Author: Timothy Sandefur
I attended the oral argument in McDonald v. Chicago this morning. As the early reports indicate, the justices asked relatively few questions about the meaning of privileges or immunities, and those questions showed a great deal of discomfort over reviving that constitutional guarantee. Justice Sotomayor was quick to ask what rights other than the Second Amendment are currently not protected. Of course, the answer is that in practice there are few–precisely because the Court has backed away from Slaughter-House without admitting it. They’ve done that by utilizing the due process clause instead. But that’s not a good reason for persisting in error.
Much of the questioning focused on whether the Court’s existing due process precedent would also be incorporated if the Court revived the privileges or immunities clause. Clearly they were concerned with whether they could use a “strict scrutiny” / “rational basis” model here just as they already do in the due process cases. It wasn’t clear whether Mr. Gura, the lawyer for the gun owners, was willing to agree with that. Of course, that’s an issue that would require a lot of thinking, and it isn’t really necessary for the Court to address it here, since the Chicago gun ban is so complete as to violate any standard of scrutiny. (Remember, Heller explicitly declined to adopt rational basis.)
The justices were mch more willing to discuss the due process clause. But this isn’t surprising. Not only is it safer territory in the modern age, it’s also where there’s been more legal development. Since the privileges or immunities clause was strangled in its crib, there just isn’t much to talk about here.
I’ll have more later, when I have computer access.
Update: At the very end of his rebuttal, Mr. Gura was asked (again) what specific unenumerated rights would the privileges or immunities clause cover. He’d been asked if the right to possess firearms for self-defense would be protected by this clause if the Second Amendment didn’t exist, and he’d said yes. So this time Justice Alito asked directly if it would include the freedom of contract. Mr. Gura rightly pointed out that this was not only a fundamental right of American citizens, but was the primary right guaranteed by the Civil Rights Act of 1866, framed by the same people and at the same time as the Fourteenth Amendment.
It was very frustrating, though, to hear Justice Scalia, who persists in calling himself an originalist, deride and make fun of Mr. Gura’s arguments. He accused Mr. Gura of arguing for the overruling of Slaughter-House in order to “make a name for himself” so he could become a law professor, and said overruling Slaughter-House is the “darling of the professoriat.” He said he was much more willing to rely on substantive due process–which he believes is a errant doctrine–than to revive the privileges or immunities clause. After this, Justice Scalia’s claims of being an originalist can simply not be taken seriously by anyone. Here there is no question at all that, whatever else might be said about Slaughter-House, it does not represent the original intent or original meaning of the Fourteenth Amendment. Yet he openly said he was more comfortable using a different theory–one he has repeatedly attacked in his decisions–rather than return to the original meaning.
Update 2: Some pessimistic thoughts from Ilya Shapiro at the Cato Institute, our partners in our McDonald brief.