political scientism | codes? we don’t need no stinking codes

"You ordered two witch doctors?" "Dammit, I said PARADOX, not PAIR OF DOCS."

Are you ready? Well, are you? Are you ready to get boring? If you stick with me, I promise a paradox at the end. (Check out David Cohen’s post at SCOTUSblog to drink the genius water straight from the fire hose.)

To get truly boring, we need to go back in time to the 18th century. To get a sense of how long ago that was, consider top hats.  Back then, wearing a top hat didn’t just say, as it does now, that, “I am partial to smoking opiates.” Rather, public hygiene being what it was at the time, wearing a top hat conveyed the impression that, “I never know when I will be walking on a sidewalk when someone might decide to empty a bucket of feces from a second floor window.”

So, if you think South Carolina is bad now, you should have seen it back then. The genius of the Constitution was that it promised a bunch of unruly, rag-tag colonies a way to band together for limited purposes like establishing an army, regulating trade between the states and, of course, requiring frivolous abortions at taxpayer expense.

The Constitution is the rulebook for the federal government, not state governments. It talks about the requirements for electing a President (must love to kiss babies although not in “that” way; no Muslims), but not governors. It talks about a national military (must love country music; no gays), but not the sheriff’s office.

Fast forward a century or so to the end of the Civil War: because the individual states couldn’t be trusted to, you know, not enslave an entire race of people, the Constitution was amended to say that the states could not make or enforce any laws that had the effect of denying anyone the “privileges or immunities” of U.S. citizenship or depriving anyone of life, liberty or property without “due process of law.”

Since the Supreme Court had previously concluded that the Constitution’s Second Amendment prohibited the federal government from infringing on individuals’ right to bear arms , the Court took up McDonald v. Chicago to determine whether state governments were likewise constrained by the Second Amendment.

And, in order to answer that broader question, the Court necessarily had to ponder the narrower question of whether the right to bear arms was incorporated against the states by virtue of the “privileges or immunities” clause on the one hand or the “due process” clause on the other.

If Supreme Court opinions were multiple choice tests, the Court would have been asked to complete this sentence: The right to bear arms is:

(a) incorporated against the states because it is a “privilege or immunity” of citizenship;

(b) incorporated against the states because it is a”due process” right; or

(c) incorporated against the states because it is both a “privilege or immunity” of citizenship as well as a “due process” right; or

(d) not incorporated against the states because it is neither a “privilege or immunity” of citizenship nor a “due process” right;

Somehow, the Court settled on (e), which can’t be represented in text, but translates roughly to the sound of a thousand angels crying.  Here’s how the Court’s syllabus puts it. This, I swear to God, is meant to be a summary to make things easier to understand:

ALITO, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–A, II–B, II–D, III–A, and III–B, in which ROBERTS, C. J., and SCALIA, KENNEDY, and THOMAS, JJ., joined, and an opinion with respect to Parts II–C, IV, and V, in which ROBERTS, C. J., and SCALIA and KENNEDY, JJ., join. SCALIA, J., filed a concurring opinion. THOMAS, J., filed an opinion concurring in part and concurring in the judgment. STEVENS, J., filed a dissenting opinion. BREYER, J., filed a dissenting opinion, in which GINSBURG and SOTOMAYOR, JJ., joined.

For those of you who didn’t follow that little slice of devious explanatory drivel, here’s what happened.

First, only a single Justice — five are needed for a majority, obviously — found that the right to bear arms was a “privilege or immunity,” so we know that (a) is not the answer.

Second, only four Justices — still short of a majority — found that the right to bear arms was a “due process” right, which  eliminates (b) as well.

Since the Justices are notoriously well-prepared, no one resorted to letter (c), which is known to be the option to pick when you just have to guess. (Justice Thomas, the lone wolf who chose option (a), expressly said, “I cannot agree that [the right to bear arms] is enforceable against the States through a clause that speaks only to ‘process.’”)

And, finally, only four Justices liked answer (d).

So, what’s the result? The Second Amendment is incorporated against the states. What’s the reason? [Cue sound of piano dropping from a great height.]

During oral argument, Justice Scalia contemptuously described the existing “privileges or immunities” jurisprudence as the “darling of the professoriate,” but he could have just as easily been talking about the Court itself. As long as the Court continues to express itself in dizzying code as it did in McDonald, it will ensure the continued employment of a long lineage of professors to explain this nonsense to a growing mass of increasingly baffled law students. Darling, indeed.

Tags: second amendment, south carolina, Supreme Court