Guns and ... Slaughter-House?!?

Wed Feb 10 07:27:01 PST 2010

I am not expert on constitutional law.  I do know the facts of Cruikshank and the political massacre that produced it.  Michael Curtis says that Cruikshank is pretty much overruled.  Is that generally agreed? Offline response would be just fine.

Non-doctrinal comment by a layman. Similar massacres to that in Louisiana took place elsewhere.  My personal opinion is that there is not  prayer in Hades that those social facts will ever be recognized by the Supreme Court, as they have never been recognized by most law professors.  Curtis stands out as one of the exceptional writers.

Matthew Holden, Jr.
Wepner Distinguished Professor in Political Science,
University of Illinois at Springfield

-----Original Message-----
From: Curtis, Michael K. <curtismk at wfu.edu>
To: Lichtman, Steven <SBLichtman at ship.edu>; CONLAWPROF at lists.ucla.edu
Sent: Tue, Feb 9, 2010 3:26 pm
Subject: RE: Guns and ... Slaughter-House?!?

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 lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Lichtman, Steven
Sent: Tuesday, February 09, 2010 3:40 PM
To: CONLAWPROF at lists.ucla.edu
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:

http://www.washingtonpost.com/wp-dyn/content/article/2010/02/07/AR2010020702401.html

Gura's brief:

http://www.abanet.org/publiced/preview/briefs/pdfs/09-10/08-1521_Petitionernew.pdf

________________________

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

http://webspace.ship.edu/SBLichtman/lichtman.htm

.

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