March 02, 2010

My Thoughts on McDonald

Here is the transcript of today's oral argument in McDonald v. Chicago. A couple thoughts:

1. The PorI clause is probably not being revived. Which seems crazy given that, as liberal Yale law professor, Akhil Amar, has said “Virtually no serious modern scholar -- left, right, and center -- thinks that [Slaughterhouse] is a plausible reading of the Amendment.”

2. From a public meaning originalist perspective the oral argument was extremely frustrating. The bulk of the time was spent discussing the Second Amendment and the other amendments in the Bill of Rights. But this is the wrong time period to be looking to in order to determine the original meaning of the Fourteenth Amendment, which was adopted on July 9, 1868. Gura repeatedly tried to direct the Court to contemporaneous legislation such as the Civil Rights Act of 1866 with little to no avail.

3. Fainthearted Originalist Scalia showed up at oral argument. I agree with Doug Kendall when he rights:
This front-page story in yesterday’s Washington Post featured a quotation from Justice Antonin Scalia, taken from a 2006 Yale Law School presentation, in which the Justice calls the 14th Amendment's Privileges or Immunities Clause "flotsam." Flotsam is defined by Webster's Dictionary as "floating debris": trash, in other words. Talk about trashing the Constitution.

Justice Scalia continued along these lines at oral argument today in McDonald v. City of Chicago, a case about whether the Second Amendment limits the gun control laws passed by states. Scalia jumped all over McDonald’s attorney, Alan Gura, who had the temerity to argue that the text and history of the Privileges or Immunities Clause was relevant to the outcome of the case. Scalia accused Gura of “bucking for some place on a law school faculty” by advancing an argument in text and history that was “the darling of the professoriate.”

Why would a Supreme Court Justice who professes to care deeply about the text and history of the Constitution disparage part of that text and refuse even to hear an argument about the history of the Privileges or Immunities Clause? Simple: this text and history doesn’t fit with his longstanding argument against judicial protection of substantive fundamental rights.

4. MAN I WISH THOMAS WOULD ASK QUESTIONS. As the sole Justice to express a prior interest in re-addressing PorI I wish Thomas had spoken up today and tried to steer oral argument a bit. He could have kept Gura's arguments from either getting derailed or ignored all together. Because he didn't PorI wasn't taken seriously.

5. The Court will likely incorporate via due process. I agree with Orin Kerr's assessment of the liberal Justices:
Justice Stevens, often the liberal Justices’ primary strategist, seemed to have a plan to join on the theory of incorporation by Due Process but then to water it down as applied to the states. This revisits an old debate on the incorporation doctrine about whether incorporation applies the Bill of Rights to the states “jot for jot” or only applies the core protections of the right to the states. Given Stevens’ questioning, my guess is that the liberal Justices may try to band together and offer Kennedy a less protective version to apply to the states. I read Justice Kennedy’s questions at the bottom of page 13 and on pages 53–54 to suggest he is pretty skeptical of that approach.
I just don't think the liberal justices will fail to incorporate.

That is all for now.

UPDATE: This post from Clark Neily, writing at Bench Memos, pretty well sums up my frustration with yesterday's oral argument.
In 1861, America began a war to end slavery. Shortly thereafter, we began another battle — Reconstruction — to end the incidents of slavery, culminating in the ratification of the Thirteen, Fourteenth, and Fifteenth Amendments. But from today’s arguments in McDonald v. City of Chicago, you would never know any of that had ever occurred, let alone that the Fourteenth Amendment — including specifically its Privileges or Immunities Clause — was enacted for the specific purpose of putting an end to a Southern tyranny that included the systematic disarmament of newly free blacks and their white supporters in order to keep them in a state of servile terror. ...

Powerful support for that approach comes not just from the congressional debates over the adoption of the Fourteenth Amendment and the extensive coverage those debates received in leading periodicals, but also from the abundant historical evidence about what prompted Congress to propose the Fourteenth Amendment in the first place. Simply put, it was the tyranny of Southern states and their brazen attempt to keep blacks in a state of constructive servitude while terrorizing anyone who presumed to stand in the way. The legislative record contains extensive reports of forced disarmaments and lynchings, often at the hands of militias and other officials acting under color of state law. Reconstruction Republicans were outraged by that conduct, as was the public. As a result, few (if any) rights were mentioned as regularly in connection with the Fourteenth Amendment as the right to keep and bear arms.

That history is stark, undisputed, and, if today’s arguments are any indication, seemingly irrelevant to the Court’s decision whether the Fourteenth Amendment protects the right to keep and bear arms. If so, that’s a tragedy. Correction: the continuation of a tragedy.

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