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Prof. Randy Barnett at the Volokh Conspiracy reports that Doug Kendall, founder of the Constitutional Accountability Center, has passed away from colon cancer at the age of 51. In its own words, the CAC is a legal advocacy group that seeks to “wrest the Constitution from tea partiers’ control and restore our nation’s charter as a document that unifies and inspires all Americans.” His organization also came out swinging in favor of Obamacare when that case was before the Supreme Court a few years back. If you’re a TTAG regular and haven’t yet angrily switched over to a YouTube channel featuring videos of kittens at this point, you’re probably wondering why I’m bringing to your attention a eulogy for this unreconstructed lefty written by Prof. Barnett (a man who leans so far libertarian that he’s up on two wheels) . . .

Very simple: Mr. Kendall helped get the Second Amendment incorporated against the several states. In 2008, he filed a brief with the 7th Circuit arguing that the Second Amendment should be incorporated via the Privileges and Immunities Clause of the Fourteenth Amendment to the U.S. Constitution in the matter of McDonald v. City of Chicago. Later, when that same case was brought before the U.S. Supreme Court, he filed another brief arguing for incorporation, which was joined by Prof. Barnett and an “ideologically diverse” group of legal scholars.

Just so we’re all on the same page, when the Bill of Rights were originally drafted, they were only intended to apply to the federal government. You could not, in 1810 for instance, file a federal case against a state or local government for violation of your First Amendment right to freedom of speech. Your remedy had to come via local or state law.

The ratification of the Fourteenth Amendment after the civil war changed that, intended as it was to make sure that the state and local governments didn’t violate the fundamental rights of their citizens (especially newly-liberated slaves). When the Supreme Court began applying the Fourteenth Amendment in earnest in the 20th Century, however, it rejected the idea that the Fourteenth Amendment automatically applied every enumerated right in the Bill of Rights to the several States. Instead, it began selectively applying–or “incorporating”–the restrictions in the Bill of Rights to the several states.

Kendall’s brief, in which Barnett and others joined, argued that the Privileges or Immunities Clause of the Fourteenth Amendment should be the mechanism by which Constitutional Rights such as the right to keep and bear arms are applied to the several States, instead of the Due Process Clause (which is what has been used in the past.) The McDonald court did not endorse that view, but Justice Thomas gave it a shout-out in his concurrence in that decision. Damon Root, at Reason goes into some of the reason why this question is contentious.

Without incorporation, the Second Amendment would only apply to the federal government. None of the hard-fought follow-on cases (expanding the right to carry to such exotic locales as Chicago) would have happened. It was not an automatic win, either: the Court had previously declined (in a particularly odious case) to incorporate the Second Amendment in the 19th century.

Mr. Kendall was not completely on board with an expansive definition of the right to keep and bear arms — the CAC’s website carefully notes that their brief “spoke only to the incorporation issue: we did not join in the argument made by the NRA and its fellow plaintiffs that the challenged gun regulations are unconstitutional.” Fair enough. But he clearly had the integrity to recognize that a right (however it is defined) is a right, and was willing to put his money where his mouth is in defense of the same. That’s the kind of thing that earns my respect and thanks. Rest in peace, Mr. Kendall.


DISCLAIMER: The above is an opinion piece; it is not legal advice, nor does it create an attorney-client relationship in any sense. If you need legal advice in any matter, you are strongly urged to hire and consult your own counsel. This post is entirely my own, and does not represent the positions, opinions, or strategies of my firm or clients.

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  1. How about that, a lefty with principles *and* respect for the Constitution… It’s good to know that such people still exist in our prog-infested political landscape (or did…RIP, Mr. Kendall).

    • … actually, according to his own group, he didn’t. His group did not argue that gun control is unconstitutional. If you can argue for incorporation of the 2nd amendment and the constitutionality of gun control in the same brief, you have no morals.

      • Or he just didn’t understand the Second Amendment (that darn militia clause seems to short some people’s logic circuits).

        Still, he had to know that at a purely practical level, those amicus briefs weren’t likely to do the cause of gun control any good. Local authoritarians are the anti-gun movement’s best allies, and his incorporation argument pulls the rug right out from under them.

        From where I sit, it looks like he took a principled stand that the end doesn’t justify the means — which is pretty darn rare on the left side of the aisle.

        • Or he just disagrees with you (and us) on what it means. After all, the Constitution is just words on paper, not a fundamental law of physics or even a universally-recognized moral code (like, torturing someone to death is considered by most folks to be bad). It is up to the people to live in the world to take the rules that they have set down and apply them fairly, and as long as there are people there will be disagreements on what words mean.

  2. Sounds like he jumped on the bandwagon for publicity’s sake. Lots of people by the odds on favorite’s jersey in the run-up to the big game.

    Props for shrewdness and good timing, but that’s it.

    • Not a bit of it. Revival of the “Privileges or Immunities” clause has been a centerpiece of libertarian thought for quite some time because, the theory goes, it would be a stronger guarantee of individual rights vs. the piecemeal ‘incorporation’ of rights via the Due Process Clause (which led to a result where the second amendment wasn’t ‘incorporated’ to the several states until 140 years after the XIVth amendment was ratified. The argument goes on to say that if courts embraced the Privileges or Immunities clause, it would necessarily embrace economic liberties, which could damage the left’s overall project to increase economic regulation of society.

      Even though Kendall was a man of the left, he was willing to take the risk that some of the projects of his partisan stablemates might be hampered to make sure that we had strong protections for our liberties.

    • He was honest and he used his moral compass and legal understanding to further a cause he knew was right even though he didn’t agree with it. We need people like this man in our congress, on both sides.

      • Anybody who can claim that the 2nd amendment is a right but that gun control does not violate said right has no moral compass.

        • No moral compass? Can you yell “fire” in a crowded theater? Can you get in a cop’s face and spew racial epithets? Can you carry a gun into a session of the the Supreme Court? ( Or any court?) Can you tone it down just a bit so those we’d like to persuade will listen for a moment?

        • To answer your questions in order.

          Yes. The ruling that used that as an example was overturned.
          Yes. There is no “politeness” clause to the 1st amendment. Contempt of cop is not a crime.
          Yes. What do you think “shall not be infringed.” means?

          No. Compromise and “toning it down” is what got us in this mess to begin with. Rights are non-negotiable.

        • @ Gary:

          “No moral compass? Can you yell “fire” in a crowded theater?”

          Oh, yes you can.

          Yell “fire” *falsely* and the full weight of the law will (and rightly so) come down on your head like a ton of bricks.

          The *difference* is that when you walk into that theater, no one will duct-tape your mouth shut before you take your seat.

          You are *trusted* not to yell “Fire” and start a crushing stampede.

          The Second Amendment should receive that very same consideration as you in that theater.

  3. I’m going to have my attorney look over this and get back to you. In the mean time, have your secretary call my secretary and let’s do lunch.

  4. Sorry I fail to see how he was some kind of hero. Maybe I need to dig further instead of relying on a cursory eulogy. Useful enemy sounds apt…and I’m not by any means a one-issue guy.

  5. Wow sad….kind of creepy because I was reading about Incorporation of the Bill of Rights and the procedure for it and the history and case law for it and then I saw this. We are making waves in the push for the 2nd amendment though, I think 10 years ago no one could possibly imagine DC v. Heller, McDonald v. Chicago, Moore v. Madigan, etc. Really wish Moore v. Madigan was binding outside the 7th circuit, NYS could use some serious overhaul of the insane pistol permit system.

    If John Bingham had his way Amendments 1-8 would be incorporated de facto

    • “I think 10 years ago no one could possibly imagine DC v. Heller, McDonald v. Chicago, Moore v. Madigan, etc”

      I think 100 years ago, no one could possibly imagine the need for those court cases… it goes to show you how far society has shifted…

      • Actually, about 100 years ago the Supreme Court was on the peak of the doctrine of “judicial deference”. Oliver Wendell Holmes was appointed to SCOTUS on 1902, and was a staunch proponent of the doctrine, convincing other court members such that it became the standard modus operandi. He himself summed it up as “the right of a majority to embody their opinions in law”, and explained it more verbosely in 1920s as a principle under which “between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the Act”. In other words, that the courts should try their hardest to find anything the legislature enacts as constitutional, even if they need to produce contorted interpretations to actually shove it within the limits (coincidentally, this is exactly the doctrine that was used to declare ACA fine constitutional as “tax”).

        It was not until the Civil Rights Era, and the corresponding court cases, that this doctrine was first seriously challenged.

    • “Supporting the greater good”? That generally describes communist/authoritarian agitprop. This country and its laws were not built on the “greater good”, but on freedom of the individual.

        • Not sure I agree, maybe we need a better understanding of how words and phrases are propagandized and used to dupe people with even the best intentions?

        • When the personal liberty is celebrated and enshrined, individuals can CHOOSE to do something for others. History has shown Tyranny to be when an individual is FORCED to do something for others.

      • It was very much built on the greater good. It’s just that the people who did it happened to believe that individual freedoms result in greater good. It’s fairly obvious that Jefferson believed this to be the case, for example, when you read his letters.

        • Disagree. No where in the Constitution or Federalist papers will you see the phrase ‘greater good’. Reading Jeffersons letters one could get many opinions. The ‘greater good’ is a direct contradiction to individual liberty. It’s the difference between a democracy, ie mob rule, and a constitutional republic.

        • ‘For the greater good’ has been used many times in history, including the present, as a justification for the authority in power to eliminate individual rights in the name of the collective. Where ever you hear that slogan these days, you are very likely to hear an authoritative appeal at curbing some individual right in the name of whatever ‘greater good’ agenda is being pushed.

  6. I went ahead to read some of the materials on CAC website. I don’t particularly like the overall direction of that group (and that coming from a liberal) – they certainly favor stronger federal govt than I’m comfy with, except that unlike most people who do, they try to put a constitutional basis under it with some interpretations.

    Still, they have some interesting stuff, too. This one pertains to 2A and Heller & McDonald decisions:


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