McDonald Related Stuff

On the eve of McDonald v. Chicago I thought I would start a running post of the interesting stuff I run across today and tomorrow.

1. There is an interesting discussion at Volokh about Priviliges or Immunities and an upcoming paper by historian Philip Hamburger. Here is the abstract.

What was meant by the Fourteenth Amendment’s Privileges or Immunities Clause? Did it incorporate the U.S. Bill of Rights against the states? Long ignored evidence clearly shows that the Clause was an attempt to resolve a national dispute about the Comity Clause rights of free blacks. In this context, the phrase “the privileges or immunities of citizens of the United States” was a label for Comity Clause rights, and the Fourteenth Amendment used this phrase to make clear that free blacks were entitled to such rights.

Jim Lindgren introduced the paper. Orin Kerr asked for thoughts from readers. Randy Barnett had an initial comment. Hamburger responed. Barnett added a partial response to Hamburger's response.

Update: Barnett on Chief Justice Taney on the Privileges or Immunities of Citizens of the United States.

2. The Cato Institute is hosting a plicy forum today at 4:00 on McDonald v. Chicago. Event information and link to watch event live here. A description of the event:

In 2008, the Supreme Court decided the landmark case of District of Columbia v. Heller, striking down D.C.'s draconian ban on handguns and finding, at last, that the Second Amendment protects an individual right to keep and bear arms. On March 2, in McDonald v. City of Chicago, the Court will hear oral arguments on whether that right applies to states and localities. The Court is expected to hold that it does: a key purpose of the Fourteenth Amendment, ratified at the height of Reconstruction in 1868, was to allow newly freed slaves and white Unionists to defend themselves against Southern reprisals by protecting their right to keep and bear arms. But will the Court reach that result via the Due Process Clause or the Privileges or Immunities Clause, which was specifically enacted to protect various individual rights, including particularly the right to armed self-defense? The answer is important as a practical matter—because it will help determine the future of gun rights in America—and also as a matter of constitutional law generally, because it could lead to the reinvigoration of a variety of important liberties that courts have long neglected. Please join legal scholars Ilya Shapiro, Timothy Sandefur, and Doug Kendall—each of whom recently published articles on the Privileges or Immunities Clause—for a preview of the arguments before the Court, a discussion of the Fourteenth Amendment's protection of the right to keep and bear arms, and reflections on other important developments that may flow from McDonald.

3. For those looking to catch up before tomorrow's oral argument here is the link to the SCOTUSwiki entry for the case.

4. Reason Supreme Court Preview: Does the Second Amendment Apply to the States? A look back at Reason’s coverage of both the Chicago gun case and its wider implications for the future of constitutional law.

5. Timothy Sandefur writing in the National Law Journal on McDonald, Privileges or Immunities, and economic liberty.

One of the biggest cases the U.S. Supreme Court will decide this year involves the right to bear arms. But in the long run, its decision in McDonald v. Chicago may be far more important to America's entrepreneurs. It all depends on whether the justices decide to revive a constitutional provision it has neglected for more than a century.

When it was ratified in 1868, the 14th Amendment added several revolutionary new provisions to the Constitution, barring states from violating the "privileges or immunities" of citizens, or taking anyone's life, liberty or property without "due process of law," or depriving people of the "equal protection of the laws." But the first time it heard a case under that amendment — in the 1873 Slaughterhouse Cases — the Supreme Court basically erased the privileges or immunities clause, dramatically limiting the way the federal government would protect people against wrongful acts by state officials. ...

In his dissenting opinion in Slaughter house, Justice Stephen Field wrote that economic freedom "is the fundamental idea upon which our institutions rest." But thanks to the elimination of the privileges or immunities clause, hardworking entrepreneurs like Sweet have almost no constitutional protection against state and local bureaucrats. At a time when America needs a resurgence of its entrepreneurial spirit, a decision to restore the 14th Amendment's protections for economic liberty would be a welcome change.

6. Via SCOTUSblog - No audio release on McDonald

The Supreme Court has refused a request by cable and other broadcast networks to release on Tuesday the audiotape of the Court’s hearing in the Second Amendment case, McDonald, et al., v. Chicago, et al. (08-1521). The refusal was conveyed to the networks by the Court, but no document was released on it. The Court has released promptly the audiotape on only one case during recent months — the Citizens United v. FEC case, heard in September before the current Term opened. Under current policy, the written transcript of Tuesday’s argument will be released later in the day. The argument is scheduled for one hour, starting at 10 a.m.

7. WaPo on McDonald:

The most likely path to recognizing gun ownership as a fundamental right is one that has been heavily criticized by Scalia and other conservative scholars, and it seems inconsistent with his belief that the Constitution should be interpreted in terms of its framers' "original meaning."

The alternative, one embraced by an unlikely coalition of libertarian, liberal and some conservative scholars and activists, would apply the Bill of Rights to the states in a way they say is more grounded in the Constitution. But it is also a route that could open what is invariably described as a Pandora's box of additional rights of citizenship -- health care, for instance, or housing.

Related: Last week WaPo had a profile of Tom Palmer and a look at Alan Gura's upcoming challenge to D.C.'s ban on carrying guns in public.

It was 1982, dusk on a summer night near San Jose, when a band of thugs yelled homophobic slurs at Palmer and a colleague.

"We were what they perceived as a couple of faggots, which was the term they used, walking through their neighborhood," he said. "And it would have been one of those modestly ironic moments if my colleague might have been murdered in a gay bashing, when he was straight."

The threats were vivid and believable: "We're going to kill you. They'll never find your body."

Palmer told his colleague to run. The thugs chased Palmer, who stopped under a streetlight and pulled out his gun.

"I did not say anything witty or clever," he recalls. "In the movies, they say something very clever. I just said, 'If you come closer, I will kill you.' Very blunt. And they stopped."

He is convinced that if he hadn't had a gun he would be dead.

8. Howard Bashman has a mini-roundup at How Appealing.