I previously blogged about the NRA's misbegotten motion, which the Supreme Court granted, to carve 10 minutes of oral argument time away from the petitioners in McDonald v. Chicago. Essentially, there was no discernable reason for the motion other than to ensure that the NRA could claim some credit for the eventual victory, and thus boost its fundraising.
Well, having argued that petitioners' counsel Alan Gura insufficiently covered the argument that the Second Amendment should be "incorporated" against the states via the Fourteenth Amendment's Due Process Clause, the NRA has now filed a brief that fails even to reference the four biggest cases regarding incorporation and substantive due process. That is, the NRA reply brief contains no mention of Washington v. Glucksberg (1997), Benton v. Maryland (1969), Duncan v. Louisiana (1968), or Palko v. Connecticut (1937). (The NRA did cite those cases in its opening brief.) What is more, it also lacks a discussion of Judge O'Scannlain's magisterial Ninth Circuit opinion in Nordyke v. King (2009), which the Supreme Court might as well cut and paste regardless of which constitutional provision it uses to extend the right to keep and bear arms to the states!
I should add that the petitioners' reply brief does cite all of those aforementioned cases (as well as the "Keeping Pandora's Box Sealed" law review article I co-authored with Josh Blackman). I leave it to the reader to determine whether it is Alan Gura or the NRA who is better positioned to argue substantive due process -- or any other part of the McDonald case.
For more on the rift between the McDonald petitioners and the NRA, see this story in today's Washington Post (in which I'm quoted, full disclosure, after a lengthy interview I gave the reporter last week).
(Full disclosure again: Alan Gura is a friend of mine and of Cato, and I suppose I should also say that I've participated in NRA-sponsored events in the past.)
I recently blogged about an interesting op-ed in which Ken Klukowski and Ken Blackwell of the American Civil Rights Union argue that the Supreme Court need not overturn The Slaughter-House Cases while "incorporating" the right to bear arms against the states. (Josh Blackman fisked the article in more depth here.) This piece was essentially a distillation of the ACRU's amicus brief in McDonald v. City of Chicago, which ultimately argues, like Cato's brief, that Chicago's gun ban is unconstitutional.
It has come to my attention, however, that I mischaracterized one aspect of the Kens' op-ed (sorry about that): while they are indeed against overturning Slaughter-House, the authors still seek to apply the Second Amendment right through the Privileges or Immunities Clause (like Cato and most libertarians), rather than through the Due Process Clause (like many conservatives and gun rights proponents). This is the ACRU's main argument, and it is based largely on Ken Klukowski's recent law review article -- indeed, the brief's body cites Klukowski article some 20 times, often for propositions that find no further support in case law or academic literature. (Josh has also provided a short critique of the ACRU brief/Klukowski article, so I won't do that here.)
In any event, this clarification gives me an opportunity to name and outline the five possible ways a justice could come down in the McDonald case:
- "Extreme Anti-Gun" -- Affirm the lower court in its entirety, deciding that it correctly interpreted Supreme Court precedent, that reconsideration of this precedent is unwarranted, and therefore that neither the Second Amendment nor the right to bear arms it protects extends to people in the states (as opposed to in federal territories, like the District of Columbia). I can't imagine that any justice will vote for this way; even those who dissented in Heller generally support the selective incorporation of rights against the states.
- "Conventional Liberal" -- Affirm the lower court in part but clarify that while the Second Amendment is indeed "incorporated" as against the states via the Due Process Clause, Chicago's gun ban is still okay -- possibly under a test weighing the individual right against the city's interest in reducing gun violence. There may be one to four votes for this position: Justice Breyer likes balancing tests; Justice Stevens may feel that his hometown's regulations are justified; and Justices Ginsburg and Sotomayor may feel the same way about New York.
- "Conventional Conservative" -- Reverse the lower court, "incorporate" the Second Amendment via the Due Process Clause -- adopting an analysis akin to that of Ninth Circuit Judge Diarmuid O'Scannlain in the Nordyke case -- and strike down Chicago's gun ban. The NRA's brief primarily advocates this position, as do many conservatives fearful of the Privileges or Immunities Clause. There may be one to eight votes for this position: The "minimalist" Chief Justice Roberts may be hesitant to overturn longstanding precedent; Justice Scalia may decide that the devil he knows (substantive due process) is better than the one he doesn't (privileges or immunities); Justice Kennedy may feel vested in his own expansive "fundamental rights" jurisprudence under the Due Process Clause (see my review of a book analyzing that jurisprudence); Justice Alito may share one or more of the above sentiments; and one or more of the aforementioned liberals may decide to "bite the bullet" and go along with this position.
- "Mend Slaughter-House, Don't End It" -- Reverse the lower court, overturn three old precedents -- Cruikshank (1876), Presser (1886), and Miller (1894), which were decided at a time when none of the rights in the Bill of Rights was considered to apply to the states -- "incorporate" the Second Amendment via the Privileges or Immunities Clause without touching Slaughter-House, and strike down Chicago's gun ban. This is the ACRU position, and while I don't think it's textually or historically supportable -- a scholarly consensus across ideological lines holds that Slaughter-House was both wrongly decided and forecloses any significant application of the Privileges or Immunities Clause -- it could emerge as a political "compromise." (If Justice O'Connor were still on the Court, I could maybe see her advancing this position.)
- "Originalist/Libertarian" -- Reverse the lower court, overturn Slaughter-House and the three aforementioned cases, extend the right to keep and bear arms to the states (which is technically distinct from "incorporating" the Second Amendment), and strike down Chicago's gun ban. This is Cato's position -- as well as that of the liberal Constitutional Accountability Center on behalf of eight leading constitutional law professors from across the political spectrum -- and there will be one and may be up to all nine of the justices here: Justice Thomas has long said that he'd like to revisit Slaughter-House in the appropriate case, and he surely led the push to grant a cert petition whose question presented called for briefing about the Privileges or Immunities Clause; any of the others who seriously grapple with the arguments in Alan Gura's brilliant petitioners' brief (and those of his amici, us included) will also have to go this way despite their various political qualms.
In short, I see at least five votes in favor of extending the right to keep and bear arms to the states, but it's an open question as to whether the Court will do that via the Due Process of Privileges or Immunities Clause of the Fourteenth Amendment.
Now, you may ask why, if I'm so confident that the fifth option above is correct, don't all conservatives qua self-professed "originalists" gravitate towards it (and, conversely, why some liberals qua "living constitutionalists" do). That's an unlawyerly matter of policy preferences: as the Kens' op-ed details, conservatives (and some libertarians), while wanting to extend Heller's interpretation of the Second Amendment to the states, are wary of opening a Pandora's Box of positive rights (health care, housing, welfare, etc.), as well as the perpetual culture-war bogeymen (abortion, gay marriage, pornography, etc.). Liberal intellectuals, meanwhile, are holding their nose at having to extend gun rights because they feel that's the only concession they have to make to achieve their utopic constitutionalization of the entire progressive agenda.
While libertarians share the conservative concern about positive rights -- as well as legal, if typically not policy, qualms about courts' handling of social issues (e.g., that Roe v. Wade is bad law even if some libertarians are pro-choice; that Lawrence v. Texas is good law but achieved through Kennedy-esque hand-waving rather than sound legal reasoning) -- many of us see the benefits of being able to protect economic liberties and other natural rights. For example, unlike conservatives, we generally like Lochner, the 1905 case that struck down on "liberty of contract" grounds a New York law limiting bakers' hours.
Yes there’s a danger -- particularly if President Obama gets to replace not only Justices Stevens and Ginsburg, but also Scalia and Kennedy -- that overturning Slaughter-House will open the aforementioned Pandora’s Box, but: 1) that danger isn’t necessarily mitigated by somehow managing to use the Privileges or Immunities Clause without overturning Slaughter-House; 2) the danger is no different than under the current substantive due process doctrine; and 3) if we are to remain originalists not just in overturning Slaughter-House but in future jurisprudence, the progressives’ arguments fail, the danger is averted, and the Box stays sealed. Josh Blackman and I wrote our article, "Keeping Pandora's Box Sealed: Privileges or Immunities, The Constitution in 2020, and Properly Extending the Right to Keep and Bear Arms," in part to address the valid concerns (sketched in the Kens' op-ed) about the consequences of truly reviving the Privileges or Immunities Clause.
While we won't assuage the staunchest social conservatives -- (adult) pornography is protected speech (but even more so is political advertising!) -- we should mollify many faint-hearted originalists. Anyone who thinks the Constitution is a "dead" document, whose text is to be interpreted according to its original public meaning, has to admit that the Privileges or Immunities Clause protects something more than what Slaughter-House said it did.
To see how all this works in greater detail, read our Pandora's Box article, which I’ve previously discussed here , here, and here. And again, Cato's amicus brief is here; see also this law review article by its principal author, Cato adjunct scholar Timothy Sandefur.
In today's Washington Times, Ken Klukowski and Ken Blackwell co-authored an op-ed about McDonald v. Chicago and the Privileges or Immunities Clause titled, "A gun case or Pandora’s box?"
If that title sounds familiar, it should. Josh Blackman and I have co-authored a forthcoming article called "Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment." As Josh put it in his reply to the Kens, "imitation is the most sincere form of flattery."
Going beyond the title, there are several errors in the piece, which I will briefly recap:
First, the Kens argue that the Supreme Court should uphold the Slaughter-House Cases, out of a fear that reversal -- and thereby a reinvigoration of Privileges or Immunities -- would empower judges to strike down state and local laws. What they neglect to mention is that it has been the role of the judiciary since Marbury v. Madison to strike down laws that violate the Constitution. There is near-universal agreement across the political spectrum that Slaughter-House was wrongly decided, causing the Supreme Court to abdicate its constitutional duty by ignoring the Privileges or Immunities Clause for 125 years. The Kens want to continue this mistaken jurisprudence.
Next, the Kens describe the Privileges or Immunities Clause as a general license for courts to strike down any law they do not like. This is not accurate. Neither the Privileges or Immunities Clause nor any other part of the Fourteenth Amendment empowers judges to impose their policy views. Instead, "privileges or immunities" was a term of art in 1868 (the year the Fourteenth Amendment was ratified) referring to a specific set of common law, pre-existing rights, including the right to keep and bear arms. The Privileges or Immunities Clause is thus no more a blank check for judges to impose their will than the Due Process Clause -- the exact vehicle the Kens would use to "incorporate" the Second Amendment.
To set the record straight, Josh and I are working on an op-ed -- not so much to respond to the Kens' flawed analysis but to present the correct historical and textual view of the Privileges or Immunities Clause. To see our arguments in greater detail, read our article and Cato's McDonald brief, both of which I've previously blogged about here , here, and here.
Yesterday the Supreme Court released its first four opinions in cases argued this term, the latest first-opinion release in recent history. The only one that interests me -- and it's not Justice Sotomayor's maiden effort -- is the civil forfeiture case, Alvarez v. Smith.
Civil forfeiture, the practice in which the police seize cars, money and other kinds of property that they say has some connection to crime, can raise various legal and policy issues — from property rights to due process. The question in Alvarez was the basic one of whether people seeking to get their property back are entitled to a prompt hearing before a judge.
I blogged about the case here, and Cato adjunct scholar Ilya Somin wrote about it here. Cato's also filed a brief in the case supporting the individuals whose property was seized.
Unfortunately, because all underlying disputes had been resolved by the time of oral argument -- cars had been returned and the individuals have either forfeited their cash or accepted the state's return of some of it -- the Court determined the case to be moot. It thus vacated the lower court's opinion and remanded with instructions for that court to dismiss the case.
And that's a shame. While the dispute does seem to be moot with respect to the particular petitioners, this is obviously a situation "capable of repetition" but "evading review" -- along the lines of that little-known case of Roe v. Wade. That is, just like the case of a pregnant woman is moot within nine months, disputes over civil forfeiture get resolved one way or the other long before the slow turn of litigation reaches the Supreme Court. By avoiding the merits of this case, the Court guarantees that the important constitutional questions presented by this case remain perpetually unresolved.
What is more, by vacating the Seventh Circuit's opinion -- an extraordinary remedy -- the Court deprives Illinoisans of a well-reasoned and just ruling that could be used as precedent in future cases. It also -- and this is no small matter -- wastes the time, effort, and resources of the parties and their attorneys, taxpayers (who obviously paid for the petitioners' legal work here, as well as that of the judiciary), and, of course, amici (including Cato).
Justice Stevens was correct in his partial dissent: if the Court disagrees with the argument I made in the preceding paragraph, it should have applied the general rule against vacating judgments that have become moot because the parties settled. The proper disposition here would have been to DIG the case -- dismiss the writ of certiorari as improvidently granted (which allows the lower court ruling to remain on the books undisturbed).
Today, the Supreme Court heard argument in Stop the Beach Renourishment v. Florida Department of Environmental Protection, which is a Fifth Amendment Takings Clause challenge involving beachfront property (that I previously discussed here).
Essentially, Florida's "beach renourishment" program created more beach but deprived property owners of the rights they previously had -- exclusive access to the water, unobstructed view, full ownership of land up to the "mean high water mark," etc. That is, the court turned beachfront property into "beachview" property. After the property owners successfully challenged this action, the Florida Supreme Court -- "SCOFLA" for those who remember the Bush v. Gore imbroglio -- reversed the lower court (and overturned 100 years of common property law), ruling that the state did not owe any compensation, or even a proper eminent domain hearing.
As Cato adjunct scholar and Pacific Legal Foundation senior staff attorney Timothy Sandefur noted in his excellent op-ed on the case in the National Law Journal, “[T]he U.S. Constitution also guarantees every American’s right to due process of law and to protection of private property. If state judges can arbitrarily rewrite a state’s property laws, those guarantees would be meaningless.”
I sat in on the arguments today and predict that the property owners will suffer a narrow 4-4 defeat. That is, Justice Stevens recused himself -- he owns beachfront property in a different part of Florida that is subject to the same renourishment program -- and the other eight justices are likely to split evenly. And a tie is a defeat in this case because it means the Court will summarily affirm the decision below without issuing an opinion or setting any precedent.
By my reckoning, Justice Scalia's questioning lent support to the property owners' position, as did Chief Justice Roberts' (though he could rule in favor of the "judicial takings" doctrine in principle but perhaps rule for the government on a procedural technicality here). Justice Alito was fairly quiet but is probably in the same category as the Chief Justice. Justice Thomas was typically silent but can be counted on to support property rights. With Justices Ginsburg, Breyer, and Sotomayor expressing pro-government positions, that leaves Justice Kennedy, unsurprisingly, as the swing vote. Kennedy referred to the case as turning on a close question of state property law, which indicates his likely deference to SCOFLA.
For more analysis of the argument, see SCOTUSblog. Cato filed an amicus brief supporting the land owners here, and earlier this week I recorded a Cato Podcast to that effect. Cato also recently filed a brief urging the Court to hear another case of eminent domain abuse in Florida, 480.00 Acres of Land v. United States.
In federal eminent domain cases, the “scope of the project” rule requires that in determining “just compensation” under the Fifth Amendment’s Takings Clause, any increase or decrease in property value caused by the federal project be disregarded. As it turns out, the federal government had discussed the idea of expanding Everglades National Park for over 30 years, and also induced the local government to enact tougher zoning standards that decreased the value of the property that was to be taken for this purpose. This type of behavior is a special kind of eminent domain abuse called "condemnation blight."
The Everglades-related federal actions forced Gilbert Fornatora to watch the value of his South Florida property decline until the federal government finally condemned it -- and paid him much lower compensation than he would otherwise have received. Then, once condemnation proceedings began, the government manipulated the hearing schedule by front-loading ill-prepared owners who lacked counsel, thereby setting a low valuation precedent that would then be applied to the later parties with representation, like Fornatora. The Eleventh Circuit sided with the government, so Fornatora petitioned the Supreme Court to review the case.
Cato filed an amicus brief supporting this petition, arguing that property owners have virtually no “scope of the project” protection if they must prove that the government’s sole or primary purpose for pre-condemnation action was to depress property values for later eminent domain proceedings. A more workable test, consistent with due process, is merely to require evidence of a nexus between the government’s actions and the depressed property value. The Court should also hear this case to ensure that just compensation proceedings comport with the due process, equal protection, and general fairness standards the government is required to follow in a variety of other settings.
The Court will be deciding early in the new year whether to hear the case, which has the ungainly name of 480.00 Acres of Land v. United States.
Last year, in District of Columbia v. Heller, the Supreme Court confirmed what most scholars and a substantial majority of Americans long believed: that the Second Amendment protects an individual right to keep and bear arms. Heller led to the current challenge to Chicago's handgun ban, which raises the question of whether the Fourteenth Amendment protects that right against infringement by state and local governments. The Seventh Circuit answered the question in the negative, finding itself foreclosed by 19th-century Supreme Court decisions. The Supreme Court agreed to review the case -- after Cato filed an amicus brief supporting the cert petition -- and specifically consider whether the Fourteenth Amendment's Due Process Clause or its Privileges or Immunities Clause is the proper provision for incorporating the Second Amendment right to keep and bear arms as against the states.
Now Cato, joined by the Pacific Legal Foundation, has filed a brief supporting those challenging the handgun ban -- who are represented by Alan Gura, the lawyer who successfully argued Heller -- and calling for an overruling of the Slaughter-House Cases, which eviscerated the Privileges or Immunities Clause in 1873. Slaughter-House narrowly circumscribed the rights protected by the Privileges or Immunities Clause, contrary to the intentions of the Amendment's framers and in direct contradiction to the developments in legal theory that underlay its adoption.
We also argue that in addition to ignoring the history surrounding the Fourteenth Amendment, the Slaughter-House majority violated basic rules of constitutional interpretation. Finally, restoring the Privileges or Immunities Clause would not result in the demise of substantive due process because the idea at the core of that doctrine -- that the Due Process Clause imposes something more than mere procedural limits on government power -- was widely accepted when the Fourteenth Amendment was enacted and its authors rightly believed that the Due Process and the Privileges or Immunities Clauses would provide separate but overlapping protections for individual rights.
Again, go here to read Cato's brief in McDonald v. City of Chicago. Related, Josh Blackman and I have put up on SSRN our article, "Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment," which comes out in January in the Georgetown Journal of Law & Public Policy. I will be blogging more about "Pandora" -- and, of course, the McDonald case -- in future.