Tag: Fourteenth Amendment

Supremes Take Gun Rights Issue Nationwide

Supreme CourtWith its decision today to hear the case of McDonald v. Chicago, the Supreme Court should settle the question of whether states must recognize the Second Amendment right to keep and bear arms. In June of 2008, in District of Columbia v. Heller, the Court found, for the first time, that the federal government must recognize the Second Amendment right of individuals, quite apart from their belonging to a militia, to have an operational firearm in their home. But the decision left open the question whether states were similarly bound.

Thus, the so-called incorporation doctrine will be at issue in this case – the question of whether the Fourteenth Amendment “incorporates” the guarantees of the Bill of Rights against the states. The Bill of Rights applied originally only against the federal government. But the Fourteenth Amendment, ratified in 1868, left open the question of which rights states were bound to recognize. The modern Court has incorporated most of the rights found in the Bill of Rights, but the Second Amendment’s guarantees have yet to be incorporated.

Moreover, a question that will arise in this case is whether the Court, if it does decide that the states are bound by the Second Amendment, will reach that conclusion under the Fourteenth Amendment’s Due Process Clause or under its Privileges or Immunities Clause, which has been moribund since the infamous Slaughterhouse Cases of 1873. In its brief urging the Court to hear the McDonald petition, the Cato Institute urged the Court to revive the Privileges or Immunities Clause.

The Way to Stop Discrimination on the Basis of Race Is to Stop Discriminating on the Basis of Race

Today the Supreme Court heard argument in Ricci v. DeStefano, the “reverse discrimination” case in which the city of New Haven refused to certify the results of a race-neutral promotion exam whose objective results would have required, under civil service rules, the promotion of only white and Hispanic (but no black) firefighters.

The firefighters who were thus denied promotions sued the city, claiming racial discrimination under Title VII of the Civil Rights Act and the Equal Protection Clause of the Fourteenth Amendment.

Remarkably, a panel of the Second Circuit Court of Appeals—including oft-mentioned Supreme Court contender Sonia Sotomayor—summarily affirmed the district court’s ruling against the firefighters, though Judge José Cabranes (a Clinton appointee) later excoriated the panel for not grappling with the serious constitutional issues raised by the case.

The Cato Institute filed a brief, joined by the Reason Foundation and the Individual Rights Foundation, pointing out the absurd incentives at play: if the lower court’s ruling stands, employers will throw out the results of exams (or other criteria) that produce racial disparity, even if those exams are race-neutral, entirely valid, and extremely important to the employer and (as in this case) the public.

Today the Court seemed starkly divided.  The “liberal” justices hinted that an employer should be allowed to be “race conscious” to avoid Title VII lawsuits alleging “disparate impact” against minorities in hiring and promotions.  The “conservatives” were disturbed that the only reason the firefighters weren’t promoted was their race.  Nobody seemed persuaded by the government’s request—really an attempt to avoid taking a firm stand on a controversial issue—that the judgment be vacated and the case remanded for further factual development and legal rulings by the lower courts.  Justice Kennedy will likely be the swing vote, and I predict that he will side with the conservatives, albeit narrowly in a separate concurrence as he did in Parents Involved in Community Schools v. Seattle School District No.1, the race-based school assignment case from 2007.

It was in Parents Involved that Chief Justice Roberts wrote: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Quite so. The Supreme Court should thus reverse the Second Circuit, establishing that an employer can only discount test results when there is a “strong basis in evidence” that the test is somehow biased against a particular racial group.