by Professor Michael Anthony Lawrence, Michigan State University College of Law. The views expressed here are his own.

The Seventh Circuit Federal Court of Appeals in Chicago Tuesday heard oral argument in National Rifle Association v. Chicago (formerly McDonald v. Chicago), a case in which the Constitutional Accountability Center (CAC), joined by law professors Richard Aynes, Jack Balkin, Michael Curtis and I, filed an amicus brief arguing that the Fourteenth Amendment privileges or immunities clause should be interpreted to apply the Second Amendment (together with the rest of the entire Bill of Rights, and more) to the states.

If the judges’ questioning is any fair indication, it appears the Seventh Circuit will decline the petitioners’ and CAC’s invitation to incorporate the Second Amendment under either the due process clause or the privileges or immunities clause – not because the court necessarily objects to the arguments, but rather because it believes such bold steps are more appropriately within the purview of the Supreme Court.

NRA counsel Stephen Halbrook was barely into his first sentence before the judges, particularly Judge Richard A. Posner and (presumably, based on an audio transcript released by the Court) Chief Judge Frank H. Easterbrook, began peppering him for explanations for why the appellate court should even be deciding the question.

For context, here are some of the relevant exchanges between the court and counsel, with a couple observations to follow:

Judge Posner (to Mr. Halbrook): I don’t see how you get around the Supreme Court’s admonition to us that we are not to anticipate overruling of Supreme Court decisions. You have Cruikshank and Presser and Miller and the Supreme Court’s footnote in Heller where it declines to reexamine those decisions, and it says they hold that the Second Amendment doesn’t govern state action. [Those cases] may have overlooked grounds, they may be poorly reasoned, but there they are – they’re holdings.

***
Chief Judge Easterbrook (later): I entirely appreciate your argument that [the earlier cases] don’t discuss selective incorporation. Indeed, I entirely appreciate your argument that the Slaughter-House Cases are wrongly decided. But as is often said in the bureaucracy, that’s above our grade level.

***

Chief Judge Easterbrook (responding to co-counsel, for petitioner McDonald, Alan Gura): I actually don’t know why you’re so upset about the prospect that Judge Posner and I have raised with you. It doesn’t matter what we say. [In contrast to the Ninth Circuit in the recent Nordyke case,] we’re not going to resolve this issue; you’ve got yourself a conflict between the circuits. Why don’t you just say, ‘Our arguments are preserved – thank you very much.’

Mr. Gura: If that’s what your honor would like me to do, then I’ll certainly go ahead and do that. Our arguments are preserved and thank you very much. [Laughter] I’ll reserve the rest of my time for rebuttal.

Chief Judge Easterbrook: This is going to be resolved elsewhere. Yes, thank you, Mr. Gura.

Ms. Benna Solomon (counsel for Chicago): It does not matter that [Cruikshank, Presser and Miller] were decided before the Court embraced the process of incorporation under the due process clause. Only the Supreme Court itself can limit or update its prior definitive holdings. They do not become non-precedential simply because one can imagine an argument against them, or because the Court itself might later discard them.

Chief Judge Easterbrook: There’s actually a pretty good argument against them. And it’s not simply because the justices have used a different approach in recent years. It’s that there’s a lot of rumbling about the Slaughter-House Cases even amongst the justices.

Ms. Solomon: That is correct. And as far as privileges or immunities go, … of course it would be [the Supreme Court’s] prerogative to consider overruling, limiting, changing, modifying or clarifying Slaughter-House. And of course it’s not simply Slaughter-House. The rule that the privileges or immunities does not wholesale incorporate the Bill of Rights has been repeated many times. The privileges or immunities ruling has never been disturbed. So we do respectfully believe that is binding on this court as well.

Chief Judge Easterbrook (referring to an early voice in the wilderness who advocated accepting Justice Hugo Black’s call to reexamine the Fourteenth Amendment’s history, especially the privileges or immunities clause): One can only imagine William Winslow Crosskey coming back to debate this issue.

Ms. Solomon: It will be ripe, no doubt, for someone to present to the Supreme Court.

***

Chief Judge Easterbrook (responding to Ms. Solomon’s observation that several other provisions of the Bill of Rights have still not been incorporated): One potential consequence of the line you’re taking is that the Supreme Court will overrule Slaughter-House and incorporate everything. And then all of Chicago’s administrative tribunals for handling parking tickets will suddenly become unconstitutional under the Seventh Amendment [right to jury trial in civil cases].

Ms. Solomon: The Supreme Court will no doubt consider that going down the privileges and immunities road would need either a limiting principle not evident in the arguments on the other side, or it would need to overrule the cases indicating that the grand jury clause and the Seventh Amendment, and the Court has reaffirmed those rather recently.

***

Mr. Gura (on rebuttal): In 1868, when the Fourteenth Amendment came about, it was with the express purpose and intent and common understanding, that it was to incorporate the Bill of Rights, and the Second Amendment was the right that was most at issue at the time. And we of course preserve our privileges or immunities argument for the upper court. But at the very least this court is still free, and bound actually by Duncan v. Louisiana, to reverse the judgment [and hold that the due process clause incorporates the Second Amendment,] which we hope this court does.

What is most striking about this sequence is that multiple federal courts, after having swept the privileges or immunities clause under the rug for over 135 years, are now talking in serious terms about the provision. To hear a jurist of Chief Judge Easterbrook’s stature express sympathy for arguments that the Slaughter-House Cases (the 1873 case that buried the privileges or immunities clause) was wrongly decided is a major step. Add to that the Ninth Circuit’s recent Nordyke decision holding that the Second Amendment is incorporated through the due process clause (and acknowledging, but not deciding, the privileges or immunities arguments), and we see that the arguments being made by a growing number of scholars, CAC and others are finally starting to gain some traction.

Second, regarding the suggestion that giving full effect to the privileges or immunities clause (i.e., incorporation of the entire Bill of Rights, and more, to the states) would be too disruptive to the states, the Constitution itself provides a tried and true mechanism to allay this concern: the Article V amendment process. If the people decide that they wish to retain the Supreme Court’s current doctrine of not applying certain of the Bill of Rights to the states, such as the Seventh Amendment right to jury in civil cases and the Fifth Amendment grand jury provision, it is within their power to do so. The amendment process would be the proper approach to achieve this goal – but it is not proper to continue holding the privileges or immunities clause hostage.

While it is true that amending the Constitution is very difficult (it’s only been done eighteen times in our history – first with the Bill of Rights and then 17 times since), it’s not impossible. Indeed, when the people put their minds to it, it can be done very quickly – witness the very first amendment to follow the Bill of Rights, the Eleventh Amendment, when it took Congress less than three weeks to approve the amendment after a Supreme Court ruling not to its liking; and the states less than a year to ratify.

*Mr. Lawrence is a professor at Michigan State University College of Law; and author of the forthcoming book from Cambridge University Press, Radicals in Their Own Times: Four Hundred Years of Struggle for Liberty and Equal Justice in America. He blogs at www.progressiveliberty.blogspot.com.