The Supreme Court has set a date of March 2, 2010, for oral arguments in McDonald v. Chicago, the case that will decide whether the revival of the Second Amendment won in 2008's Heller case will extend to overturning gun control restrictions imposed by local and state governments.
The legal briefs from the plaintiffs, and many of their amici, are now circulating. And an interesting division in the preferred strategy for winning the case has appeared, one based on the daring legal gambit around which most of lead McDonald lawyer (and Heller lawyer) Alan Gura's brief is built.
To understand Gura's radicalism, we need to take a quick stroll through a century and more of legal precedent. For decades, the rights contained in the Bill of Rights (both explicitly enumerated and unenumerated) were interpreted to bind only the federal government (see the 1833 Barron case, regarding takings under the Fifth Amendment, for the beginnings of this line of thought). Then in 1868 the 14th Amendment was enacted to impose substantive limitations on the ability of state and local governments to infringe individual rights.
The 14th Amendment was passed in the historical context of Reconstruction, when many southern governments were violating the rights of newly freed blacks. As many of the briefs in McDonald detail quite convincingly, one of the rights that was almost universally understood to fall under 14th Amendment protection (or to use the lingo, one of the rights meant to be "incorporated" on the states via the 14th) was the Second Amendment right to keep and bear arms.
The 14th Amendment lists three distinct ways in which states and localities are prohibited from violating our rights: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
In a controversial and almost universally derided 1873 set of cases known as the Slaughterhouse Cases, the Supreme Court permanently scuttled the use of the first, and seemingly richest, rights-protecting phrase, the Privileges or Immunities Clause. As Damon Root wrote here at Reason back in April:
At issue was a Louisiana law granting a 25-year monopoly to the Crescent City Live-Stock Landing and Slaughter-House Company to build and operate a new central slaughterhouse to "promote the health of the City of New Orleans." Writing for the Court's 5-4 majority, Justice Samuel Miller held that not only was the monopoly constitutional, the Privileges or Immunities Clause actually protected only a modest set of national rights, thus leaving the states free to restrict liberty as they saw fit.
Gura explained in an earlier interview with Reason what that decision did to the Privileges or Immunities Clause: "The Slaughterhouse Cases declared pretty much that the only privileges and immunities protected by the 14th Amendment are those of national citizenship, rights that accrue out of the existence of the federal government, like the right to a passport or right to travel the waterways of the U.S. or to petition Congress."
By choosing to tell the Supreme Court that it should recognize Second Amendment rights as among the privileges or immunities the 14th Amendment was meant to protect, Gura is asking the Court to overturn Slaughterhouse. As he wrote in the brief to the Supreme Court:
SlaughterHouse's illegitimacy has long been all-but-universally understood. It deserves to be acknowledged by this Court. Because SlaughterHouse rests on language not actually in the Constitution, contradicts the Fourteenth Amendment's original textual meaning, defies the Framers' intent, and supplies a nonsensical definition for Section One's key protection of civil rights, overruling this error and its progeny remains imperative. No valid reliance interests flow from the wrongful deprivation of constitutional liberties. The reliance interest to be fulfilled remains Americans' expectation that the constitutional amendment their ancestors ratified to protect their rights from state infringement be given its full effect.
As Damon Root explained at Reason back in February, getting rid of Slaughterhouse and restoring the 14th Amendment to its originally intended reach would do more than just make room for imposing Second Amendment restrictions on state governments: "The 14th Amendment was specifically designed and ratified to protect a sweepingly libertarian idea of self-ownership. That idea includes the right to acquire property, run a business, and buy and sell labor without unnecessary or improper interference by the government."
And that's exactly why Gura's kill-Slaughterhouse move is so controversial. Some of the amici briefs in the case—meant, remember, to support his victory in McDonald—have even argued strenuously against the main means Gura is relying on to win.
Since, as Gura wrote in the brief, "In 1868, the 'privileges' and 'immunities' of American citizenship were popularly understood to include a broad array of pre-existent natural rights believed secured by all free governments, as well as the personal rights memorialized in the Bill of Rights," some right-leaning legal scholars and organizations that want to vindicate the Second Amendment are afraid of a Court emboldened via the Privileges or Immunities Clause to do some serious thinking—and acting—on the basis of such a "broad array of pre-existent natural rights."
A brief from the American Civil Rights Union and the Committee for Justice (among other groups) makes the most explicit pro-McDonald, yet anti-Gura's Slaughterhouse strategy, case:
The Slaughter-House Cases should not be overruled. Doing so would render the Privileges or Immunities Clause a tabula rasa, which this Court in the future could interpret to mean anything this Court chooses, making that clause a cornucopia of various rights devoid of any textual support in the Constitution, with profound implications for both social and economic policy issues in this country, as future Members of this Court could constitutionalize their personal preferences, foreclosing political solutions on these matters.
Even groups that support Gura's strategy of relying on the Privileges or Immunities clause to incorporate the Second Amendment urge caution. The brief filed by Arms Keepers notes that the Court must take care to "ensure that a revived Privileges or Immunities Clause will not become a Frankenstein's Monster in later jurisprudence." Thus, the brief asks the Court for "an interpretation that incorporates fundamental enumerated constitutional rights and nothing else."**
A brief from a group of state legislators also openly rejects the notion that the Court need explicitly overrule Slaughterhouse to incorporate the Second Amendment via the Privileges or Immunities Clause, arguing that the economic rights at issue in that 19th century case should not be considered an enforceable privilege or immunity.
Gura counters that "Nobody has a legitimate reason to fear a faithful interpretation of the Constitution, and nobody has any legitimate reason to fear effective and complete protection of civil rights. There are people who do fear what they might perceive to be a bad case following from the decision in McDonald, but the fact a future court might make an erroneous decision is no excuse to make an erroneous decision in this case."
There are deeper political and ideological streams beneath some Second Amendment fans' disquiet with the Slaughterhouse strategy. "I think clearly some of these people [who want McDonald to win without overturning Slaughterhouse] are not really interested in securing the right to arms," Gura thinks, "so much as they are interested in constraining civil rights in other ways."
Some libertarian scholars, though, have never liked the idea of using the 14th Amendment to impose federal power over state law, whether or not the specific result might be one that extends rights in a salubrious direction. For example, Gene Healy, now with the Cato Institute, wrote in 1999 that "in practice, the Fourteenth Amendment has often operated as a grant of legislative and executive power to judges. And that power has been used to violate the very rights it was meant to secure." Healy also noted a disturbingly high number of law students seeing "in the Fourteenth Amendment an irresistible engine for reshaping society along egalitarian lines."
Libertarian philosopher Roderick Long noted, in the context of the Kelo eminent domain case, that "I am opposed to giving the Federal government the power to impose libertarian standards on the States, for the same reasons that I would oppose giving the United Nations the power to impose libertarian standards on the U.S. This is not because I think federalism takes precedence over individual rights, but rather because I think federalism is a better long-run strategy for protecting individual rights."
Orin Kerr, a legal analyst writing at Volokh.com, thinks that Gura is neglecting his specific responsibilities towards the gun rights question at issue and is doing some libertarian wish fulfillment overreach when it comes to overturning Slaughterhouse. "Most Supreme Court briefs focus on trying to win the case," Kerr wrote, "whereas this brief seems to treat that as an afterthought and instead is trying to use this case to achieve a long-time goal of the libertarian legal movement."
Kerr thinks there is no way the current Supreme Court will accept Gura's arguments. Kerr's colleague at Volokh.com, the anarcho-libertarian legal theorist Randy Barnett, thinks Kerr's points don't hold up. First, Barnett notes that the Court had a chance to take up the National Rifle Association's challenge to the same Chicago laws, a challenge that did not rely so heavily on a Privileges or Immunities Clause argument. Yet the Court chose to hear Gura's argument, indicating they might not be as contemptuous of such thinking as Kerr guesses.
Also, Barnett notes that Kerr's claims are "based in what he thinks will be the Justices' dislike for the interpretation of the Privileges or Immunities Clause described in the brief. The conservatives will hate the references to 'natural rights' while the liberals will hate the references to 'property.' Fair enough. But notice that the brief does not offer Alan Gura's theory of the Privileges or Immunities Clause. All the phrases to which Orin objects are taken from quotes from the historical sources. Was Gura supposed to conceal these sources from the Court or faithfully report them?"
Gura also thinks Kerr's take on the strategy is mistaken. Gura tells me that he's merely asking the Court to actually deal with the explicit language and meaning of the 14th Amendment. "It is always helpful when the Court decides cases based on the Constitution's text and history. That way even those who might disagree can take comfort in knowing the Court actually addressed the meaning of the Constitution. It would make not just the opinion in McDonald more stable and accepted, generally speaking this approach increases people's confidence in the Court. And we could get the 14th Amendment that we've always been meant to enjoy."
It's possible—legal analysts such as Kerr think it likely—that some of the pro-Slaughterhouse amici will get their way, and McDonald will be won on more traditional substantive due process grounds (the means through which other elements of the Bill of Rights have been incorporated against the states). Gura's brief offers that argument as well, and if he wins that way, it would be a far less surprising victory than one based on killing Slaughterhouse.
If McDonald is won without the death of Slaughterhouse, it will still be a cheering victory for a core constitutional right. But if Gura wins the way he wants to win, he will have succeeded in creating a constitutional revolution of sorts, one with both promise and peril for keeping government power within prescribed limits.
Timothy Sandefur, a lawyer with the Pacific Legal Foundation who worked on a joint brief between that group and the Cato Institute, knows that a revived Privileges or Immunities Clause could be problematic in certain hands, noting especially that some progressive lawyers will surely use it to argue for some federal welfare rights allegedly contained within it. "But the left is going to do that anyway; they can also argue for welfare rights under equal protection and due process. There is no need [for supporters of a classical liberal vision of rights] to tie our hands because of a fear the left is going to abuse" the Privileges or Immunities Clause.
**An earlier version of this article incorrectly stated that the Arms Keeper Brief called for overturning Slaughterhouse. It does not.