Overruled (25 page)

When
Heller
finally arrived on June 26, Gura was sitting in the courtroom next to Clark Neily, savoring their historic victory. But he was also preparing to spring into action. “On the way out of the building I stopped by the Public Information Office and we picked up copies of the slip opinion that the Court distributes,” Gura recalled. “And I skimmed it very rapidly to see what if anything the Supreme Court had said about the question of incorporation and the Fourteenth Amendment.”
45

Gura soon found what he was looking for. In Footnote 23 of the
Heller
decision, Justice Scalia addressed the relevance of an 1876 opinion known as
United States v. Cruikshank.
At issue were the arrests of three Louisiana men for participating in a notorious event known as the Colfax massacre, in which a white supremacist mob in Louisiana murdered dozens of African Americans in what historian Eric Foner has called “the bloodiest single act of carnage in all of Reconstruction.”
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Federal authorities levied multiple charges against the defendants, including conspiring to violate the First and Second Amendment rights of their victims. But the Supreme Court threw out those convictions. Among other reasons, the Court held that the First and Second Amendments applied only against the actions of the federal government.

“With respect to
Cruikshank
's continuing validity on incorporation, a question not presented by this case,” Scalia wrote in Footnote
23 of
Heller,
“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.”
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The implication was clear. Because
Cruikshank
“did not engage” in the Fourteenth Amendment jurisprudence now “required” by the Supreme Court, it was effectively a dead letter in First Amendment cases. It took no leap of imagination to see the same reasoning apply in the Second Amendment context. Footnote 23 “suggested very much that this is an open question and one that would need to be resolved,” Gura said. “There was nothing in the opinion obviously that precluded the Chicago litigation and in fact there was what appeared to be an invitation for it and a suggestion that it needed to be done. So I immediately called my co-counsel in Chicago, David Sigale, and said, ‘File it!'”
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Remarkably, that phone call was when Clark Neily first learned about Gura's sequel to
Heller.
“I have to say that it was something of a surprise to me when Alan brought the case,” Neily later recalled with a laugh. “I have a very vivid recollection of walking down the steps of the Supreme Court on the day the
Heller
decision was handed down and looking back over my shoulder at Alan who was on his cell phone. I have to commend him for his entrepreneurial spirit.”
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A Tale of Two Originalisms

Since joining the Supreme Court in 1986, Justice Antonin Scalia has emerged as the Court's foremost advocate of “originalism,” the legal approach that says the Constitution must be read according to its original meaning at the time it was adopted. As Scalia argued in his 1997 book,
A Matter of Interpretation,
“if the people come to believe that the Constitution is
not
a text like other texts; that it means, not what it says or what it was understood to mean, but what it
should
mean, . . . well, then, they will look for qualifications other than impartiality, judgment, and lawyerly
acumen in those whom they select to interpret it. More specifically,” he stressed, “they will look for judges who agree with
them
as to what the evolving standards have evolved to; who agree with them as to what the Constitution
ought
to be.”
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To Scalia's evident satisfaction, the legal debate in
District of Columbia v. Heller
focused overwhelmingly on the original meaning of the Second Amendment. Indeed, not only did Scalia's majority opinion make copious use of historical materials; Justice Stevens's dissent also delved into some of that history. The Court's decision in
Heller,
Scalia told the journalist Marcia Coyle, was a “vindication of originalism.”
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Alan Gura's follow-up to
Heller,
McDonald v. Chicago,
would also center on the original meaning of a constitutional provision. Except this time around, Scalia would prove decidedly uninterested in conducting a careful historical examination. In fact, during the March 2010 oral argument in
McDonald,
Scalia actually mocked Gura's emphasis on originalism, a notorious event that continues to rankle every libertarian lawyer I have spoken with about the case.

What explains Scalia's rapid downshift from originalism in
Heller
to something less than originalism in
Chicago?
The answer lies in the Supreme Court's long and complicated relationship with the Fourteenth Amendment.

Back to
Slaughter-House

As the Supreme Court began selectively incorporating the Bill of Rights against the states in the early decades of the twentieth century, it did so via the mechanism of substantive due process. Essentially, the Court read the Fourteenth Amendment's guarantee that no state shall deprive any person of life, liberty, or property without due process of law to include most of the rights spelled out in the Bill of Rights. Yet if there is one thing today's legal conservatives do not like, that thing is substantive due
process. For starters, it's the legal approach responsible for
Roe v. Wade,
where the Court located the unenumerated right to an abortion in the Due Process Clause of the Fourteenth Amendment. Many conservatives argue that the phrase “due process,” by definition, applies solely to procedural safeguards, and that the courts have no business enforcing any substantive rights via the Due Process Clause. One such conservative is Antonin Scalia, who has lashed out repeatedly against substantive due process over the years, denouncing it as a “judicial usurpation”
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and as an excuse “to render democratically adopted texts mere springboards for judicial lawmaking.”
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So Gura offered Scalia and his fellow conservatives an alternative in
McDonald v. Chicago:
incorporation via the Fourteenth Amendment's Privileges or Immunities Clause, which reads, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” As Gura argued in the lengthy brief he submitted to the Supreme Court, the Privileges or Immunities Clause's text, original meaning, and history, including the stated goals of its framers and ratifiers, show that it was designed to secure individual rights, including the right of armed self-defense, against abusive state and local governments.

The problem is that the Supreme Court rendered the clause a nullity with its 1873 decision in
The Slaughter-House Cases,
which upheld a Louisiana law granting a slaughterhouse monopoly to a private corporation over the objections of local butchers. Writing for the five-to-four majority in that case, Justice Samuel F. Miller said the Privileges or Immunities Clause imposed no substantive restrictions on the authority of the states, and in fact protected only a meager selection of national rights (such as the right to access federal waterways). Writing in dissent, Justice Stephen Field attacked Miller's decision for eviscerating the Privileges or Immunities Clause and for violating the free labor rights of the butchers.

For decades, libertarian legal activists have been championing Field's dissent and gunning for
Slaughter-House
's demise. Institute for Justice co-founder Clint Bolick, for example, first called for the case to be overruled in his 1988 book
Changing Course,
and then repeated the call to arms in 1990's
Unfinished Business,
which the Institute for Justice soon adopted as its “strategic litigation blueprint.” In fact, according to Gura, “the first time I really dealt with
The Slaughter-House Cases
and the Privileges or Immunities Clause was at the Institute for Justice when I was interning there as a law student.” His reaction, he said, was “that it was an abomination and a complete farce of a decision.”
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Now, more than a decade later, Gura finally had the opportunity to do something about it. In
McDonald,
Gura would argue that the text and original meaning of the Constitution required the Supreme Court to strike down
Slaughter-House
and apply the Second Amendment to the states via the Privileges or Immunities Clause. If successful, this approach would advance the twin libertarian goals of expanding gun rights and securing economic liberties.

Conservatives vs. Libertarians

To put it mildly, many conservatives were not thrilled about Gura's quest to overrule
Slaughter-House.
In fact, many of those conservatives thought the case was correctly decided back in 1873. Foremost among them was Robert Bork. “What is striking about the
Slaughter-House Cases
is not the caution displayed by the majority but rather the radical position of the four dissenters,” Bork argued in his book
The Tempting of America.
Miller's majority opinion followed a “sound judicial instinct,” Bork maintained, and should be applauded as “a narrow victory for judicial moderation.” As for the Privileges or Immunities Clause, Bork added, its original meaning “is largely unknown.” In fact, he went on, “It is quite possible that the words meant very little to those who adopted them.”
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(As we
saw in the first chapter of this book, the historical evidence proves Bork wrong on that count.) In essence, Bork approached
Slaughter-House
the same way he approached substantive due process. He wanted the courts to steer clear of recognizing fundamental rights under the Fourteenth Amendment.

Antonin Scalia adopted a similar position in his 1984 Cato Institute debate with libertarian law professor Richard Epstein. According to then-Judge Scalia, if the courts went back to protecting economic liberties under the Fourteenth Amendment, that would only encourage liberal judges to perform greater feats of liberal judicial activism. “In the long run, and perhaps even in the short run,” Scalia declared, “the reinforcement of mistaken and unconstitutional perceptions of the role of the courts in our system far outweighs whatever evils may have accrued from undue judicial abstention in the economic field.”
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Scalia's answer was for the courts to double-down on judicial deference.

With
McDonald v. Chicago
working its way to the Supreme Court, Alan Gura was on a collision course with the Bork-Scalia brand of conservatism. And once again, Gura's old antagonists at the National Rifle Association would be there to throw a monkey wrench into his plans.

History Matters

Because
Slaughter-House
is a Supreme Court decision, the lower courts are duty-bound to follow it in appropriate cases. Only the Supreme Court may overturn one of its own precedents. So as Gura began litigating
McDonald v. Chicago,
he kept his Privileges or Immunities Clause argument in reserve and made the Due Process Clause his primary method for urging the courts to incorporate the Second Amendment. But he always knew both arguments would come in handy once he reached the Supreme Court. “It seems very strange to think that having issued
Heller,
which
is all about history, the Court would then come back immediately thereafter and on the Fourteenth Amendment speak only about its precedent and not try to understand what the text of the Fourteenth Amendment means, and what the framers thought they were doing when they ratified it,” Gura said. “There was no way to get around it.”

After losing at the U.S. Court of Appeals for the Seventh Circuit on June 2, 2009, Gura finally had the opportunity to put both clauses into play. On June 9, he asked the Supreme Court to invalidate Chicago's handgun ban by applying the Second Amendment to the states via either the Privileges or Immunities Clause or the Due Process Clause of the Fourteenth Amendment; or if it so chose, the Court could rely on both.

McDonald
was not the only Chicago gun case to arrive on the docket, however. The Supreme Court had also received a petition in the case of
National Rifle Association v. Chicago.
Like Gura, the NRA also filed suit in the wake of
Heller,
challenging the gun laws in both Chicago and its nearby suburb of Oak Park. But Gura beat the NRA to the punch when the Court granted review in his case alone. That forced the NRA to find a new angle in order to keep itself in the running.

That angle turned out to be Gura's emphasis on the Privileges or Immunities Clause and his attempt to have
Slaughter-House
overruled. “They made common cause here with some of their socially conservative friends who don't like the Privileges or Immunities argument for other reasons,” Gura said. “These are the people who support presidential candidates that think contraception is the business of the White House. And so they made this unholy alliance with the NRA and we saw efforts from some of the social conservative people to actually attack our historical originalist argument.”
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The most prominent attack came in the form of an
amicus
brief filed by several leading right-wing groups, including the American Civil Rights Union and the Family Research Council. Ostensibly filed “in
support” of Gura and his clients, in reality the brief urged the Supreme Court to reject Gura's
Slaughter-House
argument and instead leave that 1873 decision on the books. Overruling
Slaughter-House,
the conservative brief stated, “would render the Privileges or Immunities Clause a
tabula rasa,
which this Court in the future could interpret to mean anything this Court chooses, making that clause a cornucopia of various rights devoid of any textual support in the Constitution, with profound implications for both social and economic policy issues in this country, as future Members of this Court could constitutionalize their personal preferences, foreclosing political solutions on these matters.”
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