The dramatic oral argument on Tuesday in the case of McDonald v. City of Chicago is still generating aftershocks and commentary. The reason? The Supreme Court's surprisingly negative reaction to arguments for a new way of applying the Second Amendment right to bear arms to the states -- namely, the privileges or immunities clause, rather than the due process clause, of the Fourteenth Amendment. Check nlj.com over the weekend or next week's print version of the National Law Journal for a fuller post-mortem.
In the meantime, we got some interesting commentary on the arguments from none other than the U.S. Ambassador to Malta, the southern European island republic. In legal circles Douglas Kmiec is better known as the former dean of Catholic University's law school, professor at Pepperdine's law school and a top official of the Reagan and George H.W. Bush Justice Department. He caused a stir when he endorsed presidential candidate Barack Obama in 2008. In sending his comments, Kmiec stressed he was not speaking in his diplomatic capacity, but as a law teacher on leave from Pepperdine.
Here is Kmiec's reaction to the March 2 arguments: "Perhaps it is seeing things at a distance that brings clarity, but even my Maltese law students (diplomats get to guest lecture from time to time) can see something is amiss when the 'originalists' on the bench favor the nonoriginalist penumbras of substantive due process over the tender of an historically grounded 'privileges or immunity' argument. Justice Blackmun endured decades of criticism for his legislating an abortion right from the bench. I made some of that criticism, and have yet to see it adequately refuted – well, that is, except by the disappointing inferences of the McDonald argument coming from the conservative side of the bench. What exactly is the conservative response to the judiciary devising a new right at the federal level, fashioning out of whole cloth exceptions to it, and then contrary to every federalist argument ever attempted, imposing that which has been federally fabricated upon the democratic choices of 50 states?
"Justice Thomas sat silently as usual, but as a voice that has called upon the Court to re-examine the anti-textualism of Slaughterhouse, here’s hoping that his honest voice will be raised – not necessarily to approve the claim that the drafters and ratifiers of the Fourteenth Amendment perceived the limitations of that Amendment to support a non-militia right to 'keep and bear arms,' but to at least redirect the Court’s analysis to – as anyone of a hundred Federalism chapters or events would proclaim – the constitutional text as it exists.
"Thankfully, as empty, obscure and wordy as some of the diplomatic obscurantism emerging from 'foggy bottom' has been at times in our history, the language of demarche would have to go some to best the topsy-turvy turnabout that the Second Amendment argumentation represents – effectively standing conservative legal thought on its head."
In a follow-up email, Kmiec was asked if he thought it was a strategic mistake to raise the privileges or immunities argument. His answer: "A mistake to pursue Privileges or Immunities? Yes, if one actually believed neutral decision-making premised upon original meaning was possible. Yes, as well, if you still hope for the privileges or immunities clause to be resuscitated for anything close to its original formulation and purpose, as reflected in the decision of Corfield v. Coryell or its repeated reference and discussion by Bingham and the others who formulated the Fourteenth Amendment.
"No, or at least it would not seem to matter, for the proponents of the nonoriginalist, extra-textual Second Amendment right claim from Heller on the States in disregard of federalism, because (1) the need for a textual argument proved unnecessary to satisfy the textualists since (2) the textualists now have joined the ranks of con-textualists.
"Is paying attention to context a mistake? No, so long as it is done honestly, and here, that would mean paying decent respect to Chicago’s assessment of the modern consequences of handgun-abetted violence which for those seeking to minimize the harm of widespread gun availability ought to be far more determinative of public policy than the abstract musings of a Court majority into whether a right fashioned by the justices over the last year or so is deeply embedded in our customs and traditions, and thus, an essential aspect of ordered liberty."