreement on these points, as one can see in this amicus brief by Randy Barnett, Jack Balkin and several other prominent constitutional law scholars of differing ideological backgrounds.
Obviously, the precise scope of the rights protected by the P or I Clause could not have been decided in a single Supreme Court opinion. But the same is true of any other important clause of the Constitution, especially one that has been largely neglected for decades. Brown v. Board famously invalidated school segregation under the Equal Protection Clause without even trying to determine the full extent to which that Clause banned racial discrimination by state governments. That issue was understandably left for later litigation. It was therefore unrealistic and possibly disingenuous for the plurality justices to demand that the petitioners provide a comprehensive theory of the rights protected by the P or I Clause.
Co-blogger David Bernstein has long pointed out that many of the conservative justices’ commitment to originalism is questionable outside the realm of various 1960s and 70s “social issues” precedents that they particularly despise. The McDonald plurality’s extremely dismissive approach to originalism and the Privileges or Immunities Clause seems to support David’s point.
Today’s decision is an important victory for the Second Amendment and the right to bear arms. But it is a setback for originalism.
UPDATE: Josh Blackman responds to this post here, arguing that the plurality opinion does not preclude reconsideration of the Privileges or Immunities issue at a future time. I disagree with the view that their rejection of P or I is strictly limited to this case. The plurality opinion’s reasons for not applying the P or I Clause in McDonald — precedent and vagueness — apply just as strongly to any reasonably conceivable future case as to this one.
Josh correctly notes that “vagueness and precedent have not stopped the Supreme Court before. In fact, the Court routinely deals with vagaries in, and routinely overrules long-standing precedents, when they want to.” He suggests that these issues will not be “a major obstacle” to the revival of P or I “if five votes want it.” I agree with this. But the plurality opinion’s reliance on the precedent and vagueness arguments is a strong indication that we are nowhere near having five votes that “want it.” In the meantime, the plurality’s holding will be an important obstacle to P or I claims in the lower courts.
So holds the Court in McDonald v. City of Chicago, by a 5-4 vote. The syllabus suggests that there were four votes (the five conservatives minus Justice Thomas) for the proposition that the Due Process Clause applies the Second Amendment to the states and their subdivisions; Justice Thomas concluded that it is the Privileges or Immunities Clause that does so.
As part of our special Christmas and Hanukkah programming on the VC, here is a 50-minute podcast interview with Alan Gura. It’s all about McDonald v. Chicago, particularly about the meaning of the Privileges or Immunities clause and of the Due Process clause.
Last night, Orin noted the filing of the Petitioner’s brief in McDonald v. Chicago, the case that will decide whether the 14th Amendment makes the 2d Amendment applicable to state and local governments. As Orin noted, that brief is almost entirely devoted to incorporation under the Privileges or Immunities clause. It directly asks the Court to over-rule Slaughterhouse, Cruikhank, and Presser.
In my view, it’s a superb brief. It’s worthy of study by law students and anyone else who wants a great example of legal writing that is passionate and forceful, yet also sober and serious.
In the brief’s short discussion of Due Process, attorney Alan Gura aptly writes: ”A ‘law’ depriving one of life, liberty or property ‘must not have exceeded the limits of legislative power marked by natural and customary rights.’” (quoting Frederick Gedicks, An Originalist Defense of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, and the Fifth Amendment, 58 Emory L.J. 585, 644-45 (2009).) This is an important point; ”substantive due process” may be ill-named, but it is founded on legitimate, originalist doctrine.
Many folks have been wondering why the Gura brief concentrates so heavily on the bolder theory (Privileges or Immunities) rather than the one that courts have used over the last century (Due Process). Here’s the answer: After Heller, the Second Amendment Foundation (SAF) and the National Rifle Association each filed separate lawsuits against the Chicago handgun ban. The cases were consolidated in the Seventh Circuit; after the panel ruled, SAF and NRA each filed separate petitions for certiorari. The Supreme Court granted cert. in the SAF case, McDonald v. Chicago. A few weeks later, the Court added NRA to the case as a party. So NRA is now a “Respondent in Support of Petitioners.” The suburb of Oak Park, which had been sued by NRA but not by SAF, was also added as a party.
So as a party, NRA filed its brief yesterday. The lead attorneys on the brief are Stephen Poss (attorney of record), Stephen Halbrook, and others. The NRA brief takes the more conservative approach. It mainly argues for incorporation via Due Process, with only a brief discussion of Privileges or Immunities. NRA does not ask for any cases to be over-ruled, since Slaughterhouse, Cruikshank, and Presser are all P or I cases, and predate the Court’s recognition of selective Due Process incorporation.
Because the Question Presented by the Court asked about both P or I and Due Process incorporation, it was appropriate that one party brief focused on the former, and the other party brief on the latter.
Amicus briefs (including one I am writing) in support of Petitioners are due Monday, Nov. 23. The Chicago and Oak Park briefs are due Dec. 30, since the Court granted them a two-week extension. Amicus briefs in support of the Chicago and Oak Park handgun bans are due one week after that.
When the amicus briefs start appearing a few days, I will blog about the most important or interesting ones.
The Supreme Court will consider whether the Second Amendment should apply to the states, and thus whether to overrule United States v. Cruikshank, 92 U.S. 542 (1876). Or is it United States v. Cruikshank, 92 U.S. 542 (1875)? Both citations are commonly used; HeinOnline reports that the 1875 date is given in roughly 60% of law review citations, and the 1876 in roughly 40%. Which is it?
Well, if you want to give the date of decision — which is the modern Bluebook requirement — you should say 1876, since the case was decided Mar. 27, 1876. The reason that many people say 1875 is that, to quote the Supreme Court’s Web page on the subject,
The dates of decisions do not appear beneath the case name in the first 107 volumes of the U.S. Reports. Beginning in 1854 (58 U.S.) the Lawyers’ Edition of the Supreme Court Reports includes the date, though there are some errors and omissions….Some dates do appear in the U.S. Reports, either in the margin or in the body of the opinion. One edition of a particular volume may have dates while another edition does not. These dates sometimes differ from the dates found in the [Engrossed Minutes of the Supreme Court].
Fortunately the page I just linked to contains the official publication dates, so if you want to include the year of decision, you may do so. And for Cruikshank, the year is 1876.
(Note that the characterization of the issue in McDonald as being whether to overrule Cruikshank is something of an oversimplification, but let’s go with it for now.)
The Court has granted certiorari on this issue, in McDonald v. City of Chicago.
