Guns and ... Slaughter-House?!?

Curtis, Michael K. curtismk at
Tue Feb 9 13:26:36 PST 2010

It would depend of course on what the P or I s are.  If just textual
rights and a few extra textual ones, not much of a change.  That is
certainly one reasonable approach based on the history.  If that plus a
whole array of common law rights as of 1868,  then.....   But Scalia,
Thomas and perhaps others may be eager to look for a way to return to
some of the joys of the Lochner era.    For some, privileges or
immunities is that opening.  For others, a comfortable home for privacy.
Of course, for some of us, it will be hard to top Citizens United on the
Lochner revival  front. Cruikshank is pretty much overruled already,
except as to the right to bear arms,  and after Heller and its citation
to history relevant to the 14th A., the outcome seems clear.  Note that
Scalia joined Sanez, a bit of a surprise to me.  It would be nice if the
Court at least admitted what a mess, as a matter of history,  it had
made of the Bill of Rights and the states before it started
incorporation, and how in Cruikshank it's state action syllogism  had
abetted Klan terrorism.  It will be interesting to see what it says
about incorporation history.


Michael Curtis


From: conlawprof-bounces at
[mailto:conlawprof-bounces at] On Behalf Of Lichtman, Steven
Sent: Tuesday, February 09, 2010 3:40 PM
Subject: Guns and ... Slaughter-House?!?


Robert Barnes had an interesting artice in yesterday's Washington Post
about the strategy of the petitioner in the upcoming 2nd Amendment case,
McDonald v. Chicago.  Evidently, Alan Gura is basing his arguments
against Chicago's gun ban mainly on the theory that the 2nd Amendment is
incorporated to the states via the Privileges or Immunities Clause
(though there is a cursory argument based on the Due Process Clause).
Barnes states that Gura thinks this is the best way to proceed in the
case, though he does not quote Gura directly on this point.


Sure enough, in his brief, Gura is asking directly for the Court to
overrule Slaughter-House and Cruikshank.  The brief is a pretty good
treatment of the history of the P-Or-I Clause; if my students had
submitted it as a research project, I'd have given them an A.


But as constitutional lawyering?


I cannot fathom why Gura, who is trying to win the case, would structure
his argument like this.  I suppose he could be assuming that he's going
to win the case (I certainly am), and figuring that as long as he's got
it in the bag let's try for something bigger.  Even so, are there any
indications that the Roberts Court is going to be receptive to a P-Or-I
argument?  Wouldn't such an argument, if successful, be the kind of body
blow to state power that Roberts et al. are not usually inclined to


Steven Lichtman

Shippensburg University



P.S.: Links ...


Barnes' article:


Gura's brief:






Dr. Steven Lichtman

Assistant Professor and Pre-Law Advisor

Department of Political Science - 413 Grove Hall

Shippensburg University

1871 Old Main Drive

Shippensburg, PA  17257

(717) 477-1845





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