Guns and ... Slaughter-House?!?

Sanford Levinson SLevinson at
Tue Feb 9 13:51:05 PST 2010

I don't mean to pick on Prof. Green, but I'm not sure this is true, either.  I think there's some empirical research that shows that contemporary justices are ever less likely to cite law reviews or, even more to the point, genuinely discuss any argument (and nuance) that might be present in a law review article.  Perhaps I am wrong, though...


From: conlawprof-bounces at [mailto:conlawprof-bounces at] On Behalf Of Christopher Green
Sent: Tuesday, February 09, 2010 3:41 PM
Subject: RE: Guns and ... Slaughter-House?!?

Perhaps should've said "reads & cites a lot of law reviews" rather than "takes scholarship seriously."

From: Sanford Levinson [mailto:SLevinson at]
Sent: Tuesday, February 09, 2010 3:32 PM
To: Christopher Green; CONLAWPROF at
Subject: RE: Guns and ... Slaughter-House?!?
I cannot agree that Heller demonstrated "that the Court takes scholarship seriously."  Neither Scalia nor Stevens bothered to confront the most serious scholarly studies of the Second Amendment that might have complexified their equally tendentious arguments.  Where was any discussion, e.g., of the superb book by Uviller and Merkel (which cuts against Stevens) or Saul Cornell's book (which cuts against Scalia by arguing that the Second Amendment was not intended to constitutionalize the common law right of self-defense), not to mention the intellectual scandal of Scalia's ipse dixit announcement that the right of self-defense apparently doesn't apply to Martha Stewart (convicted of a felony that is malum prohibitum and in no way involved an act of violence).  "An originalist judge with a pragmatic streak" sounds like a walking incoherence.  And, of course, there's the little problem (though perhaps not to the contemporary Republican Party) that the p-or-I clauses seems to refer to the rights of "citizens" and not of "persons" (though this does reinforce the rising nativism, from all sides of the political spectrum, that is frantic about the possibility that a "foreign corporation" might, with full disclosure, actually take out an ad with regard to a political candidate).


From: conlawprof-bounces at [mailto:conlawprof-bounces at] On Behalf Of Christopher Green
Sent: Tuesday, February 09, 2010 3:11 PM
Subject: RE: Guns and ... Slaughter-House?!?

I think a lot of it is intellectual honesty--the historical arguments for SDP are much weaker than P/I as a protection for fundamental rights.  Cases like Heller show that the Court takes scholarship seriously, I think.  Also, the SDP cases have always operated, I think, in a bit of a P/I shadow--cases like Palko, Allheyer, and Holden talk prominently about "privileges" and "immunities," for instance.  Developing the P/I argument is, I think, a good way of persuading an originalist judge with a pragmatic streak (like Scala, but maybe Roberts and Alito) to go along with SDP incorporation because it (a) fits with precedents, and (b) fits with the original history, albeit for a different clause.  It always seemed to me that the incorporation cases of the 1960s would never have been as uncontroversial as they were if it weren't for Black's Howard-on-P/I-based Adamson dissent.  Gura also presumably knew that the NRA was presenting a SDP argument at length in their McDonald brief.

From: conlawprof-bounces at [mailto:conlawprof-bounces at] On Behalf Of Lichtman, Steven
Sent: Tuesday, February 09, 2010 2:40 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 deliver?

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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