March 2, 2010

"Why are you asking us to overrule 140 years of prior law….unless you are bucking for a place on some law school faculty?"

Justice Scalia amusingly squelches in the oral argument that the Supreme Court ought to use the Privileges and Immunities Clause — instead of the usual Due Process Clause to find the 2d Amendment applicable to state and local government. The case is McDonald v. City of Chicago, and SCOTUSblog describes the argument and explains why it's quite likely the Court will find the right to bear arms to extend to state and local government.
The Justice said the “privileges or immunities” argument was “the darling of the professorate” but wondered why [Alan Gura, the lawyer for gun rights advocates,] would “undertake that burden.”  And Scalia noted that the “due process” clause — an open-ended provision that he has strongly attacked on other occasions–  was available as the vehicle for incorporation, and added: “Even I have acquisced in that.”   Gura somewhat meekly said “we would be extremely happy” if the Court used the “due process” clause to extend the Second Amendment’s reach.
Justice Ruth Bader Ginsburg, one of the dissenters in Heller, then moved in to press Gura on just what “unenumerated rights” would be protected if the Court were to revive the “privileges or immunities” clause. It was a theme that would recur often thereafter, solidifying the appearance that the argument had virtually no chance of succeeding.  (In fact, when Gura near the end of the argument returned to the podium for his rebuttal, his time was used up by Justices Ginsburg and Anthony M. Kennedy exploring what other rights might come into being if the Court gave new life to the “privileges or immunities” clause.  He responded that he could not provide a full list, to which Justice Scalia retorted: “Doesn’t that trouble you?”  It was obvious that it troubled the Court.)

53 comments:

Triangle Man said...

My quest is to be first in line for discussions of Supreme Court cases.

traditionalguy said...

Sounds like he wanted fun, fun, fun until Daddy Scalia hid his Privileges and Immmunities clause away. The Due Process clause argument is more than enough to do the trick for concealed carry all over this land. Its not safe anymore for only lawbreakers to be carrying the guns. I am Amy Bishop and you are dead was not on the faculty meeting agenda.

Lem said...

TM must be relying on Feeds for aid.

wv - hypert - a quest is to be first in line for discussions of Supreme Court cases.

Mark O said...

Do the professors buck in law school. Or, did the buck to become professors?

If they are called "those bucking professors," is someone called in to break them.

Moreover, isn't it true that some students feel bucked over after three years?

Mark O said...

"the" = "they"

cokaygne said...

Professor, the SCOTUS post is long and technical. Could you please explain to us non=lawyers what the issue is?

Bonus question: does it make any difference to the outcome as to which clause applies to gun rights at the state and local level?

Bonus question II: why are unelected judges whom we non-lawyers cannot understand or control making these decisions?

rocketeer67 said...

Bonus question II: why are unelected judges whom we non-lawyers cannot understand or control making these decisions?

Because that's who the U.S. Constitution says makes those decisions. Was that a serious question? Because if it was - scary.

Paul Zrimsek said...

Yeah! Why would anyone want to have complicated legal questions resolved by people who understand them, when we could have them resolved by people who don't understand them?

Your Correspondent said...

And to add to cokaygne's cogent comment-
If only the Founders had included an Article demanding a mastery and mandatory usage of plain English as a prerequisite for attaining lawyerhood so that the kind of power-philic obfuscation that drenched this session would never have occurred and left us all wondering:
"What the heck is it with these people- can't they just read the damn law?"

rocketeer67 said...

And to add to cokaygne's cogent comment-
If only the Founders had included an Article demanding a mastery and mandatory usage of plain English as a prerequisite for attaining lawyerhood so that the kind of power-philic obfuscation that drenched this session would never have occurred and left us all wondering:
"What the heck is it with these people- can't they just read the damn law?"


Let me get this straight - you're complaining the justices are prolix?

Triangle Man said...

TM must be relying on Feeds for aid

No sir, it's good old fashioned serendipity and procrastination (of work). The RSS feed on Google Reader still has the Mr. Sacks post on top.

traditionalguy said...

Federalism created a unique moving target of rights derived 1)from each State's laws that apply to its own citizens. These cannot be denied to an out of State person under Art 4 Privileges AND Immunities clause. And then after Gen. Sherman rewrote reality when he took Atlanta in 1864, 2)the Congress amended the Constitution to add a Privileges OR Immunities clause that says the whipped states can no longer deny any of the the Priviledges OR Immunities that are to granted to all Americans to any citizen of that state. I hope that is all clear now. Scalia is not ready to admit that the 14th Amendment's Privileges OR Immunities clause clause should be extended since it wipes out all states differences across the board once an American's Right to some Priviledge or Immunity is found.( could that include free health care?) The Due Process clause on the other hand can be inserted here and there as a standard of just judicial procedure issue arises that the SCOTUS is bold enough to impose on the all of states one at a time.

MadisonMan said...

does it make any difference to the outcome as to which clause applies to gun rights at the state and local level?

My interpretation (IANAL) is that the court might seek the most restrictive clause -- extending gun rights but not opening up a flood of other rights.

No idea if such a clause exists.

Sigivald said...

"Because Slaughterhouse was a piece of excrement and never should have disgraced the court, your Honor."

Lem said...

"Why are you asking us to overrule 140 years of prior law….unless you are bucking for a place on some law school faculty?"

Scalia seems to be using a Rush-tweak-the-media like tactic.

Maybe by drawing attention to himself he draws attention to the case.. law built on bad precedent.

I mean, unless I'm wrong and please correct me if Am.. The civil rights act of 1964 for example (i think it was found constitutional) undid many many years of prior law? didn't it?

If it was a stunt to try to make the lawyer a better lawyer.. I don't think that kind of shit works.

I know because I remember my father doing it to me and I would just resent him for it.

OldGrouchy Doug Wright said...

Would the 1964 Civil Rights Act and the 1965 Voter rights Act been necessary if the P&I Clause hadn't been neutered in the 1870s SCOTUS ruling?

Lem said...

"Because Slaughterhouse was a piece of excrement and never should have disgraced the court, your Honor."

Cato is in full agreement... or something like that ;)

DirtCrashr said...

What I read elsewhere: the P&I was a leverage ruse to get them to more easily accept incorporation under Due Process instead.

SteveR said...

Throw in P&I so Due Process looks quite reasonable.

Portland Accident Attorney said...

"Why would anyone believe that some local city council has the authority to ignore the Constitution and limit the rights enumerated therein?"

Because the Federal consitution was not originally intended to apply to local governments. Only after the enactment of the 14th amendment and later interpretation of that amendment was is determined that some rights did apply to the states.

Hagar said...

The Framers had to promise to add a Bill of Rights - working on the citizens - in order to get We, the People of 1788 to vote for ratification.

former law student said...

Did Scalia say what the original meaning of the P or I clause was? Or does he think it's "needless surplusage"? In general, lawyers want to put every argument bullet in their briefing gun. The Second Amendment was just resurrected; why not the P or I clause?

The Court could have asked Gura for additional briefing on that point, instead of just putting him on the spot. But I bet lawprof Randy Barnett could have answered that question without hesitation.

former law student said...

Tradguy gets it right:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States

rhhardin said...

Interstate commerce isn't enough?

Prosecutorial Indiscretion said...

Sounds like Gura's a genius for getting the Court to focus on the P&I argument while leaving the Due Process incorporation argument relatively untouched.

There's good historical argument in favor of P&I - Randy Barnett's excerpt from Taney's Dred Scott opinion is pretty strong - but it's an ancient doctrine long ignored and only nerds talk about it. But the Supreme Court is full of nerds. Gura threw nerd fodder in front of them and they ate it up, and the contrast of P&I with the well-settled DP incorporation doctrine makes everyone think that incorporation through due process is a no-brainer.

mariner said...

So the esteemed Justices want an enumeration of unenumerated rights?

I'm just a sailor, but I thought the whole idea of unenumerated rights is that they're, well, "unenumerated".

This is troublesome; it seems the Justices want us to have only enumerated rights, but for the government to have boundless unenumerated powers.

That's exactly the opposite of what our Constitution requires, and what the Founders feared.

Joe said...

Because the Federal constitution was not originally intended to apply to local governments.

That's intellectual clap trap and always has been. The bill of rights makes it pretty damn clear that the Federal constitution extends it's reach down to the individual citizenry. Else why would even have the tenth amendment?

Joe said...

Because that's who the U.S. Constitution says makes those decisions. Was that a serious question? Because if it was - scary.


Really Mr Snarky? Would you care to point out the Art and Sect. granting that right?..............................................................................................We'll wait.......................................................................
Oh that's right there ISN'T one. It's like the "separation of Church and State"....also not in there.

The right of Judicial Review was granted by the SCOTUS TO the SCOTUS, via the case Marbury v. Madison.

I don't dispute Judicial Review's existence, but you really are rather ignorant and then to try to act as if your ignorance was "fact" was just too much.

Let's all try to be a little more gentle with one another.

Jason said...

The Tenth Amendment is Kryptonite to all libturd arguments.

They will pay any price, bear any burden, befriend any friend, oppose any foe, in order to ensure the demise and demolishment of the Tenth Amendment of the Constitution.

Joe said...


Joe said...
Because the Federal constitution was not originally intended to apply to local governments.



*OH SIGH* No Joe, that's not true....the BoR did NOT apply to states, at the Founding....The "Establishment Clause" prevents the ESTABLISHMENT of a "state religion", at the FEDERAL level, e.g. No Church of America a la the CoE, HOWEVER, individual states could and DID support local religious organizations, at the time of the Founding and adoption of the BoR.

What changed was the 14th Amendment granting Federal Rights to the Freed Slaves, making it illegal to deny them their rights and privileges....the 14th Amendment is said to "incorporate" the BoR into State Constitutions. NOW, the BoR applies to individuals at the state level.

PRIOR to the 14th Amendment there were "state" rights and privileges and "Federal" ones.

traditionalguy said...

Joe is right. Before the War of the Rebellion and millions of deaths and a Grand Army of the Republic that had marched all over this land, the US let the states do a lot of things their chosen way. But to make the freed slaves entitled to rights thus forever blocking re-establishment of the peculiar institution the Congress and the northern states (The rest were MIA) went and made allcitizens recently freed and always freed entitled to rights. That scared them so bad that they pulled some rights back and are slowly parceling them out a few at a time under Due Process reasoning. That new Priviledges Or Immunities clause cannot mean what it says without careful management, so says Scalia. You do want states to have a voice too, right.

Mick said...

“How strangely will the Tools of a Tyrant pervert the plain Meaning of Words!”
–Samuel Adams

Why does it have to be so complicated? The USC was written for the common man to understand, not for the judiciary to parse into unrecognizeability. Unfortunately, the 14th Amendment, designed to preserve NATURAL rights to all citizens, has been the avenue of the government and activist judiciary to take away or to add “rights” that don’t exist.

How about this from Thomas Jefferson:
“The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government.”

Or this:
“No free man shall ever be debarred the use of arms.”

Or Samuel Adams:
“And that the said Constitution be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms; or to raise standing armies, unless necessary for the defense of the United States, or of some one or more of them; or to prevent the people from petitioning, in a peaceable and orderly manner, the federal legislature, for a redress of grievances; or to subject the people to unreasonable searches and seizures of their persons, papers or possessions.” (1788)

Or more Samuel Adams:

“mean, my friend, to let you know how deeply I am impressed with a sense of the importance of Amendments; that the good people may clearly see the distinction, for there is a distinction, between the federal powers vested in Congress and the sovereign authority belonging to the several States, which is the Palladium (the protection) of the private and personal rights of the citizens.” (1789)

Or Alexander Hamilton:
“This balance between the National and State governments ought to be dwelt on with peculiar attention, as it is of the utmost importance. It forms a double security to the people. If one encroaches on their rights they will find a powerful protection in the other. Indeed, they will both be prevented from overpassing their constitutional limits by a certain rivalship, which will ever subsist between them.”
(1789– speech at the ratification of the USC)

Or John Adams:
“To suppose arms in the hands of citizens, to be used at individual discretion, except in private self-defense, or by partial orders of towns, countries or districts of a state, is to demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man; it is a dissolution of the government. The fundamental law of the militia is, that it be created, directed and commanded by the laws, and ever for the support of the laws.”
—John Adams, A Defence of the Constitutions of the United States 475 (1787–1788)

Or James Madison:
“[The Constitution preserves] the advantage of being armed which Americans possess over the people of almost every other nation...(where) the governments are afraid to trust the people with arms.”
—James Madison,The Federalist Papers, No. 46.

Why is this so complicated?

mariner said...

Joe,
The bill of rights makes it pretty damn clear that the Federal constitution extends it's reach down to the individual citizenry. Else why would even have the tenth amendment?

To make it clear that the Federal government's power did not extend to the states.

Unfortunately too many people have found it convenient to ignore the plain English meaning of the Tenth Amendment (and the Second Amendment).

Skyler said...

Gura somewhat meekly said “we would be extremely happy” if the Court used the “due process” clause to extend the Second Amendment’s reach.

It's a shame someone doesn't have the temerity to say instead, "it doesn't matter what you acquiesce to, it matters what the people of this nation voted on when they enacted the 14th Amendment. Do not forget your place, Justice."

But I don't suppose that would be very effective.

Peter V. Bella said...

Why would anyone believe that some local city council has the authority to ignore the Constitution and limit the rights enumerated therein?
United Soviet Socialist City of Chicago. They do not believe in the US Constitution here. Does not exist. There is only the Democrat Party. There is a dictator and a politburo.

They rule with an iron fist. We have no rights. It is so bad here, even the UN will not help.

Just remember where the President comes from.

Joe said...

Wow, people still don't understand the constitution. The constitution limited the power of the federal government, BUT also made it clear that the rights outlined in the bill of rights were inalienable--that is, they were not granted, but recognized. This meant that states and local governments were defacto limited since they couldn't remove those inalienable rights any more than the federal government could.

The second amendment specifically recognized that people had the right to bear arms. This wasn't a grant of a right, but the recognition of a right. The notion that the constitution is only about the federal government would imply that a state government could limit the right to bear arms and thus violate the very basis of the constitution.

That the intellectual classes immediately regretted recognizing that individuals had rights is no surprise. To say that, for example, "freedom of the press" only applies to the states makes no sense.

OldGrouchy Doug Wright said...

Actually, when it really does come down to it, this phrase applies to much more than firearms: "From my cold dead hands, ..." It also applies to the printing press, the house we own, the money in our pockets, our land, and much more!

So, give in to the Bureaucrats and we lose in so many ways.

Maybe we should be saying: "Render unto Caesar only what we allow him to have!"

traditionalguy said...

Joe...A small point:the rights of men were said to be unalienable instead of inalienable. Then the rights remained while the King or the Congress were saying that they were gone. That is the basis for a revolution when the authorities say that they have removed rights by not enforcing our rights that cannot be removed. Fortunately we have a scheduled revolution every two years in all of the House of Representatives and a third of the Senate.The fight will come down to keeping free speech alive, counting the votes honestly and never cancelling an election. The very ideas that you and I expressed here are 100% foreign nonsense to George Soros and his puppet President and puppet Party. So we need to stay alert to their tricks.

Almost Ali said...

It appears the court will reaffirm Heller, adding a narrow refinement; a limited push-back with emphasis.

Dare they incorporate self defense, lest heads explode. That's the pertinent part, guns only the symbol.

former law student said...

This meant that states and local governments were defacto limited since they couldn't remove those inalienable rights any more than the federal government could.

? The US Constitution specified the limits of the Federal government, not that of the states.


The second amendment specifically recognized that people had the right to bear arms. This wasn't a grant of a right, but the recognition of a right. The notion that the constitution is only about the federal government would imply that a state government could limit the right to bear arms and thus violate the very basis of the constitution.


When the Constitution was being drafted, the rights of the citizens of the several states were spelled out by the state constitutions. People did not fear that their old, familiar state goverments would strip them of their rights. For one thing, the state legislators were close to the citizenry. But people were afraid that this new, powerful, faraway Federal government might strip them of the rights they enjoyed as state citizens, especially if it was dominated by legislators from faraway states.

AST said...

Methinks Scalia is trying to force the liberals to realize that the Due Process clause they widened so much in the past can turn and bite them in the butt on issues like gun control.

I'd say the P&I clause should apply to those rights explicitly stated in the Constitution, like the right to keep and bear arms, the right to first amendment freedoms, including political contributions, and the Fifth Amendment. But, of course, I'm not a law professor, nor even a lawyer anymore.

Joe said...

The people would not have voted for the Constitution if they believed that the states could freely strip them of their rights. (Of course, they likely wouldn't have voted for it if the modern interpretation of the commerce clause were presented to them.)

The symbolic nature of the Bill of Rights was extremely important. It made it clear that individual rights are delegated to government, not granted by it.

I'm curious how the third through eighth amendments specifically could be interpreted any way but to limit the power of governments at all levels.

(The first amendment clearly limits Congress specifically, something that seems to often escape our modern president, congress and courts and I will concede that the wording of the second amendment is confusing at best.)

Joe said...

FLS, I don't disagree with what you say, but do believe that the people understood the symbolic nature of the Bill of Rights.

(I do think James Madison, especially, seriously underestimated the tendency of those in power to want to gain more power at any cost, even if it means ignoring things as obvious as "Congress shall make no law...")

Revenant said...

I do think James Madison, especially, seriously underestimated the tendency of those in power to want to gain more power at any cost, even if it means ignoring things as obvious as "Congress shall make no law...

Congress' steady eroding of the bounds on its power have less to do with the tendencies of "those in power" than they have to do with the tendencies of democracies. Pretty much every last one of Congress' egregious violations of the Commerce Clause enjoyed broad majority support from the electorate.

Kirk Parker said...

rhhardin,

"Interstate commerce isn't enough?"

Stop! You made the milk come out my nose... :-)

A.W. said...

Here’s the no spin truth on all of this. The founders of the 14th amendment were surprised when John Bingham pointed out that the bill of rights didn’t apply to the states. They read all but obviously the first amendment as applying to the whole government, including the states. Bingham then said that the amendment would now incorporate the bill of rights, but was pretty vague on what part of the amendment was doing that. So it was really clear that this is how they understood it, as an original matter, but not clear on what exact words had this effect.

But if we reason like, you know, lawyers, we might notice that if due process includes freedom of speech, freedom of religion, the prohibition on cruel and unusual punishment, etc., that makes most of the original bill of rights a redundancy. Rather than write out ten amendments, they could have just written a due process clause and called it a day. so its absurd to say that the due process clause incorporated the bill of rights.

So by process of elimination, it has to be privileges and immunities, even though that isn’t a model of clarity, either. But then the supreme court weighed in and they basically reduced privileges and immunities and incorporation into a dead letter. Just as a few years later they did the same with section 5 (to this day section 5 is interpreted in a way that is radically different from Section 2 of the 13th A, even though the language is virtually identical), and then later with equal protection. This was not a court that was staying true to the actual constitution, but out to dismantle the hard won gains.

Then as time went on, the court decided that it should have incorporated the bill of rights. But the court is loathe to ever admit it was wrong, so they pretended that the previous cases just weren’t talking about the correct clause.

So its bullsh— basically, designed to reach an originalist result in a manner that does violence to the concept of originalism. And while it is intellectually untidy, I can live with that.

A.W. said...

As for the question here, my view is very simple. If you want a guide to what rights the founders wanted to apply to the states, the short list is pretty much every right denied to African Americans under the black codes. It was meant to be a one-two punch: the black codes were to be rendered unconstitutional because they were race-based, and because they took away guaranteed rights under the constitution. And needless to say, the south didn’t let black people have guns as a rule. Indeed, I remember one debate about an extension of the right to vote for black people, and they said that the right to vote was almost as fundamental as the right to bear arms. And finally we have to understand that this was a time of radically smaller government, both on the state and federal level. Modern liberals like to think the police can be there to save us 100% of the time. Back then, the police simply couldn’t maintain that kind of presence, and even if a cop was nearby without the invention of the telephone or the radio, how would anyone let them know they were in trouble? The right of self-defense was 1,000% more important back then, because police work usually involved after the fact investigation and prosecution. The prevention of crime was in the hands of the citizen.

And really these handgun bans are ineffective. The city of Chicago said that it was important to ban handguns because something like 406 of the 412 murders in their city in one year was done with handguns. I find that to be a remarkable argument, because it means that despite the fact they supposedly rigidly control them, they are still being used to murder over 90% of the time. rather than demonstrating the importance of banning handguns, it demonstrates the uselessness of such bans.

Indeed, I find the arguments employed by the left on this subject to be curious. The left is in the habit of saying it is impossible to ban drugs, or illegal immigration. Well, if you can’t stop a person from entering the country, why do you think you can stop a person carrying a gun from getting here? If you can’t stop a foot-cubed block of marijuana from entering, why do you think you can stop a gun inserted into that block? It’s a cliché because it is true: if guns are outlawed, then the only people who will be disarmed are law-abiding citizens. That is not a recipe for safety.

A.W. said...

former

i know you are passing down black letter law that is not likely to be changed any time soon. But I don't believe that as an original matter the bulk of the bill of rights did not apply to states. take for instance, the second amendment. it is simply says the right shall not be infringed. by contrast the first amendment says that congress shall pass no law infringing... so by expressio unius they have to mean more than congress in the prohibition and i see no language in that amendment indicating that it was supposed to stop with the federal government. Further, the argument that the constitution is purely about the federal government ignores the fact that there are provisions explicitly limiting the powers of states. The founders didn't trust the states to uphold contracts or restrain themselves from bills of attainder and ex post facto legislation. i don't know why we should assume the founders trusted them to honor anything else in the bill of rights.

rocketeer67 said...

Oh that's right there ISN'T one. It's like the "separation of Church and State"....also not in there.

Oh, bullshit Mr. "If You Can't Point to the Words 'Judicial Review' It doesn't Exist." Marshall didn't come up with the idea on his own. It's sufficiently explicit from the structure of government outlined in the Constitution as to be obvious to all but the most obtuse literalist.

Gentle enough, or should I have toned that down?

A.W. said...

We are debating judicial review?

Here’s a simple test. Suppose congress passes a bill with a 51% majority. Then the president vetoes it. The constitution clearly states that the veto can’t be overridden unless you have a vote of 2/3. Congress only manages to summon another 51% majority. Then they run around telling everyone they overrode the veto. Suppose it was a bill making it unlawful to discriminate against people based on the fact they are veterans.

So then a guy claims he was discriminated against because he was a vet, and sues his former employer, citing this “law.” The employer comes in, says, “this isn’t a law at all. The bill was vetoed and never properly overridden.” Who wins that argument?

If you say, “the employer” then you have just stated that you support judicial review.

rocketeer67 said...

Simply put, judicial review is in the frickin' Constitution. Anyone who claims Marshall "invented" it, or that it didn't exist prior to Marbury, is misinformed or dumb. I give you Federalist No. 78:

"The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void."

A.W. said...

rocketeer

Well, there is that, too.

Methadras said...

There really should be, in some instances, a non-interpretative rule to certain laws. The 2nd amendment is clear.