Wednesday, March 3, 2010

The Second Amendment and the States: The City of Chicago Case

The Supreme Court heard arguments yesterday in McDonald v. City of Chicago, this Term's Second Amendment case. The case follows the recent Heller decision, which held that the Second Amendment encompasses the individual right to possess guns, at least to defend oneself in the home. In City of Chicago, the question is whether the holding in Heller extends to state and local communities.

The transcript of the oral argument should be required reading for anyone trying to understand how the Supreme Court works. Everything you needed to know about the Court, you can learn from the City of Chicago transcript.

For example:

--You can tell good oral advocacy from bad pretty quickly
--The oral argument changes few minds and is, at best, a ceremonial display of the Court's power
--You get a pretty good idea of where the justices stand from the questions they ask
--Justice Scalia might actually be funny, even if sometimes he tries too hard.
--Justice Thomas might not even be there.

It is impossible to read the transcript -- even if you gave it a cursory reading at best, as I did -- and not conclude that political scientists have it right: ideology drives the justices' decision-making; the law plays a secondary role at best.

Consider, for example, how the conservative justices come to the defense of counsel for their preferred side. In an exchange between Justice Breyer and counsel for the petitioner challenging the city ordinance, for example, Justice Scalia at one point didn't even bother to ask a question, wishing instead to answer Justice Breyer's. The Chief Justice similarly came to the defense of Paul Clement, former solicitor general and counsel for the NRA, or else he was simply thinking out loud the implications of Justice Stevens' question. Very kind either way. It also makes you wonder what the role of the oral argument is, and who is the justices' intended audience.

Unsurprisingly, the conservative justices were not as kind to James Feldman, counsel for the city. Even Justice Alito sprung into action and joined in the fun.

Two moments in the argument deserve special mention. The first happened right at the onset, when counsel for Mr. McDonald pressed his first argument to the Court: overruling the Slaughterhouse cases, a precedent that has stood for over 150 years. As he told the justices, "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 a great consensus that it was simply not decided correctly, especially in a constitutional matter, it has less force."

This is clearly the argument of a lawyer who pays attention and knows to count to five. This is hubris, plain and simple, or else stupidity. Only Justices Ginsburg and Sotomayor bothered to pursue this line of inquiry, until Justice Scalia came to the rescue and offered the second moment.

Recall that the argument is whether to bring the Second Amendment (that is, to incorporate it) to the states. Rather than waste any more time with the prior line of argument, Scalia helpfully asked: "Is it easier to do [bring the Second Amendment] under privileges and immunities than it is under substantive due process?" The answer was obvious, though not free of difficulty. Yes, it is easier to place oneself within existing doctrine, distasteful as that doctrine may be, than to overrule a precedent 150 years old. But make no mistake, this is substantive due process. This is the terrain of unenumerated rights, of Roe v. Wade and the right to privacy. Hardly the stuff of conservative jurisprudence.

Not to worry, Justice Scalia helpfully reminded us: "Why do you want to undertake [the burden of overruling the Slaughterhouse cases] instead of just arguing substantive due process, which as much as I think it's wrong, I have -- even I have acquiesced in it?"

Whew. Maybe this means that Roe is on safe ground?

This case makes me long for the conservative justices of old, believers in judicial restraint and for allowing the political process to run its course. After all, how else to decide contested questions of public policy? (In the interest of full disclosure, I am a big fan of Justice Frankfurter. That puts me in distinct company.) These old justices had principles. They had conviction. They would make the Federalist Society proud.

In contrast, the modern conservative justices are conservative in name only. This is the bloc that gave us Citizens United and who take on Congress with increased regularity. These are the justices who have set their sights on the Voting Rights Act and will likely cripple it or strike it down altogether in the near future. These are the justices who can now turn to substantive due process, smile, and tell us that the Second Amendment is incorporated by the 14th and applies t the states.

Only the sky appears to be the limit.

If I ever hear a President tell us that she wants to appoint Justices in the mold of Justices Scalia and Thomas, I will throw up.