Wednesday, April 22, 2009
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?
Monday, April 20, 2009
A three-judge panel of the Ninth Circuit today ruled that the Fourteenth Amendment Due Process Clause incorporates the Second Amendment individual right to bear arms against state and local governments. At the same time, the panel upheld a county ordinance making it a misdemeanor to bring onto or to possess a firearm or ammunition on county property against a Second Amendment challenge.
The panel's ruling in Nordyke v. King makes the Ninth Circuit the first circuit to apply the Second Amendment to a state or local government after the Supreme Court left the issue open last term in D.C. v. Heller. Second Amendment incorporation is also now before the Seventh Circuit; the issue is almost certainly headed for the Supreme Court.
The plaintiff-appellants in the case were long-time gun show hosts at the county's public fairgrounds. They argued that the county ordinance prohibited them from hosting future gun shows at the site.
In ruling that the Fourteenth Amendment Due Process Clause incorporates the Second Amendment, the panel "canvass[ed] the attitudes and historical practices of the Founding era and the post-Civil War period" to determine whether the right to keep and bear arms is "necessary to an Anglo-American regime of ordered liberty" and whether it is "deeply rooted in this Nation's history and tradition." The panel concluded that it was.
Notably, the panel specifically rejected the claim that the Fourteenth Amendment Privileges or Immunities Clause did the work of incorporation. (The P or I Clause is in play at the Seventh Circuit, as well. It's gained some attention in an amicus filing at the Seventh Circuit and in recent scholarly work arguing that the P or I Clause, not the Due Process Clause, ought to be doing the incorporating.) Instead, the panel re-read an earlier case from the Ninth Circuit, Fresno Rifle v. Van de Kamp, as foreclosing the P or I argument--perhaps a bad omen for advocates of the P or I argument in the Seventh Circuit.
Having ruled that the Due Process Clause incorporates the Second Amendment, the panel then upheld the county's gun ordinance, with surprisingly little analysis. The panel avoided determining the level of scrutiny by holding that the ordinance did not infringe upon the core purpose of the right as articulated by Heller:
Heller tells us that the Second Amendment's guarantee revolves around armed self-defense. If laws make such self-defense impossible in the most crucial place--the home--by rendering firearms useless, then they violate the Constitution.
But the Ordinance before us is not of that ilk. It does not directly impede the efficacy of self-defense or limit self-defense in the home. Rather, it regulates gun possession in public places that are County property.
And the county has great latitude in doing that based on the principles in Harris v. McRae (!) (holding that government need not fund abortions, even though women have a substantive due process right to abortions):
If we apply these principles here, we conclude that although the Second Amendment, applied through the Due Process Clause, protects a right to keep and bear arms for individual self-defense, it does not contain an entitlement to bring guns onto government property.
The panel also rejected the plaintiff-appellants' First Amendment and Equal Protection challenges to the ordinance.
Tuesday, December 16, 2008
I posted last week on Gans and Kendall's (The Constitutional Accountability Project) excellent report The Gem of the Constitution: The Text and History of the Privileges or Immunities Clause of the Fourteenth Amendment. Since then they've been guest-blogging at Balkinization, posting a series of must-read conversation starters on the P or I Clause.
Their first post sets out their general thesis that the Court in the Slaughterhouse Cases got the text and history of the P or I Clause wrong, leaving a void in constitutional protections of fundamental rights that the Court later filled with Substantive Due Process. But this solution is both doctrinally weak (at best) and politically divisive. Gans and Kendall's solution: "Restore the text of the Privileges or Immunities to its rightful place" and allow the Clause to do the substantive work that by its plain text and history it was intended to do.
The second post argues that the P or I Clause, not the Due Process Clause, should be the vehicle for Second Amendment incorporation to the states, post Heller. This argument should appeal to (true) originalists, but it puts conservatives (who are also committed originalists) in a bind:
The dilemma for conservatives is that an originalist ruling that overrules Slaughterhouse and restores the Privileges or Immunities Clause to its intended constitutional role will simultaneously undergird the Court’s existing fundamental rights jurisprudence, which has produced rulings such as Roe v. Wade. While conservatives will certainly continue to attack these rulings as illegitimate, it’s far easier to say that the entire enterprise is out of bounds (as conservatives have said for years about substantive due process).
The most recent post argues that fundamental rights under Substantive Due Process--even those in Roe v. Wade and Lawrence v. Texas--are (actually and better) rooted in the P or I Clause. And there's a political advantage for progressives in so rooting them:
There is an important lesson here. For too long, progressives have ceded the Constitution’s text and history to conservatives, staking their claim more on the Supreme Court’s interpretation of the Constitution than the document itself. . . . For many, this leaves the impression that progressives don’t care about the Constitution’s text and history.
That is why it is so important for progressives to engage in the coming debates about the Privileges or Immunities Clause, and its role in protecting substantive fundamental rights. Progressives may not like the individual, Second Amendment right recognized in Heller, but they cannot afford to sit out the upcoming fight over the incorporation of the Second Amendment. Instead, progressives should treat these incorporation cases as a tremendous opportunity. For years, debates over the Fourteenth Amendment’s protections have run aground, a casualty of persistent attacks that the Court had no basis to use the Due Process Clause to protect fundamental rights. Now is the chance to change the American constitutional conversation about fundamental human and civil rights.
I worry that these last two posts overstate the political point. The second post--arguing that the P or I Clause puts politically conservative originalists in a bind--assumes that opponents of Substantive Due Process fundamental rights would be torn between their categorical opposition to rights not specifically enumerated and their commitment to originalism. This is unlikely: The latter would surely yield to the former. And even if it wouldn't, we can easily imagine an "originalist" interpretation of the P or I Clause that would not include the right to an abortion or the right to sexual privacy (contrary to Gans and Kendall's argument in the third post): First, an originalist would certainly claim that the more general right to bodily integrity (even if in the P or I Clause) does not include the more specific right to an abortion (drawing on the method of Washington v. Glucksberg); and second, notwithstanding Gans and Kendall's good evidence to the contrary, an originalist interpretation of the P or I Clause may very well not include the right to bodily intergrity. (As we've seen in Heller itself, nobody has a monopoly on originalist interpretation.)
But even if the political point is overstated, its more modest version--that progressives might find some political advantage in couching rights in P or I terms--is nevertheless important. And the posts in general are excellent and thoughtful--good complements to the report. I highly recommend these.
Wednesday, December 10, 2008
The Constitutional Accountability Center released a report by David H. Gans, Director of the CAC's Human Rights, Civil Rights, and Citizenship Program, and Douglas T. Kendall, CAC founder and president, titled The Gem of the Constitution: The Text and History of the Privileges or Immunities Clause of the Fourteenth Amendment. The report, as its title suggests, traces the history of the 14th Amendment P or I Clause. But it also argues for a more robust P or I Clause--a clause that provides a more obvious and less divisive vehicle for protection of substantive rights than the Due Process Clause--and offers evidence and hope for a more robust clause. The report:
This narrative pushes for a change in this constitutional conversation [on substantive Due Process], which is dividing Americans on a topic--substantive constitutional rights and freedoms--that should be holding us together. It tells the sad history of the Privileges or Immunities Clause, which was supposed to be the centerpiece of Section One of the Fourteenth Amendment. Instead, this Clause was written out of the Constitution in 1873 by a Supreme Court unwilling or disinclined to force the "new birth of freedom" Lincoln promised the nation at Gettysburg on a country that was by then retreating from the promises of Reconstruction. For 135 years, this critical constitutional text has laid dead or dormant.
This story of the creation and destruction of the Privileges or Immunities Clause is a page-turning history, filled with American heroes and villains, hope and bitter disappointment, which has never fully gotten its due in our history books. . . . But this narrative is about more than detailing this new scholarly consensus and helping to set the historical record straight. Two Supreme Court cases decided in the last 10 years--Saenz v. Roe (1999) and Heller v. District of Columbia (2008)--set the stage for the Privileges or Immunities Clause to finally assume its intended place as the vehicle through which fundamental rights and liberties of citizens are protected.
Thursday, November 13, 2008
An interesting, albeit brief, article from Huffington Post by Douglas Kendall, entitled Obama and the Constitution: Our Nation's Unfinished Business, provides the following Constitutional goals for the new Administration:
Birthright citizenship is guaranteed by the opening words of the Fourteenth Amendment, yet conservative politicians and activists each year argue that persons born in this country to undocumented immigrants should be stripped of the citizenship the Fourteenth Amendment plainly confers.
The Privileges or Immunities Clause was written to protect the substantive fundamental rights of all Americans, but was effectively read out of the Constitution by the Supreme Court in 1873. That precedent still stands today.
Congress was meant to have broad power to enforce the constitutional rights guaranteed by the Reconstruction Amendments. After all, a Supreme Court that decided Dred Scott could easily write fundamental protections out of the document. But shortly after Reconstruction, the Supreme Court sharply limited the enforcement powers of Congress. Today these precedents remain, and are used to invalidate civil rights legislation, such as the Violence Against Women Act. While the Court often defers to congressional exercises of its enumerated powers, it rarely does so when Congress attempts to enforce constitutional guarantees of liberty and equality.
These issues (and more) will be discussed at the ACS meeting, today and tomorrow.
Thinking about attacking the precedent of The Slaughterhouse Cases, 1873, once seemed an exercise in windmill tilting. Interestingly enough, the idea came up in my classroom discussion of the Second Amendment case from last term, District of Columbia v. Heller.