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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Wednesday, March 03, 2010 ::
    "Old McDonald had a Clause: p/i I Don't Know"

    Some 2nd day reflections following oral argument in McDonald v. Chicago:

    1. Many news sources (e.g. the WSJ's page one refer-hed) are announcing this morning that the Court is likely to hold that gun ownership is a "fundamental right." Well, it could do that; or it could simply hold that it is within the rights protected by one or another of the clauses of Section 1 of the 14th Am. (most likely Due Process, as I discussed in yesterday's post; see also infra in this post).

    The problem with holding that any right is "fundamental" but at the same time wide open to regulation -- as the gun ownership right is, according to Heller, which also declared it to be constitutionally protected against federal intrusion -- is that it confuses what it means for a right to be "fundamental." Wouldn't you think, if your mind were not tainted by formal study of constitutional law, that a "fundamental right" is above regulation? What vocabulary do we have left to describe rights that are "really really no-kidding fundamental"?

    In fact, do we have any such rights -- other than pure religious belief, divorced from any religious action whatsoever, which is a meaningless freebie for the system because, by definition, it has no costs or consequences?

    This question is not my idea. I got it, of course, from Justice Scalia. Among the many stirring points he made in his Casey dissent is that the cost of the Court's refusal to recognize that abortion is a liberty interest and not a fundamental right, while at the same time allowing extensive regulation of it, is that genuine fundamental rights become open to extensive regulation -- a cost the Court in Casey was willing to pay rather than abandon Roe.

    2. Prof. Randy Barnett has an interesting column in today's WSJ (subscr. req'd.). He too was puzzled by the colloquy on the 14th Am. Privileges or Immunities Clause that I discussed in yesterday's post. It's all very well to talk about "140 years of caselaw," but when the smoke clears (get it?), the P/I Clause is there in the text, just as the 2nd Am. is, whereas substantive due process, though better grounded in the caselaw, is not in the text. Yet Justice Scalia, who generally gives pride of place to text (constitutional or statutory), actively nudged attorney Gura away from p/i and toward s.d.p.

    Yes, he also scorns things that are "darling[s] of the professoriat," as he labelled the movement to revivify the P/I Clause. Good move, generally speaking. But he has been willing to rely on scholars on occasion, e.g. his concurrence in City of Boerne, where he deployed Philip Hamburger's demonstration of the narrowness of the "reservation clauses" in colonial Free Exercise laws ("A Constl. Rt. of Relig. Exemption.: Hist. Persp.," 60 Geo Wash L.Rev. 915 [1992]) to counter Michael McConnell's equally thorough demonstration that general religious conduct exemptions were "within the contemplation" of the founding generation ("Origins & Hist. Underst. of the Fr. Ex. of Relig.," 103 Harv.L.Rev. 1409 [1990]).

    More to the point, though, Justice Scalia need not rely on the commentariat to find principled limits for the P/I Clause (something that other Justices as well were concerned about). He can look to Justice Thomas's dissent in Saenz v. Roe, a case in which Thomas and CJ Rehnquist showed the same "can of worms" reservations about expanding the P/I Clause, but the majority -- joined by Scalia! -- did not. In that dissent, Thomas explained that p/i applies to common-law rights known to the framers of the 14th Am., and not to later-arising rights attributable to the welfare state. Saenz, though framed as a "right to travel" case, was really about equality of welfare benefits across state lines, and therefore belonged in the second of Thomas's categories. Gun rights would go in the first. Not only does the 2nd Am. testify to that, but see also Joyce Lee Malcolm's To Keep and Bear Arms for this history of gun rights in the last formative era of the Common Law.

    Oral arguments do not always predict accurately how a decision will turn out. Sometimes Justices give the hardest time to the advocate whose views they plan to adopt, and that could apply here to Gura re p/i, not just to Gura re s.d.p. Maybe a majority will yet dust off Thomas's Saenz dissent and think it over.

    EDITED TO ADD: At The Volokh Conspiracy, David Kopel argues that Heller allows, not for "reasonable regulation" (or "extensive regulation," as I perhaps unwisely put it in this post supra), but for categorical regulation based on types of weapons, said categories being based on relationship, vel non, to militia use. Bright lines and categories are always to be preferred to "reasonableness" rules, because they're law, not policymaking masquerading as law. (And yes -- sigh -- I believe in the distinction.)

    :: David M. Wagner 8:58 AM [+] ::

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