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.