On Tuesday, the Supreme Court heard oral argument in McDonald v. City of Chicago, which raises the question whether the Second Amendment's guarantee of a right to bear arms applies to states and local governments. Going into argument, incorporation of the Second Amendment right seemed a given - after all, states already have to obey virtually every right in the Bill of Rights. The critical question was whether the Court would breathe new life into the Privileges or Immunities Clause, and honor the part of the Fourteenth Amendment's text that clearly protects substantive fundamental rights from state infringement.

The Privileges or Immunities Clause was intended to be the centerpiece of the Fourteenth Amendment, but it was written out of the Constitution by the Supreme Court in the 1873 Slaughter-House Cases. The decision has been regarded as one of the worst in the Court's history, and roundly condemned by the Amendment's framers in the 1870s, Justice Harlan in the early 20th century, and Justice Black in the 1940s. The overwhelming consensus among scholars across the ideological spectrum - reflected in a law professors' brief filed by CAC in McDonald - is that Slaughter-House obliterated the text and history of the Clause through a profoundly incorrect interpretation of the Constitution.

Unfortunately, the Privileges or Immunities Clause received a chilly reception from the Court on Tuesday, especially from those Justices who most profess to take the Constitution's text and history seriously. Justice Scalia belittled the Clause, accusing Alan Gura, McDonald's attorney, of "bucking for some place on some law school faculty" by advancing an argument that was "the darling of the professoriate." Scalia, supposedly the Court's chief originalist, wouldn't even consider the merits of the argument. Chief Justice Roberts, too, refused to follow the Constitution's text and history where it leads. He explicitly worried that the Privileges or Immunities Clause would allow for broad protections of substantive liberty; he preferred to rely on the Due Process Clause, since that text is about process, and does not easily lend itself to protecting substantive fundamental rights. While Roberts and Scalia were content to rely on substantive due process to protect gun rights, they seemed to want to reserve the opportunity to bash the doctrine in future cases involving rights they don't recognize. Other Justices were less overtly hostile, but none seemed willing to revive the Clause.

In light of its reception at the Court, was Gura too bold?

Of course, we don't know what the Court's opinion will ultimately say; it is quite possible that much of the privileges-or-immunities history Gura cited will form the basis for the Court's opinion, which would make the case a great victory for all who care about the Constitution's text and history even if the Court relies on the Due Process Clause. But even if the Court ignores text and history, pushing to revive the Privileges or Immunities Clause was the right decision.

First, if not now, when? The Second Amendment is the only substantive provision of the Bill of Rights not already incorporated against state action. There may never be a better chance to argue that the Clause protects substantive fundamental rights against state infringement.

Second, McDonald has been a teaching moment: thanks to terrific coverage in editorials and stories in the New York Times, Washington Post, and other papers, millions of people now know that protection of substantive fundamental rights was written into the clear text of the Constitution. Thanks to this coverage, debates about whether the Constitution protects fundamental rights will not be the same. Whatever the Court says in its opinion, Americans should remember that the Privileges or Immunities Clause was written to ensure all Americans enjoy broad protections of substantive liberty, including fundamental rights not enumerated in the Constitution. And the Justices certainly are now aware of the overwhelming scholarly consensus that the Clause has been long-mistreated by the Court.

Finally, Justices have pushed to revive the Privileges or Immunities Clause for over a century, and there is no reason to think McDonald will be the last word. It is possible that, in future cases, the Court's liberal Justices may find that the Clause's text and history is a powerful weapon. When the Court next considers the right to reproductive choice recognized in Roe or the right of sexual intimacy recognized in Lawrence, the text and history of the Privileges or Immunities Clause may be a powerful rejoinder to the arguments by Justice Scalia and others that protecting substantive fundamental rights through the Due Process Clause is "judicial usurpation." The Clause's text and history, which show that that the framers were concerned about ensuring that the newly freed slaves had rights as citizens to marry, decide whether to bear children, and control their family life, gives the Court's liberal Justices powerful ammunition to root protection of rights of heart and home directly in the Constitution's text and history.

[Image via Sam Ruaat.]

Activists hope to once again make Nebraska the battleground over whether the Supreme Court should reaffirm its 1973 decision in Roe v. Wade, recognizing a woman's right to an abortion. Just introduced in Nebraska's unicameral legislature is a bill acknowledged by advocates on both sides of the issue to be unconstitutional under the Court's present jurisprudence.

From the Omaha World-Herald: [links added]

The state has played a role on the national stage before, with a 1997 law banning the controversial late-term procedure known medically as intact dilation and extraction, or D&X.

The U.S. Supreme Court in 2000 overturned that Nebraska law, upholding its previous abortion decisions and dealing a setback to abortion opponents, who call the procedure "partial-birth" abortion.

Those opponents gained hope seven years later, when the justices on a more conservative Supreme Court upheld a federal ban on the D&X procedure.

Now abortion opponents are looking for opportunities to push the court even further in restricting abortion.

The law would ban abortions after 20 weeks, disregarding the question of viability, which occurs around the 24th week of pregnancy and was relied upon as a boundary for state regulation in the Supreme Court's 1992 Planned Parenthood v. Casey decision. In Casey, today's swing-vote Justice Anthony Kennedy co-wrote the majority opinion, joined by the liberal wing of the court. The Center for Reproductive Rights' Janet Crepps told the World Herald that this is reason for comfort to the pro-choice community, although Justice Kennedy joined the conservative wing of the Court in its two most recent decisions regarding reproductive rights.

At RHReality Check, Robin Marty sees the proposed legislation in Nebraska as part of a national push to set reproductive rights before the Roberts Court, which some observers see as marching American jurisprudence further to the right. Marty notes that legislation in Florida and Ohio is also pending which runs contrary to settled law on the issue.

[Image via Wolfgang Staudt.]

On January 28, 1916 President Woodrow Wilson nominated Louis D. Brandeis, a Boston lawyer and coauthor of a Harvard law Review article advancing the right to privacy, to the U.S. Supreme Court. In a brief piece for the ABA Journal, George Hodak notes that it took the Senate until June to confirm the nomination, making Brandeis the high court's first Jewish member.

Hodak writes:

Although he was widely revered for his commitment to public service, which earned him the title ‘the people's lawyer,' Brandeis had his share of critics, particularly within business circles. Resistance from those quarters coupled with a somewhat veiled anti-Semitism, made for a prolonged and contentious confirmation process.

In the fall, ACS hosted a national event exploring Brandeis's trailblazing legal career, especially in the area of privacy law. The event featured Melvin I. Urofsky, author of the biography, Louis D. Brandeis: A Life. Video of the event is here. Following the event, Urofsky talked with ACSblog about his book and said Brandeis, who served as an associated justice on the high court for 23 years, is "on almost everyone's list of the top three justices in our history." Brandeis, Urofsky continued, helped to advance an especially resilient notion of privacy rights. See Urofsky's interview here. 

[image via hawaiilibertychronicles.com]

The Washington Post reported yesterday that the FBI abused its authority to issue National Security Letters (NSLs) and that this abuse permitted it to illegally obtain more than 2,000 telephone call records from 2002-2006. This disclosure, made while Congress contemplates Patriot Act legislation that could rein in use of NSLs, should prompt a re-examination of the approaches taken in the pending bills.

A national security letter is a simple form document issued by the FBI and other agencies of the government to obtain telephone call records, email to/from information, and other records about communications, as well as financial, credit, and other records, without any prior judicial authorization. NSLs are served on the business entities that hold the records and the businesses that receive NSLs must comply or challenge them in court, and with limited exceptions, are barred from disclosing to anyone that they have received or complied with the demand for records.

The Patriot Act removed most of the legal restraints on issuing NSLs, including the requirement that the NSL seek information that pertains to a spy, a terrorist or another agent of a foreign power, and the requirement that agents articulate a factual basis for seeking records with an NSL. But it left in place the very minimal requirement that the NSL be issued only to seek information relevant to an investigation to protect against international terrorism or clandestine intelligence activities. Rather than comply with this minimal requirement, FBI officials issued "exigent letters" to obtain information that should have been sought with NSLs even when no investigation had been opened, and in some cases, even though the information was not sought in an emergency situation. "Exigent letters" were a creation of the FBI and have no basis in law.

After this and other abuses were disclosed in a DOJ Inspector General report issued in March 2007, the FBI put in place administrative changes it said were designed to prevent a recurrence. Those changes included internal review by lead attorneys in FBI field offices of NSL requests. However, The Washington Post article reveals that officials who sanctioned the illegal exigent records included senior officials of the FBI - managers as high as Assistant Director of the FBI. It is not likely that an attorney in an FBI field office will be able to stop illegal activity sanctioned by his boss's boss. That the abuses went this high up the chain of command at the FBI had not been previously revealed.

Congress is currently considering legislation to reauthorize three expiring provisions of the USA Patriot Act. Both the House and Senate Judiciary Committees have reported legislation, but neither bill has come to a vote. While the Senate bill does little to rein in NSLs, the House bill would actually make a difference by focusing NSLs more on terrorists and spies, rather than on records about everyone else. Neither bill, though, explicitly addresses and precludes exigent letters. Each requires a statement of specific facts (the House bill also requires that those facts be "articulable") showing reasonable grounds to believe that the information is either relevant to an investigation (Senate bill) or is relevant and pertains to an agent of a foreign power (AFP), someone in contact with or known personally to such AFP, or is relevant to the activities of an AFP who is under investigation (House bill).

In theory, a requirement that agents articulate the facts that form the basis for seeking records with an NSL should stop the practice of issuing NSLs without any factual basis and without having opened the investigation that is a pre-requisite to issuing the letter. However, for such a limitation to be effective, agents must comply with the law. That they failed to do so over a five-year period following 9-11 does not inspire confidence that they will do so in the future, regardless of whether the law is more exacting. Self-policing doesn't work.

Another approach, which Senator Feingold included in the bill he introduced to reform the Patriot Act, would make a difference. Feingold's Justice Act (S. 1686) put sensitive records beyond the reach of NSLs. They could be sought only with criminal authorities subject to all of the checks and balances that come with criminal prosecutions, or with prior judicial authorization for intelligence-related investigations. Congress has so far rejected this approach. It should either be re-considered in light of these new disclosures, or an alternative should be adopted to preclude unlawful issuance of NSLs to seek sensitive personal information.

[Image via Security, Privacy and the Law.]

Does your employer have access to your personal e-mail accounts if they are accessed at work? The answer was once, almost uniformly, "yes."

The Wall Street Journal reports: 

In past years, courts showed sympathy for corporations that monitored personal email accounts accessed over corporate computer networks. Generally, judges treated corporate computers, and anything on them, as company property.
Now, courts are increasingly taking into account whether employers have explicitly described how email is monitored to their employees.

Recent decisions cited by the Journal include cases in New Jersey and San Francisco resolved in favor of employees, who were determined to have a reasonable expectation of privacy. The San Francisco decision is being appealed to the Supreme Court.

Melvin I. Urofsky, author of Louis D. Brandeis: A Life, talked with ACSblog before a recent ACS event exploring Brandeis' influence on privacy rights. Urofsky, a professor of law and public policy at Virginia Commonwealth University, noted that Brandeis is "on almost everyone's list of the top three justices in our history" and that Brandeis helped advance an expansive notion of privacy, including "a place where one expects privacy, in one's home, one's car and someplace else." Watch the entire interview below or download a podcast of it here. Urofsky also recently provided ACSblog with a guest post on his Brandeis biography.

Before a recent ACS event exploring the substantial influence of Louis Brandeis on privacy rights, Duquesne University law school professor and interim dean Ken Gormley talked with ACSblog about the history and evolution of privacy rights. Gormley credited Brandeis and Samuel Warren with advancing a notion of privacy that remains "potent" today and noted the mounting challenges to privacy rights. Privacy rights have been advanced, Gormley maintained, at the impetus of new technology and today Americans face "many assaults on the notion of privacy in terms of government warrantless wire taps" as well as "all of the new technology." Watch Gormley's interview below or download a podcast of it here.

An ACS event earlier this week explored Louis Brandeis' substantial influence on constitutional jurisprudence surrounding privacy rights. Melvin I. Urofsky, author of a new biography of Brandeis, Louis D. Brandeis: A Life, noting debate over constitutional interpretation said that Brandeis, as a Supreme Court justice, wrote in a dissenting opinion about his belief in a living Constitution, "one that changes and adjusts to the needs of our time." He said that Brandeis believed that the Framers of the Constitution were, through the Fourth Amendment, trying to protect "the privacy of one's home, not just against physical intrusion, but against what I call a zone of privacy."
Watch the entire discussion below. Also see a guest blog post from Urofsky on his Brandeis biography, here.

Following his participation in a recent ACS event on privacy concerns in a digital age, George Washington University Law School Professor Jeffrey Rosen talked with ACSblog about the changing landscape of privacy rights. Rosen said the "stakes for privacy rights have never been higher," noting that so much of what we do in cyberspace can be stored and accessed by others. Watch Rosen's interview below or download a podcast of it here.

Noting increasing concern over what personal information is available and easily disseminated online, Google today announced a product aimed at giving its users greater control over their information. Google Dashboard, according to a post from the online search company's official blog, will allow users to see what information is collected about them and to control how it's used. From the post:

Designed to be simple and useful, the Dashboard summarizes data for each product that you use (when you signed in to your account) and provides you direct links to control your personal settings. Today, the Dashboard covers more than 20 products and services, including Gmail, Calendar, Docs, Web History, Orkut, YouTube, Picasa, Talk, Reader, Alerts, Latitude and many more.

The post also includes video on how to use the dashboard.

On Tuesday, Alan Davidson, director of public policy for Google in the Americas, participated in a panel discussion hosted by ACS on privacy concerns in an increasingly digital age. During the discussion, Davidson said the company was committed to advancing policy to ensure greater privacy for its users. Video of the event, which also included a keynote address from Federal Trade Commission Assistant Director in the Division of Privacy and Identity Protection Christopher N. Olsen, is available here.