Monday, July 20, 2009
Courts - "Might it happen? Slaughterhouse overruled?"
The 7th Circuit's opinion last month in NRA v. City of Chicago may play a pivotal role this fall in the SCOTUS' reexamination of the Fourteenth Amendment’s Privileges and Immunities Clause, according to this analysis posted last evening by Lyle Denniston of SCOTUSBlog, titled "Might it happen? Slaughterhouse overruled?" Some quotes:
It follows from the Slaugherhouse Cases, the Ninth Circuit added, “that the Privileges and Immunities Clause did not protect the right to keep and bear arms because it was not a right of citizens of the United States.” That, it indicated, remains good law, even after the Supreme Court’s decision in Heller v. District of Columbia in 2008 recognized a constitutional right to have a gun under the Second Amendment.For background, see this ILB entry from June 17th.
Only the Supreme Court would have the authority (absent a new constitutional amendment) to overturn the Slaughterhouse Cases. Two other Circuit Courts — the Second (in an opinion joined by Judge Sotomayor) and the Seventh — refused to extend the Second Amendment to the states, concluding that they were bound by Supreme Court precedents.
The Second and Seventh Circuit rulings are the ones now being challenged in the Supreme Court in three cases: Maloney v. Rice (08-1592) — the Second Circuit case — and National Rifle Association v. Chicago (08-1497) and McDonald v. Chicago (08-1521) — both from the Seventh Circuit. (Because Judge Sotomayor participated in the Maloney case at the Second Circuit, she probably would not take part in any action by the Justices on that case.)
In the NRA petition, its lawyers argue alternative points for applying the Second Amendment to the states — the “incorporation” method, and applying it through the Privileges and Immunities Clause. The petition does not include extensive argument on the Slaughterhouse Cases, though that precedent is mentioned.
The McDonald petition goes further, suggesting the reconsideration of Slaughterhouse if the Court is unwilling to use the other, incorporation method, to extend the Second Amendment. It argues:
“The almost meaningless construction given this [Privileges and Immunities] provision in Slaughterhouse was wrong the day it was decided and today stands indefensible.”
The Maloney petition takes a somewhat cautious approach. It suggests that the Slaughterhouse Cases need not be overruled directly, but should be reinterpreted. It makes an argument likely to appeal to conservative Justices and others: re-reading that old precedent to extend Second Amendment rights, but to do so in a way that keeps the Privileges and Immunities Clause from becoming as “open-ended” as it says other parts of the Fourteenth Amendment have become.