Thoughts on McDonald v. Chicago

It’s an honor and a pleasure to have a return engagement here at Prawfsblawg.

As most readers of this blog already know, proponents of the “privileges or immunities” theory of incorporation had a bad day this last Tuesday. Representing the petitioners in McDonald v. Chicago, Alan Gura managed no more than a couple of sentences before being interrupted by Chief Justice John Roberts and questioned about why Gura thought it was in his client’s interest to needlessly seek the reversal of 140 years of judicial precedent. The conversation went downhill from there. Not only did Justice Scalia mock Gura’s argument as an effort to endear himself to ivory tower legal academics, even those Justices less caustic seemed truly troubled by the potential implications of opening the long-sealed door of the Privileges or Immunities Clause. That way is closed, the justices seemed to say. It was shut by Slaughterhouse and it is guarded by stare decisis.

Gura could not have been surprised by the Court’s response. His brief fairly invited judicial resistance. Instead of asking the court to do nothing more than move incorporation doctrine to the privileges or immunities clause, Gura sought nothing less than a libertarian transformation of Section One of the Fourteenth Amendment. Not just rights listed in the Bill, but all fundamental natural rights, including those listed by Justice Bushrod Washington’s Article IV decision of Corfield v. Coryell (and many more) are protected by Gura’s vision of the Privileges or Immunities Clause. The right to bear arms was just one of an innumerable list of rights which deserve judicial enforcement as the natural rights of citizens of the United States. When pressed at oral argument whether this really was an innumerable list of rights, Gura assured the court that it was indeed.

This is not the way to win votes and influence Justices.  That Gura took such a bold approach suggests that he had a great deal of confidence in his argument and his ability to convince the Court to make a dramatic and pregnant alteration in the jurisprudence of fundamental rights. He certainly had some of the best legal scholars in the country on his side. The constitutional scholars amicus brief which advocated the same libertarian view of the Privileges or Immunities Clause was signed by such notables as Richard Aynes, Jack Balkin, Randy Barnett, Steven Calabresi, Michael Curtis, Michael Lawrence, William Van Alstyn and Adam Winkler. Other scholars such as Akhil Amar have made similar arguments. Gura was not, therefore, presenting a theory which lacked significant scholarly support. On the other hand, he was presenting an argument that remains strongly contested in the legal literature. The day before oral arguments, Columbia Professor Philip Hamburger posted a paper presenting almost the exact opposite view of Privileges or Immunities as that advocated by Gura and scholars like Randy Barnett. Where libertarians see unenumerated substantive rights, Hamburger sees nothing more than federal enforcement of the equality rights declared in Article IV.

It might seem odd that such eminent scholars could arrive at such diametrically opposed readings of the same provision. However, as I shall explain in future posts, both Hamburger’s and the scholars’ brief adopt equally plausible positions if one begins from the assumption that the Privileges or Immunities Clause is based on Article IV of the original Constitution. As I explain in a new paper, the traditionally assumed link between Article IV and Section One is contradicted by the historical record. Privileges and immunities of citizens of the United States are not the same thing as privileges and immunities of citizens in the several states. So, at least, Bingham maintained. Bingham’s vision of the Privileges and Immunities Clause is one that even a cautious Supreme Court should consider: It supports incorporation of the Second Amendment, but it would not open the door to an unlimited list of unenumerated natural rights. In future posts, I will present the rather surprising views of the man who wrote the Clause.