Tag: mcdonald v chicago

Justice Thomas, Pandora, and Stephen Colbert Walk into a Gun Store…

My sometime co-author Josh Blackman points out a parallel between Justice Thomas’s fascinating concurrence in McDonald v. Chicago – which extended the right to keep and bear arms to the states – and the “Keeping Pandora’s Box Sealed” article we published earlier this year.

Justice Thomas in McDonald v. Chicago:

With the inquiry appropriately narrowed, I believe this case presents an opportunity to reexamine, and begin the process of restoring, the meaning of the Fourteenth Amendment agreed upon by those who ratified it.

Blackman & Shapiro in Pandora’s Box:

The purpose of this article is to provide a roadmap to welcome the Privileges or Immunities Clause back into constitutional jurisprudence. The Slaughter-House Cases “sapped the [Privileges or Immunities Clause] of any meaning”  but the Supreme Court now has the opportunity correct this mistake.  Taking up Justice Thomas’s gauntlet, we “endeavor to understand what the framers of the Fourteenth Amendment thought” the Privileges or Immunities Clause meant, and seek to restore that original meaning.

Relatedly, for my attempt to explain the meaning of the right to keep and bear arms while talking to a crazy character and a humorless gun-control advocate, see my recent appearance on the Colbert Report.

A Few More Points on McDonald

I still haven’t finished reading the full 214-page opinion, but a few points to add to the statement I made yesterday:

  • Justice Alito’s plurality opinion, joined by the Chief Justice and Justices Scalia and Kennedy, is a tight 45-page discussion of the history of the right to keep and bear arms and how it relates to the Court’s “incorporation” doctrine under the Fourteenth Amendment’s Due Process Clause.  No excess verbiage, no policy arguments, and, notably, no denial or disparagement of the Privileges or Immunities Clause – just denying to take up the issue in light of the long line of Substantive Due Process incorporation.
  • Justice Thomas provides a magisterial 56-page defense of the Privileges or Immunities Clause, resurrecting a long-beleaguered constitutional provision.  While he doesn’t cite Keeping Pandora’s Box Sealed, Josh Blackman and I are proud to have tracked quite closely the arguments Thomas makes.  Note that without Thomas’s vote, there is no majority extending the right to keep and bear arms to the states.  That means P or I is relevant and enters the casebooks and Court precedent.
  • The dissents by Justices Stevens and Breyer, respectively (the latter joined by Justices Ginsburg and Sotomayor), rest almost exclusively on pragmatic arguments.  They seem to think that the right to keep and bear arms is an inconvenient part of the Constitution in our modern (particularly urban) age.  This may or may not be correct as a matter of policy or social science – the evidence I’ve seen seems to point against them – but it’s irrelevant to the legal analysis.  If the dissenting justices wish to propose a constitutional amendment, I would welcome the ensuing debate.  As it stands, however, their arguments are disturbingly devoid of principled constitutional interpretation.  Note also that neither dissent goes into privileges or immunities analysis, though Justice Stevens argues that the Clause’s meaning is “not as clear” as the petitioners (our side) suggest.
  • Relatedly, both Justice Stevens and Justice Breyer invoke but misunderstand the infamous Footnote Four of the 1937 Carolene Products case, which bifurcated our rights, privileging political rights over economic liberties and property rights and deferring to the legislative branches when at all possible.  One of the points Footnote Four made, however, was that enumerated rights have to have the strongest possible constitutional protection: “There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth.”  The Second Amendment, then, if anything has to have at least as much protection as the right to privacy and other unenumerated rights.
  • Finally, it is startling that not only does a fundamental constitutional right hang by a one-vote thread, but its application to the states is similarly tenuous.  There but for the grace of God goes any right – and any limitation on government power.  As I said yesterday, “Thank God that vote is Justice Thomas’s.”

For more McDonald reaction, see Josh Blackman’s remarkable series of blogposts.

Gun Control After McDonald

I recently appeared on the Patt Morrison Show in southern California opposite Paul Helmke of the Brady Campaign to Prevent Gun Violence in a segment that begs the question of what gun control laws will look like if the Supreme Court incorporates the Second Amendment with the McDonald v. Chicago case. The audio of the program is here, but the issue merits a more detailed discussion than I could get into on the radio.

The litigation over the boundaries of the Second Amendment in the District of Columbia previews the kinds of gun laws that will face court scrutiny.

First, certain restrictions on the purchase of firearms will likely be overturned. California maintains a “safe gun roster” of handguns that manufacturers have successfully submitted for safety testing. Following the Heller decision, the District adopted California’s roster. The roster is very specific, and handgun models are certified “safe” right down to the color. The District rejected applications to register two-tone guns, discontinued models, and guns not on the California roster. Three plaintiffs filed suit, alleging that this policy violated constitutional protections against irrational administrative regulations. The District relented, expanding its roster to include the “safe handguns” listings for Maryland and Massachusetts.

California courts are likely to reach similar conclusions. The Calguns Foundation has a plaintiff who wants to register a Glock handgun. The state has certified the right-handed but not the ambidextrous version, and the Calguns plaintiff was born without a right arm below the elbow. This compelling case, along with others parallel to the DC plaintiffs, will force California to open up its roster.

Second, jurisdictions will be forced to allow some form of handgun carry, either open or concealed. Outright bans on concealed carry cited in cases from the mid-1800’s come from a time when it was assumed that only brigands carried handguns concealed, and it was an unquestioned right of the people to carry arms openly wherever they went. States and localities will not be able to delete the right to bear arms from the right to keep and bear arms.

My colleague Tom Palmer is currently litigating this issue in the District of Columbia (complaint here), and states will have to confront the plain text of the Second Amendment and clear historical recognition of a right to be armed outside the home.

California allows open carry as long as the handgun is unloaded, but Los Angeles and other jurisdictions in the state refuse to issue concealed handgun permits. California will probably opt for concealed carry when push comes to shove. Public views have shifted to an “out of sight, out of mind” mentality, and concealed carry is the rule in most states. A California police officer recently put a comment up on Facebook that proposes intimidating open carriers with violence. “Haha, we had one guy last week try to do it! He got proned out and reminded where he was at and that turds will jack him for his gun in a heartbeat!” Turds indeed.

This brings us back to the Starbucks controversy that prompted the radio segment. Gun control proponents asked Starbucks to ban firearms from their coffee shops, and gun rights activists asked that they continue their current policy of following the law of the jurisdiction where each franchise is located.

The call-ins to the radio show expressed a willingness to boycott Starbucks if it keeps its “follow the law” policy, but that’s a rationale to boycott gas stations, grocery stores, and restaurants across the nation. If self-defense scares you that much, the best advice is to stay home. Or venture out and be a good victim.

Callers also expressed concerns about off-duty cops brandishing guns while intoxicated, and this is something we should take seriously. As I’ve said before, no magical powers accrue to a sworn officer. That’s a great case for barring everyone from carrying and drinking in public, law enforcement officers included. Federal law does this – the Law Enforcement Officers Safety Act allows current and retired law enforcement officers to carry concealed nationwide but requires that they not be under the influence while doing so. The same can’t be said for some state laws that make law enforcement officers a higher class of citizens than everyone else. Virginia allows retired law enforcement officers from any jurisdiction to imbibe while armed, but citizens with concealed handgun permits must transition from concealed carry to open carry when entering an establishment that serves alcohol for on-premises consumption. Better to treat permit holders and officers alike, and allow carry in restaurants but bar alcohol consumption while armed.

It’s unclear what the patchwork of gun laws across the nation will look like in ten years, but Eugene Volokh gives a framework for analysis in this article. Cato held an event the day before oral argument of the McDonald case, and our brief is available here. Ilya Shapiro and Josh Blackman discussed the application of the Privileges or Immunities Clause in this excellent article, and provided some post-argument commentary.

Scalia Can No Longer Call Himself an Originalist

As I blogged last week, the Supreme Court didn’t seem amenable to Privileges or Immunities Clause arguments in last week’s gun rights case, McDonald v. Chicago.  This is unfortunate because the alternative, extending the right to keep and bear arms via the Due Process Clause, continues a long-time deviation from constitutional text, history, and structure, and reinforces the idea that judges enforce only those rights they deem “fundamental” (whatever that means).

It was especially disconcerting to see Justice Antonin Scalia, the standard-bearer for originalism, give up on his own preferred method of interpretation – and for the sole reason that it was intellectually “easier” to use the “substantive due process” doctrine.

Josh Blackman and I have an op-ed in the Washington Examiner pointing out Scalia’s hypocrisy.  Here’s a choice excerpt:

Without the Privileges or Immunities Clause … the Court must continue extending the un-originalist version of substantive due process to protect the right to keep and bear arms. To give original meaning to the Second Amendment, it must ignore the original meaning of the Fourteenth Amendment!

Yet this is the line Scalia took last week: Instead of accepting the plain meaning of the Privileges or Immunities Clause—which uncontrovertibly protects the right to keep and bear arms—the justice chose a route that avoids disturbing a 140-year-old precedent rejected by legal scholars of all ideological stripes.

In 2008, Scalia wrote, “It is no easy task to wean the public, the professoriate, and (especially) the judiciary away from [living constitutionalism,] a seductive and judge-empowering philosophy.” But at the arguments in McDonald, he argued that while the Privileges or Immunities Clause “is the darling of the professoriate,” he would prefer to follow substantive due process, in which he has now “acquiesced,” “as much as [he] think[s it is] wrong.”

Put simply, if the opinion Scalia writes or joins matches his performance last week, he can no longer be described as an originalist (faint-hearted or otherwise).  A liberty-seeking world turns its weary eyes to Justice Clarence Thomas – who has expressed an openness to reviving the constitutional order the Fourteenth Amendment was designed to create – to convince his wayward colleague that the way to interpret legal text is to look to its original public meaning.

Read the whole thing.

Using Guns to Protect Liberty

Tomorrow the Supreme Court will hear oral argument in McDonald v. Chicago – the Second Amendment case with implications far beyond gun rights.  The Court is quite likely to extend the right to keep and bear arms to the states and thereby invalidate the Chicago handgun ban at issue, but the way in which it does so could revolutionize constitutional law.

In response to the oppression of freed slaves and abolitionists in southern and border states after the Civil War, the Fourteenth Amendment’s drafters sought to protect individual rights from infringement by state and local governments.  The amendment’s Due Process Clause and Privileges or Immunities Clause provided overlapping but distinct protections for these rights.  The Court decided in the 1873 Slaughter-House Cases, however, that the Privileges or Immunities Clause only protected Americans’ rights as national, not state, citizens.  This reactionary holding eviscerated the clause, rendering it powerless to protect individual rights from state interference.

McDonald provides the Court an opportunity to overturn the Slaughter-House Cases and finally restore the Privileges or Immunities Clause to its proper role as a check against government intrusion on individual rights.  Doing so would secure Americans’ natural rights, such as the freedom of contract and the right to earn an honest living, without enabling judges to invent constitutional rights to health care or welfare payments.  For a more detailed discussion of McDonald’s potential implications, and how the Court should rule, see my recent op-ed here.

I will also be participating in several public events this week on McDonald, the Fourteenth Amendment, and firearm regulation.  Today at 4:00 p.m., I will be speaking at a Cato policy forum, which will be broadcast live on C-SPAN and which you may watch online here.  Tomorrow at 3:30 p.m., I will participate in a post-argument discussion of McDonald at the Georgetown University Law Center, which event is cosponsored by the Federalist Society and the Georgetown Journal of Law and Public Policy (where Josh Blackman and I recently published a lengthy article on the subject).  And on Wednesday at noon, I will be participating in a Cato Capitol Hill briefing on McDonald and the future of gun rights at the Rayburn House Office Building, room B-340 (more information here).