District of Columbia v Heller

Yesterday, the Supreme Court heard oral arguments from Alan Gura, the attorney for Otis McDonald, a retiree and Chicago resident who, along with several other Chicago residents challenged the handgun ban that currently exists in the City of Chicago. This case is sponsored by the Second Amendment Foundation and the Illinois State Rifle Association.

At issue is the constitutionality of the Chicago handgun ban. When the case was originally contested, a trial court ruled in favor of the City of Chicago on December 18, 2008. This decision was appealed to the 7th Circuit Court of Appeals and on June 2, 2009 that court affirmed the decision of the lower court.

Subsequent to the Court of Appeals ruling, the Second Amendment Foundation requested that the Supreme Court review the case and on September 30, 2009 the request was granted. The National Rifle Association also requested review on the part of the plaintiffs and on January 25, 2010 was granted a motion for 'divided argument' on the case, meaning that both the Second Amendment Foundation sponsored attorney, Alan Gura and the NRA sponsored attorney, Paul Clement would both argue for the plaintiff.

It is worth noting that this 'divided argument' places the plaintiff at a bit of a disadvantage since the two attorneys split the time allotted for oral arguments. In addition, the two attorneys arguments originate in different points of law which could have the effect of complicating the consideration of the issue. This is particularly noteworthy in light of the success of Alan Gura in DC v. Heller. Several observers questioned the wisdom of the petition by the NRA and its motivation.

The McDonald case challenges four aspects of the Chicago gun registration law. The specific issues are that the law:

Prohibits the registration of handguns, resulting in an de facto handgun ban.
Requires that guns be registered prior to their purchase or acquisition by Chicago resident
Requires that the registration be renewed annually and charges a fee for that registration
Permanently prohibits the re-registration of any gun should the original registration lapse

The attorneys for McDonald are proposing that the Second Amendment, in addition to being applied in federal jurisdictions, should also be applied to state and local governments.

The vast majority of the American people probably do not realize that virtually all of their rights guaranteed under the Bill of Rights have been incorporated to the states with the exception of three specific rights. Those rights that are not incorporated to the states are:

The Second Amendment of the Constitution
The Grand Jury clause of the Fifth Amendment
The Right to Jury Trial in a Civil Trial in the 7th Amendment

All other rights that are included in the original Bill of Rights have been incorporated to the states through a legal concept known as 'Selective Incorporation'. Essentially, the court over time has decided that a constitutional right is 'fundamental' by being "implicit in the concept of ordered liberty" and "deeply rooted in our nation's history and traditions".

While this probably comes as a significant surprise to most readers, our Bill of Rights did not 'automatically' apply to the states. These rights have been 'incorporated to the states' by various judicial decisions by the Supreme Court.

In many ways, 'Selective Incorporation' began after the ratification of the Fourteenth Amendment which stated in part, "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".

Supreme Court decisions have used either the 'privileges and immunities' clause or the 'due process' clause of the Fourteenth Amendment to incorporate rights to the states.

Moreover, the Fourteenth Amendment was understood to include the fundamental rights honored by any free government.

One of the most pivotal decisions on State's Rights after the passage of the Fourteenth Amendment was a decision known as the "Slaughter House Cases". In the mid-1880s in New Orleans, there were thousands of butchers that slaughtered over 300,000 animals each year in the New Orleans area. The vast majority of these butchers dumped the blood, feces and entrails of the slaughtered animals into the Mississippi River. Since this was largely done north of New Orleans, the public water supply was being polluted in an alarming fashion. Between 1832 and 1869 there were over 11 cholera outbreaks in New Orleans that were attributed to this threat to public health.

The City of New Orleans attempted to solve this problem by passage of a city ordinance that required all butchers to use a city-owned slaughterhouse facility and prohibited the dumping of animal entrails upstream from the city. All in all, this was probably a wise law from the standpoint of public health.

The butchers felt this was an unreasonable restriction on their ability to practice their trade and sued claiming that such laws violated their rights to practice their trade freely. Considering the public health threat, lower courts sided with the City of New Orleans and upheld the law.

In 1873 the case was appealed to the Supreme Court and in April of that year, the court ruled with a very narrow interpretation of the Fourteenth Amendment and held that it did not restrict the police powers of the states to deal with issues of public safety. The court also held that the rights of the butchers had not been violated under the Fourteenth Amendment. This extremely narrow interpretation of the Fourteenth Amendment has been the basis for the rejection of many equal protection cases over the past 140 years.

Part of the arguments in McDonald v. Chicago calls on the court to consider a broader interpretation of the Fourteenth Amendment as advocated by Justice Steven Field in his dissent to the original decision in the Slaughter House Cases.

Almost without exception, legal scholars have written that the Supreme Court was in error in its narrow decision on Slaughter House. Many feel that the Fourteenth Amendment was written to embrace common law in favor of an individual's right to pursue a legitimate occupation and to more broadly protect property interests against hostile state laws.

The Supreme Court has used the 'due process' clause in a broad range of cases to incorporate many of our basic constitutional rights to the states so that our constitutional rights still apply under state law.

There is also the issue of 'un-enumerated rights' that is part of the 'privileges or immunities' clause of the Fourteenth Amendment. Many of these rights were actually codified in the Civil Rights Act of 1866. This law was actually passed by a super-majority of Congress over President Andrew Johnson's veto. The law provided that:

Everyone born in the United States was a citizen.
All persons within the United States shall have the same rights in every State and Territory
All United States citizens posses the right to make and enforce contracts
Can sue other parties
Can be parties to any Civil action
Can give evidence
Have full and equal benefit of all laws
Have security of persons and property
Shall be subject to the same punishments, pains, taxes and licenses as any other citizen

The upshot of this was to create a federal law that prevented discrimination for any reason against former slaves.

The 'privileges and immunities' clause has been used to affirm many of our constitutional rights using procedural justifications over the 140 years since the original Slaughter House decision.

The 'due process' clause has largely been used to affirm many of our more substantive rights under the US Constitution.

Update:

Suffering through the bitter cold for nearly 14 hours was well worth the price to pay in order to witness the oral arguments in McDonald v. Chicago. While I think incorporation through the due process clause is a slam-dunk, I find it unlikely that the Court will reach to overturn the Slaughter-House cases and reinvigorate the Privileges or Immunities Clause.

Alan Gura began, noting that the framers of the 14th amendment made a promise to the McDonald family, that no state shall abridge the privileges or immunities of citizenship. Gura noted that the rights protected by the Privileges or Immunities Clause are not trivial, and that contrary to the assertions of Slaughter-House, the war was not fought for protection of rights on the high seas.

Chief Justice Roberts interjected, and noted that Gura’s interpretation conflicts with Slaughter-House, and asked whether the “heavy burden” was satisfied in order to overturn that precedent. In many respects, the question of whether Roberts remains more loyal to stare decisis or originalism.

Justice Ginsburg was very interested in the privileges or immunities protecting unenumerated rights, and asked several times whether the right to keep and bear arms would be included in the privileges or immunities, even if the second amendment was never ratified. To this question, Gura answered affirmatively. Gura noted that the Framers considered the privileges or immunities to include many of those protections in the first eight amendments. For those unenumerated rights, he looked to bills like the Civil Rights Act of 1866, which included the right to keep and bear arms, right to contract, right to sue and be sued.

In many respects, Justice Kennedy’s questions indicated that he wanted to vote for privileges or immunities. He asked several times of Gura what the scope of unenumerated rights were, and did not seem satisfied with Gura’s answers.

Justice Scalia asked point blank whether it would be “easier” to incorporate the Second Amendment under the Privileges or Immunities Clause. To that, Gura replied negatively. Scalia retorted that if the Privilege or Immunities process was more difficult, why bother overruling 130 years of precedent. Scalia quipped “unless you are bucking for a place on a law school faculty” and aim to be the “darling of the professors,” why would you undertake to overtake 140 years of precedent. This seems to be an attack at the academic consensus that privileges or immunities clause should be reinvigorated, but little practical and pragmatic clamoring for this need. To this, Gura replied that he would be willing to accept incorporation through. substantive due process.

Justice Scalia proposed that the Court may look to rights deeply rooted in our nation’s history and traditions, which is the test from Washington v. Glucksberg. As Gura noted, this is also the approach that Judge O’Scannlain used in Nordyke v. King (and this also the test Ilya Shapiro and I propose in Keeping Pandora’s Box Sealed).

Justice John Paul Stevens took a very interesting line of questioning, in which he sought to create a double standard for the right to keep and bear arms; that is the federal standard would offer more protections that the state standard. To support this, he cited Justice Harlan’s dissent in Griswold v. Connecticut. But neither Gura, nor Clement, nor Feldman, who argued for Chicago, seemed to buy this argument.

Justice Sotomayor, who asked few questions, impressed upon the City of Chicago to articulate the proper standard to be used to incorporate the Second Amendment. Chicago stuck to the “implicit in the concept of ordered liberty” standard from Palk. Though Justice Scalia noted that this standard has not been relied upon since 1937!

Unsurprisingly, Justice Breyer fixated heavily upon the statistics showing the dangers of guns. If the right is incorporated, public safety decisions would be made by judges. If the right is not incorporated, public safety decisions would be made by legislators, who can consider the danger of weapons. Every case involving the second amendment, according to Justice Breyer, considers life versus guns.

To this, Gura replied that the Court should consider the case in the same fashion they considered Heller. Breyer proceeded to disagree with Heller, though he noted that “that was the dissenter’s view.” Justice Scalia retorted that Miranda rule releases dangerous people, and does not save lives. The Courts should not resolve questions on that basis.

Curiously, Justice Scalia on no less than three occasions noted that the right to concealed carry would not be protected by the Second Amendment. I wonder if he was signaling further limitations to assuage Kennedy.

More commentary to follow on Clement’s arguments.

Update 2: Clement’s Arguments

Clement began by arguing that incorporation through the due process clause was straightforward.

Justice Stevens repeatedly asked Clement why the Second Amendment needed to be incorporated, while the right to grand jury and civil trial were not incorporated. Clement tried to draw a distinction between substantive and procedural rights, which did not seem to assuage Justice Stevens.

Justice Stevens also asked Clement whether the state right could be less protective than the federal right, citing again to Justice Harlan dissent in Griswold, as well as Poe v. Ullman. Alito asked why not consider John Marshall Harlan I. All this talk of the Harlans makes this President of the Harlan Institute (www.HarlanInstitute.org) quite happy.

Justice Breyer renewed his disagreement with the Heller opinion, and noted that “all” law professors agre that Blackstone thought the right to keep and bear arms only referred to raising an army. Clement countered that Blackstone was mostly concerned the right of self-defense.

Update: Feldman for the City of Chicago

Feldman, who argued on behalf of the City of Chicago, focused on the implicit in the concept of ordered liberty standard, and argued that the right to bear arms did not meet that standard. In fact, in order to maintain liberty, the City argued that they needed to ban guns.

Scalia challenged Feldman, and noted that the implicit standard has not been used since Palko v. Connecticut in 1937. This makes me think that Scalia is more likely to adopt the Glucksberg framework, a framework which he signed onto, and also the framework I recommended the Court adopt (albeit in the privileges or immunities concept).

Chief Justice Roberts repeatedly asked Feldman why the right to criminal juries should be incorporated, but not the right to bear arms, as it is deeply tied to our nation’s history and very important in our history. The Chief continued, and asked how Feldman could read Heller, and not conclude that the right to keep and bear arms was not important to the Framers. [Roberts makes the error of originalism at the wrong time. The relevant historical inquiry is the perspectives of the framers of the 14th amendment in 1868, not the perspectives of the framers of the Constitution in 1791].

In an add flashback, much of the discussion continued onto the meaning of the prefatory militia clause. I had thought this was resolved in D.C. v. Heller, so it was kind of odd to rehash these old issues. Justice Kennedy asked again if Heller was correctly decided, hwo could this right not be fundamental. Feldman referred to the militia clause. The Chief quipped that sounds like the argument of the losing side.

Justice Alito asked if a State could ban all firearms. To this, Feldman equivocated, and tried to draw a distinction between the right to self defense, and the right to keep and bear arms.

In perhaps my favorite Breyer hypothetical of all time, SGB asked Feldman to “make up an imaginary ordered liberty chart and give to James Madison.” The militia aspect of the second amendment would be high on the chart, and should be incorporated. In contrast, the “shoot burglar” right would be low, and not be incorporated. Alito replied to this hypothetical, noting that the Court does not do this kind of ranking with other rights.

The Chief, in contrast to Justice Stevens’ and Breyer’s assertions, asked Feldman whether the right could be bifurcated. In other words, is it “all in or all out.” To this, Feldman replied that is all in and all out, and the federal standard must mean the same thing as the state standard.

One note. Justice Stevens said that he would rely on Justice Harlan’s dissent in Harlan. Justice Harlan concurred in Griswold, but concurred in Poe v. Ullman. Oddly, the Chief repeated this error, and referred to Harlan’s dissent in Griswold.

Update 3: Gura’s Rebuttal TIme

Gura’s Rebuttal Time
Right off the bat, Kennedy asked for examples of privileges or immunities being denied, and whether they would be remedied by overruling Slaughterhouse.

Gura replied that the right to jury trials for civil cases, and other unenumerated rights were being infringed.

Justice Ginsburg asked if every state would need to provide grand juries and civil jury trials. To this, Gura answered that this is what the framers sought.

Justice Kennedy asked what are the unenumerated rights. Gura replied that “We cannot give full description.” Kennedy asked if this troubled Gura. Before Gura could answer, Justice Alito jumped in and asked whether the privileges or immunities includes the right to contract. Gura replied affirmatively, as understood by the framers, based on the Civil rights act of 1866.

Chief Justice Roberts asked if this would give Judges more power. Gura replied that his approach is deeply rooted in text and history. The Chief replied that the Privileges or Immunities are more flexible than due process, as they are not limited to procedure.

Gura replied that in 1868 the right to keep and bear arms was understood to be a Privileges or Immunity of citizenship.