Tag Archives | McDonald

Constitutional Rights that Put Lives at Risk

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), [...]

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Predicting the Impact of McDonald

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

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Why Not the Privileges or Immunities Clause?

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 [...]

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Does the Cert Grant in McDonald Suggest the Court Will Rethink Slaughterhouse?

Those who expect the Supreme Court to rethink and perhaps overturn the Slaughterhouse cases in McDonald v. City of Chicago often look to the scope of the cert grant to justify that prediction. The Justices could have granted cert only on the question of whether the Due Process clause incorporates the Second Amendment. But they didn’t. Instead, the Justices granted on both Due Process and Privileges or Immunities. Given that the Slaughterhouse cases seem to foreclose a ruling that the Privileges or Immunities clause incorporates the Second Amendment, doesn’t the broad cert grant clearly show that Slaughterhouse is in play?

We don’t know what the Justices were thinking with any certainty. At the same time, I think there are two plausible reasons why the Court would grant cert on both issues without intending to reopen the debate over Slaughterhouse. The first is mathematical and the second is historical.

1) The first reason is the need to get to five. When the Justices met to decide whether to grant cert in McDonald, they wouldn’t know how the votes would ultimately play out. Most importantly, they wouldn’t know if there would be five votes to incorporate under Due Process. The Justices would be aware of the possibility that there might be four votes in favor of incorporation by Due Process but against incorporation by Privileges or Immunities (presumably CJR, AS, SA, & AMK); one vote against incorporation by Due Process but in favor of incorporation by Privileges or Immunities (CT); and four votes against incorporation under either theory (presumably JPS, SGB, RBG, and SS).

If that’s the case — and we don’t know it is, only that it’s a possibility — it would be important to grant on both issues at once. If the Court granted only on Due Process [...]

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McDonald v. Chicago and Gilbert & Sullivan: The hidden connection!

In March 1994, I was in the Georgetown Gilbert & Sullivan Society‘s production of Gilbert & Sullivan‘s operetta Patience.

You can find a list of the Society’s past shows here; I was also in the same show the next time they produced it, in April 2007. Also, you can find the libretto of the show here.

In the March 1994 production, I played the character of the Major, which is perhaps the smallest part among the male principals. But hey, at least it was a principal.

Who was in the show with me? In the male chorus, playing one of the Heavy Dragoons, was Alan Gura, who represented Heller in D.C. v. Heller, and who’s counsel of record in McDonald v. Chicago, as you can see from the front page of the brief.

Who else was in the show with me? Why, playing the character of the Duke was none other than David Sigale, also McDonald’s lawyer listed on the front page of the brief.

Who else was in the show with me? This isn’t strictly speaking related to the McDonald case, but the character I married in the show, one “Angela,” was played by Alan Gura’s law partner, Laura Possessky.

Have Gilbert & Sullivan otherwise influenced the McDonald case? Well, p. 7 of the brief (p. 25 of the PDF) says that “The Privileges or Immunities Clause was all but erased from the Constitution in The SlaughterHouse Cases.” And, on the next page, it says that “SlaughterHouse‘s illegitimacy has long been all-but-universally understood.”

All but!

Surely, this is an echo of the sextet in Patience (see p. 19 of the libretto, i.e. p. 22 of the PDF, here), which I sang together with one of [...]

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