Will Justice Scalia Abandon Originalism in the Chicago Gun Case?

Writing in the Washington Examiner, legal scholars Josh Blackman and Ilya Shapiro wonder if Justice Antonin Scalia will abandon originalism when it comes time to finally decide McDonald v. Chicago:

The Court could take two possible routes, both under the Fourteenth Amendment, to apply, or "incorporate," the Second Amendment right against the states: the Due Process Clause and the Privileges or Immunities Clause.

Scalia has long crusaded against the former, which encompasses the "substantive due process" doctrine. To Scalia, this doctrine—which has protected rights based on alleged constitutional "penumbras and emanations"—embodies the judicial activism that is the bane of his jurisprudence.

Scalia has attacked substantive due process as an "atrocity," an "oxymoron," "babble," and a "mere springboard for judicial lawmaking."…

Given Scalia's epic enmity for substantive due process, why would he now turn his back on decades of his own hard labors and suddenly endorse the controversial doctrine? In his own words, because it is "easier."

Read the whole thing here. Read Brian Doherty's firsthand account of the McDonald arguments here.

Comments

[Nick]

Maybe Scalia was asking Gura why to go with P&I rather than Due Process because he was hoping Gura would illuminate to the Court a solid reason to use P&I.

And, then Gura fails to satisfactorily answer Scalia's question before the Court...

[R C Dean]

As I recall the transcript, Scalia didn't even give Gura a chance to answer, but cut him off after a few words.

[Nick]

Then maybe he didn't want him to answer for fear he'd fuck it up?

[ClubMedSux]

When I started law school (in 2003) I liked Scalia because I thought he was consistent in his originalist approach, even if I didn't always agree with the outcome. Ever since opinion in Raich, however, I realized that he's just as full of it as anybody else. Turning his back on decades of his own hard labors because it is "easier"? Sounds about right.

[Episiarch]

It's very frustrating that unprincipled douchebags have control over how our rights are interpreted. Very frustrating.

[Tulpa]

Uh, can't he write a concurring opinion deciding in favor of McDonald through the P&I clause? His vote would still count for the side of the angels.

[TrickyVic]

I'm half kidding when I say the only reason Scalia voted for Heller is that Heller is a retired security guard.

[The Angry Optimist]

Uh, can't he write a concurring opinion deciding in favor of McDonald through the P&I clause? His vote would still count for the side of the angels.

Pragmatically, if he wants individual gun rights to be strongly enshrined, you want a straight majority opinion instead of a plurality one. However, if he wants to be right and be an egomaniac, he could write an awesome P&I one that people would cite for ages.

The reason "substantive due process" makes no sense is because process is about procedure, not substance. I hate it, too.

I've also never been convinced that the Bill of Rights was meant only to apply to the federal government, especially given that the federal government had almost no territorial jurisdiction (D.C. and territories being about it in the 1780s). Why would the Founders guarantee a right and provide a way for the States to violate that right all day long?

In my mind, the BoR was the baseline - these are the things that *nobody* can violate. Past that, let the States be laboratories. Were I on SCOTUS, I'd dig up evidence for that view and write an opinion that way.

[robc]

he could write an awesome P&I one that people would cite for ages.

Or he can just join the one Thomas will be writing.

[x,y]

Not so sure that's correct. Roe v. Wade was a plurality, and it's basically untouchable as a darling of the left. Heller and McDonald, I assume, will become basically untouchable as darlings of the right.

[John Thacker]

Why would the Founders guarantee a right and provide a way for the States to violate that right all day long?

It's pretty clear in the case of the establishment of churches that the Founders let states keep their established churches, and part of it was that while many different states like the concept of established churches, they didn't agree on which one.

However, the First Amendment does, for those who like to parse things, specifically mentioned "Congress," unlike the other ones.

[The Angry Optimist]

It's amazing to me that any decently intellectually honest person can just glide over the egregious violence done to the 14th Amendment. I mean, read the damn amendment!:

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.

And they plucked due process out and turned it into some magical "substantive" clause? Good grief.

[Michael Ejercito]

And they plucked due process out and turned it into some magical "substantive" clause? Good grief.

"nor shall any State deprive any person of life, liberty, or property, without due process of law"

Let us see.

The state can not deprive people of life, liberty, or property without due process of law.

Keeping and bearing arms is a liberty.

therefore, the state can not violate the right to keep and bear arms without due process of law.

A city that requires handguns to be registered, and then refuses to register new handguns, would be violating the right to keep and bear arms without due process of law.

[The Angry Optimist]

What that clause clearly means, especially in the context of the rest of the Constitution, is that you must have a fair trial and process must be adhered to. What you're saying is that there is no way, even with a trial, to take away someone's "liberty", which makes no sense whatsoever.

A city that requires handguns to be registered, and then refuses to register new handguns, would be violating the right to keep and bear arms without due process of law.

The registration requirement is the process, Michael.

[Michael Ejercito]

What that clause clearly means, especially in the context of the rest of the Constitution, is that you must have a fair trial and process must be adhered to. What you're saying is that there is no way, even with a trial, to take away someone's "liberty", which makes no sense whatsoever.

I did not make that claim.

The registration requirement is the process, Michael.

And insufficient due process because the city refuses to register new handguns.

[TrickyVic]

""And insufficient due process because the city refuses to register new handguns.""

If they are not abiding by their own process, you're right.

Of course they could require a DNA sample, criminal background check, psych assessment, mandatory liability insurance, and a hefty processing fee, as part of their due process.

[Michael Ejercito]

Of course they could require a DNA sample, criminal background check, psych assessment, mandatory liability insurance, and a hefty processing fee, as part of their due process.

It depends on what burden that would impose.

Would mandatory liability insurance (for libel and slander) be acceptable on the issue of speech and press?

[John Thacker]

The registration requirement is the process, Michael.

But if they require registration and then refuse to register, well, I think that Catch 22 can be described as a lack of Due Process.

Mind you, I'm also sympathetic to arguments that regulatory takings can be takings without technically seizing the property, and so on.

[The Angry Optimist]

In other words, Michael, what if you just made gun ownership out-and-out illegal? Then you would be depriving people of liberty, but you would have full due process to do it with.

Clearly, due process is and has been the wrong clause for this sort of thing for a good long while now.

[l0phty]

+1

[Michael Ejercito]

In other words, Michael, what if you just made gun ownership out-and-out illegal?

It would be the same as making criticism of the government illegal.

[R C Dean]

A city that requires handguns to be registered, and then refuses to register new handguns, would be violating the right to keep and bear arms without due process of law.

And a city that just flat-out bans any ownership of guns would not be violating due process. The law is on the books and is being applied as written, ergo, no due process violation.

[Michael Ejercito]

And a city that just flat-out bans any ownership of guns would not be violating due process

Yes, it would.

The law is on the books and is being applied as written, ergo, no due process violation.

Due process means that there has to be some sort of judicial procedure in order to justify depriving people of a right.

For example, probable cause is required for an arrest.

[Tony]

The judicial procedure is the trial. The charge? Ownership of a weapon.

And, by the way, you are assuming the argument here by saying that the Due Process clause both ensures that the right is a right on a state level and provides procedural protection against unfair revocation or infringment of said right.

And what really does not make sense is that the Privileges and Immunities clause is sitting right there, willing to do a better job than making the Due Process clause both substantive and procedural. Process is not substance, Michael, that's the key here.

[Should have said "NotTony"]

See above.

[Michael Ejercito]

The judicial procedure is the trial. The charge? Ownership of a weapon.

Why does not this same logic apply to laws prohibiting criticism of the government?

After all, the judicial procedure would be the trial, and the charge would be criticism of the government.

[The Angry Optimist]

It does apply, Michael. That's my point. There would be nothing adverse about such a law, provided you had Due Process. See, this is why the Due Process clause is wrong for what you're trying to do; due process just means "fair and impartial trial" - if you have one of those, you can violate life and liberty all day long.

The point is that the first clause of the 14th Amendment was meant to invalidate those kinds of laws (speech-limiting and the like). Why you're trying to cram it into due process, I have no idea.

[robc]

But you cant take away someones liberties without due process. Thus if you banned handguns in general, there has been no due process. If you banned felons from handguns, you have followed due process.

You cant have the process after the ban. The process isnt passing the law, it is the trial.

[The Angry Optimist]

But you can making owning handguns a crime. Unless you would care to point to *something* (other than the due process clause, in which case you're being circular) that would not permit a state to do such a thing.

Hmmm...something...something...

[robc]

Im saying that making it a crime isnt due process.

They cant take away the liberty without due process and that law takes away the liberty, hence it didnt follow due process.

[robc]

I still prefer P&I though.

[R C Dean]

Due process means that there has to be some sort of judicial procedure in order to justify depriving people of a right.

This claims way too much.

What you are saying here is that the enactment of any law by the legislature and executive is a violation of due process, because the enactment of the law didn't involve some kind of judicial process.

[HCK]

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[BakedPenguin]

The sad thing is that the 14th amendment was to ensure that the rights of recently freed slaves would not be trampled upon by the states. This was done by upholding their "privileges and immunities". Probably, the only justice who will agree with this viewpoint is the only African American on the bench.

And for doing so, he will be called a "lawn jockey", "Uncle Tom", etc. by the "enlightened" commentariat.

[ClubMedSux]

Best comment of the thread.

[Michael Ejercito]

Substantive due process predates the Fourteenth Amendment.

It was cited as early as Dred Scott v. Sanford , for example.

[HCK]

i don't think so.
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