First One @ One First: There Will Be Blood
Mike Sacks is guest-blogging at ABAJournal.com during his unique U.S. Supreme Court project, First One @ One First, which is to be first in line for politically salient arguments at the high court this term.
In today’s oral argument in McDonald v. City of Chicago, the Supreme Court made clear that the penalty for constitutional grave-digging is death by firing squad.
McDonald is the sequel to 2008’s landmark Second Amendment case, District of Columbia v. Heller. By a 5-4 majority, Heller held that the Second Amendment confers upon individuals the right to keep and bear arms for self-defense. But Heller only shields that right from unreasonable regulations by the federal government. In McDonald, the petitioners asked the court to “incorporate”—or extend—Heller’s holding against state and local governments as well.
The big question going into today’s argument was not whether the justices would incorporate the Second Amendment—the Heller Five were guaranteed to do so—but rather how they would incorporate.
This is where it got bloody for Alan Gura, petitioners’ lead counsel and Heller’s victorious advocate.
Emboldened by his reanimating of the Second Amendment in Heller, Gura started off this morning’s argument by storming once more into the Constitution’s crypt, crowbar in hand. His goal: to exhume the privileges or immunities clause of the 14th Amendment 137 years after the court gutted the clause in the Slaughterhouse Cases.
Gura opened his argument by asserting that the PI clause would be “an even simpler, more essential” method of incorporating a fundamental substantive right than the court’s traditional due process clause analysis. After all, Justices Antonin Scalia and Clarence Thomas, both members of the Heller Five and adherents to the “dead” Constitution, have long loathed the court’s use of the due process clause to protect fundamental substantive liberties. For them, procedural rights are procedural rights, substantive rights are substantive rights, and bringing the two together under the doctrine of “substantive due process” is nothing short of judicial alchemy.
One can forgive Gura, then, for thinking he’d find some collaborators among the crypt-keepers. In fact, many <a href=”http://www.theusconstitution.org” title=”believed>believed that even the living constitutionalists on the court would ally with their originalist brethren to assist Gura’s efforts so to have a solid textual basis in the Constitution for latter-day fundamental rights.
But Gura and his supporters were wrong. There was blood. Lots of blood.
Gura: “No State could make or enforce any law which shall abridge the privileges or immunities of American citizenship.”
Chief Justice Roberts: [chik-chik] “Of course, this argument is contrary to the Slaughterhouse Cases, which have been the law for 140 years … it’s a heavy burden for you to carry to suggest that we ought to overrule that decision.” [BOOM]
Justice Scalia: [chik-chik]: Assuming we give, you know, the privileges and immunities clause your definition, does that make it any easier to get the Second Amendment adopted with respect to the states?
Gura: Justice Scalia, I suppose the answer to that would be no, because—
Justice Scalia: Then if the answer is no, why are you asking us to overrule 150, 140 years of prior law … What you argue is the darling of the professoriate, for sure, but it’s also contrary to 140 years of our jurisprudence. Why do you want to undertake that burden instead of just arguing substantive due process, which as much as I think it’s wrong, I have—even I have acquiesced in it? [BOOM]
If Gura’s putatively friendly justices opened fire on him to prevent his prying open the PI clause’s tomb, the Heller dissenters simply shot to kill.
Justice Ginsburg asked Gura what unenumerated rights are considered privileges and immunities of United States citizenship. Gura dodged the bullet: had he said what she wanted to hear—namely, privacy rights protective of women’s reproductive health and intimate homosexual activity—he would have lost at least Thomas and Scalia, the latter of whom later this morning referred to those rights as the “necessity of permitting homosexual conduct and with respect to the necessity of permitting abortion on demand.”
But Ginsburg had more than one bullet in her magazine. When Gura said what the conservative bloc wanted to hear—namely, the property and economic rights guaranteed under the Civil Rights Act of 1866—Ginsburg suggested that freezing those rights in time would freeze out half of the population. Gura failed to understand Ginsburg’s insinuations, believing she spoke of freedmen in the South for whom the 1866 act was meant to protect.
Ginsburg took no mercy upon her prey: [chik-chik] Did married women at that time across the nation have the right to contract, to hold property, to sue and be sued? [BOOM]
By the time Justice Stephen Breyer came forward, the court had forced Gura to abandon his PI clause resurrection and seek safety under substantive due process. But that didn’t stop Breyer from unloading an Uzi’s worth of ammo he stored up in his Heller dissent. Luckily for Gura, Breyer’s statistics-based, pragmatic perspective—one that balances “life versus guns”—renders him a poor shot post-Heller.
No longer threatened by the prospect of rights running wild under the PI clause, Justice Scalia happily came to Gura’s aid by simply disarming Breyer:
There is a lot of statistical disagreement on whether the Miranda rule saves lives or not….We don’t resolve questions like that on the basis of statistics, do we? … If there’s a constitutional right, we find what the minimum constitutional right is and everything above that is up to the states.”
Thus bandaged and nursed by those who first fired upon him, the humbled Gura survived the court’s most aggressive assault upon an advocate this year, but the PI clause stayed sealed in its coffin.
What Gura and his supporters across the political spectrum saw as the resurrection of a constitutional messiah, the justices perceived as the reanimation of a jurisprudential Frankenstein’s monster. As all things, the nature of a rehabilitated PI clause was probably somewhere in between and much like what we now have under the due process clause: a future of expanding fundamental rights whose scopes will wax and wane upon the whims of five justices.
Having most likely won Second Amendment rights for citizens in all 50 states despite his apparent failure to revive the PI clause, Gura may comfort himself in his unassailable place in constitutional history. Through rousing success, a bold advocate learns his strengths; in stunning defeats, he learns his limits. Gura has now acutely felt both and will be a better Supreme Court advocate as a result. One can’t help but look forward to his next mission into the constitutional crypt.