Guns for All, Privileges or Immunities for None

The hearings in McDonald v. Chicago promise an unrevolutionary victory—but still an important one

Justice Antonin Scalia delivered the big laugh line of the hour at Tuesday’s Supreme Court hearings in McDonald v. Chicago. That case’s outcome will decide whether the Second Amendment rights vindicated in 2008’s D.C. v. Heller apply to states and localities. Scalia amused the crowd by asking a question that has perplexed some legal scholars and gun activists both for and against McDonald lawyer Alan Gura’s general goal of applying Second Amendment protections to all levels of American government.

To get the joke, such as it was, you first need the background about what was at stake. The Bill of Rights was originally interpreted to bind only the federal government. The framers of the 14th Amendment intended to change that, and bind the states as well in respecting Americans’ rights. This was in 1868, when recently freed slaves had their rights to work, own property, and bear arms widely abused and unprotected by state and local governments.

The history of the 14th Amendment's passage indicates that a certain part of the amendment was meant to bear the interpretive burden of applying—“incorporating” in the legal lingo—the Bill of Rights (and other restrictions on government power) to the states. That was the Privileges or Immunities Clause: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

Since a controversial 1873 Supreme Court decision in a set of cases regarding a slaughterhouse monopoly in Louisiana, known as the Slaughterhouse Cases, the Privileges or Immunities Clause has been pretty much interpreted out of existence. The Supreme Court has instead used the vaguer and less textually sensible “due process of law" provision of the same amendment to incorporate certain rights against the states. Using that tool, the Court over the past century has already incorporated most of the Bill of Rights on the states, and some unenumerated rights as well. Gura elected to reverse this trend by arguing for incorporation of the Second Amendment on privileges or immunities grounds.

So Scalia asked Gura early in his 20 minutes of argument time on Tuesday: “Mr. Gura, do you think it is at all easier to bring the Second Amendment under the Privileges and Immunities Clause than it is to bring it under our established law of substantive due…process?... Why are you asking us to overrule 150, 140 years of prior law, when—when you can reach your result under substantive due—I mean, you know, unless you are bucking for a—a place on some law school faculty…?”

Scalia, reputedly a constitutional originalist, flashed some ugly colors with that laugh-provoking comment: He’d rather go with the easy precedential flow—even given a substantive due process argument that he openly admits he thinks is wrong but which he’s “acquiesced” to—then vindicate the actual intentions of the framers of a very important constitutional amendment.

Gura undoubtedly went for a daring gambit on privileges or immunities (in addition to, not at the expense of, the more traditionally successful due process argument). He did so, first, because he thought it was the correct argument based on constitutional language and history. But he, and many other legal scholars, was also excited because a revival of privileges or immunities could give courts new power to restrict states and localities from violating other rights much on the minds of the 14th Amendment’s framers.

Gura quoted some of them, from the 1866 Civil Rights Act: “To make and enforce contracts…to inherit, purchase, lease, sell, hold and convey real and personal property.” A properly grounded application of the privileges or immunities clause could help vindicate the sort of economic liberties considered out of fashion and meaningless in the higher courts since the early 20th century days of the Lochner case.

While nothing is certain until the decision (or decisions) come down later in the year, the general consensus is that Gura has at least the same five justices who revived the Second Amendment in Heller prepared to apply it to the states via the Due Process Clause. This includes Scalia, despite his expressed doubts about the validity of due process incorporation in general. Thus, Gura and the McDonald team win.

Gura cast his mission so ambitiously, though, that he may have created an unfortunate public relations problem for his team. His impending victory might be spun as a defeat. There were elements in the gun-rights community, including the National Rifle Association (NRA) (who won argument time for their advocate Paul Clement at the hearings even though McDonald was not their case), who thought Gura reached for too risky a victory for economic and other liberties when he should have kept his eye on the Second Amendment ball. The NRA’s Clement kept it simple, insisting before the court that “Under this court's existing jurisprudence, the case for incorporating the Second Amendment through the Due Process Clause is remarkably straightforward. The Second Amendment, like the First and the Fourth, protects a fundamental preexisting right that is guaranteed to the people” and thus should be incorporated against the states just as those other amendments were.

In his half hour before the justices, Chicago’s counsel James Feldman maintained that, since guns can hurt people, localities’ power to protect public safety should allow them to regulate guns as much as they want. Not wanting to re-argue Heller (unlike Justice Steven Breyer, who is still obsessed with the militia clause as presumptively dominating the purpose of the Second Amendment, contra Heller), Feldman asserted that a fundamental right to self-defense might exist, but that right was not infringed fundamentally by the banning of any specific variety of weapon, as Chicago did with handguns. Scalia wondered why Feldman seemed to think an unwritten right to self-defense existed that states should honor when he didn’t think that the written right to keep and bear arms had to be thusly honored.

The confused and random jumble of issues and concerns that flowed out in the hour at the Court shows that, while using due process may be the easiest way out for lazy justices who don’t want to think freshly or step outside a middle-of-the-road consensus, the inherent vagueness of due process makes actual legal reasoning hard—unnecessarily so, given the clearer set of historical concerns about privileges or immunities that were on the minds of the Republicans who pushed the 14th Amendment in the late 1860s.

The absurdity of legal reasoning unmoored from the historical understanding of liberty rights was apotheosized in Breyer’s reference to a "Madison Chart,” in which we decide on how much judicial respect various rights would be granted by imagining James Madison ranking their importance on a chart. Breyer avers, apparently consulting Madison’s shade, that guns for the militia would be listed high on the chart, high above guns to shoot burglars. (Jokes about the “Madison Chart” ought to be law school staples down the line.)

The various justice's particular and often eccentric concerns further muddied any discernible lines of logic at the hearing. Justice Ruth Bader Ginsburg took a poorly conceived swipe at any originalist understanding of what rights the Privileges or Immunities Clause might guarantee by stressing the claim that women didn’t have the right to own property or have occupations separate from their husbands in 1868. (Meaning they wouldn’t now either if Gura won on privileges or immunities grounds?) Both she and Justice Anthony Kennedy tried to dredge a precise answer from Gura as to exactly what rights were protected by his conception of the clause, which he wouldn’t and couldn’t do. That the Constitution was designed to protect the people’s liberties through limiting government’s power and not listing citizens’ rights is not an idea much at the front of the justices’ minds.

Justice John Paul Stevens made it clear again and again that even if incorporated against the states, a Second Amendment right could and even ought to be restricted to the narrowest version of Heller: commonly used weapons for self-defense in the home. Even Scalia made it clear that he doesn’t think state level restrictions on concealed carry would necessarily be in danger under an incorporated Second Amendment, and both Chief Justice John Roberts and Justice Kennedy made it clear that an incorporated Second Amendment does not mean a Second Amendment whose reach was as wide as the gun rights community might like. Roberts spelled it out like this: The Second Amendment “is still going to be subject to the political process if the Court determines that it is incorporated in the Due Process Clause. All the arguments [Chicago’s lawyer Feldman made] against incorporation it seems to me are arguments you should make in favor of regulation under the Second Amendment. We haven't said anything about what the content of the Second Amendment is beyond what was said in Heller.”

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • ||

    Even Scalia made it clear that he doesn’t think state level restrictions on concealed carry would necessarily be in danger under an incorporated Second Amendment,

    Yeah, its not like the Amendment says anything about bearing arms. Just keeping them in your home for self-defense. Its right there in black and white:

    the right of the people to keep Arms in their home for self-defense, shall not be infringed

  • ||

    AFAIK, you can freely walk around town with a pistol strapped to your belt and not face any criminal liability. You will probably not like the reaction you get from people, but that's a separate issue.

  • ||

    In most places, at least.

  • ||

    In many places, the open carry per se is not illegal, but if the reaction you get from people is particularly bad, you can be charged with causing a disturbance.

  • WTF||

    Good luck with that, toxic. It depends on where you are. In NJ? You'll end up face down with the cuffs on and then in jail.

    In Virginia? Well, again, it depends. In northern VA, you might end up on the ground with a cop disarming you, but after he determines you're legal, you might be let go. There are several cases of this happening in Arlington, and also in the Norfolk area. In central VA/Richmond area, you likely would be good to go.

  • K-Y||

    IIRC, Texas of all places does not permit open carry.

  • Hormonal Redhead||

    True. We have concealed carry permits here in TX but no open carry. But we're working on it.

  • The Gobbler||

    So what do you think would happen in Minnesota?

    During the 2005 Session, several firearm carry bills were introduced to address the court decisions regarding the 2003 Minnesota Citizens' Personal Protection Act of 2003. In May of 2005, Senate File 2259 was passed by both the Senate and the House of Representatives. Governor Pawlenty signed Senate File 2259 into law (Laws of Minnesota 2005, Chapter 83) on May 24, 2005. This act makes no distinction between "open carry" versus "concealed carry" and persons with a valid permit are allowed to carry using either method.

  • ||

    State laws are so whacked. In some states you need a permit to open carry, but not to conceal carry. In other states it's the other way around. I notice, also, that, say, in some countries (NZ I think) you are required to use a sound suppressor within a certain proximity of populated areas, while in the US it is illegal to use a suppressor at all. There is just is no logic behind any of it.

  • robc||

    In some states you need a permit to open carry, but not to conceal carry.

    Vermont is the only state that doesnt require a permit for CC and Im pretty sure (but not positive) that they are an open carry state too.

    So, who are these "some states"?

  • Prime||

    Alaska also requires no permit for concealed carry, and is also an open carry state.

    Suppressors are not illegal by US federal law, but you have to pay a stamp tax.

    I am not aware of any state that requires a permit for open carry, but requires no permit for concealed carry.

  • Tripleb||

    That's how it's worded on my Madison chart. What planet is Breyer from, anyway?

  • WTF||

    The key is what is "the right" of the people to keep and bear arms. And if you're an originalist, applying "the original undersanding," you'd find that the right, just as all other constitutionally-protected rights, never has been understood as being limitless and absolute. Thos. Jefferson himself wrote about law forbidding the carrying of arms. Yes, he decried them as disarming only the law-abiding, but the fact is, such restrictions were not unknown at the time. The question then is whether they were understood to form one of the legitimate boundaries on "the right to keep and bear arms." Just like your right to free speech is not absolute and has certain boundaries that most accept.

  • ||

    And if you're an originalist, applying "the original undersanding," you'd find that the right, just as all other constitutionally-protected rights, never has been understood as being limitless and absolute.

    Sure, sure. But in what universe is a right to bear arms not infringed by laws prohibiting the bearing of arms?

  • ||

    I think he's saying that the same way a law banning child porn or yelling fire in a theater infringes on your right to say anything you want, but is still constitutional, a law banning the carrying of concealed weapons is within the bounds of the 2nd amendment.

  • Nipplemancer||

    how is carrying a concealed weapon anything like yelling fire in a crowded theatre?

  • ||

    You're scaring the pants-wetters.

  • Nipplemancer||

    well, fuck them

  • Joel||

    No, no. You're not allowed to do that, either.

  • ||

    Indeed. The only "constraints" on rights that make any sense are those that prevent imminent harm or injury to others. Falsely yelling "fire" in a crowded theater incites a stampede, fear-induced heart attacks, etc: people's safety is endangered. How does either concealed or open carry directly or imminently endanger anyone?

  • ||

    So, if a state can ban carrying concealed weapons, and a state can ban open carry:

    What is left of the right to bear arms?

  • ||

    ""Sure, sure. But in what universe is a right to bear arms not infringed by laws prohibiting the bearing of arms?""

    No kidding. That why I keep saying these rulings are bullshit until they define "infringed"

    Maybe I'm a little hardcore on this, but I view this case as supporting every gun law just short of a complete ban. I see no real value when SCOTUS says rights can be restricted. You have a right, or you do not. We might as well change the name of The Bill of Rights, to The Bill of Revokable Previlages.

  • ||

    Off topic, but this is one of the most interesting pieces I have read in a long time.

    http://blogs.the-american-inte.....ic-crisis/

  • ||

    "Upper middle class progressive reformers, dubbed goo-goos by machine politicians offended by what they saw as an infantile and naive love of ‘good government’, are responsible for some of the greatest achievements of the twentieth centuries. It was the goo-goos who fought for civil service reform, the development of the administrative and regulatory state, who sought to professionalize government and the academy and who generally fought (and fight) for transparency, accountability and the rule of law both at home and abroad."

    I read the article and still don't understand where the line between the machine and the morally naive lies. Progressives want to build these huge bureaucratic contrivances because people are immoral weak willed creatures, then expect that a deus ex machina that can make benevolent automatons out of the men who run things.

    Also, dimes to doughnuts, Obama hangs Rangel out to dry.

  • ||

    Progressives are vindictive morons who have no idea how the world works. If you build a regulatory state you end up with Detroit. But Progressives don't understand that. They keep thinking that it will work this time if only the right people are in charge.

    And if BO hangs Rangel out to dry, I bet you a few black people realize that he is half white and culturally about as much one of them as Stewart Smalley.

  • ||

    Like this guy McDonald, he knows the cops and politicians cannot protect him and his family in an adequate manner, but no, if guns are allowed, oh my god, people will own guns.

    Guess what dipshits people do own guns in Chicago, they are called criminals.

    It is almost satanic how evil these twists of logic lead to distopian realities. Lets ban drugs!(creates a vast profitable illegal trade)Lets build housing for the poor!(creates turf for competing drug dealers to kill over)Lets ban guns!(I am now banging my head against the fucking wall...whee!)

  • The Gobbler||

    Any body catch the Skip Gates Genetic/heredity series on PBS? Facinating stuff.

  • ||

    I always knew Spike Lee was white.

  • The Gobbler||

    I fould Louise Erdrich's excuse for not doing the DNA pie-chart unpersuasive. I'm thinking she was afraid she'd come out nealy as white as Ward Churchill. Not good for the act.

  • ||

    What hurt Detroit the most? Regulations, or robots that could build cars?

  • laotz||

    Inability to adapt methinks.

  • Prime||

    Robots that couldn't walk down stairs.

  • RM||

    Scalia is a kook.

    Judicial activism, my ass.

  • ||

    I don't get why people are dogging on Scalia for his pragmatism on this.

    Judges are, by nature, lazy. They do not want to deal with all the consequences of some deep change in constitutional interpretation when they can reach the same result in a far easier and less controversial way. While every Supreme Court judge probably has principled beliefs in this or that clause being over or under interpreted, they will still take the path of least resistance whenever possible. Doing otherwise is that dreaded judicial activism everyone loathes.

  • Jordan||

    So what? If you can't handle it, don't take the job. Being one of the most powerful people in the country isn't supposed to be easy.

  • ||

    I'm saying that it is part of the job. One of the classic tropes of libertarianism is that you don't just run around mucking with shit, cause the odds are you'll cause all kinds of problems you never saw coming. Judges recognize this, which is why being as lazy as possible is a judicial principle, not a flaw in their work ethic.

  • robc||

    No, the classic trope is do what is right and let the results fall is they may.

    Hail Eris!

  • ||

    toxic, one of the classic tropes of libertarianism is that you don't want the government running around mucking with shit, because the odds are you'll cause all kinds of problems you never saw coming.

    Libertarians aren't opposed to getting the government to stop mucking around with all kinds of shit, even though there might well be unintended consequences, because we believe, based on experience, that the unintended consequences of freedom are likely to be considerably better than the unintended consequences of state control.

  • robc||

  • Marc||

    Klassic.

  • Marc||

    One of the classic tropes of libertarianism is that you don't just run around mucking with shit, cause the odds are you'll cause all kinds of problems you never saw coming.

    I think that's one of the tropes of conservatism, actually. Not to say that we aren't on the same page from time to time.

  • St. V||

    No, it isn't.

  • ||

    I think the concept is called "unintended consequences" - jeeze, I wonder where we have encountered those before? Perhaps in every single shred of "pragmatic" activist legislation ever passed by our overlords. Yet, we daren't risk actually following the law of the land or the principles on which the country was actually founded.

    And this poor, beleaguered Scalia fellow, isn't he the same guy who has no particular problem with executing innocents as long there were no legal missteps along the way?

  • Michael Ejercito||

    And this poor, beleaguered Scalia fellow, isn't he the same guy who has no particular problem with executing innocents as long there were no legal missteps along the way?


    His role as a Supreme court justice is to uphold the law and the Constitution. His decision on that case was based upon case law and the plain meaning of the text.

  • Michael Ejercito||

    And this poor, beleaguered Scalia fellow, isn't he the same guy who has no particular problem with executing innocents as long there were no legal missteps along the way?


    His role as a Supreme court justice is to uphold the law and the Constitution. His decision on that case was based upon case law and the plain meaning of the text.

  • Random Dude||

    "One of the classic tropes of libertarianism is that you don't just run around mucking with shit, cause the odds are you'll cause all kinds of problems you never saw coming."

    Then you should blame the framers of the 14th amendment. Gura's argument is merely that the commonsense, ordinary interpretation of the language of the 14th amendment should be applied consistently.

    Their laziness on this issue is not a virtue, but a failure to deal with upholding explicit rights guaranteed in the Constitution.

  • WTF||

    I'm thinking Scalia knew that if they pushed for P&I versus due process, they risked turning off a justice or two. I'm sure Scalia started off being in favor of incorporation. I read it as him telling Gura "let's just get incorporation the sure way, shall we?" Basically, "let's get the specific thing you're here to get, and not go for a lot more."

    Which is a standard rule in the SCOTUS - to resolve a controversy in the narrowest way possible. If it is not necessary to resort to the P&I clause and it can be resolved via due process, then they won't go disturbing precedent - even a bad one - if they don't have to.

    Look how long it took to overturn Plessy v. Ferguson. Or what the hell was the case before Erie v. Tomkins that they knew they had to overturn in Erie?

  • ||

    I don't get why people are dogging on Scalia for his pragmatism on this.

    Because he went out of his way to opine on an issue not before him in Heller (where he said, effectively, "Gosh, the 2A wouldn't invalidate most of the gun control laws we have now.") and then went out of his way again in oral argument to make sure that he views the 2A and just about any gun control short of a complete ban as perfectly consistent with each other.

    That's why.

  • ||

    I second that.

  • juris imprudent||

    Scalia is a conservative - he is willing to conserve bad precedent. My guess is he wouldn't even vote to over turn Dred Scot. Anyone who even questions this obviously didn't understand his opinion in Raich.

    I look forward to Thomas's [presumed] concurrence, where, like Marshall in Plessey, he will tell the Court how wrong they were (in this case not to overturn Slaugherhouse) in not reading the ACTUAL language of the Constitution.

  • Tomcat1066||

    Let's just hope this is enough to repeal the near total bans on guns in so many places. One step at a time ;)

  • ||

    a truly lucid, splendid article.

    would like to see doherty on a cause
    in which a 'commerce clause' legislation is buttressed by wickard v. filburn.

  • ||

    I saw Otis McDonald on the news the other night, it was only a three or so minute segment. I remember thinking; they should let him argue his own case, no one will deny this man. Pretty awesome. They then cut to a Brady Center guy or something, of course, sounded like a total douche.

  • ||

    Roberts spelled it out like this: The Second Amendment “is still going to be subject to the political process if the Court determines that it is incorporated in the Due Process Clause.

    This is the problem with incorporating under the Due Process Clause. It assumes that the State has lots of latitude, even when the right at issue "shall not be infringed."

  • Michael Ejercito||

    This is the problem with incorporating under the Due Process Clause. It assumes that the State has lots of latitude, even when the right at issue "shall not be infringed."


    States would always have latitude even if Slaughterhouse is overturned.

    Making criminal threats and committing perjury will still not be protected by the First Amendment, for one of many examples.

  • ||

    States would always have latitude even if Slaughterhouse is overturned.

    Making criminal threats and committing perjury will still not be protected by the First Amendment, for one of many examples.

    Aren't there Federal laws against criminal threats and perjury? If the laws of this country are based upon the Constitution (I am not claiming they are) then wouldn't Federal law then trump all State laws? At least the ones which were duplicated? Obviously the States will still be allowed to select the name of their State flower, assuming it doesn't violate Federal law.

  • ||

    Obviously most people who post here have never had a fight with a cop who then testified against them. For law enforcement officers, criminal threats and perjury ARE a right. Just try to get a cop prosecuted even when his perjury is part of the trial transcript and your witnesses are useless because "they didn't see anything".

  • ||

    You're supposed to be happy that you just had to get your head stitched up and didn't go to prison, I guess.

  • ||

    """Making criminal threats and committing perjury will still not be protected by the First Amendment, for one of many examples."""

    Sure, but do you need to buy a license and submit to background checks before you can chat to women in bars? The government can require you do have such to buy a handgun to shoot at a range.

    Also, criminal threats and perjury are more about the intent than speech. Even if you have an absolute right to own a gun, any where, any time, any kind, it wouldn't give you a right to threaten people with it.

  • ||

    Making criminal threats and committing perjury will still not be protected by the First Amendment, for one of many examples.

    Well, at least people are finally beginning to understand that libel and slander laws don't restrict your right to free speech.

    Perjury doesn't either, really. Perjury is lying under oath. Its the oath part that matters - you have essentially agreed not to lie, and broken your promise. Think of it as contract enforcement, not speech regulation.

    Criminal threats? Would those be threats in furtherance of a criminal scheme? If so, then I think what is illegal is the criminal scheme, and the threats are just part of it. Kind of like conspiracy, which is mostly sitting around talking about committing a crime. Its not the sitting around talking that's really illegal, its the crime.

  • ||

    Kind of like sitting around in your police cruiser convincing witnesses that they didn't see anything.

  • ||

    was also excited because a revival of privileges or immunities could give courts new power to restrict states and localities from violating other rights

    "Courts"? What kind of court? He wants to give the Federal Judiciary more power?! Because, when there are actual negative rights to be defended you can count on the likes of Ruth Bader Ginsberg?

    The Statists wish for more, and more power to be concentrated in the hands of the Federal government. If Gura had his way wouldn't it be like a wet dream for Choad, positive "rights" defended by the Statist Judiciary as far as the eye can see?

  • ||

    Opps, should have said "as far as the I can sea?"

  • ||

    I, and my new(ly acquired) Sig, just got back from the range.

    Blam! Blam! Blam!

    Solidarity, Comrades.

  • ||

    IMO this isn't a victory, it's a major loss. It's one step back from gun regulation, and 100 steps toward gun regulation.

    Allowing any regulation short of a complete ban is by NO account a victory.

    We might as well add ,except when prohibited by law at the end of the 2nd Amendment.

  • ||

    The Second Amendment, not the fourteenth, is the article in question. "The right of the people, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.
    The right is not to secure individual safety, but to provide a well regulated militia, at a time when the States were without the ability to fund a standing militia. Arms were the flintlock hunting rifles, not the the cheap weapons of mass destruction of today. The intent of the writers of the constitution was to insure domestic tranquility and provide for the common defense, not to promote the use of arms for personal use.

  • ||

    a well regulated militia being necessary--means the gov. needs troops. to oppose those troops and prevent the type of gov. that they fought a war to stop-- the right of the people to keep and bear arms shall not be infringed

  • ||

    1. The second amendment was not written by the writers of the Constitution, let alone the writers of the Preamble.

    2. Handguns, rifles, and shotguns are not weapons of mass destruction by any stretch of the imagination. If gun rights advocates start demanding to be allowed to own howitzers and install anti-aircraft batteries on their houses, we'll talk.

    3. Your above opinion would have been laughed out of any court in the land in the 1800s -- you know, the era when the people who wrote the 2nd were still alive.

  • Asmodai||

    Actually, I do want a howitzer and SAMs at my domicile.

    So I can protect myself from the Waco and Ruby Ridge ATF baby killers.

    (You do realize, of course, that helicopters with 50 cal MGs were used against innocent civilians at Waco, right?)

  • LarryA||

    The intent of the writers of the constitution was to insure domestic tranquility and provide for the common defense, not to promote the use of arms for personal use.

    The ability to protect yourself from criminal attack promotes domestic tranquility.

  • ||

    I think Scalia's point is, if there are so many rights that can only be protected *only* by the P&I clause, then coming up with another case to bring before the court which would sink or swim based on a P&I argument should be no trouble.

    But Gura wants to take a right that should have no trouble being enforced against the states via the DPC, and hijack it to further his broader agenda.

  • juris imprudent||

    No, Scalia's point is don't make me actually have to think through 140 years of bad law. Even suggesting that just shows that you want to show off like a high-falutin' intellectual kind of academic lawyer.

    Thomas on the other hand will give a lucid discourse on why the precedent and the law based upon it is wrong and counter to what the Constitution (14th Amdt) says, and what the intentions were of the people that actually wrote it.

    Scalia has NO claim to originalism or textualism of any kind, particularly after Raich and Heller. He is nothing more than a counterbalance to Stevens, and no more faithful to the duty of his office.

  • ||

    By your logic, the courts need to reconsider the validity of the questionable reasoning of Katz v US (the SCOTUS decision saying that phone conversations are protected by the 4th amendment) every time a warrantless wiretapping case comes before them. So if five justices decide that phone conversations are more like in-person conversations (not protected by 4A) than they are like mail (protected), then the next day you have to reorder your life to assume that every phone conversation is going to be potentially tapped.

    Stare decisis, which predates the Constitution by centuries in the common law tradition, ensures that the expected interpretation of laws that people and organizations arrange their lives around are only judicially altered in cases of rights violations which cannot be rectified in any other way.

  • Random Dude||

    Stare decisis, if taken to its logical extent, also obviates the need for a written constitution.

    I mean, why don't we just shit all over the textual reality of a written constitution when we can have this perpetual circle-jerk of bad Justices and precedent determine the law of the land.

    That's the crux of the conflict in this case. Will the Justices obey the actual words of the Constitution, or will they hide behind the veil of stare decisis to justify the horrible rulings of the past?

  • ||

    I hope this case doesn't set a precedent of the supreme court upholding a right but then allowing so much "reasonable regulation" that it almost doesn't exist anyhow.

    I think after interpreting this case so narrowly that the liberals especially are going to have a hard time not looking hypocritical when they want to interpret another case like on separation of church state, free speech, abortion rights.... more broadly/liberally.

    The conservatives are in a bit a bind from now on too. No more arguing for "states rights" anymore unless its in a very limited way.

  • ||

    Very few conservatives argue that states should have the right to violate the Bill of Rights. (Clarence Thomas is one, but that's another story.)

  • LarryA||

    Very few conservatives argue that states should have the right to violate the Bill of Rights.

    Just off the top of my head, see:
    Burning American flags
    Ten Commandments on the courthouse lawn
    Pornography laws
    “Christian government”
    Moral standards for television and movies
    School prayer

  • ||

    PA tried to say that you had the right to bear arms, but not to buy ammunition.

  • ||

    I think Scalia believes that for the 1st Amendment. I heard him say that on cspan. He thinks the 1st Amend only applies to the federal gov't. I think because its the only amendment that has "Congress shall make no law" in front of it. I guess thats suppose to mean that the rest can be enforced on the states but it cant. That seems ridiculous to me, but Ive seen that interpretation before. I thought it was just something The Founders wrote at the top for the first amend, in order, but that it was suppose to then apply to all the rest that followed. Its seem crackpot to me, but maybe Im wrong. But if Scalia doesn't believe that then he doesn't believe any of the BORS applies to the sates because i know I heard him say that in reference to the 1st. He said that, but then suggested that he goes along with it (incorporation of the 1st) because its precedent.

    I was thinking more of politicians and activists and conservatives in general though who are always screaming about states rights and federalism but imo don't really think through what that means and how if the states are suppose to have power over everything that we would lose a lot of rights/freedom. Im thinking that maybe, probably not though, they might learn an important lesson about (the negatives)"states rights" from this case.

  • robc||

    The amendments were independent things, so putting a clause at the top of the 1st one seems silly. Yes, the first 12, of which 10 passed, were presented together, but they arent in the original order either. What if the 1st had been one of the ones that didnt pass? Would judges have to look to the wording of an unpassed amendment to get the meaning? What if it had been placed 10th?

  • ||

    OK, here's what's going on.

    If you look at Heller, one of the footnotes cites six or seven old state supreme court cases on the subject of concealed weapons, all 19th century. What ALL of these cases say (such as Nunn) is that limiting or even banning concealed carry is OK so long as open carry is legal.

    This same issue came up in 2003 at Ohio's Supreme Court. Gunnies in the Klein case were suing for a right to apply for concealed weapons permits which at that time didn't exist outside of some "special deputy status" permits given to cronies. We "lost". However, the Ohio Supremes said in passing "it's OK to ban concealed weapons (under this state's version of the 2nd Amendment) because everybody knows open carry is legal."

    At that point, the gunnies turned to each other and grinned. The mayors and police chiefs went pale. In one throwaway sentence the Ohio Supremes had effectively banned the usual practice of tossing open carriers in jail for "disturbing the peace".

    Within days happy heavily armed peaceful mobs of gunnies marched laps around the various state and city capitol buildings, and literally annoyed them into passing a CCW bill inside of a year after Klein.

    That's the future the US Supremes appear to be about to create in New York City, Chicago, Hawaii, California, New Jersey, etc. It's gonna be hilarious and it WILL lead to concealed carry permits pretty damn quick if Ohio's experience is any indication.

  • St. V||

    I'm not sure if it's referenced to in the article or has been posted in this here comment section, but here's a somewhat interesting multimedia piece on CSPAN hosted by CATO.

    http://www.cato.org/mediahighl.....ht_id=1126

    I particularly like Iyla's points towards the end. I found myself saying a lot of "thank you's" and "exactly's" as he spoke.

  • Thorbie||

    Wow, what a comprehensive article. Also not surprising that Clarence Thomas is once again the voice of sanity on the court.

  • louboutinvips||

    We might as well add ,except when prohibited by law at the end of the 2nd Amendment.
    http://www.christianlouboutinvips.com

  • abercrombie milano||

    I like that saying, thanks!
    Thanks for posting this. Very nice recap of some of the key points in my talk. I hope you and your readers find it useful! Thanks again

  • wizard of oz books||

    With many new announcement about the wizard of oz movies in the news, you might want to consider starting to obtain Wizard of Oz book series either as collectible or investment at RareOzBooks.com.

  • ||

    Thanks for sharingUGG Kensington

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online

  • Progressive Puritans: From e-cigs to sex classifieds, the once transgressive left wants to criminalize fun.
  • Port Authoritarians: Chris Christie’s Bridgegate scandal
  • The Menace of Secret Government: Obama’s proposed intelligence reforms don’t safeguard civil liberties

SUBSCRIBE

advertisement