Overruled

by Damon Root

  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.”49

  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.”50

  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.”51

  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”52 and as an excuse “to render democratically adopted texts mere springboards for judicial lawmaking.”53

  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.”54 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.”55 (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.”56 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 litigatin
g 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.”57

  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.”58

  In a companion editorial written for the Washington Times, one of the brief’s co-authors, Ken Klukowski of the American Civil Rights Union, writing jointly with Ken Blackwell of the Family Research Council, presented a few more objections to Gura’s legal strategy. Striking down Slaughter-House “could completely change American culture,” the two conservatives claimed, “with the court having a new basis upon which to declare constitutional rights to abortion, same-sex marriage, obscene material or a child’s ‘right’ to a public-school education over his parents’ objections. It’s because of these social issues, in particular, that the Family Research Council has weighed in on this case.”59

  “All I can say about that,” Gura later told me, “is that approach elevates other social conservative concerns above the Second Amendment right that we were trying to vindicate, as well as above the level of freedom that the Fourteenth Amendment guarantees. It also proved that they have no particular interest in reviving the Fourteenth Amendment’s guarantee of economic liberty, the main obvious consequence of restoring the amendment’s original meaning.”60

  In the meantime, the NRA made a brazen attempt to insert itself in the case, asking the Supreme Court on January 5, 2010, to grant the NRA’s lawyer, former Solicitor General Paul Clement, ten minutes of oral argument time, to be subtracted from the thirty minutes originally allotted to Gura. Why? Because the Gura team “in their opening brief have concentrated their argument on a Privileges or Immunities Clause theory that would require overruling at least three of this Court’s precedents.” The NRA, by contrast, painted itself as the champion of substantive due process, a legal theory the NRA said it wanted to see “adequately presented” during oral argument. To that end, the NRA “respectfully”61 nominated itself to advocate on behalf of the Due Process Clause, plainly suggesting that Gura would fail to do the job.

  Gura was infuriated by this maneuver and immediately filed a brief opposing the NRA’s motion. We “argued the Due Process Clause issues in the court below, briefed the issues in this Court, and will be fully prepared to address these issues before this Court at oral argument,” he told the Supreme Court. “Any argument on this topic by NRA would at best be redundant.”62

  But despite Gura’s objections, the Supreme Court granted the NRA’s request. Paul Clement, who had recently infuriated gun rights activists during Heller by advocating for “intermediate” scrutiny in Second Amendment cases, would now enjoy ten minutes of oral argument time in McDonald, and those ten minutes would come at Gura’s direct expense. With that, the longstanding conflict between libertarians and conservatives was finally laid bare for the entire legal world to see. “It’s regrettable that the bible thumpers and holy rollers who are so afraid of freedom went out of their way to attack us on the Privileges or Immunities issue, and the NRA being the opportunistic people that they are, were all too happy to join in that chorus. But such is life,” Gura later said. “I think the big lesson of McDonald is that conservatives and libertarians are not always on the same side.”63

  “Even I Have Acquiesced”

  On March 18, 2008, Alan Gura had made his first ever appearance before the U.S. Supreme Court to argue District of Columbia v. Heller. Two years later, on March 2, 2010, he was back before the Court in the hopes of extending Heller’s Second Amendment victory to the states.

  “We will hear argument first this morning in Case 08–1521, McDonald v. City of Chicago,” declared Chief Justice John Roberts. “Mr. Gura.”

  “Mr. Chief Justice, and may it please the Court,” Gura began. “Although Chicago’s ordinances cannot survive the faithful application of due process doctrines, there is an even simpler, more essential reason for reversing the lower court’s judgment,” he said. That reason is the “plain text” of the Privileges or Immunities Clause, “as understood by the people that ratified it.”

  “Of course,” the chief justice responded, “this argument is contrary to The Slaughter-House Cases, which have been the law for 140 years. It might be simpler,” Roberts granted, “but it’s a big—it’s a heavy burden for you to carry to suggest that we ought to overrule that decision.”

  Gura was ready with a response. “Your Honor,” he said, “The Slaughter-House Cases should not have any stare decisis effect before the Court. The Court has always found that when a case is extremely wrong, when there is great consensus that it was simply not decided correctly, especially in a constitutional matter, it has less force.”64

  That argument did not sit well with Justice Antonin Scalia, and he wasted no time letting Gura know it. “Mr. Gura,” Scalia began, an impatient tone creeping into his voice, “do you think it is at all easier to bring the Second Amendment under the Privileges and Immunities Clause than it is to bring it under our established law of substantive due process?”

  It is easier, Gura answered, “in terms, perhaps, of—of the text and history of the original public understanding of . . .”

  But Scalia promptly cut him off. “No, no. I’m not talking about whether The Slaughter-House Cases were right or wrong.” Unless you are “bucking for a—a place on s
ome law school faculty,” Scalia quipped, prompting laughter in the courtroom, “why are you asking us to overrule 150, 140 years of prior law?”

  “I have left law school some time ago,” Gura carefully responded, “and this is not an attempt to—to return.”

  But Scalia continued to mock the libertarian lawyer. “What you argue is the darling of the professoriate, for sure, but it’s also contrary to 140 years of our jurisprudence,” Scalia said. “Why do you 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?”

  It was a stunning declaration. Scalia, the Supreme Court’s leading proponent of originalism, had just responded to Gura’s arguments about the original meaning of the Fourteenth Amendment with contempt and dismissal. Unlike in Heller, where constitutional history was at the heart of Scalia’s majority opinion, in McDonald the conservative justice waved away his previous commitment to originalism and instead announced his intention to acquiesce to substantive due process, an approach he himself admitted to be “wrong.”

  “Justice Scalia,” Gura again responded carefully, “we would be extremely happy if the Court reversed the lower court based on the substantive due process theory that we argued in the Seventh Circuit.”65

  “Principled Judicial Application”

  In spite of that contentious exchange with Scalia, the morning’s oral argument left little doubt that Gura was going to win the case. None of the five conservative justices who had recently recognized an individual right in Heller raised any meaningful objections to incorporating that right via substantive due process, and in fact they seemed to welcome that result.