The Chicago case seeking incorporation of the 2nd Amendment
has had some activity. The plaintiffs have filed a Rule 16 motion to narrow the issues in the case
, which they had been advised was how the court preferred to see the issue. We will likely see a reply to that motion, followed by a surreply from our side and a ruling from the judge.
Without immediately speculating about the chances of winning the motion, it seems fairly clear that this motion will determine the outcome of the case at this level. If we win the motion, the judge pretty much must strike down Chicago's law. If not, appeal is inevitable -- although the appeal would probably need to wait until after final judgement in the case. I have some selected quotes from the motion below.
The question of Fourteenth Amendment incorporation must be decided in Plaintiffs' favor. As described herein, the protection of the people's right to keep and bear arms against the states' attempted abridgements of that right was one of the primary purposes of the Fourteenth Amendment. It is widely acknowledged the Supreme Court wrongly interpreted the Privileges or Immunities Clause in The Slaughter-House Cases, giving it an unduly narrow interpretation that is long overdue for correction. Since Second Amendment incorporation through that provision is proper, Plaintiffs respectfully request this Court to avail itself of the opportunity to honor the original intent, meaning, and plain text of the Fourteenth Amendment by holding the Second Amendment's freedoms apply to the Defendant in this case.
The Slaughter-House Cases
arise from early 14th Amendment law, involving general property rights rather than a specific enumerated right, and the Supreme Court initially ruled narrowly. Subsequent courts have selectively used the 14th Amendment to apply the various enumerated
rights in the Bill of Rights against State infringement. Courts have mostly been ducking the 2nd Amendment question by relying on older rulings that predate modern incorporation doctrine; we should be on fairly safe ground with an honest judge and an enumerated right. However, due to the nature of the legal system, the lower courts may well be constrained to follow unfavorable Supreme Court precedent until the Supreme Court itself overrules.
The individual Plaintiffs assert in their Complaint that they applied for permits to own handguns and various long arms in their homes, and that these applications were denied by Defendant, or are subject to the various challenged registration restrictions. In its Amended Answer, Defendant admits both the applications and denials, even citing the respective ordinances on which the denials were based, and does not otherwise challenge the content and operation of the ordinances as alleged by Plaintiff. Defendant?s sole affirmative defense is that the Complaint fails to state a claim.
Translated from legalese, this is essentially saying "Yes, we admit denying the applications. So what? That's what the law says." However, it provides a sharp contrast with DC's arguments before the lower courts; DC attempted to deny that it banned self-defense (suggesting that plaintiffs could violate the law with impunity so long as they were not caught until the firearm was used in self-defense). To me, this says that we're being taken seriously; Chicago's counsel won't be wasting time with absurd arguments.
The right to keep and bear arms is among the privileges or immunities of United States citizenship which the states are forbidden from abridging. Indeed, the Fourteenth Amendment was intended and originally understood to stop the states? abridgement of the right to keep and bear arms. The Fourteenth Amendment's Privileges or Immunities Clause may have been given a wrong, parsimoniously narrow interpretation by the Supreme Court in The Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873), but Second Amendment incorporation through that provision remains the most logical course of action. Considering the widely held view that the current Privileges or Immunities Clause jurisprudence is incorrect, and the recent suggestion by an Associate Justice of the Supreme Court that this doctrine be revisited, Plaintiffs would in good faith urge that this precedent be reconsidered to better honor the original intent, meaning, and plain text of the Fourteenth Amendment.
We have here two conflicting, but very important, points. The 14th Amendment was originally passed to protect the rights of newly freed slaves against state governments hostile to them, but the Supreme Court's initial interpertations basically gutted the intent of the Amendment. It took almost a hundred years before the civil rights moment forced legal equality in practice, and when it happened, it happened piecemeal -- one right at a time. The courts managed to avoid extending that umbrella to cover the 2nd Amendment... hopefully, until now.
The Fourteenth Amendment provides, in pertinent part: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." U.S. Const. amend. XIV, sec. 1, cl. 2. The Fourteenth Amendment Privileges or Immunities Clause was originally intended and understood to incorporate the Bill of Rights -- including, specifically, the Second Amendment -- as against the states. It should be given this effect today.
That part of the argument is obvious. In the wake of the Civil War, many southern states were determined to continue violating the rights of the newly-freed slaves. They passed a whole variety of laws to this effect, sometimes laws which were blanket prohibitions on the 2nd Amendment rights of their population, and then enforced those laws only upon their black population. The Supreme Court which upheld those laws was definitely a low point in American jurisprudence. The only flaw in the ointment is that the precedent is still present and binding upon lower courts.
Plaintiffs acknowledge that this argument is foreclosed in this Court by The Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873), holding that the Privileges or Immunities Clause "guarantees only rights that flow from the existence of United States citizenship, such as the rights to diplomatic protection abroad or to access the navigable waterways of the United States." Slaughter-House may be binding law, but "everyone" agrees the Court [has] incorrectly interpreted the Privileges or Immunities Clause." Richard L. Aynes, Constricting the Law of Freedom. Justice Miller, the Fourteenth Amendment, and the Slaughter-House Cases, 70 Chi. Kent L. Rev. 627 (1994); see also Laurence H. Tribe, Taking Text and Structure Seriously. Reflections on Free-Form Method in Constitutional Interpretation, 108 Harv. L. Rev. 1121, 1297 n. 247 (1995) ("[T]he Slaughter-House Cases incorrectly gutted the Privileges or Immunities Clause"); Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 Yale L.J. 1193, 1258-59 (1992).
This of course is the big problem here: we're asking a lower court to overturn a Supreme Court precedent. It likely will not happen in the lower court. Instead we'll likely see the case kicked upwards one level at a time until the Supreme Court can review and hopefully overturn it's prior precedent. This is a more difficult process than the Heller case (which saw victories at the lower court level, where it was known as Parker) because we actually do have incorrect Supreme Court precedent to overcome. Parker was a very carefully designed case that did not seek to overturn existing precedent -- instead it targetted a narrow area of the law where precedent was nonexistent.
"Legal scholars agree on little beyond the conclusion that the Clause does not mean what the Court said it meant in 1873." Saenz v. Roe, 526 U.S. 489, 523 n.1 (1999) (Thomas, J. dissenting) (citations omitted). Indeed, Justice Thomas, joined by Chief Justice Rehnquist, declared that he "would be open to reevaluating [the Privileges or Immunities Clause's] meaning in an appropriate case." Saenz, 526 U.S. at 528 (Thomas, J., dissenting).1 This is such an appropriate case, considering that no modern court has considered the interplay between the Second Amendment, properly understood, and the Fourteenth Amendment.
Of course our case is made easier by the fact that the Supreme Court has basically begged for an appropriation incorporation case. The "properly understood" wording refers, of course, to the recent Heller case. Previous 2nd Amendment cases touching on incorporation have failed to "properly understand" the issue. And this lawsuit was filed the same day the Heller ruling was released, so it would be very difficult to get significantly contradictory precedent.
Before the Civil War, the Supreme Court held that states were not bound by the Bill of Rights. Barron ex rel. Tiernan v. Mayor of Baltimore, 32 U.S. (7 Pet.) 243 (1833). Barron proved intolerable during Reconstruction. With recalcitrant southern states actively oppressing Americans just freed from slavery, Congress saw the need to constitutionally define American citizenship and imbue that citizenship with meaningful federal protection. Thus the Fourteenth Amendment?s first section was designed to overrule two Supreme Court precedents. The first clause dispensed with Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), which held that people of African descent could not be American citizens or citizens of American states. The Privileges or Immunities Clause was aimed squarely at overruling Barron.
The initial Supreme Court decisions that held the Bill of Rights as not applicable against the states actually have some reasonable support. The Constitution, after all, was an agreement between states to form a unified and limited Federal government. Existing laws in many of the early states violated the modern view of the First Amendment (by establishing a state church, for example). The idea was to prevent the Federal government form imposing it's own rule upon the states or the people -- not necessarily to prevent the States from doing so.
The First Amendment encapsulates this idea in its opening clause: "Congress shall make no law..." Congress may not be able to make such laws, but the States could and did. Ironically, the counterexample is the 2nd Amendment, which provides that the right to keep and bear arms "shall not be infringed." There is no narrowing limitation on laws Congress may pass; just a blanket prohibition on infringement. Yet it is the First Amendment which has been readily and completely incorporated against the restrictions of the States, and the 2nd which has been shamefully ignored by the courts.
However, with that history in mind, the 14th Amendment was explicitly intended to apply the protections of the Bill of Rights to State governments as well as the Federal government.
As for the privileges and immunities that "no state shall . . . abridge," these included, at a minimum, the Bill of Rights. "Congress in 1866 understood perfectly well that section one was intended to repudiate Barron. "Over and over [John Bingham] described the privileges-or-immunities clause as encompassing 'the bill of rights' -- a phrase he used more than a dozen times in a key speech . . ." Lawrence, 72 Mo. L. Rev. at 19 (quoting Akhil Reed Amar, THE BILL OF RIGHTS 182 (1998) (hereafter "Amar"). The Fourteenth Amendment's Senate sponsor, Senator Jacob Howard, explained the Privileges or Immunities Clause's incorporating scope:
To these privileges and immunities, whatever they may be -- for they are not and cannot be fully defined in their entire extent and precise nature -- to these should be added the personal right guarantied and secured by the first eight amendments of the Constitution; such as the freedom of speech, . . . and the right to keep and to bear arms . . . . The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees. Cong. Globe, 39th Cong., 1st Sess. 2765-66 (1866) (emphasis added).
So what we have here is a painfully obvious case where a Constitutional Amendment was explicitly passed to overrule a pair of arguably correct but no longer politically acceptable Supreme Court decisions... which the courts then proceded to ignore for almost a hundred and fifty years.
However, later courts did manage to incorporate some selective elements of the Bill of Rights against State infringement:
Slaughter-House may have rendered the Privileges or Immunities Clause meaningless, but the Supreme Court would discover another approach to Fourteenth Amendment incorporation. It is now well-established that the amendment?s Due Process Clause has a substantive dimension, and that deprivation of enumerated constitutional rights is thus largely incompatible with due process. Almost every provision of the Bill of Rights considered for incorporation in the modern era has been incorporated.
Some of the basic arguments for incorporation are easily summarized here:
- The Right to Arms was considered fundamental at the time of the founding
- Forty-four states secure a right to arms in their Constitution
- 32 states advised in Heller briefs that the right to arms should be incorporated
- The right to self-defense is a natural right (Blackstone)
But then we get into more interesting territory.
The Supreme Court binds the states to respect unenumerated rights which, like the Second Amendment, are rooted in deference to preserving personal autonomy. Observing that "no right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law," Cruzan v. Dir., Mo. Dept. of Health, 497 U.S. 261, 269 (1990) (citation omitted), the Supreme Court recognized a right to refuse life-sustaining medical care. Id., at 278; see also Eisenstadt v. Baird, 405 U.S. 11 438, 453 (1972) ("the right of the individual . . . to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child"); Lawrence v. Texas, 539 U.S. 558, 562 (2003) ("liberty of the person both in its spatial and more transcendent dimensions" supports right to consensual intimate relationships); Rochin v. California, 342 U.S. 165 (1952) (right of bodily integrity against police searches).
The choice of cases here is very interesting. We have Lawrence v Texas, a controversial recent case protecting a right to private, consensual sexual activity for homoesexuals; Rochin v California, which I have not heard of but which isn't a typically conservative police-powers case; Eisenstatd v Baird, which looks from this summary to be an abortion or birth control case; and Planned Parenthood v Casey (cited later), an explicit abortion case. In short, we're citing liberal and left-wing cases to make our point.The motion then moves on to deal with the three cases they expect the defense to cite:
Three Supreme Court decisions have rejected the Second Amendment's direct application to the states. But these holdings predate and therefore did not discuss the incorporation doctrine.
With respect to Cruikshank's [United States v. Cruikshank, 92 U.S. 542 (1876)] continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Heller, 128 S. Ct. at 2813 n.23 (emphasis added).
Heller noted that Presser v. Illinois, 116 U.S. 252 (1886) and Miller v. Texas, 153 U.S. 535 (1894) "reaffirmed that the Second Amendment applies only to the Federal Government." Id. But both these cases precede the incorporation era, and suffer from the same flaw that renders Cruikshank non-authoritative: an absence of the "required" modern incorporation analysis. See also Duncan, 391 U.S. at 155 (complete non-incorporation "a position long since repudiated"). Miller's observation that the Second Amendment did not bind the states referenced the Fourth Amendment for the same proposition. Miller, 153 U.S. at 538. Clearly the city would not cite Miller's language for the proposition that its police force need not obey the Fourth Amendment.
So, in effect, Chicago is citing Supreme Court cases that say the 2nd Amendment doesn't apply to the States, and the plaintiffs are citing Supreme Court cases that say the defense's cases are invalid because they do not engage in the appropriate analysis.
It's difficult to predict the right outcome here. Clearly, in the wake of Heller and the bulk of modern 14th Amendment jurisprudence, the 2nd Amendment right to keep and bear arms applies to the States. But the lower courts may still feel themselves bound by the existing, yet somewhat invalidated, precedent until the Supreme Court overturns it. With this motion the plaintiffs have made a good argument for reaching the correct result and disregarding precedent demonstrably invalidated by later Supreme Court decisions, but whether the judge will take the opening offered is still an open question.
As I follow this case, I would urge my readers to be cautious in their expectations. We may lose the early stages of the case on our way to the Supreme Court, no matter how good our arguments. But we can and should take the case to the Supreme Court if necessary, and we can reasonably expect to win that case before the current court.
Whether we can win that case before a court with more Obama-appointed justices is a question I would rather not have to answer. Remember that when you vote: Heller was 5-4, and Obama only has to switch one vote on the Court to give us a 2nd Amendment that applies only in Washington, DC.