33 State Attorneys: True Patriots (Part II)
From: NRA-ILA Daily Site Update and Reason.com (Part II)
The Supreme Court Takes on Guns, Again
As libertarian-leaning constitutional scholars Kimberly C. Shankman and Roger Pilon argued in a 1998 paper for the Cato Institute that examined, and attacked, the courts' long history of suppressing and ignoring the Privileges or Immunities Clause, the clause's purpose was to "mak[e] explicit the implicit connection between natural rights and constitutional government." And as Damon Root has written for Reason, "the 14th Amendment was specifically designed and ratified to protect a sweepingly libertarian idea of self-ownership. That idea includes the right to acquire property, run a business, and buy and sell labor without unnecessary or improper interference by the government."
That's exactly why so many jurists of all persuasions have been hesitant about reviving it as an active part of contemporary jurisprudence, although nearly all legal scholars agree that the Slaughterhouse interpretation of the clause was dead wrong. One encouraging sign that the Supreme Court might be ready to rethink it is Justice Clarence Thomas's declaration in his Saenz dissent in 1999 that he "would be open to reevaluating [the Privileges or Immunities Clause's] meaning in an appropriate case." Gura may have given him the case he's been waiting for.
Gura, who hopes to raise the clause from the grave with his McDonald arguments, thinks possible misuse of the doctrine is no reason not to embrace it where it's appropriate. "If the Privileges or Immunities Clause guarantees certain unenumerated rights and those rights are violated, then great, have those rights vindicated! But if people file unmeritorious litigation [using Privileges or Immunities Clause arguments] that that litigation will not succeed, the courts will do their job, and that wave of misguided litigation will subside," he says. "A fear that people will try incorrect things [inspired by a revived Privileges or Immunities Clause] is not a reason to keep interpreting it the wrong way today."
Gura may be shooting for the moon in asking the Supreme Court to finally knock down Slaughterhouse after all these years. Fortunately, victory for him and the citizens of Chicago does not depend on this risky strategy. He's leaving room in his arguments for the court to decide in his favor through the means they've used to selectively incorporate the Bill of Rights since the premature death of the Privileges or Immunities Clause—the Due Process Clause of the 14th Amendment, which has come to mean not merely the procedures used by government but "substantive" due process as well.
As Gura writes in the McDonald petition, following the general ruling standard on selective incorporation from the 1968 Duncan case, the Second Amendment should definitely pass muster: "The modern incorporation test asks whether a right is 'fundamental to the American scheme of justice,'...or 'necessary to an Anglo-American regime of ordered liberty,'....Duncan's analysis suggests looking to the right's historical acceptance in our nation, its recognition by the states (including any trend regarding state recognition), and the nature of the interest secured by the right."
By all of those standards, as the 9th Circuit agreed in Nordyke, the Second Amendment should bind Chicago. The Supreme Court even suggested in its Heller decision that it is time to move beyond the apparent dominant precedent, 1876's Cruikshank decision, for denying Second Amendment incorporation, noting that "Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases."
The Supreme Court had three different cases petitioned to them this session dealing with Second Amendment incorporation. While the Court didn't explain why it chose McDonald, it also hasn't officially rejected the other petitions on gun rights cases. Second Amendment scholar and activist Dave Kopel notes that "When the Court takes a case, it's common for the Court to hold related cases in reserve. The certiorari grant in McDonald v. Chicago leaves NRA v. Chicago & Oak Park in reserve, in case some unexpected procedural problem arises with the McDonald case. In the unlikely event that the Chicago city council comes to its senses and repeals the handgun ban, the residual case of NRA v. Oak Park remains available to the Court. In the very unlikely event that the governments of Chicago and Oak Park both wise up, the Supreme Court has also retained Maloney v. Cuomo (about a N.Y. State ban on nunchaku) in reserve." The Court likely went for one of the Illinois cases over Maloney because, unlike with Maloney, the Illinois cases don't have the added complication of requiring the Court to decide whether nunchaku count as constitutional arms.
Gura's official brief will be filed with the Supreme Court in mid-November; Chicago will then have a month to file a response. Hearings and a decision will follow in 2010. Gura is especially pleased by an amicus brief already filed in the case signed by 33 state attorneys general arguing that, yes, the Second Amendment should restrict them and their state governments. Gura finds it "gratifying to see state attorneys general who will come out and say, ‘we understand it's better if our states are bound by this right.' You don't see that very often; it's rare to see a government official claiming they should be bound by some constitutional limitation."
The state attorneys general were also bold enough to bring up a classic gun rights argument that's often mocked by liberal intelligentsia—the idea that weapon rights aren't just about self-defense against crime, but are also about defense against tyranny: The brief states that "the right to bear arms provides the foundational bulwark against the deprivation of all our other rights and privileges as Americans—including rights that have already been incorporated against the States by this Court."
If Gura's brave gambit on the Privileges or Immunities Clause succeeds, the entire structure of American jurisprudence could shift in very interesting ways. We will undoubtedly see a wave of critics attacking "judicial activism" as citizens use this revived tool to defend their rights, as well as complaints from across the ideological spectrum as rights both personal and economic are brought before the courts. But more importantly, courts will once again hold a weapon they should never have laid down in the first place, one that allows them to defend from majoritarian tyranny the many rights of American citizens not explicitly and specifically laid out in the Bill of Rights.
Senior Editor Brian Doherty is author of This is Burning Man (BenBella), Radicals for Capitalism (PublicAffairs) and Gun Control on Trial (Cato Institute).
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The Supreme Court Takes on Guns, Again
As libertarian-leaning constitutional scholars Kimberly C. Shankman and Roger Pilon argued in a 1998 paper for the Cato Institute that examined, and attacked, the courts' long history of suppressing and ignoring the Privileges or Immunities Clause, the clause's purpose was to "mak[e] explicit the implicit connection between natural rights and constitutional government." And as Damon Root has written for Reason, "the 14th Amendment was specifically designed and ratified to protect a sweepingly libertarian idea of self-ownership. That idea includes the right to acquire property, run a business, and buy and sell labor without unnecessary or improper interference by the government."
That's exactly why so many jurists of all persuasions have been hesitant about reviving it as an active part of contemporary jurisprudence, although nearly all legal scholars agree that the Slaughterhouse interpretation of the clause was dead wrong. One encouraging sign that the Supreme Court might be ready to rethink it is Justice Clarence Thomas's declaration in his Saenz dissent in 1999 that he "would be open to reevaluating [the Privileges or Immunities Clause's] meaning in an appropriate case." Gura may have given him the case he's been waiting for.
Gura, who hopes to raise the clause from the grave with his McDonald arguments, thinks possible misuse of the doctrine is no reason not to embrace it where it's appropriate. "If the Privileges or Immunities Clause guarantees certain unenumerated rights and those rights are violated, then great, have those rights vindicated! But if people file unmeritorious litigation [using Privileges or Immunities Clause arguments] that that litigation will not succeed, the courts will do their job, and that wave of misguided litigation will subside," he says. "A fear that people will try incorrect things [inspired by a revived Privileges or Immunities Clause] is not a reason to keep interpreting it the wrong way today."
Gura may be shooting for the moon in asking the Supreme Court to finally knock down Slaughterhouse after all these years. Fortunately, victory for him and the citizens of Chicago does not depend on this risky strategy. He's leaving room in his arguments for the court to decide in his favor through the means they've used to selectively incorporate the Bill of Rights since the premature death of the Privileges or Immunities Clause—the Due Process Clause of the 14th Amendment, which has come to mean not merely the procedures used by government but "substantive" due process as well.
As Gura writes in the McDonald petition, following the general ruling standard on selective incorporation from the 1968 Duncan case, the Second Amendment should definitely pass muster: "The modern incorporation test asks whether a right is 'fundamental to the American scheme of justice,'...or 'necessary to an Anglo-American regime of ordered liberty,'....Duncan's analysis suggests looking to the right's historical acceptance in our nation, its recognition by the states (including any trend regarding state recognition), and the nature of the interest secured by the right."
By all of those standards, as the 9th Circuit agreed in Nordyke, the Second Amendment should bind Chicago. The Supreme Court even suggested in its Heller decision that it is time to move beyond the apparent dominant precedent, 1876's Cruikshank decision, for denying Second Amendment incorporation, noting that "Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases."
The Supreme Court had three different cases petitioned to them this session dealing with Second Amendment incorporation. While the Court didn't explain why it chose McDonald, it also hasn't officially rejected the other petitions on gun rights cases. Second Amendment scholar and activist Dave Kopel notes that "When the Court takes a case, it's common for the Court to hold related cases in reserve. The certiorari grant in McDonald v. Chicago leaves NRA v. Chicago & Oak Park in reserve, in case some unexpected procedural problem arises with the McDonald case. In the unlikely event that the Chicago city council comes to its senses and repeals the handgun ban, the residual case of NRA v. Oak Park remains available to the Court. In the very unlikely event that the governments of Chicago and Oak Park both wise up, the Supreme Court has also retained Maloney v. Cuomo (about a N.Y. State ban on nunchaku) in reserve." The Court likely went for one of the Illinois cases over Maloney because, unlike with Maloney, the Illinois cases don't have the added complication of requiring the Court to decide whether nunchaku count as constitutional arms.
Gura's official brief will be filed with the Supreme Court in mid-November; Chicago will then have a month to file a response. Hearings and a decision will follow in 2010. Gura is especially pleased by an amicus brief already filed in the case signed by 33 state attorneys general arguing that, yes, the Second Amendment should restrict them and their state governments. Gura finds it "gratifying to see state attorneys general who will come out and say, ‘we understand it's better if our states are bound by this right.' You don't see that very often; it's rare to see a government official claiming they should be bound by some constitutional limitation."
The state attorneys general were also bold enough to bring up a classic gun rights argument that's often mocked by liberal intelligentsia—the idea that weapon rights aren't just about self-defense against crime, but are also about defense against tyranny: The brief states that "the right to bear arms provides the foundational bulwark against the deprivation of all our other rights and privileges as Americans—including rights that have already been incorporated against the States by this Court."
If Gura's brave gambit on the Privileges or Immunities Clause succeeds, the entire structure of American jurisprudence could shift in very interesting ways. We will undoubtedly see a wave of critics attacking "judicial activism" as citizens use this revived tool to defend their rights, as well as complaints from across the ideological spectrum as rights both personal and economic are brought before the courts. But more importantly, courts will once again hold a weapon they should never have laid down in the first place, one that allows them to defend from majoritarian tyranny the many rights of American citizens not explicitly and specifically laid out in the Bill of Rights.
Senior Editor Brian Doherty is author of This is Burning Man (BenBella), Radicals for Capitalism (PublicAffairs) and Gun Control on Trial (Cato Institute).
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