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.”