We understand that not everyone will agree with our position in this case. For example, we expect that Chicago’s attorneys will present some alternative constitutional vision that supports their desired outcome. May the more persuasive argument (ours, I should hope) prevail.
But not everyone agrees that the case should or would be based upon the Supreme Court’s views of the law. Prior to the D.C. Circuit’s decision in Parker/Heller, that case was met by many rolled eyes and deep, knowing sighs by Very Smart People. The skepticism had nothing to do with the merits of the arguments on either side, which were entirely beside the point. Simply put, the Second Amendment wasn’t going to be revived because the courts wouldn’t feel like going there.
So I wasn’t too surprised to see this point of view pop up in reaction to the McDonald case. Prof. Kerr cynically predicted we’d get wiped out 8-1 on the Privileges or Immunities claim – that’s the one based on the actual text and original public meaning of the Fourteenth Amendment – because the justices wouldn’t feel like interpreting the Constitution. Prof. Barnett capably responded to that claim, so I didn’t see the need to do so here.
But now, Prof. Kerr has asked the following set of questions in a discussion thread about the Cato Institute’s amicus brief:
It’s interesting to me that the Cato brief is based on original intent originalism rather than original public meaning originalism. That is, it is based on what the drafters wanted the 14th Amendment to do, rather than what the 14th Amendment was understood by the public to mean (or perhaps more specifically, what the words of the 14th Amendment were understood to mean by the public at the time). Do we have any good historical sources on what the public understood the P or I clause to mean at the time? If so, what do they suggest? If not, do we have reason to believe that the public knew what the authors of the 14th Amendment intended? I don’t know how widely the debates over the meaning of P or I were distributed around the country at the time. Does anyone know?
Of course, had Prof. Kerr actually read our brief, he’d have seen that we devote a significant portion of it to answering just these questions.
Failure to read the pleadings carefully enough to grasp the points they seek to make leads to some frankly bizarre questions. I’d like to respond to two such questions about our approach in this case. First, some people wonder why our Privileges or Immunities argument needs to define that provision any broader than the actual Second Amendment right at issue. The answer is dictated by logic. While we cannot define the full scope of every right secured by the Fourteenth Amendment, and have no interest in doing so, neither can we show that the right to arms fits within the Privileges or Immunities Clause without first discussing what sort of rights are embodied by that provision. It’s worth mentioning that self-defense is a natural pre-existing right, and consequently the right to arms would be a Privilege or Immunity of American citizenship even if the Second Amendment did not exist.
Second, some have asked if we’re needlessly straying from our mission in seeking to have The SlaughterHouse Cases overturned. No. While overruling SlaughterHouse is a worthy goal in and of itself, doing so is necessary to secure meaningful Second Amendment rights against state infringement under the Privileges or Immunities Clause.
We believe that the Second Amendment guarantees a fundamental right rooted in the ancient right of self-defense and self-preservation. I’ve worked very hard advancing just that view in Heller. But if the Second Amendment is merely some construct of national citizenship, a claim upon the federal government that grows out of the government’s existence, a right conferred by the government which wouldn’t exist in the government’s absence and which looks an awful lot like a rule of pre-emption, it isn’t much of a right at all. The “Save SlaughterHouse” arguments are not merely untenable as a matter of law, they suggest a very weak Second Amendment right that does us no good. We don’t believe that self-defense is an interest at the level of visiting the sub-treasuries in Washington, D.C. Since SlaughterHouse has no positive value anyway, it is hardly inconsistent with the interests of organizations focused primarily on vindicating gun rights to seek that precedent’s demise. Indeed, it should not be surprising that any litigant whose interests are served by a faithful reading of the Constitution would seek to have overruled a decision widely acknowledged as defying the Constitution.