February 21, 2013
Can States Limit Government Information to Their Own Citizens?
The Supreme court heard oral arguments yesterday in McBurney v. Young, a case testing whether a state's freedom of information law, or FOIA, can limit access to government information to its own citizens consistent with the Article IV Privileges and Immunities Clause and the Dormant Commerce Clause. (Together these provisions restrict states in discriminating against out-of-staters in the exercise of fundamental rights or important economic interests, or in interstate commerce.) The case was brought by two out-of-staters against Virginia after the state denied them access to records related to the state's enforcement of a child support order and state property records collected for clients as part of a business. Virginia is one of only three states that restricts its FOIA records to in-staters.
The case is tough, because it's not obvious that Virginia's restriction is a restriction on interstate commerce (in violation of the Dormant Commerce Clause), and it's not obvious that the access that the petitioners seek is the kind of right that they, as out-of-staters, should enjoy with respect to Virginia.
The questions from the bench went right to these points. The Court was concerned about whether Virginia's restriction was, in fact, a restriction on commerce, or whether it was merely a law, not a commercial regulation, that had at most an incidental effect on interstate commerce. (The Dormant Commerce Clause points go to the property-records seeker, not the child-support seeker.) In other words: does the Dormant Commerce Clause even apply, given that this may not be a regulation of commerce?
Justices were also concerned about the magnitude of the effect, on both sides. As to the petitioners, they wondered why the cost to the petitioner wasn't negligible. After all, any out-of-stater could simply hire an in-stater for a nominal fee to file their request and thus dodge the restriction. As to the state, they wondered why the cost to the state in providing equal access to its records was significant. The burden of addition requests from out-of-staters didn't seem to be much.
Finally the Justices wondered whether Virginia shouldn't be allowed to restrict access to its records, given that its law is designed to provide access to government information to ensure good government--a concern that applies uniquely to Virginians. On this point, several Justices compared the right to access to the right to vote, and noted that out-of-staters don't get it. In short: Shouldn't Virginia be able to keep its records to its own state citizens? The question goes at least in part to the purpose of Virginia's FOIA--to provide information on governance (as the state would have it), or to restrict information in restraint of free trade (as the petitioner argued).
The parties didn't provide terrific answers to any of these questions. But counsel for the petitioner did note that the challenge was as applied, not facial. This could allow the Court to rule narrowly in favor of this individual, without overturning the restriction as to anyone else. But even that result seems likely only if the Court can get over two threshold problems. First, the restriction is not a direct discriminatory regulation of interstate commerce (even if it may have an indirect effect on interstate commerce in this case). Next, Virginia is certainly able to restrict some of its state functions to its own citizens. The question for the Court: Is this one of them?
February 21, 2013 in Cases and Case Materials, Commerce Clause, Dormant Commerce Clause, Federalism, News, Privileges and Immunities, Privileges and Immunities: Article IV | Permalink | Comments (0) | TrackBack
June 28, 2010
McDonald v. Chicago Opinion Analysis: Second Amendment Incorporated Against States
By a vote of 5-4, the Court in McDonald v. Chicago today incorporated the Second Amendment right to individual gun ownership it recently recognized in District of Columbia v. Heller against the states through the Fourteenth Amendment. Our analysis of the March oral arguments is here.
The 214 pages of opinions (including a 4 page appendix) will provide much fodder for scholars and litigators. There are not only dissenting opinions by Justice Stevens and by Breyer (joined by Ginsburg and Sotomayor), but the majority opinion provides the fractured decision-making that can frustrate law students and other readers of Supreme Court opinions. Here are the alignments:
JUSTICE ALITO announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–A, II–B, II–D, III–A, and III–B, in which THE CHIEF JUSTICE, JUSTICE SCALIA, JUSTICE KENNEDY, and JUSTICE THOMAS join, and an opinion with respect to Parts II–C, IV, and V, in which THE CHIEF JUSTICE, JUSTICE SCALIA, and JUSTICE KENNEDY join.
SCALIA, J., filed a concurring opinion. THOMAS, J., filed an opinion concurring in part and concurring in the judgment. STEVENS, J., filed a dissenting opinion.
BREYER, J., filed a dissenting opinion, in which GINSBURG and SOTOMAYOR, JJ., join.
The plurality - - - Alito, Roberts, Scalia, and Kennedy - - - conclude the due process clause of the Fourteenth Amendment incorporates the Second Amendment. Scalia writes separately, noting "I join the Court’s opinion. Despite my misgivings about Substantive Due Process as an original matter, I have acquiesced in the Court’s incorporation of certain guarantees in the Bill of Rights 'because it is both long established and narrowly limited.' [citation omitted]. This case does not require me to reconsider that view, since straightforward application of settled doctrine suffices to decide it."
Only Justice Thomas, concurring (and vital to the Court's majority under the Fourteenth Amendment incorporation conclusion), rejected substantive due process:
Applying what is now a well-settled test, the plurality opinion concludes that the right to keep and bear arms applies to the States through the Fourteenth Amendment’s Due Process Clause because it is “fundamental” to the American “scheme of ordered liberty,” [citation omitted] and “‘deeply rooted in this Nation’s history and tradition,’” [citation omitted]. I agree with that description of the right. But I cannot agree that it is enforceable against the States through a clause that speaks only to “process.” Instead, the right to keep and bear arms is a privilege of American citizenship that applies to the States through the Fourteenth Amendment’s Privileges or Immunities
Our discussions of the Privileges or Immunities Clause arguments are here, here, here, here, and here. Although initially an attractive option, most scholars and court-watchers came to believe that the Court would ultimately not reverse The Slaughterhouse Cases and "resurrect" the Privileges or Immunities Clause.
Dissenting, Breyer considers the criticisms by scholars of Heller and asks:
At the least, where Heller’s historical foundations are so uncertain, why extend its applicability? My aim in referring to this history is to illustrate the reefs and shoals that lie in wait for those nonexpert judges who place virtually determinative weight upon historical considerations. In my own view, the Court should not look to history alone but to other factors as well—above all, in cases where the history is so unclear that the experts themselves strongly disagree. It should, for example, consider the basic values that underlie a constitutional provision and their contemporary significance. And it should examine as well the relevant consequences and practical justifications that might, or might not, warrant removing an important question from the democratic decisionmaking process.
Justice Stevens' 60 page dissenting opinion argues for judicial restraint, and while he does not explicitly chastise the majority for judicial activism, that is certainly the implication.
We will have additional discussion of the decision in the near future.
June 28, 2010 in Cases and Case Materials, Due Process (Substantive), Federalism, Fourteenth Amendment, Fundamental Rights, History, Interpretation, News, Privileges and Immunities, Recent Cases, Reconstruction Era Amendments, Second Amendment | Permalink | Comments (2) | TrackBack
March 02, 2010
Oral Arguments in McDonald
The Supreme Court heard oral arguments today in McDonald v. City of Chicago, the case challenging Chicago's handgun ban. As expected, the arguments focused on application of the Second Amendment to the states ("incorporation") and avoided the meaning of the Second Amendment (or any related unenumerated right), except insofar as the meaning drives the incorporation analysis.
Here are some of the highlights with additional thoughts:
The Second Amendment (or some portion of it) is Almost Certainly Incorporated.
James Feldman (for the respondent City of Chicago) faced skeptical questioning on his distinction between a right to self-defense (preexisting the Second Amendment) and the Second Amendment right to bear arms in order to protect against the federal government disarming the militia. Feldman argued that the right to self-defense--which, he argued, states traditionally have regulated--"had little to do with" the Second Amendment (quoting Heller). And the Second Amendment, with its militia clause, stands in a different relationship to the states than to the federal government. Heller addressed its relationship to the federal government; Feldman argued that nobody was, or is, concerned about the states disarming the militia--and that the right to bear arms for this purpose is not fundamental as against the states. He argued that this position is consistent with, even supported by, Heller itself. Without incorporation of the Second Amendment, Feldman argued, all that is left is the preexisting right to self-defense. But this has been traditionally regulated by the states and ought to be subject to the political process (and not fundamental rights claims).
Chief Justice Roberts, Justice Scalia, and Justice Alito all attacked Feldman's arguments from different angles. Chief Justice Roberts said it sounded awfully close to the losing argument in Heller. Justice Scalia took issue with Feldman's focus on the reason the Second Amendment was codified (to protect against the federal government interference with the militia), while ignoring the function of the Second Amendment (to protect an individual right to bear arms, as in Heller) and with Feldman's argument that nobody cares about states disarming militias. And Justice Alito, pressing Feldman on whether states could ban all firearms, seemed frustrated by a moving target--Feldman's seemingly inconsistent claims that states could not ban all firearms and that the right to keep and bear arms is not fundamental. (Feldman's point here was that such a complete ban would violate even the default rational basis review under Due Process.)
In short, at least three justices were hostile to Feldman's attempt to navigate between Heller and incorporation and seemed inclined to incorporate.
A fourth, Justice Kennedy, also seemed inclined to incorporate, but offered Feldman a way out, at least on the merits. Justice Kennedy suggested that the Court might incorporate the right to bear arms in Heller, but give states wide latitude in regulating the right--something like rational basis review. Others on the Court may be inclined to this position, as well (even Scalia, as suggested by the Heller decision itself). (Chief Justice Roberts also suggested this approach in a question to Clement.) This would mean a loss for Feldman on incorporation, but on the substance it would result in exactly what he advocated by way of a different route: deference to the political process.
The Court may Incorporate Only a Portion of the Second Amendment.
The justices spent a good part of the argument asking whether the Court might incorporate only a component of the Second Amendment (or a related unenumerated right), and not the whole thing. Justices Kennedy and Stevens pressed this issue the hardest, first asking Alan Gura (for petitioner McDonald) and then asking Paul Clement (for the NRA, which received permission to intervene to argue incorporation via the Due Process Clause) whether the Fourteenth Amendment "necessarily incorporates every jot and tittle of the Federal right." Justice Stevens offered the Sixth Amendment right to trial by jury in criminal cases as an example: That right, as incorporated against the states, requires only non-unanimous juries. Clement cast the Sixth Amendment right to a jury trial as an "outlier"--the only incorporated right in the Bill of Rights that applies to the states differently than it applies to the federal government--and maintained his position that the Due Process Clause incorporates the whole Second Amendment, and the Supreme Court caselaw that goes with it (now just Heller).
Next, Justice Alito asked Clement whether the Court shouldn't return to Justice Harlan's approach in Duncan v. Louisiana--an approach that would consider incorporating rights without necessarily considering each amendment as entirely "in" or "out."
Justice Breyer raised the issue by way of a "chart" of rights--that the right to bear arms may be more important for some reasons than for others. And those more important reasons may be incorporated, while the less important ones may not be.
Finally, Justice Kennedy returned to the issue with Feldman, asking him for "existing authority with reference to other provisions of the Bill of Rights that would allow us to incorporate . . . just the core of the Second Amendment . . . ."
These exchanges suggest that at least Justices Kennedy and Stevens (and possibly Alito, and more likely Breyer) may be open to applying the Second Amendment to the states in a different way than it applies to the federal government.
The Court is Almost Certain to Incorporate Via Due Process (and not P or I).
Several justices jumped on Gura's aggressive argument for incorporation via the Privileges or Immunities Clause, expressing concerns ranging from overturning the Slaughter-House Cases to uncertainty in incorporation doctrine to the unknown boundaries of the Privileges or Immunities Clause. Based on the questions, Gura's argument is almost surely a non-starter.
Gura's argument for incorporation via the relatively obscure Privileges or Immunities Clause was indeed--and perhaps necessarily--grand. At one point, Justice Scalia even joked that Gura must be angling for a law faculty position, given Gura's concession that he could just as easily get to incorporation via the much better developed Due Process route.
What seemed to trouble the justices most, however, was Gura's inability to define the outer boundaries of the Privileges or Immunities Clause. As a Court, they seemed unwilling to open this can of worms, even if it would allow them to undo an approach under the Slaughter-House Cases that is nearly universally considered incorrect.
Incorporation Looks to the Duncan Standard, American Style.
There was some back-and-forth beginning in Feldman's argument about the right standard for incorporation. Feldman argued that the Court should look to those rights that are "implicit in the concept of ordered liberty." Justice Scalia was quick to suggest that that standard was dated and defunct; and Chief Justice Robert qualified it by clarifying that whatever standard the Court applied, it was as to American values (and not some abstract notion of values). (This is not an innovation; it's clear from the Duncan formulation, below.)
Chief Justice Roberts specifically mentioned Duncan, and it seems likely that the Court will apply that standard: Is the right "among those 'fundamental principles of liberty and justice which lie at the base of all our civil and political institutions,' . . . 'basic in our system of jurisprudence,' and . . . a 'fundamental right, essential to a fair trial.'"
In all, the Court seems inclined to incorporate at least a core of a right to bear arms by way of the Due Process Clause of the Fourteenth Amendment. This is really the path of least resistance, it preserves the incorporation approach the Court has used, and it doesn't open up entirely new areas of unexplored territory. If the Court says anything about what the underlying right means, it seems to be leaning toward a deferential standard of review that would likely allow the states to do their work in issuing reasonable regulations of firearms.
February 09, 2010
Competing Claims for Second Amendment Incorporation
Robert Barnes reported yesterday in the Washington Post on the competing claims for Second Amendment incorporation in McDonald v. City of Chicago, the Second Amendment case now before the Court (and scheduled for argument on March 2). The article is a nice overview of the constitutional claims on incorporation and the politics of the case.
As Barnes reports, the NRA "was on the outside looking in" in D.C. v. Heller, the OT 07 case that held that the Second Amendment protects an individual right to bear arms, but left open the question whether that right extends to the states (or is "incorporated"). Barnes reports that the NRA was unhappy being left outside that case and thus filed to participate in oral argument in McDonald.
On January 25, the Court granted the NRA's motion, no doubt in large part because of who would argue on its behalf: Paul Clement. (Clement, of course, was the Bush administration's Solicitor General and, as Barnes writes, "a favorite of the court.")
In moving for time at oral argument, the NRA claimed that McDonald's attorney, Alan Gura (who also argued Heller), gave insufficient attention to the argument that the Due Process Clause incorporates the Second Amendment. (As we reported, Gura pressed harder on his claim that the Privileges or Immunities Clause incorporates the Second Amendment. He all but ignored the Due Process argument.) The NRA apparently wanted to press the Due Process claim--the path of lesser resistance (because it wouldn't require overturning The Slaughter-House Cases, among others). Gura's brief is here; the NRA's brief is here.
It's hard to know what, or how much, (if anything) to make of the Court's decision to grant time to the NRA and Clement. It could simply be a move to include an obviously interested party with a popular attorney. Or it could signal the Court's desire to consider more seriously the Due Process claim (and less seriously the Privileges or Immunities claim).
January 31, 2010
Tribune Profiles Second Amendment McDonald
The Chicago Tribune today profiled Otis McDonald, the lead plaintiff in McDonald v. City of Chicago, the Second Amendment incorporation case now before the Supreme Court. We've posted on the case, here, here, here, here, here, and here. It's scheduled for oral argument on March 2.
McDonald is a 76-year-old Chicago resident who says he needs to carry a handgun for personal protection and self-defense. After agreeing to serve as lead plaintiff--and on instructions from his attorney--he sought to register his .22 Beretta pistol with the Chicago police. The police denied his application, citing the city's 28-year-old handgun ban, and he sued.
According to the story, McDonald's compelling personal background and legitimate reason for wanting to carry a handgun made him a good pick for lead plaintiff. But the story cites constitutional law experts as suggesting another reason: McDonald is black. According to one source, this may "help us remember [the] history" of the Fourteenth Amendment. The Tribune: "In the Hellerdecision, Justice Antonin Scalia, writing for the majority, referred to that chapter in history, arguing that those who had opposed disarmament of freedmen did so with the understanding that the Second Amendment protected an individual right to own a gun for self-defense."
This story is a good complement to lessons on incorporation, the Second Amendment, and even constitutional litigation generally, reminding us that so many of these disputes come to the Court as carefully engineered cases, not as accidents.
January 20, 2010
Symposium: Civil Legal Representation and Access to Justice
The Fred T. Korematsu Center for Law and Equality at Seattle University School of Law, the University of Washington School of Law, and Gonzaga University School of Law are co-sponsoring a symposium and CLE on Friday, February 19, at Seattle University School of Law titled Civil Legal Representation and Access to Justice: Breaking Point or Opportunity for Change. Click here for the program and registration.
This looks like an outstanding program, with a very impressive line-up. It includes some of the leading advocates and academics on the civil right to counsel. Washington State Supreme Court Chief Justice Barbara Madsen will deliver the keynote.
The symposium comes in the wake of ABA President Carolyn Lamm's call last year for a constitutional right to counsel in civil cases involving basic human needs. We posted on her call here.
January 20, 2010 in Conferences, Due Process (Substantive), Equal Protection, Fourteenth Amendment, Privileges and Immunities, Procedural Due Process, Reconstruction Era Amendments, Scholarship | Permalink | Comments (0) | TrackBack
January 14, 2010
NRA Scholars' Conference on Second Amendment Incorporation
The National Rifle Association Civil Rights Defense Fund hosted a Scholars' Conference on January 10 on incorporation of the Second Amendment via the Fourteenth Amendment Privileges or Immunities Clause. The discussion features Ilya Shapiro (Cato), Dave Hardy (Arms & the Law Blog), Adam Winkler (UCLA), and Josh Blackman (Josh Blackman's Blog). Thanks to Alice Beard for the tip.
McDonald v. City of Chicago, set for argument on March 2 at the Supreme Court, tests this argument. We've posted most recently on the P or I incorporation issue here; our most recent Second Amendment posts are here and here.
December 31, 2009
State AGs Lay Out Constitutional Case Against "Cornhusker Kickback"
Thirteen state AGs--all Republicans--sent a letter to House Speaker Nancy Pelosi and Senate Majority Leader Harry Reid setting out their constitutional objections to the provision in the Senate health care reform legislation that exempts Nebraska from paying costs of new enrollees in the Medicaid program. (Instead, under the provision, the federal government would pick up these additional costs. Senator Ben Nelson is the only senator to have successfully negotiated such an arrangement for his state.) We most recently posted on this here.
From the letter:
In Helvering v. Davis . . . the United States Supreme Court warned that Congress does not possess the right under the Spending Power to demonstrate a "display of arbitrary power." Congressional spending cannot be arbitrary and capricious. The spending power of Congress includes authority to accomplish policy objectives by conditioning receipt of federal funds on compliance with statutory directives, as in the Medicaid program. However, the power is not unlimited and "must be in pursuit of the 'general welfare.'" South Dakota v. Dole . . . . In Dole the Supreme Court stated, "that conditions on federal grants might be illegitimate if they are unrelated to the federal interest in particular national projects or programs." . . . It seems axiomatic that the federal interest in H.R. 3590 is not simply requiring universal health care, but also ensuring that the states share with the federal government the cost of providing such care to their citizens. This federal interest is evident from the fact this legislation would require every state, except Nebraska, to shoulder its fair share of the increased Medicaid costs the bill will generate. The provision of the bill that relieves a single state from this cost-sharing program appears to be not only unrelated, but also antithetical to the legitimate federal interests in the bill.
This seems deeply confused on a number of points. First, both Helvering and Dole emphasize the expansive nature of the spending power and Congress's--not the courts'--discretion in determining what constitutes the "general welfare." From Helvering:
Congress may spend money in aid of the "general welfare." . . . There have been great statesmen in our history who have stood for other views. We will not resurrect the contest. It is now settled by decision. United States v. Butler. . . . The conception of the spending power advocated by Hamilton and strongly reinforced by Story has prevailed over that of Madison, which has not been lacking in adherents. Yet difficulties are left when the power is conceded. The line must still be drawn between one welfare and another, between particular and general. Where this shall be placed cannot be known through a formula in advance of the event. There is a middle ground, or certainly a penumbra, in which discretion is at large. The discretion, however, is not confided to the courts. The discretion belongs to Congress, unless the choice is clearly wrong, a display of arbitrary power, not an exercise of judgment. This is now familiar law.
Next, the AGs ask too much of the "arbitrary" standard. This is a very low standard, not requiring much. Surely the Nebraska compromise cannot be "arbitrary." This is especially true in light of the all-too-numerous state-specific benefits that we see in any major piece of legislation--any one of which is at least as "arbitrary" as the Nebraska compromise.
Third, it's not clear how or why conditional spending plays any part in a constitutional analysis of the Nebraska compromise. Nothing's conditioned here.
Finally, it's not at all obvious that a part of the purpose of the legislation is to get states to pay jointly with the federal government. As Professor Mark Tushnet said, the legislation could ultimately aim to get the federal government to pay all of the increased costs; Nebraska simply represents the first step.
The other points in the letter seem equally confused. For example, the Privileges and Immunities Clause of Article IV has been interpreted as a restriction only against the states, not Congress. (The Privileges or Immunities Clause of the Fourteenth Amendment obviously doesn't apply at all--by its plain terms it restricts only the states.) There's no Due Process problem here. And any Equal Protection problem would get only rational basis review. The courts would almost certainly uphold the provision for the reasons that Professor Tushnet articulated, among others.
The AGs dropped the Port Preferences Clause claim.
December 31, 2009 in Congressional Authority, Due Process (Substantive), Equal Protection, Federalism, Fundamental Rights, News, Privileges and Immunities, Procedural Due Process, Spending Clause | Permalink | Comments (0) | TrackBack
December 05, 2009
Constitutional Law Exam Hypothetical
Looking for a Constitutional Law hypothetical, either to adapt for your students or, if you are a student, to practice or to discuss with your study group colleagues?
Here's a problem focusing on "fundamental rights" and new doctrinal and theoretical developments that I used as a practice hypothetical for the last week of classes this semester:
I hope you can assist me with an issue that has suddenly arisen. A friend of mine - - - let me call her Ms. K. - - - teaches a program entitled “self-defense for girls” in the NYC Department of Education's "academies" for students who have been suspended from other schools. The mission of these academies is to enable "every student to succeed academically while developing socially and emotionally to become a confident and productive member of society." Ms. K's program, approved and funded by the NYC Department of Education, is aimed at improving "self-esteem and self-discipline" as well as providing "real-world usable skills."
Ms. K, who is highly trained in a variety of martial arts, regularly includes a unit on martial arts. However, all 25 of Ms. K’s students at a particular academy in Queens have been suspended for possessing the “kung fu stars” Ms. K required for class. A suspension from an academy means that a student is not able to attend any public school in the city.
Almost all of the students who have been suspended from the academy carried the “stars” in their back-packs; most of the students had the “stars” in little black foam-lined cases. I believe, although I am not sure, that Ms. K provided both the “stars” and the cases. Ms. K told the Principal that these stars were for the class, and that skill in throwing stars is vital for "female defense": “Skillful throwing of a star can stop a pursuer, giving the girl time to escape. A truly skilled star thrower could hit a dime at thirty feet, although of course with only a few weeks experience, the students are less accomplished.”
The Principal responded, “a rule is a rule.” (An excerpt from the rules is available below [Download here]; the Principal does seem to be correct that there is a rule prohibiting “kung fu stars” in the schools.) The Principal of the academy also stated that "these students are not regular students - - - they are students who have already been suspended and allowed to pursue the privilege of education at a special school. If these girls cannot abide by the rules, even when given this last chance, then we can all agree they are a detriment to themselves and society."
Ms. K does not agree. Indeed, she is outraged. She believes being educated in self-defense is a “fundamental right" vital to survival, especially for girls.
I told Ms. K that we have been considering "fundamental rights" recently and I am certain that every member of our class would be able to assist her. Please provide a brief memo objectively discussing the constitutional aspects of the situation, including any constitutional arguments Ms. K (and the students) might make, the likelihood of their success, and the important theoretical perspectives.
Happy Exam Season.
November 18, 2009
Dred Scott & Harriet Scott Plaque next to Taney Statute
Justice Roger Taney, a Supreme Court Justice, lived in Frederick, Maryland and practiced law there. Thus, it is not surprising that the town of Frederick would have a monument to Taney. It is also not surprising that not everyone would feel Taney should be honored with a monument; Justice Taney is most most well-known for authoring the Dred Scott decision.
As reported yesterday, the town of Frederick has installed a plaque as a tribute to Dred and Harriet Scott. As the reports note, this occurred after extensive discussions and planning (the plaque itself bears the year 2008).
November 18, 2009 in Cases and Case Materials, Current Affairs, Federalism, Fourteenth Amendment, Fundamental Rights, History, News, Privileges and Immunities, Race, Reconstruction Era Amendments, Thirteenth Amendment | Permalink | Comments (0) | TrackBack
November 16, 2009
Right to Bear Arms is a Privilege or Immunity, McDonald Argues
Petitioners in McDonald v. City of Chicago, the Second Amendment case now before the Supreme Court, filed their merits brief today and argued full force that the individual right to bear arms is protected against state interference by the Fourteenth Amendment Privileges or Immunities Clause.
The petitioners' aggressive argument on the Privileges or Immunities Clause--and the after-thought treatment of the Due Process Clause--opens the door for a reevaluation of how the Court treats claims that fundamental rights, including those in the Bill of Rights, apply against the states.
Petitioners' Privileges or Immunities claim was rejected by the Seventh Circuit. That court ruled that The Slaughter-House Cases (holding that the P or I Clause does not incorporate the Bill of Rights, en bloc, to the states), and U.S. v. Cruikshank, Presser v. Illinois, and Miller v. Texas (all rejecting arguments that the P or I Clause incorporates the Second Amendment to the states) were still good law, even if they are universally criticized and even defunct. The Seventh Circuit also rejected the petitioners' Due Process argument. (The Second Circuit, in a panel including then-Judge Sotomayor, similarly rejected a claim that the Second Amendment applied against the states, but the Ninth Circuit ruled that it did. The full Ninth Circuit voted to rehear the case en banc.)
Petitioners argue, as they must, that The Slaughter-House Cases, U.S. v. Cruikshank, and Presser v. Illinois should be overruled.
Here's a taste:
And yet this Court's various approaches to [applying fundamental rights, including those in the Bill of Rights, to the states under] the Fourteenth Amendment fall short of upholding this provision's essential promise. State violations of rights understood and intended by the ratifying public to receive significant Fourteenth Amendment protection are not meaningfully secured by the federal courts. Moreover, the failure to honor the Fourteenth Amendment's original public meaning foments confusion and controversy as courts pursue other approaches to protecting core individual rights.
This case presents a rare opportunity to correct a serious error, honor the Fourteenth Amendment's true meaning, and bring a needed measure of clarity to this Court's civil-rights jurisprudence.
The Fourteenth Amendment's Privileges or Immunities Clause forbids the States from abridging civil rights, including those codified in the Bill of Rights. . . .
SlaughterHouse's illegitimacy has long been all-but-universally understood. It deserves to be acknowledged by this Court. Because SlaughterHouse rests on language not actually in the Constitution, contradicts the Fourteenth Amendment's original textual meaning, defies the Framers' intent, and supplies a nonsensical definition for Section One's key protection of civil rights, overruling this error and its progeny remains imperative.
November 16, 2009 in Due Process (Substantive), Federalism, Fourteenth Amendment, News, Privileges and Immunities, Recent Cases, Reconstruction Era Amendments, Second Amendment | Permalink | Comments (0) | TrackBack
November 14, 2009
Privileges or Immunities Clause Pedgagogy: Robson's Saturday Evening Review
Teaching the Fourteenth Amendment’s Privileges or Immunities Clause in a Constitutional Law course has long been a challenging endeavor. For many years, the doctrine started and ended with The Slaughter-House Cases, 83 U.S. 36 (1872), in which a professor’s role was largely to address the cynicism of students who concluded that the Court’s majority had obliterated the plain language of the Constitution. Ten years ago, Saenz v. Roe, 526 U.S. 489 (1999), initially held the promise of revivifying the clause, but the doctrine did not develop beyond Saenz’s applicability to the right to travel across state lines, which was also encompassed by the Equal Protection Clause, Shapiro v. Thompson, 394 U.S. 618 (1969).
Recently, however, the Privileges or Immunities Clause has been much discussed, including in the context of the applicability of the Second Amendment to the states in the recent grant of certiorari in McDonald v. City of Chicago, documents here, previously discussed here, in which the question is “Whether the Second Amendment is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home.”But how to teach the P or I Clause? It is possible to discuss it in the context of the forthcoming McDonald after D.C. v Heller, 554 US ___ (2008), but it seemed to me that Privileges or Immunities deserved its own discussion.
This year, I assigned not only portions of The Slaughter-Houses Cases and Saenz v. Roe, but a brief piece from The Wall Street Journal, which provides a nice rehearsal of the issues and a judgment that scholars and attorneys on “the left and right” seem to be uniting in their opinion that The Slaughter-House Cases were wrongly decided. I also gave students a choice of one of two pieces:
The Gem of the Constitution: The Text and History of the Privileges or Immunities Clause of the Fourteenth Amendment, a 50 plus page report intended for a broad audience, published by the Constitutional Accountability Center in 2009, available here,or
Ink Blot or Not: the Meaning of Privileges and/or Immunities, a 33 page law review article intended for a scholarly audience, by Richard Aynes, 11 Pa. J. Const. Law 1295 (2009), available on ssrn here.
I chose these pieces because they were recent, accessible, and relatively short. Based on a class questionnaire students submitted anonymously, students split fairly evenly between the two pieces, responding to the query to explain their choice of article with various reasons including favoring or disfavoring the intended audience, the titles and subtitles, the mentioning of the Constitutional Accountability Center in the Wall Street Journal article, chance, download ease, and a great many “recommendation by classmate” (which nevertheless also split evenly). Indeed, the students’ pre-class discussions were evident in the larger class discussion, and seemingly in their answers to some of the other questions I posed in the questionnaire. The two final questions (out of a mere five questions) were most gratifying to read. I asked students to quote a sentence or passage from the article they read which they found “most appealing” and then “most troubling.”
Reading these responses after class, I was impressed by the students’ thoughtfulness and insight, as well as some of their humor. (Students who read Ink Blot appreciated, and were inspired by, Aynes’ wit.) While it can be difficult to discuss constitutional theory in a large classroom, contemporary background reading with some student choice, accompanied by in-class focus questions and adequate time for small-group discussion, allowed for wide-participation and much enthusiasm about the potential for change in the Fourteenth Amendment's Privileges or Immunities Clause doctrine.
November 14, 2009 in Cases and Case Materials, Fourteenth Amendment, Fundamental Rights, History, Interpretation, Privileges and Immunities, Reconstruction Era Amendments, Scholarship, Teaching Tips, Theory | Permalink | Comments (1) | TrackBack
October 18, 2009
U. Akron Law Celebrates Fourteenth Amendment's 140th
The University of Akron and The Akron Law Review put together an impressive and diverse group of scholars last year to celebrate the 140th anniversary of the Fourteenth Amendment. A good number of the papers touch on incorporation and the Privileges or Immunities and the Due Process Clauses--issues before the Court this term in McDonald v. City of Chicago, the Second Amendment case out of the Seventh Circuit. See also here, here, here, here, and here.
The Akron Law Review web-site doesn't yet link to the articles in the volume, so I tracked down those I could on SSRN. All of the authors have written other works on the Fourteenth Amendment--in some cases extensively--so I've linked their SSRN pages (on their names), as well.
October 16, 2009
NY Tolls and the Dormant Commerce Clause
Today, the Second Circuit published a case considering the Dormant Commerce Clause, both Privileges and Immunities clauses, and the prudential standing doctrine. In short, the facts are that New York charges a toll of 75 cents to cross the Grand Island Bridge. However, residents of the island pay as little as nine cents. The plaintiffs - one a New York resident and the other an American citizen living in Ontario, Canada - did not live on the island but paid its higher toll when crossing the bridge en route to places such as New Jersey. The plaintiffs objected and filed suit raising the claims previously listed.
The Second Circuit ruled in favor of the plaintiffs on most of the relevant issues. First, the Court found that the plaintiffs had both constitutional and prudential standing to pursue the case. The New York Thruway Authority (NYTA) argued that despite their standing, the plaintiffs should fail because New York was a market participant. The court rejected this claim by noting that New York was not behaving as a private actor would in the market for several reasons, not the least of were: 1) the operation of highways and toll roads is a core governmental function and; 2) NYTA failed to assert that any private entities had entered into the market.
Because the NYTA was not a market participant, the court considered whether the regulation passed muster under the dormant commerce clause. The lower court had ruled that there was no constistutional violation because the plaintiffs failed to allege discrimination. The Second Circuit agreed with the lower court on that point but nevertheless found error due to the lower court's failure to then consider whether the regulation - even if non-discriminatory - nevertheless burdened interstate commerce. Using the Pike test, the Second Circuit held that the New York regulation did just that. Interestingly, the court declined the NYTA's argument that the burdens to the individual plaintiffs were small, focusing instead on the overall impact on interstate commerce. This is, of course, consistent with the Supreme Court's recent pronouncements on the clause in cases such as Camps Newfound.
In addition, the Second Circuit found the district erred in finding that the plaintiffs failed to state a right to travel claim under the Privileges and Immunities and Equal Protection clauses of the Fourteenth Amendment. While acknowledging that the impact on the plaintiffs was small as they normally crossed the bridge only for shopping or pleasure - as opposed to daily for work - they were treated differently from the island residents and the claim could proceed. However, the court affirmed the district court's decision to dismiss the Canadian-resident plaintiff's claim under the Article IV Privileges and Immunities clause. The court held that the Clause applies only to United States citizens living in this country and does not apply to those living abroad, even though they are U.S. citizens.
This case is interesting on so many levels. Besides the fact that it screams EXAM!, it is a fairly thorough exposition of these issues. Scholars, students, and others interested in these issues will find much to consider and debate. Moreover, the dormant commerce issue has been raised in the highway toll context in another state and in other contexts in the Sixth Circuit as well. With all this litigation brewing, it will be difficult for the Supreme Court to stay dormant. As always, we'll keep you posted on any developments.
September 30, 2009
Second Amendment Incorporated Against the States?
The United States Supreme Court has granted certiorari today on the question of whether the Second Amendment should be incorporated against the states, a question left open by D.C. v. Heller.
The case is McDonald v. Chicago. The Seventh Circuit opinion, authored by Judge Easterbrook, is worth reading in full. It's not widely available and so is reproduced here:
Two municipalities in Illinois ban the possession of most handguns. After the Supreme Court held in District of Columbia v. Heller, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008), that the second amendment entitles people to keep handguns at home for self-protection, several suits were filed against Chicago and Oak Park. All were dismissed on the ground that Heller dealt with a law enacted under the authority of the national government, while Chicago and Oak Park are subordinate bodies of a state. The Supreme Court has rebuffed requests to apply the second amendment to the states. See United States v. Cruikshank, 92 U.S. 542, 23 L. Ed. 588 (1876); Presser v. Illinois, 116 U.S. 252, 6 S. Ct. 580, 29 L. Ed. 615 (1886); Miller v. Texas, 153 U.S. 535, 14 S. Ct. 874, 38 L. Ed. 812 (1894). The district judge thought that only the Supreme Court may change course. 617 F. Supp. 2d 752, 2008 U.S. Dist. LEXIS 98134 (N.D. Ill. Dec. 4, 2008).
Cruikshank, Presser, and Miller rejected arguments that depended on the privileges and immunities clause of the fourteenth amendment. The Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 21 L. Ed. 394 (1873), holds that the privileges and immunities clause does not apply the Bill of Rights, en bloc, to the states. Plaintiffs respond in two ways: first they contend that Slaughter-House Cases was wrongly decided; second, recognizing that we must apply that decision even if we think it mistaken, plaintiffs contend that we may use the Court's "selective incorporation" approach to the second amendment. Cruikshank, Presser, and Miller did not consider that possibility, which had yet to be devised when those decisions were rendered. Plaintiffs ask us to follow Nordyke v. King, 563 F.3d 439 (9th Cir. 2009), which concluded that Cruikshank, Presser, and Miller may be bypassed as fossils. (Nordyke applied the second amendment to the states but held that local governments may exclude weapons from public buildings and parks.) Another court of appeals has concluded that Cruikshank, Presser, and Miller still control even though their reasoning is obsolete. Maloney v. Cuomo, 554 F.3d 56 (2d Cir. 2009). We agree with Maloney, which followed our own decision in Quilici v. Morton Grove, 695 F.2d 261 (7th Cir. 1982).
Repeatedly, in decisions that no one thinks fossilized, the Justices have directed trial and appellate judges to implement the Supreme Court's holdings even if the reasoning in later opinions has undermined their rationale. "If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions." Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484, 109 S. Ct. 1917, 104 L. Ed. 2d 526 (1989). Cruikshank, Presser, and Miller have "direct application in [this] case". Plaintiffs say that a decision of the Supreme Court has "direct application" only if the opinion expressly considers the line of argument that has been offered to support a different approach. Yet few opinions address the ground that later opinions deem sufficient to reach a different result. If a court of appeals could disregard a decision of the Supreme Court by identifying, and accepting, one or another contention not expressly addressed by the Justices, the Court's decisions could be circumvented with ease. They would bind only judges too dim-witted to come up with a novel argument.
Anyone who doubts that Cruikshank, Presser, and Miller have "direct application in [this] case" need only read footnote 23 in Heller. It says that Presser and Miller "reaffirmed [Cruikshank's holding] that the Second Amendment applies only to the Federal Government." 128 S. Ct. at 2813 n.23. The Court did not say that Cruikshank, Presser, and Miller rejected a particular argument for applying the second amendment to the states. It said that they hold "that the Second Amendment applies only to the Federal Government." The Court added that "Cruikshank's continuing validity on incorporation" is "a question not presented by this case". Ibid. That does not license the inferior courts to go their own ways; it just notes that Cruikshank is open to reexamination by the Justices themselves when the time comes. If a court of appeals may strike off on its own, this not only undermines the uniformity of national law but also may compel the Justices to grant certiorari before they think the question ripe for decision.
State Oil Co. v. Khan, 522 U.S. 3, 118 S. Ct. 275, 139 L. Ed. 2d 199 (1997), illustrates the proper relation between the Supreme Court and a court of appeals. After Albrecht v. Herald Co., 390 U.S. 145, 88 S. Ct. 869, 19 L. Ed. 2d 998 (1968), held that antitrust laws condemn all vertical maximum price fixing, other decisions (such as Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 97 S. Ct. 2549, 53 L. Ed. 2d 568 (1977)) demolished Albrecht's intellectual underpinning. Meanwhile new economic analysis showed that requiring dealers to charge no more than a prescribed maximum price could benefit consumers, a possibility that Albrecht had not considered. Thus by the time Khan arrived on appeal, Albrecht's rationale had been repudiated by the Justices, and new arguments that the Albrecht opinion did not mention strongly supported an outcome other than the one that Albrecht announced. Nonetheless, we concluded that only the Justices could inter Albrecht. See Khan v. State Oil Co., 93 F.3d 1358 (7th Cir. 1996). By plaintiffs' lights, we should have treated Albrecht as defunct and reached what we deemed a better decision. Instead we pointed out Albrecht's shortcomings while enforcing its holding. The Justices, who overruled Albrecht in a unanimous opinion, said that we had done exactly the right thing, "for it is this Court's prerogative alone to overrule one of its precedents." 522 U.S. at 20. See also, e.g., Eberhart v. United States, 546 U.S. 12, 126 S. Ct. 403, 163 L. Ed. 2d 14 (2005).
What's more, the proper outcome of this case is not as straightforward as the outcome of Khan. Although the rationale of Cruikshank, Presser, and Miller is defunct, the Court has not telegraphed any plan to overrule Slaughter-House and apply all of the amendments to the states through the privileges and immunities clause, despite scholarly arguments that it should do this. See Akhil Reed Amar, America's Constitution: A Biography 390-92 (2005) (discussing how the second amendment relates to the privileges and immunities clause). The prevailing approach is one of "selective incorporation." Thus far neither the third nor the seventh amendment has been applied to the states--nor has the grand jury clause of the fifth amendment or the excessive bail clause of the eighth. How the second amendment will fare under the Court's selective (and subjective) approach to incorporation is hard to predict.
Nordyke asked whether the right to keep and bear arms is "deeply rooted in this nation's history and tradition." Washington v. Glucksberg, 521 U.S. 702, 720-21, 117 S. Ct. 2258, 117 S. Ct. 2302, 138 L. Ed. 2d 772 (1997). It gave an affirmative answer. Suppose the same question were asked about civil jury trials. That institution also has deep roots, yet the Supreme Court has not held that the states are bound by the seventh amendment. Meanwhile the Court's holding that double-jeopardy doctrine is not "so rooted in the traditions and conscience of our people as to be ranked as fundamental," Palko v. Connecticut, 302 U.S. 319, 325, 58 S. Ct. 149, 82 L. Ed. 288 (1937) (concluding that it is enough for the state to use res judicata to block relitigation of acquittals), was overruled in an opinion that paid little heed to history. Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969). "Selective incorporation" thus cannot be reduced to a formula.
Plaintiffs' reliance on William Blackstone, 1 Commentaries on the Laws of England 123-24, for the proposition that the right to keep and bear arms is "deeply rooted" not only slights the fact that Blackstone was discussing the law of another nation but also overlooks the reality that Blackstone discussed arms-bearing as a political rather than a constitutional right. The United Kingdom does not have a constitution that prevents Parliament and the Queen from matching laws to current social and economic circumstances, as the people and their representatives understand them. It is dangerous to rely on Blackstone (or for that matter modern European laws banning handguns) to show the meaning of a constitutional amendment that this nation adopted in 1868. See Nicholas Quinn Rosenkranz, Condorcet and the Constitution, 59 Stan. L. Rev. 1281 (2007). Blackstone also thought determinate criminal sentences (e.g., 25 years, neither more nor less, for robbing a post office) a vital guarantee of liberty. 4 Commentaries 371-72. That's not a plausible description of American constitutional law.
One function of the second amendment is to prevent the national government from interfering with state militias. It does this by creating individual rights, Heller holds, but those rights may take a different shape when asserted against a state than against the national government. Suppose Wisconsin were to decide that private ownership of long guns, but not handguns, would best serve the public interest in an effective militia; it is not clear that such a decision would be antithetical to a decision made in 1868. (The fourteenth amendment was ratified in 1868, making that rather than 1793 the important year for determining what rules must be applied to the states.) Suppose a state were to decide that people cornered in their homes must surrender rather than fight back--in other words, that burglars should be deterred by the criminal law rather than self help. That decision would imply that no one is entitled to keep a handgun at home for self-defense, because self-defense would itself be a crime, and Heller concluded that the second amendment protects only the interests of law-abiding citizens. See United States v. Jackson, 555 F.3d 635 (7th Cir. 2009) (no constitutional right to have guns ready to hand when distributing illegal drugs).
Our hypothetical is not as farfetched as it sounds. Self-defense is a common-law gloss on criminal statutes, a defense that many states have modified by requiring people to retreat when possible, and to use non-lethal force when retreat is not possible. Wayne R. LaFave, 2 Substantive Criminal Law 10.4 (2d ed. 2003). An obligation to avoid lethal force in self-defense might imply an obligation to use pepper spray rather than handguns. A modification of the self-defense defense may or may not be in the best interest of public safety--whether guns deter or facilitate crime is a an empirical question, compare John R. Lott, Jr., More Guns, Less Crime (2d ed. 2000), with Paul H. Rubin & Hashem Dzehbakhsh, The effect of concealed handgun laws on crime, 23 International Rev. L. & Econ. 199 (2003), and Mark Duggan, More Guns, More Crime, 109 J. Pol. Econ. 1086 (2001)--but it is difficult to argue that legislative evaluation of which weapons are appropriate for use in self-defense has been out of the people's hands since 1868. The way to evaluate the relation between guns and crime is in scholarly journals and the political process, rather than invocation of ambiguous texts that long precede the contemporary debate. See Clark v. Arizona, 548 U.S. 735, 126 S. Ct. 2709, 165 L. Ed. 2d 842 (2006) (state may reformulate, and effectively abolish, insanity defense); Martin v. Ohio, 480 U.S. 228, 107 S. Ct. 1098, 94 L. Ed. 2d 267 (1987) (state may assign to defendant the burden of raising, and proving, self-defense).
Chicago and Oak Park are poorly placed to make these arguments. After all, Illinois has not abolished self-defense and has not expressed a preference for long guns over handguns. But the municipalities can, and do, stress another of the themes in the debate over incorporation of the Bill of Rights: That the Constitution establishes a federal republic where local differences are to be cherished as elements of liberty rather than extirpated in order to produce a single, nationally applicable rule. See New State Ice Co. v. Liebmann, 285 U.S. 262, 311, 52 S. Ct. 371, 76 L. Ed. 747 (1932) (Brandeis, J., dissenting) ("It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country."); Crist v. Bretz, 437 U.S. 28, 40-53, 98 S. Ct. 2156, 57 L. Ed. 2d 24 (1978) (Powell, J., dissenting) (arguing that only "fundamental" liberties should be incorporated, and that even for incorporated amendments the state and federal rules may differ); Robert Nozick, Anarchy, State, and Utopia (1974). Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon. How arguments of this kind will affect proposals to "incorporate" the second amendment are for the Justices rather than a court of appeals.
July 14, 2009
Sotomayor and Hatch on Second Amendment Incorporation
Sen. Orrin Hatch (R-UT) today questioned Supreme Court nominee Judge Sonia Sotomayor on Second Amendment application to the states. The exchange--or, rather, Hatch's statements--reveal several political and doctrinal problems for those who simultaneously favor Second Amendment incorporation, originalism, and a restrained judiciary. Under Supreme Court precedent, these values are in fundamental tension in the incorporation debates, and only the Supreme Court can provide a solution. (But, ironically, the solution for this camp may be worse than the problem.)
Here's part of the exchange:
Hatch: I understand. Let me turn to your decision in Maloney v. Cuomo. [Our post, by RR, here.] This was the first post-Heller decision about the Second Amendment to reach any federal court, or federal appeals court. I think I should be more specific. In this case, you held that the Second Amendment applies only to the federal government, not to the states, and this was after Heller. And am I right that your authority for that proposition was the Supreme Court's 1886 decision in Presser v. Illinois?
Sotomayor: That, plus some Second Circuit precedent that had held . . .
Sotomayor: . . . that it had not been--that the amendment had not . . .
Hatch: But Presser was definitely one of the . . .
Sotomayor: It was, but . . .
Hatch: . . . cases you relied on? OK. In that case--or, I should say, that case involved the Fourteenth Amendment's Privileges and Immunities Clause. Is that correct? You're aware of that?
Sotomayor: It may have. I haven't read it recently enough to remember exactly.
Hatch: You can take my word on it.
Sotomayor: OK. I'll accept . . .
Hatch: Thank you. Last year's decision in Heller involved the District of Columbia, so it did not decide the issue of whether the Second Amendment applies to the states or is incorporated, but the Court did say that its 19th century cases about applying the Bill of Rights to the states, quote, "did not engage the sort of Fourteenth Amendment inquiry required by our later cases," unquote.
Now here's my question: Am I right that those later cases to which the Court referred involved the Fourteenth Amendment's Due Process Clause rather than its Privileges and Immunities Clause?
. . .
Isn't the Presser case that you relied on in Maloney to say that the Second Amendment does not apply to the states one of those 19th century cases where they've used the Privileges and Immunities Clause, not the Fourteenth Amendment Due Process Clause, to incorporate?
. . .
Well, the reason, the reason I'm going over this is because I believe you've applied the wrong line of cases in Maloney, because you were applying cases that used the Privileges and Immunities Clause and not the cases that used the Fourteenth Amendment Due Process Clause.
. . .
Well the point that I'm really making is that the decision was based upon a 19th century case that relied on the Privileges and Immunities Clause, which is not the clause that we used to invoke the doctrine of incorporation today, and that's just an important consideration for you as you see these cases in the future.
The problem is that the values of Second Amendment incorporation, originalism, and a restrained judiciary (or at least a restrained circuit judge, one who does not make policy) run up against each other under the Court's jurisprudence. Under Hatch's 19th century cases--which, alas, are still good law--Judge Sotomayor could not have incorporated the Second Amendment by way of the Fourteenth Amendment Privileges or Immunities Clause. Everyone--including the Seventh and Ninth Circuits--seems to agree on this.
But then judicial restraint runs up against incorporation: a restrained circuit court judge should not incorporate the Second Amendment under the Due Process Clause; this is a job for only the Supreme Court. (Favoring incorporation over the value of a restrained circuit judge puts Hatch in the surprising company of the Ninth Circuit--the archetypal "activist" court--and at odds with a Seventh Circuit panel that included Judges Easterbrook and Posner.)
And originalism runs up against both Due Process incorporation and the desire for restrained circuit judges. An originalist method would point to incorporation--by way of the Privileges or Immunities Clause, not the Due Process Clause. But this would have required Judge Sotomayor to vote to ignore those 19th century cases--clearly beyond a restrained circuit judge's authority.
The best a restrained circuit judge could do is exactly what Judge Sotomayor--and Judges Easterbrook and Posner--did: punt on Second Amendment incorporation until the Supreme Court rules.
Those simultaneously committed to Second Amendment incorporation, originalism, and a restrained judiciary shouldn't fault Judge Sotomayor for her restrained decision in Maloney. Instead, they should press the Supreme Court to overturn those 19th century cases and incorporate the Second Amendment by way of the Fourteenth Amendment Privileges or Immunities Clause.
But for this crew, this solution might well be worse than the problem. A revitalized Privileges or Immunities Clause could provide strong ammunition for those who seek more and broader unenumerated (and politically controversial) rights through the courts and a greater role for the federal courts in protecting individual rights against the states.
June 09, 2009
Another Cert. Petition Urging Second Amendment Application to States
Individual plaintiffs, the Second Amendment Foundation, and the Illinois State Rifle Association filed a petition today asking the Supreme Court to reverse last week's Seventh Circuit ruling and apply the Second Amendment individual right to bear arms to the states. (Alan Gura, the attorney who represented the respondents last term in D.C. v. Heller, filed the cert. petition.)
The NRA filed a cert. petition in the case last week.
Both petitions argue that the case presents a good opportunity for the Supreme Court to resolve a split in the circuits and set its incorporation doctrine right.
But while the NRA argues primarily for "selective incorporation" via the Fourteenth Amendment's Due Process Clause, Gura's brief forcefully argues for incorporation via the Privileges or Immunities Clause--and, necessarily, for overruling the Slaughterhouse Cases:
More critically [than resolving the circuit split], it is never too late to undo an error as grievous as that contained within The Slaughter-House Cases. Opportunities to correct such mistakes should be seized when they present themselves.
Brief at 29 (emphasis added).
The Slaughterhouse Cases, of course, read the Privileges or Immunities Clause unduly narrowly, leaving that clause all but empty and surely no vehicle for applying the Bill of Rights to the states. Without the Privileges or Immunities Clause--the most obvious vehicle for incorporation, and the clause that the Fourteenth Amendment framers and ratifiers assumed would operate as a vehicle for incorporation--the Court used the Due Process Clause and a process called selective incorporation. Under the selective incorporation approach, the Court looks to whether a claimed right is sufficiently important and historically grounded to apply to the states.
But the Slaughterhouse Cases' narrow reading of the Privileges or Immunities Clause is widely regarded as a mistake.
Gura's brief--and the work of Seventh Circuit amicus Constitutional Accountability Center--seek to set this right. The move to overturn the Slaughterhouse Cases pits the original understanding and original intent of the Fourteenth Amendment (which suggests that the Privileges or Immunities Clause was designed to incorporate fundamental rights against the states) against the long-standing selective incorporation practice of the Court (which uses the Due Process Clause as the vehicle for incorporation).
This is a bold move, in the sense that selective incorporation under the Due Process Clause is probably the path of lesser resistance. (Gura argues this, as well.)
But it's also a move that could effect a sea change in the way we understand national citizenship and the way we protect fundamental rights--enumerated and unenumerated--against the states.
June 08, 2009
Wydra and Gans on Privileges and Immunities, Incorporation, Second Amendment
I spoke this afternoon with Elizabeth Wydra, Chief Counsel of the Constitutional Accountability Center, and David Gans, Director of the Constitutional Accountability Center's Human Rights, Civil Rights, and Citizenship Program, about their work on the Fourteenth Amendment Privileges or Immunities Clause, incorporation of the Bill of Rights, and the Second Amendment.
The full interview is here. (24 minutes, mp3 file.)
I've covered the CAC's excellent work on these issues here, here, and here. Wydra and Gans filed an amicus brief in NRA v. City of Chicago, the Seventh Circuit's decision last week declining to apply the Second Amendment to the states. (My post is here.) Gans and CAC founder and President Doug Kendall wrote The Gem of the Constitution: The Text and History of the Privileges or Immunities Clause of the Fourteenth Amendment.
Their argument--that the Privileges or Immunities Clause of the Fourteenth Amendment incorporates fundamental rights--has been very much in play in the three circuit court cases since D.C. v. Heller on Second Amendment incorporation. One issue I was particularly interested in: How does incorporation under the Privileges or Immunities Clause change the landscape for fundamental rights protection against the states? Answer: Listen to the interview, or see below.
Here are some highlights:
On the Gem:
Gans: The story of the Gem and of the Privileges or Immunities Clause is that this was the center piece of the Fourteenth Amendment and was designed to be the place where the constitution protected substantive fundamental rights against state incursion. The name comes from one of the framers, who said the Fourteenth Amendment is going to be the Gem, because it puts the Declaration of Independence in the Constitution. The idea was that the inalianable rights mentioned in the Declaration would be protected against the states in the Gem, and it would embody those protections of liberty and equality that had been flagrantly violated in the years leading up to the Civil War. Sadly the Supreme Court in the 1870s wrote the Privileges or Immunities Clause out of the constitution in the Slaughterhouse Cases and left it to protect a very narrow set of rights and excluded from the protection all the substantive fundamental rights that we view as the heart of liberty. And so the mission of the Gem was to show the framers’ vision that the Privileges or Immunities Clasue was meant to protect substantive fundamental rights, including both rights that were explicitly enumerated in the Bill of Rights and a pretty wide set of rights that were viewed as fundamental but weren’t specifically enumerated . . . and to show how Slaugeterhouse decimated this original meaning of the Privileges or Immunities Clause.
On Second Amendment Incorporation:
On Second Amendment Incorporation:
SDS: And so does that mean that the Privileges or Immunities Clause is a cleaner vehicle for incorporation . . . and if so by what standard do we measure incorporation under the Privileges or Immunities Clause?
Wydra: [The Second Amendment cases are] possibly one of the cleanest cases for incorporation under the Privileges or Immunities Clause because we have such clear and voluminous history that shows that the framers of the Fourteenth Amendment were particularly concerned that one of the privileges or immunities of citizenship that the new amendment would be protecting would be the individual right to keep and bear arms against state infringement. And the history shows, as we set forth in our amicus brief [in the Seventh Circuit case], that this desire to protect the right to bear arms for individuals in the wake of Reconstruction was motivated in large part because the framers of the Fourteenth Amendment wanted to make sure that the newly freed slaves and their northern allies would have the means to protect themselves, their families and their property against the former rebel militias in the South, which were attempting to disarm freedman and unioinists and perpetuating violence against them. This is why we feel like the Second Amendment cases really do present a unique opportunity to get the scholarly consensus and work that we’ve set forth in the Gem before the Court and hopefully try to put the court’s Privileges or Immunities jurisprudence back on the right track . . . that the court takes this opportunity to right the wrongs of Slaughterhouse.
On Fundamental Rights Incorporation:
SDS: And so you’ve argued, as I understand your argument, that the rights in the Bill of Rights are incorporated or ought to be incorporated via the Privileges or Immunities Clause. What additional rights then would be incorporated that perhaps the court has found as a matter of due process or even that the court hasn’t found as a matter of due process? What rights are we talking about here?
Gans: the set of rights in many ways might stay the same [as under the Due Process Clause]. [T]he right to bodily integrity was very important . . . the right of personal security . . . In terms of the so-called right to privacy cases protection of family integrity was hugely important to the framers partially because of the legacy of slavery marriage was impossible, families were destroyed, and making sure that the newly freed slaves were protected in those family rights was extremely important . . . .
SDS: Fundamentally do you think individual rights practice and individual rights that are protected by the Fourteenth Amendment will change [if the Privileges or Immunities Clause becomes the vehicle for incorporation]?
Wydra: The rights that are protected currently would only be strengthened, and we think that that is not insignificant; that is actually a very important development if the court were to restore the Privileges or Immunities Clause. And perhaps just as important the court would be restoring a portion of our constitution that was intended to preserve substantive fundamental rights and would be giving power back to this important provision of our Constitution; and providing coherence to the constitutional rights protection is no small thing. We think that it [would] help us ground discussions of [what unenumerated rights are protected] so that they will be productive.
On Incorporation Standards under the Privileges or Immunities Clause:
SDS: What would we look to to determine what rights that are unenumerated the Privileges or Immunities Clause protects?
Gans: One . . . what counts as a fundamental right under history and tradition would be a relevant source. Two, there’s a pretty rich history from reconstruction that informs it in terms of what are the rights that the framers of the Fourteenth Amendment cared about [e.g., the right to bear arms]. And you could make a similar point about uneumerated rights. The value added in the Privileges or Immunities Clause is the idea that when you’re a citizen of the United States, that comes with a wide array of substantive rights--the rights to participate in society--and right now that’s lost.
SDS: Using the Privileges or Immunities Clause of the Fourteenth Amendment is a validation of federal citizenship that seems to have been stripped away at the Slaughterhouse Cases and never really fully restore.
Wydra: Yes, I think that’s right, and it brings up an interesting point about the Seventh Circuit decision in this case where they raise a point at the end of the opinion about the principle of federalism trumping whatever individual right to keep and bear arms in self-defense that there might be. The principle of federalism is extremely important, and one of the crown jewels of our constitutional order is this vibrant federalism, but the Fourteenth Amendment stands directly contrary to that argument. The states are wonderful laboratories of democracy, but the Fourteenth Amendment stands for the proposition that certain fundamental rights are not subject to local experimentation, that they are protected by the federal government against state infringement.
June 02, 2009
Second Amendment Not Applicable to States, Seventh Circuit Rules
A three-judge panel of the Seventh Circuit ruled today that the Second Amendment does not apply to the states and therefore does not restrict state and local governments from enacting gun-control laws.
The ruling addresses the central question left open by the Supreme Court in D.C. v. Heller, its Second Amendment case last term: Does the Fourteenth Amendment incorporate the Second Amendment to the states?
The Seventh Circuit (Chief Judge Easterbrook, writing, and Judges Bauer and Posner) unanimously rejected the plaintiffs' two main arguments: that the Fourteenth Amendment Privileges or Immunities Clause incorporates the Second Amendment; and that the individual right to bear arms, protected by the Second Amendment, is fundamental and therefore should be incorporated under the prevailing "selective incorporation" approach.
The court's ruling was quite modest--i.e., non-"activist"--adhering to Supreme Court precedents that, while questionable (at best) in their reasoning, nevertheless remain on the books. Thus on the P or I claim, the court declined to read around the Slaughter-House Cases (holding that the P or I Clause does not incorporate the Bill of Rights, en bloc, to the states), and U.S. v. Cruikshank, Presser v. Illinois, and Miller v. Texas (all rejecting arguments that the P or I Clause incorporates the Second Amendment to the states):
Although the rationale of Cruikshank, Presser, and Miller is defunct, the Court has not telegraphed any plan to overrule Slaughter-House and apply all of the amendments to the states through the privileges and immunities clause, despite scholarly arguments that it should do this.
Slip Op. at 5 (citing Amar's America's Constitution: A Biography).
Anyone who doubts that Cruikshank, Presser, and Miller have "direct application in [this] case" need only read footnote 23 in Heller. It says that Presser and Miller "reaffirmed [Cruikshank's holding] that the Second Amendment applies only to the Federal Government." The Court did not say that [these cases] rejected a particular argument for applying the second amendment to the states. It said that they hold "that the Second Amendment applies only to the Federal Government." The Court added that "Cruikshank's continuing vitality on incorporation" is "a question not presented by this case."
Slip Op. at 3-4 (internal citation omitted).
The court thus declined to read the P or I Clause as a vehicle for Second Amendment incorporation, leaving that question to the Supreme Court. (For more on the P or I Clause and incorporation, see here.)
As to fundamental rights and selective incorporation, the court also deferred, relying on the unique federalism feature of the Second Amendment:
One function of the second amendment is to prevent the national government from interfering with state militias. It does this by creating individual rights, Heller holds, but those rights may take a different shape when asserted against a state than against the national government. Suppose Wisconsin were to decide that private ownership of long guns, but not handguns, would best serve the public interest in an effective militia; it is not clear that such a decision would be antithetical to a decision made in 1868 [the year the Fourteenth Amendment was ratified]. . . .
Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon. How arguments of this kind will affect proposals to "incorporate" the second amendment are for the Justices rather than a court of appeals.
Slip Op. at 6-7, 9.
The ruling creates a split: the Second and Seventh Circuit have now both rejected incorporation; the Ninth Circuit has accepted it (although that case is on en bancreview). (Judge Sotomayer was on the Second Circuit panel rejecting incorporation.)
The issue will surely go to the Supreme Court; the only question is when. This'll give the Court a chance not only to rule on whether to incorporate the Second Amendment to the states, but, perhaps even more importantly, how.
April 22, 2009
It's Time to Work Out a Coherent Basis for Incorporation
David Gans, the Director of the Human & Civil Rights Program at the Constitutional Accountability Center, argued earlier this week that Monday's Ninth Circuit Second Amendment case gets us closer to working out a coherent basis for incorporation of the Bill of Rights via the Fourteenth Amendment Privileges or Immunities Clause (and not the Due Process Clause). Gans:
The Nordyke opinion moves our country a big step closer to a historic opportunity for the Supreme Court to finally recognize that Slaughter-House was wrong when written, and restore the Privileges or Immunities Clause to its rightful place.
Gans and CAC founder and President Douglas Kendall published an important report late last year tracing the history of the P or I Clause and arguing that it, not the Due Process Clause, was originally (and still is) the proper basis for incorporation. They also filed an amicus brief making this argument in the Seventh Circuit Second Amendment case.
Gans's post is an excellent analysis of this component--incorporation via P or I--of the Ninth Circuit decision. But I'll add to Gans's post this: The Ninth Circuit's narrow, almost too clever rejection of P or I as a basis of incorporation is itself a clear illustration of the disarray in incorporation jurisprudence and a strong argument for clarifying incorporation doctrine by using the much simpler, more obvious, and historically correct vehicle of the P or I Clause.
This is what I mean. The Ninth Circuit rejected the P or I Clause as the basis for incorporation by turning to its own prior ruling on the issue in Fresno Rifle. The Ninth Circuit in that case rejected Second Amendment incorporation, but it didn't specify the clause--P or I, or Due Process--upon which it rejected incorporation. So the Nordyke panel looked more closely at Fresno Rifle and discovered that Fresno Rifle relied upon Cruikshank and Presser--two cases that "involved direct application and incorporation through the Privileges and Immunities Clause, but not incorporation through the Due Process Clause." Thus, the Nordyke panel said, Fresno Rifle was really a rejection of incorporation via P or I. The Nordyke panel made Fresno Rifle into the Ninth Circuit's Slaughterhouse, or at least its Cruikshank and Presser.
This is exactly the kind of analytical gymnastic--building bad case cleverly upon bad cases--that, at the Supreme Court, led to the "current disarray" of Fourteenth Amendment jurisprudence. Saenz v. Roe (Thomas, J., dissenting).
This is more than just critique of the Ninth Circuit's approach. It's also a prudential argument--to complement Gans and Kendall's originalism and textual arguments--to work out a coherent basis for incorporation now.
If the Ninth Circuit needs to make this kind of clever maneuver to incorporate via Due Process--and to avoid incorporation via P or I--isn't it time for the Court to overturn Slaughterhouse and incorporate via the much cleaner P or I?