Posted by: captainfalcon | February 19, 2010

“There’s not to Reason why (updated)

There’s but to plagiarize.” Not quite, but check this:

Update: February 19, 2010: WSJ publishes “Handgun Case Creates Odd Alliances.” Includes our scoop about the fractured right wing, and identifies a hitherto unremarked trans-boundary alliance:

[T]he Constitutional Accountability Center, a liberal advocacy group with ties to members of the Obama administration, is also urging the justices to strike down the Illinois gun bans. The center says the case allows the court to correct a poor constitutional interpretation from the late 19th century and that establishing a federal right to self-defense could open the door to progressive readings of individual rights in future cases.

Alan Gura, the conservative [sic] attorney who will present the lead arguments at the Supreme Court against the Illinois laws, embraces that theory as well, but with a different aim. He maintains that a victory in the gun cases could pave the way for future rulings bolstering property rights and libertarian views that limit government power.

The alliance between Gura and the CAC is less stable than that, between Gura and the NRA, in which this case has caused a temporary schism. Gura (and the originalist school of which he’s a part) believes that the Constitution enjoins everything the NRA insists it enjoins; he just differs on why it does so. Gura and the CAC both want Slaughterhouse overturned not only for radically different reasons, but also because they have radically different conceptions of the Privileges and Immunities Clause. I am not yet sure what the difference is – it depends on what version of originalism Gura subscribes to, as well as what jurisprudence CAC prefers. These strike me as the most likely options:


(i) A Dworkinian moral reading of the PI Clause. It protects whatever privileges and immunities (read: rights) we actually have. Further, those rights we actually have include certain positive rights: to healthcare, a living wage, housing, etc. (Implicitly, Dworkinian-CAC embraces one of the many moral theories that entail these rights.)

(ii) Some sort of “living constitutionalism.” The PI Clause confers rights. What those rights are is relative to social or international standards.


(i)  A Barnettian originalist-moral reading of the PI Clause. It protects whatever privileges and immunities (read: rights) we actually have. Further, we only have negative rights.

(ii) A Whittingtonian originalist reading of the PI Clause. It protects a medley of common law rights.

Which of these views, if any, is correct depends on the meaning of  “of” in the Privileges and Immunities clause and the answer to the question: what moral rights do we have?

February 10, 2010: Reason publishes “The NRA Muscles into McDonald v. Chicago: “Gun Nuts” battle “Constitution Nuts” at the Supreme Court.”

Reason also suggests two alternative explanations why the NRA prefers Substantive Due Process.

(1) NRA has as one of its political goals preventing Slaughterhouse’s overturn: “While Gura thinks the expansive power of the Privileges or Immunities Clause is great, lots of people on the right—who otherwise support extending the right to keep and bear arms to the states—don’t.” But then they cast doubt on it: “The NRA also offered an alternative argument based on the Privileges or Immunities Clause in a brief, but its explicit purpose in horning in on the oral arguments is to stress the Due Process Clause.”

(2) NRA’s decision isn’t about politics or professionalism; it’s about their bottom line: “The history of conflict between the NRA and Gura dates back to Heller, when the gun rights organization, fearing a loss (or, in some interpretations, fearing a victory where it could not claim credit), attempted to stymie or take over the case for years before finally jumping on board as allies in the closing stretch.”


January 26, 2010: The Lure notices the same thing.


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