Chief Justice John Roberts complained about President Obama's State-of-the-Union critique of the high court's decision in Citizens United v. FEC, saying the address had become too political. The Associated Press reported that following a speech to University of Alabama law students, Roberts responded to a student's question about the president's criticism of the decision. "To the extent the State of the Union has degenerated into a political pep rally, I'm not sure why we're there," Roberts said.

Roberts conceded that anyone is free to criticize Supreme Court rulings, but in this instance the surroundings called for muted or no criticism. "The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the court - according [to] the requirements of protocol - has to sit there expressionless, I think is very troubling."

Several media sources following the State of the Union, noted that Justice Samuel Alito did not sit expressionless, mouthing the words "not true," to Obama's criticism of Citizens United. The decision invalidated decades of regulation of corporate campaign financing, making it easier for corporations to spend freely on electioneering.

The AP reported that White House press secretary Robert Gibbs, when asked about Roberts' comments, said, "What is troubling is that this decision opened the floodgates for corporations and special interests to pour money into elections - drowning out the voices of average Americans."

Recently, ACS hosted a national event focusing on the implications of the decision. Video of the event is here. Following the event, Professor William P. Marshall, a constitutional law expert, talked with ACSblog about what the decision reveals about the Supreme Court, and elections law expert Joseph Sandler focused on what the decision may mean for future elections. 

Following the Supreme Court decision on corporate campaign finance regulation, ACS hosted a national event exploring potential ramifications on democracy and the future of regulating corporate expenditures on elections.

Joseph E. Sandler, a nationally recognized expert on elections law, joined the panel discussion and afterwards talked with ACSblog about how the decision in Citizens United v. FEC could alter electoral politics. Conceding that the decision's impact may be "very difficult to predict," Sandler said nonetheless it may now be "tempting" for some corporations "to get into the game in a way they wouldn't have done before."

Video of the entire event, "Citizens United v. FEC: The Decision, Its Implications, and the Road Ahead," is available here. Watch Sandler's interview below or download it as a podcast here.

On Tuesday, the Supreme Court heard oral argument in McDonald v. City of Chicago, which raises the question whether the Second Amendment's guarantee of a right to bear arms applies to states and local governments. Going into argument, incorporation of the Second Amendment right seemed a given - after all, states already have to obey virtually every right in the Bill of Rights. The critical question was whether the Court would breathe new life into the Privileges or Immunities Clause, and honor the part of the Fourteenth Amendment's text that clearly protects substantive fundamental rights from state infringement.

The Privileges or Immunities Clause was intended to be the centerpiece of the Fourteenth Amendment, but it was written out of the Constitution by the Supreme Court in the 1873 Slaughter-House Cases. The decision has been regarded as one of the worst in the Court's history, and roundly condemned by the Amendment's framers in the 1870s, Justice Harlan in the early 20th century, and Justice Black in the 1940s. The overwhelming consensus among scholars across the ideological spectrum - reflected in a law professors' brief filed by CAC in McDonald - is that Slaughter-House obliterated the text and history of the Clause through a profoundly incorrect interpretation of the Constitution.

Unfortunately, the Privileges or Immunities Clause received a chilly reception from the Court on Tuesday, especially from those Justices who most profess to take the Constitution's text and history seriously. Justice Scalia belittled the Clause, accusing Alan Gura, McDonald's attorney, of "bucking for some place on some law school faculty" by advancing an argument that was "the darling of the professoriate." Scalia, supposedly the Court's chief originalist, wouldn't even consider the merits of the argument. Chief Justice Roberts, too, refused to follow the Constitution's text and history where it leads. He explicitly worried that the Privileges or Immunities Clause would allow for broad protections of substantive liberty; he preferred to rely on the Due Process Clause, since that text is about process, and does not easily lend itself to protecting substantive fundamental rights. While Roberts and Scalia were content to rely on substantive due process to protect gun rights, they seemed to want to reserve the opportunity to bash the doctrine in future cases involving rights they don't recognize. Other Justices were less overtly hostile, but none seemed willing to revive the Clause.

In light of its reception at the Court, was Gura too bold?

Of course, we don't know what the Court's opinion will ultimately say; it is quite possible that much of the privileges-or-immunities history Gura cited will form the basis for the Court's opinion, which would make the case a great victory for all who care about the Constitution's text and history even if the Court relies on the Due Process Clause. But even if the Court ignores text and history, pushing to revive the Privileges or Immunities Clause was the right decision.

First, if not now, when? The Second Amendment is the only substantive provision of the Bill of Rights not already incorporated against state action. There may never be a better chance to argue that the Clause protects substantive fundamental rights against state infringement.

Second, McDonald has been a teaching moment: thanks to terrific coverage in editorials and stories in the New York Times, Washington Post, and other papers, millions of people now know that protection of substantive fundamental rights was written into the clear text of the Constitution. Thanks to this coverage, debates about whether the Constitution protects fundamental rights will not be the same. Whatever the Court says in its opinion, Americans should remember that the Privileges or Immunities Clause was written to ensure all Americans enjoy broad protections of substantive liberty, including fundamental rights not enumerated in the Constitution. And the Justices certainly are now aware of the overwhelming scholarly consensus that the Clause has been long-mistreated by the Court.

Finally, Justices have pushed to revive the Privileges or Immunities Clause for over a century, and there is no reason to think McDonald will be the last word. It is possible that, in future cases, the Court's liberal Justices may find that the Clause's text and history is a powerful weapon. When the Court next considers the right to reproductive choice recognized in Roe or the right of sexual intimacy recognized in Lawrence, the text and history of the Privileges or Immunities Clause may be a powerful rejoinder to the arguments by Justice Scalia and others that protecting substantive fundamental rights through the Due Process Clause is "judicial usurpation." The Clause's text and history, which show that that the framers were concerned about ensuring that the newly freed slaves had rights as citizens to marry, decide whether to bear children, and control their family life, gives the Court's liberal Justices powerful ammunition to root protection of rights of heart and home directly in the Constitution's text and history.

[Image via Sam Ruaat.]

[Part I of "Supersizing the Second Amendment?" is available here.]

So why do I still say that gun control advocates are also seemed to be big winners?

Because the Justices seemed to think that, regardless of incorporation, state and local governments would retain wide leeway to enact gun control. The only words used as much as "fundamental" and "implicit in ordered liberty" in the argument were "reasonable regulation."

Numerous Justices expressed their support for the idea that the Second Amendment did not prohibit reasonable regulation of firearms. Justice Kennedy said that lawmakers still "have substantial latitude and ample authority to impose reasonable regulations." Justice Ruth Bader Ginsburg said that she "thought that Heller allowed for reasonable regulation." Justice Scalia didn't use that catchphrase, but went out of his way to say that Heller "was very careful not to impose" severe limits on the federal government "precisely because it realized that" gun violence "is a national problem."

There are two ways to think about "reasonable regulation." The first is what I've long endorsed: the Second Amendment should be governed by the formal "reasonable regulation" standard uniformly used in state constitutional law. Forty-two states have constitutional protections for the individual right to bear arms and all of them apply a deferential standard by this name. Under that test, any regulation will be allowed to stand so long as it doesn't effectively destroy or nullify the individual's right to have a gun for self-defense. Some types of weapons can be banned so long as individuals have access to others. Applying this test, almost all gun control survives.

The second way to think about "reasonable regulation" is not as a formal test but as shorthand for allowing lawmakers broad leeway to regulate guns. This seems to be what the Court did in Heller. The Justices did not formally adopt the state law standard of review. Instead, they adopted categorical rules and recognized a number of gun control "safe harbors." While they don't create a standard of review, the exceptions listed out in Heller encompass most forms of gun control. None of these are constitutionally infirm under the Second Amendment.

The distinction between these two ways of thinking about reasonable regulation may be more theoretical than practical. The legal effect of Heller has been to permit the vast majority of gun control laws to survive judicial review. In fact, not a single law has been invalidated for violating the Second Amendment since Heller. That's not for a shortage of cases. There have been over 150 federal court decisions on the constitutionality of gun control since Heller and none ruled that the Second Amendment was infringed. Whether the Court promotes the state law standard of review or approaches the Second Amendment with categorical reasoning, the effect on gun control is the same. It almost always survives.

Of course, even if the Court makes clear in McDonald that most gun control laws don't run afoul of the Second Amendment, there are certain to be some laws invalidated in the future. Permitting or licensing laws that give unfettered discretion to police chiefs over who can have or carry a firearm are troublesome, and open the door to arbitrary determinations. Constitutional rights shouldn't be subject to anyone's discretion. But even if that type of law is invalidated, almost all other sorts of gun control laws seem destined to survive.

Maybe McDonald will "supersize" the right to bear arms by applying it to the states. But the effect on gun control is likely to make this landmark case little more than a small fry.

[Image via slimmer_jimmer.]

Yesterday, the Supreme Court heard oral argument in the latest big gun case, McDonald v. City of Chicago. The Court will decide whether the individual right to keep and bear arms recognized in 2008's D.C. v. Heller extends to the states. I was at oral argument and there seemed to be two big winners: gun rights advocates and gun control advocates.

The gun rights folks, like the NRA, seemed poised to win the case. Of the five Justices who voted with the majority in Heller, all appeared to be inclined to hold that the right to bear arms is a "fundamental" right such that it applies to state laws. (Well, not all of the five: Justice Clarence Thomas said nothing, extending his streak of silent oral arguments that dates back to 2006.)

Just like in the Heller oral argument, Justice Anthony Kennedy, the swing vote, showed his cards. "If [the right to bear arms is] not fundamental, then Heller is wrong, it seems to me." Chief Justice John Roberts said, "I don't see how you can read Heller and not take away from it the notion that the Second Amendment, whether you want to label it fundamental or not, was extremely important to the framers in their view of what liberty meant."

As Paul Clement, representing the NRA said, the question of whether the right to bear arms was fundamental or not was "remarkably straightforward." The fact that Clement was there at all was a surprise. The NRA was not formally a party to the suit. More striking still was that Clement was representing the NRA. After Clement, then serving as Solicitor General, filed a brief in Heller suggesting that D.C.'s handgun ban might be constitutional, gun rights activists branded him a traitor. Now he is their lawyer.

The more interesting set of questions about incorporation came from Justice John Paul Stevens, who asked repeatedly why the right should apply in exactly the same way to federal laws, on the one hand, and state laws, on the other. "Why does this incorporation have to be every bit as broad as the Second Amendment itself," he asked. He harkened back to the second Justice John M. Harlan's view that incorporated rights might impose different limits on the federal and state governments. Justice Harlan proffered this view repeatedly during his tenure, especially in obscenity cases. Courts, he argued, should treat federal speech restrictions less leniently than similar state restrictions. Federal laws apply nationwide and thus inhibit experimentation, whereas state laws impact a smaller population. The federal government is also one of limited powers, so some issues aren't appropriate for national regulation even if they are appropriate for state regulation.

Incongruent treatment of federal versus state laws never took off. Even since the mid-1950s, the Court has virtually ignored which level of government is behind a law restricting fundamental rights, be it speech, religion, or privacy. But the question is a good one. Should all levels of government be treated the same? Aren't there institutional differences between different governmental actors that should be accounted for in constitutional jurisprudence? The last time the Court considered this question was in the context of affirmative action. There, the Court held in Adarand Constructors v. Pena that federal and state laws should be treated exactly the same.

In some empirical studies of constitutional law decisionmaking, I found that federal courts often treat state and local laws differently than federal laws. In a large study of every federal decision applying strict scrutiny over a fourteen year period, I found that the best predictor of whether a law would survive that demanding standard was the identity of the governmental actor behind the challenged law. Federal laws survived far more often than state or local laws, even though the courts say they are applying the same standard. The effect is especially pronounced in free speech cases. A separate study I did of core free speech cases found that federal laws survived in over 55% of the cases, state laws about 24%, and local laws only 3%.

Note that my findings were precisely the opposite of what Justice Harlan suggested. Courts appear to be more hostile to state and especially local laws than they are to federal laws. There may be good reasons for this pattern. Federal laws are usually vetted by many different interest groups, congressmen have large staffs with good lawyers, and every law must satisfy a heterogeneous national constituency. State laws, and especially local ones, often are enacted without any vetting by interest groups and lawyers, and the demographics are often homogenous rather than diverse. If that is right, then Justice Stevens' proposal about the Second Amendment had it backwards. Courts should be more skeptical of state and local gun laws, not more deferential to them.

So gun rights advocates are likely going to win on incorporation.

Then why do I still say that gun control advocates are also seemed to be big winners?

[Part II of  "Supersizing the Second Amendment?" was subsequently published here. Image via barjack.]

It appears, according to early reports, that a majority of the Supreme Court is set to ensure that an individual right to possess a gun is also protected against state action. SCOTUSblog's Lyle Denniston reports, "The dominant sentiment on the Court was to extend the Amendment beyond the federal level, based on the 14th Amendment's guarantee of ‘due process,' since doing so through another part of the 14th Amendment would raise too many questions about what other rights might emerge."

The Associated Press's Mark Sherman also reported that the high court "appeared willing Tuesday to say that the Constitution's right to possess guns limits state and local regulation of firearms."

In McDonald v. City of Chicago, the justices are weighing whether to expand its 2008 ruling in District of Columbia v. Heller to strike Chicago's ban on handguns, which has been in place for decades. In Heller, the Supreme Court invalidated a federal gun regulation, finding that the Second Amendment does provide a personal right to possess a firearm. Specifically, in McDonald, the justices must now decide if and how protection of that right should be applied to the states. An attorney representing gun rights activists, Alan Gura, tried to encourage the justices to incorporate the Second Amendment through the Constitution's privileges or immunities clause. But, Denniston wrote that Gura's argument collapsed. Denniston noted that both Chief Justice John Roberts and Justice Antonin Scalia, both in the Heller majority, quickly dismissed the privilege or immunities argument. Instead, the justices maintained that incorporation of the Second Amendment would likely occur through the 14th Amendment's "due process" clause.

For expert analysis of the issues involved in McDonald see a guest post from Harvard Law School Professor Mark Tushnet here and one from Chapman University School of Law Professor Lawrence Rosenthal here. Oral argument transcript is available here. 

McDonald v. City of Chicago puts the Court's conservatives to a choice: Guns or federalism? Today's conservatives say that the Constitution makes both of them important but so far they haven't come up with a decent account of why one or the other should prevail, and I don't think they can.

The Rehnquist Court engaged in a modest "Federalism Revolution," and some conservative scholars were annoyed when the Court went with drug laws instead of federalism in upholding the national ban on the use of marijuana for medical purposes in Gonzales v. Raich. These cases might be described as dealing with national power exercised by Congress, and of course no national statute is involved in McDonald. But when the Court has discussed each of the constitutional provisions available as a basis for striking the Chicago ordinance down, it has noted their implications for federalism. In the Slaughterhouse Cases, the Court rejected an expansive interpretation of the Privileges or Immunities Clause - the one some conservatives are asking the Court to adopt in McDonald - because, it said, such an interpretation would authorize Congress to use the Fourteenth Amendment's fifth section to enforce a new and large set of rights. And, Justice Potter Stewart once described the Due Process Clause as part of a vast expansion of national power - legislative and judicial - during Reconstruction.

Were conservatives truly concerned about federalism, they might want to think twice about their position in McDonald. Winning the case, particularly on Privileges or Immunities grounds, would give Congress a lot more power than they think it ought to have. And it should be obvious, although it hasn't been a major part of the discussion of McDonald that striking down the Chicago ordinance is an example of judicial activism as conservatives usually define it when questioning Supreme Court nominees. (Saying that we shouldn't worry about expanding congressional power by expanding the Fourteenth Amendment because the Court is always ready to strike down congressional statutes on federalism grounds simply reinforces the conclusion that McDonald will expand judicial power - and betrays an odd confidence, from conservatives, in the courts.)

Another definition of activism is tied to Chief Justice Roberts's silly balls-and-strikes metaphor. That metaphor makes the modest sense it does if conservatives mean that judges should be activist and strike statutes down when they really do violate the Constitution, and should be restrained and uphold statutes when they don't. But the very fact that there's a fair amount of disagreement among conservatives about whether the Chicago ordinance is unconstitutional because it violates the Privileges or Immunities Clause or because it violates the Second Amendment as incorporated through the Due Process Clause shows that the Court's not going to be simply calling balls and strikes. Think of how the problem might be posed for two umpires. Both say that the pitch was a strike, but one says that it was a strike because the ball was in the strike zone when it crossed the front edge of the plate and the other says that it was a strike because the ball was in the strike zone when it passed the back edge of the plate into the catcher's mitt. The balls-and-strikes metaphor is supposed to show that judges actually don't exercise judgment when they interpret the Constitution. But the positions urged on the Court by conservatives in McDonald show that judgment can't be avoided.

The widespread judgment - which I share - that the Court will invalidate Chicago's gun control ordinance is interesting because it shows that everyone seems to agree that for conservatives federalism plays second fiddle to substantive concerns. Most conservatives will approve that invalidation if it occurs and will condemn the Court's failure to invalidate it if, surprisingly, the Court does not do so. That, I suggest, sheds some light on what contemporary constitutional conservatism is - a "theory," or more accurately a set of attitudes, about what good public policy is, masquerading as something else. So, when Republicans in Congress say that federalism somehow stands in the way of adopting health care reform (because it lies outside the powers granted to Congress and therefore reserved to the states), we ought to be pretty suspicious.

Throughout constitutional history federalism has been a mask for substantive policy concerns, and it still is. Conservatives like federalism when they can say it prevents the national government from reforming health care. They don't like it when it prevents the government from telling states to keep their hands off regulating businesses whose products harm consumers. They like federalism when it lets each state choose how many guns a person can buy each month. They don't like it when it lets cities choose to restrict gun ownership. The conservative choice of guns over federalism isn't surprising, but it does tell us something about conservatives who invoke federalism to oppose other national initiatives: They don't like the initiatives on policy grounds, and they're hoking up the federalism argument because they think it will play better with the public. 

Following an ACS event exploring the legal and political fallout of the Supreme Court's recent corporate campaign finance decision, constitutional law expert William P. Marshall talked with ACSblog about the ruling and the Roberts Court. Marshall, a law professor at the University of North Carolina School of Law and member of the ACS Board of Directors, said the decision in Citizens Untied v. FEC shows that "although the Roberts Court is conservative politically, it indicates that it is not a conservative court, judicially."

"This is one of the more activist decisions we've seen in sometime," Marshall said. He noted that the decision, which said corporations, may spend freely on elections, "put in doubt over a hundred years of legislation dealing with the regulation of corporate activity in campaigns."

Marshall moderated a panel discussion, including Jan W. Baran, Laurence E. Gold, James S. Portnoy, Joseph E. Sandler and Monica Youn, at the National Press Club on Citizens United. Video of the discussion is here. Watch Marshall's interview with ACSblog below or download of podcast of it here.

The widely anticipated Second Amendment case pending before the Supreme Court is creating strange bedfellows, reports Jess Bravin in The Wall Street Journal. Bravin writes that, "as gun-rights groups battle each other over how to argue the case, ... some left- and right-leaning legal theorists unite over how to interpret the Constitution."

As noted at ACS's Supreme Court Preview for the Court's current term, some progressive advocates support incorporation of the Second Amendment to the states in McDonald v. Chicago. They see McDonald as an opportunity to revive the Fourteenth Amendment's Privileges or Immunities Clause, which was neutered by the Supreme Court in the 1873 Slaughterhouse Cases. Since then, incorporting rights to bar infringement by state action has been a burden carried by the Fourteenth Amendment's Due Process Clause, which speaks merely to deprivations of rights, as opposed to the broader language of the Privileges or Immunities Clause.

As to the Second Amendment, the Supreme Court left the question of incorporation for another day in the 2008 D.C. v. Heller decision, which -- for the first time -- recognized the right to bear arms as an individual right, rather than a right bestowed upon members of a militia collectively. And that day will be before the Court soon in McDonald.  

Representing the perspective of gun rights advocates in oral argument will be Alan Gura, counsel for the petitioners. Gura, like the Constitutional Accountability Center's Doug Kendall, would have the Court consider incorporating the Second Amendment through the Privileges or Immunities Clause. The National Rifle Association, however, disagrees with this approach, creating a rift among the conservative community as to how the right to bear arms should be incorporated against the states.

In a related case, the Washington State Supreme Court resolved similar issues this week. In State v. Sieyes, the court ruled recognized the Second Amendment as applicable to the states. Following a July decision by the U.S. Court of Appeals for the Ninth Circuit -- which is currently pending en banc review -- the 7-2 majority relied solely on the Due Process Clause in addressing the question of incorporation, leaving it to the U.S. Supreme Court to broach frontiers untouched for over a century of American jurisprudence.

[Image via Jocko B.]

The Supreme Court's decision in Citizens United v. FEC is one the Court's most "polarizing," and could signal that Chief Justice John Roberts is not committed to forging unity on the Court with narrow opinions, maintains Jeffrey Rosen, a George Washington University law school professor and Legal Affairs Editor for The New Republic (TNR).

Rosen notes in a column for TNR that in 2006, Chief Justice Roberts said he wanted the justices to produce more unanimity in its decisions and, in particular, show "humility when dealing with the First Amendment." But in Citizens United, Rosen writes, the chief justice "deputized Anthony Kennedy to write one of his characteristically grandiose decisions, challenging the president and Congress at a moment of financial crisis when the influence of money in politics - Louis Brandeis called it ‘our financial oligarchy' - is the most pressing question of the day."

Rosen adds, "If Roberts continues this approach, the Supreme Court may find itself on a collision course with the Obama administration - precipitating the first full-throttle confrontation between an economically progressive president and a narrow majority of conservative judicial activists since the New Deal."

Although Rosen writes that he and others, including some of Roberts' colleagues on the high court, initially gave Roberts the "benefit of the doubt" hoping that he would put the "bipartisan legitimacy of the Court above his own ideological agenda," that seemingly widespread benefit started to erode in 2007.

In summer 2007, Rosen asked Justice John Paul Stevens whether Roberts would succeed in leading the Court down a more conciliatory path. "I don't think so," Stevens said. "I just think it takes nine people to do that. I think maybe the first few months we all leaned over backward to try to avoid writing separately."

[image via pbs.org]