January 22, 2010 4:25PM

If You Prick a Corporation, Does It Not Bleed?

Well, no, because as my liberal friends all seem to be indignantly announcing in the aftermath of the Citizens United ruling, corporations aren't really people! They're creatures of statute, and "corporate personhood" is just a convenient legal fiction.  Which is fair enough, but also seems to miss the point rather spectacularly. As a practical matter, it is hard to imagine any constitutional liberty that could not be reduced to a hollow joke if we refused to count as an infringement any regulation that nominally targeted only the corporate mechanism for coordinating its exercise.

Having dispensed with the repellent doctrine of corporate personhood, we can happily declare that journalists enjoy full freedom of the press ... as long as they don't plan on using the resources of the New York Times Company or Random House or Comcast, which as mere legal fictions can be barred from using their property to circulate unpatriotic ideas. You're free to practice your religion without interference — but if it's an unpopular one, well, let's hope you don't expect to send your kids to a religious school or build a church or something, because those tend to involve incorporating. A woman's right to choose is sacrosanct, but since  clinics and hospitals are mere corporations with no such protection, she'd better hope she knows a doctor who makes house calls. Fill in your own scenarios, it's easy.

The irony here is that it's libertarians who are often accused of a myopic obsession with formal liberties rather than their real-world value to people — "the law in its majestic equality" and all that. But this, surely, would be the height of empty formalism — a right to swing your fist that stops at the air.

I think people are obsessing over this because we often think of rights as flowing, at least in part, from respect for our intrinsic human dignity, and it seems equal parts farcical and offensive to suggest that institutions like Exxon and Nike are in the same moral category. As a purely ethical matter, of course corporations as such don't have rights. As a practical matter, though, rights that wither at the corporate touch won't do you a whole lot of good in the 21st century.

November 23, 2009 7:51AM

Cato Files Brief to Extend Second Amendment Rights, Provide Protections for Privileges or Immunities

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.

November 18, 2009 9:37AM

How Will the Court Vote on “Incorporating” the Second Amendment?

Yesterday I described the brief Alan Gura filed on behalf of the petitioners challenging Chicago's gun ban in the Supreme Court -- asking the Court to apply the individual right to keep and bear arms to the states.

Late last night, Orin Kerr at the Volokh Conspiracy sketched out his predictions of whether the individual justices would go for Gura's main argument: that the indefensible Slaughter-House Cases should be overturned and thus that the Court should "incorporate" the rights at issue via the Privileges or Immunities Clause.  (Cato supports this argument, as we'll show in the brief we'll be filing next week.) He concludes that Justice Thomas is the only vote available for this claim. According to Orin, the Chief Justice and Justices Scalia and Alito are too enamored with stare decisis to overturn an 1873 precedent, Justice Kennedy isn't an originalist and likes substantive due process too much, and the other four are too afraid of Lochner and Institute for Justice-style economic liberty arguments to go there.

Read the rest of this post »
November 17, 2009 7:54AM

Heller Counsel Argues for an Originalist Revolution

Alan Gura, who successfully defended the individual right to keep and bear arms under Second Amendment in District of Columbia v. Heller has now filed his brief in the case that seeks to apply that right to the states, McDonald v. City of Chicago.  (Cato earlier filed a brief supporting Alan's cert petition, the background to which you can read about here.)

The question presented in this case is: Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment's Privileges or Immunities or Due Process Clauses.  Remarkably, only 7 of the brief's 73 pages are devoted to the Due Process Clause, which is the constitutional provision by which almost all the the Bill of Rights has been "incorporated" against the states.  Indeed, the brief argues that the Due Process Clause “has incorporated virtually all other enumerated rights” and so there is no reason to make the Second Amendment an exception.

The rest of the brief is far more interesting, arguing for overturning the ill-fated Slaughter-House Cases, which eviscerated the Priviliges or Immunities Clause in 1873.  Slaughter-House forced the Court to start protecting natural rights and fundamental liberties under the oddly named "substantive due process" doctrine -- and it remains a bugaboo for legal scholars of all ideological stripes.  Overturning it would potentially open the door to challenges against legislation that violates a host of unenumerated rights, such as the right to enter into contract or to earn an honest living. 

Understandably, libertarians are excited at the prospect of Privileges or Immunities' revival.  But so too are liberals, at the thought of potentially filling an empty constitutional vessel with positive rights (to health care, education, pensions, etc.).  I believe this to be an overstated threat from the perspective of constitutional interpretation -- as opposed to legislation -- and have an article coming out with Josh Blackman in the Georgetown Journal of Law and Public Policy in January making this point.  (The article, titled "Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment," will shortly be up on SSRN, but for now you can read the abstract/introduction here.)

In any event, P or I (as it's known) is a vastly superior way of giving people in the states the right to keep and bear arms for self-defense. But it's ambitious to argue this way rather than settle for the traditional jurisprudence.  As Orin Kerr says at the Volokh Conspiracy, "It’s certainly an attention-getting way to brief the case. It’s not just arguing for a win: It’s arguing for a revolution."

For further discussion of Alan's McDonald brief -- which Cato will be supporting with an amicus brief next week -- see Lyle Deniston's write-up at SCOTUSblog.

April 20, 2009 5:21PM

Yes, California, There Is an Individual Right to Keep and Bear Arms

Last June, the Supreme Court ruled in District of Columbia v. Heller that the Second Amendment protects an individual's right to keep and bear arms, at least in the home for self-defense.  Here's our own Bob Levy, who masterminded the Heller litigation, talking about that decision:

While the Court's ruling was a watershed in constitutional interpretation, it technically applied only to D.C., striking down the District's draconian gun ban but not having a direct effect in the rest of the country.

Well, today the Ninth Circuit (the federal appellate court covering most Western states) ruled that the Second Amendment restricts the power of state and local governments to interfere with individual right to have guns for personal use.  That is, the Fourteenth Amendment "incorporates" the Second Amendment against the states, as the Supreme Court has found it to do for most of the Bill of Rights.  I rarely get a chance to say this, but the Ninth Circuit gets it exactly right.

Here's the key part of Judge Diarmuid O'Scannlain's opinion:

We therefore conclude that the right to keep and bear arms is "deeply rooted in this Nation's history and tradition."  Colonial revolutionaries, the Founders, and a host of commentators and lawmakers living during the first one hundred years of the Republic all insisted on the fundamental nature of the right. It has long been regarded as the "true palladium of liberty." Colonists relied on it to assert and to win their independence, and the victorious Union sought to prevent a recalcitrant South from abridging it less than a century later.  The crucial role this deeply rooted right has played in our birth and history compels us to recognize that it is indeed fundamental, that it is necessary to the Anglo-American conception of ordered liberty that we have inherited.  We are therefore persuaded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the states and local governments.

In short, residents of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington now join D.C. residents in having their Second Amendment rights protected.  And courts covering other parts of the country -- most immediately the Seventh Circuit, based in Chicago -- will have their chance to make the same interpretation in due course.

Just as interesting -- and potentially equally significant -- is the footnote Judge O'Scannlain drops at the end of the above text in response to arguments that the right to keep and bear arms, regardless of its provenance as a fundamental natural right, is now controversial:

But we do not measure the protection the Constitution affords a right by the values of our own times. If contemporary desuetude sufficed to read rights out of the Constitution, then there would be little benefit to a written statement of them.   Some may disagree with the decision of the Founders to enshrine a given right in the Constitution.  If so, then the people can amend the document.  But such amendments are not for the courts to ordain.

Quite right.