Tuesday, February 24, 2009

Legal Times Article on McDonald v. Chicago Amicus Brief

The amicus curiae brief Professors Jack Balkin, Michael Curtis, Richard Aynes and I submitted recently together with the Constitutional Accountability Center in the McDonald v. Chicago case before the Seventh Circuit Court of Appeals is the subject of a front page story in the the current issue of the Legal Times.

Tony Mauro does a nice job in the article, "Liberals Use Gun Case to Bolster Other Rights," of describing our arguments (which I've also previously made in these pages), which essentially assert that the Fourteenth Amendment Privileges or Immunities Clause applies the entire Bill of Rights (as well as many other basic rights and protections) to the States.

Characterizing that the 2008 DC v. Heller case as a "constitutional earthquake," Mauro goes on to say:

"In a follow-on case pending before the U.S. Court of Appeals for the 7th Circuit, a progressive legal group and liberal law professors including Yale Law School's Jack Balkin earlier this month joined gun-rights advocates in urging that the right established in Heller, which involved only the District of Columbia, be extended to apply against gun restrictions in the 50 states. The case is McDonald v. Chicago, a challenge to that city's strict gun control law and, no matter what, the outcome is likely to be appealed to the Supreme Court.

"But these academics and the liberal Constitutional Accountability Center, which filed a brief in the case, have not suddenly taken up the Second Amendment cause, Charlton Heston-style. Rather, they joined the case to urge the court to adopt a new way of making the rights protected by the federal Constitution apply to the states (a process known as "incorporation").

"That new pathway runs through the long-dormant "privileges or immunities" clause of the 14th Amendment. In the view of scholars and historians of all political stripes, the clause provides the strongest legal foundation for applying the Bill of Rights to the states. The language-"No state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States"-is broad and clear, advocates say, and could be used to incorporate the entire Bill of Rights to the states, wholesale. It would replace the narrower and more piecemeal way in which the Bill of Rights was usually made binding on the states, right by right, during the
20th century-namely, the 14th Amendment's due process clause.

"Use of the due process clause has led to "the constitutional equivalent of a food fight" with conservative justices increasingly wary of expanding or creating new rights because of the clause's process-oriented scope, says Douglas Kendall, founder of the D.C.-based Constitutional Accountability Center. Kendall says invoking "privileges or immunities" would have a "lift-all-boats" effect, strengthening free speech, and possibly even abortion and gay rights, at the same time that it bolsters the right to bear arms."

Oral arguments in the McDonald v. Chicago case are not yet scheduled, but should be coming up in the next few months.