June 28, 2010

Updated: McDonald v. Chicago: guns, but no original intent

By Updated: McDonald v. Chicago: guns, but no original intent

Author: Timothy Sandefur

The Supreme Court today issued its decision in McDonald v. Chicago, the much anticipated gun rights decision, holding that states are required to respect the individual right to possess arms that was the subject of last year’s decision in Heller. In a 5-4 decision, Justice Samuel Alito concluded that the Fourteenth Amendment requires states and local governments to respect this right. Pacific Legal Foundation, along with the Cato Institute, filed this brief in the case, arguing not so much for the fundamental right of self-defense, but that the Court should abandon its century old error in the Slaughter-House Cases, and revive the Fourteenth Amendment’s privileges or immunities clause. As I explain in this article, that clause was intended to be the central element of the Amendment, protecting natural and common law rights—including the right to earn an honest living—against abridgement by states.

On that issue, the Court was more divided.

Justices Alito, Kennedy, Scalia, and Roberts, held that the right to possess firearms is protected under the Amendment’s “due process of law” clause. Their argument for refusing to reconsider the Slaughter-House Cases is critically weak, however. The entirety of their decision is this:

We see no need to reconsider that interpretation here. For many decades, the question of the rights protected by the Fourteenth Amendment against state infringement has been analyzed under the Due Process Clause of that Amendment and not under the Privileges or Immunities Clause. We therefore decline to disturb the Slaughter-House holding.

In other words, even though the decision was wrong—so wrong that these four justices cannot even try to defend it—they will retain it because the Court has subsequently found (dubious) ways around it. This is not legal thinking—this is political expediency. On this method of interpretation, any error, no matter how major, can be kept on the books so long as some questionable alternative theory gets us to more or less acceptable political consequences. Just as in Slaughter-House, there is not a shred of legal, historical, precedential, or philosophical justification for the position that the Court takes—and, just as in Slaughter-House, the Court doesn’t even try to pretend that there is. So much for the “originalist” Supreme Court.

Only Justice Clarence Thomas was willing to hold that the privileges or immunities clause should guarantee individual rights against state and local governments:

I cannot accept a theory of constitutional interpretation that rests on such tenuous footing. This Court’s substantive due process framework fails to account for both the text of the Fourteenth Amendment and the history that led to its adoption, filling that gap with a jurisprudence devoid of a guiding principle. I believe the original meaning of the Fourteenth Amendment offers a superior alternative, and that a return to that meaning would allow this Court to enforce the rights the Fourteenth Amendment is designed to protect with greater clarity and predictability than the substantive due process framework has so far managed.

We’ll have more as the day goes on.

Update: Unbelievable! In his concurring opinion, Justice Scalia criticizes Justice Stevens as follows:

Assuming that there is a “plausible constitutional basis” for holding that the right to keep and bear arms is incorporated, he asserts that we ought not to do so for prudential reasons. Even if we had the authority to withhold rights that are within the Constitution’s command (and we assuredly do not), two of the reasons Justice Stevens gives for abstention show just how much power he would hand to judges…. The implication of Justice Stevens’ call for abstention is that if We The Court conclude that They The People’s answers to a problem are silly, we are free to “interven[e],” but if we too are uncertain of the right answer, or merely think the States may be onto something, we can loosen the leash.

Yet at the same time, Justice Scalia withholds his agreement to the overwhelming historical evidence and legal argument that the privileges or immunities clause protects individual rights against states! And why? For prudential reasons! “Despite my misgivings about Substantive Due Process as an original matter,” he writes, “I have acquiesced in the Court’s incorporation of certain guarantees in the Bill of Rights….” And the reason for his refusal to apply the privileges or immunities clause? Because it would interfere with the authority of state governments! Justice Scalia has given here one of the best reasons for overruling the Slaughter-House Cases…while refusing to do so on the basis of the same legal and logical fallacies he accuses Justice Stevens of committing, and in the most brazen way. The implication of Justice Scalia’s call for abstention is that if They The Court think We The People’s rights to such things as economic liberty or sexual privacy are unimportant, or think states should be free to deprive us of such rights, the Court can loosen the leash. This should be a sad day for Justice Scalia’s “originalist” admirers.

Update 2: For those of us who were hoping the Court would enforce the Fourteenth Amendment as it was originally intended by its authors, today is a disappointing day. But it’s important to keep today in perspective. This decision is an important moment in Constitutional history. While some parts of the decision are disappointing, the bottom line is that the state of Illinois may not legally disarm law-abiding citizens. They have a constitutional right to defend themselves from criminals who never have obeyed anti-gun laws themselves. Although four justices refused even to consider the overwhelming argument for throwing out the disastrous Slaughter-House Cases, they also didn’t bother trying to make an argument for their position, and the decisive vote, Justice Thomas’, rested on a solid argument for returning to the Constitution’s text and history. Almost 150 years ago, the Fourteenth Amendment’s authors intended that to be the central part of the Amendment, and instead, the Supreme Court has refused to enforce it. This is sad, because that provision would offer Americans must stronger protections against unjust state laws. It’s very unfortunate that the justices still ignore the crucial privileges or immunities clause. But long journeys have tiny beginnings, and we should be glad that we now have two solid cases to point to—Justice Thomas’ opinions in this case and in Saenz v. Roe—in helping make the case for a restoration of one of the Constitution’s most important clauses. And in the meantime, citizens of Illinois and other states can now insist upon the enforcement of serious constitutional protections for their fundamental human right of self-defense. Today is a victory for liberty, even if a measured and hesitant one.

Update 3: Reasonhas a roundup of libertarian reaction to the opinion. My favorite is Josh Blackman's comment: "For the first time in the history of the Supreme Court, a Justice found that an essential liberty is protected by the Privileges or Immunities Clause."

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