Constitutional Law Prof Blog

Second Amendment Incorporated Against the States?

The United States Supreme Court has granted certiorari today on the question of whether the Second Amendment should be incorporated against the states, a question left open by D.C. v. Heller.

UPDATE: NYT article here; WaPo article here.

The case is McDonald v. Chicago.  The Seventh Circuit opinion, authored by Judge Easterbrook, is worth reading in full.  It's not widely available and so is reproduced here:

Two municipalities in Illinois ban the possession of most handguns. After the Supreme Court held in District of Columbia v. Heller, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008), that the second amendment entitles people to keep handguns at home for self-protection, several suits were filed against Chicago and Oak Park. All were dismissed on the ground that Heller dealt with a law enacted under the authority of the national government, while Chicago and Oak Park are subordinate bodies of a state. The Supreme Court has rebuffed requests to apply the second amendment to the states. See United States v. Cruikshank, 92 U.S. 542, 23 L. Ed. 588 (1876); Presser v. Illinois, 116 U.S. 252, 6 S. Ct. 580, 29 L. Ed. 615 (1886); Miller v. Texas, 153 U.S. 535, 14 S. Ct. 874, 38 L. Ed. 812 (1894). The district judge thought that only the Supreme Court may change course. 617 F. Supp. 2d 752, 2008 U.S. Dist. LEXIS 98134 (N.D. Ill. Dec. 4, 2008).

Cruikshank,  Presser, and Miller rejected arguments that depended on the privileges and immunities clause of the fourteenth amendment. The Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 21 L. Ed. 394 (1873), holds that the privileges and immunities clause does not apply the Bill of Rights, en bloc, to the states. Plaintiffs respond in two ways: first they contend that Slaughter-House Cases was wrongly decided; second, recognizing that we must apply that decision even if we think it mistaken, plaintiffs contend that we may use the Court's "selective incorporation" approach to the second amendment. Cruikshank, Presser, and Miller did not consider that possibility, which had yet to be devised when those decisions were rendered. Plaintiffs ask us to follow Nordyke v. King, 563 F.3d 439 (9th Cir. 2009), which concluded that Cruikshank, Presser, and Miller may be bypassed as fossils. (Nordyke applied the second amendment to the states but held that local governments may exclude weapons from public buildings and parks.) Another court of appeals has concluded that Cruikshank, Presser, and Miller still control even though their reasoning is obsolete. Maloney v. Cuomo, 554 F.3d 56 (2d Cir. 2009). We agree with Maloney, which followed our own decision in Quilici v. Morton Grove, 695 F.2d 261 (7th Cir. 1982).

Repeatedly, in decisions that no one thinks fossilized, the Justices have directed trial and appellate judges to implement the Supreme Court's holdings even if the reasoning in later opinions has undermined their rationale. "If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions." Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484, 109 S. Ct. 1917, 104 L. Ed. 2d 526 (1989). Cruikshank, Presser, and Miller have "direct application in [this] case". Plaintiffs say that a decision of the Supreme Court has "direct application" only if the opinion expressly considers the line of argument that has been offered to support a different approach. Yet few opinions address the ground that later opinions   deem sufficient to reach a different result. If a court of appeals could disregard a decision of the Supreme Court by identifying, and accepting, one or another contention not expressly addressed by the Justices,   the Court's decisions could be circumvented with ease. They would bind only judges too dim-witted to come up with a novel argument.

Anyone who doubts that Cruikshank, Presser, and Miller have "direct application in [this] case" need only read footnote 23 in Heller. It says that Presser and Miller "reaffirmed [Cruikshank's holding] that the Second Amendment applies only to the Federal Government." 128 S. Ct. at 2813 n.23. The Court did not say that Cruikshank, Presser, and Miller rejected a particular argument for applying the second amendment to the states. It said that they hold "that the Second Amendment applies only to the Federal Government." The Court added that "Cruikshank's continuing validity on incorporation" is "a question not presented by this case". Ibid. That does not license the inferior courts to go their own ways; it just notes that Cruikshank is open to reexamination by the Justices themselves when the time comes. If a court of appeals may strike off on its own, this not only undermines the uniformity of national law but also may compel the Justices to grant certiorari before they think the question ripe for decision.

State Oil Co. v. Khan, 522 U.S. 3, 118 S. Ct. 275, 139 L. Ed. 2d 199 (1997), illustrates the proper relation between the Supreme Court and a court of appeals. After Albrecht v. Herald Co., 390 U.S. 145, 88 S. Ct. 869, 19 L. Ed. 2d 998 (1968), held that antitrust laws condemn all vertical maximum price fixing, other decisions (such as Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 97 S. Ct. 2549, 53 L. Ed. 2d 568 (1977)) demolished Albrecht's intellectual underpinning. Meanwhile new economic analysis showed that requiring dealers to charge no more than a prescribed maximum price could benefit consumers, a possibility that Albrecht had not considered. Thus by the time Khan arrived on appeal, Albrecht's rationale had been repudiated by the Justices, and new arguments that the Albrecht opinion did not mention strongly supported an outcome other than the one that Albrecht announced. Nonetheless, we concluded that only the Justices could inter Albrecht. See Khan v. State Oil Co., 93 F.3d 1358 (7th Cir. 1996). By plaintiffs' lights, we should have treated Albrecht as defunct and reached what we deemed a better decision. Instead we pointed out Albrecht's shortcomings while enforcing its holding. The Justices, who overruled Albrecht in a unanimous opinion, said that we had done exactly the right thing, "for it is this Court's prerogative alone to overrule one of its precedents." 522 U.S. at 20. See also, e.g., Eberhart v. United States, 546 U.S. 12, 126 S. Ct. 403, 163 L. Ed. 2d 14 (2005).

What's more, the proper outcome of this case is not as straightforward as the outcome of Khan. Although the rationale of Cruikshank, Presser, and Miller is defunct, the Court has not telegraphed any plan to overrule Slaughter-House and apply all of the amendments to the states through the privileges and immunities clause, despite scholarly arguments that it should do this. See Akhil Reed Amar, America's Constitution: A Biography 390-92 (2005) (discussing how the second amendment relates to the privileges and immunities clause). The prevailing approach is one of "selective incorporation." Thus far neither the third nor the seventh amendment has been applied to the states--nor has the grand jury clause of the fifth amendment or the excessive bail clause of the eighth. How the second amendment will fare under the Court's  selective (and subjective) approach to incorporation is hard to predict.

Nordyke asked whether the right to keep and bear arms is "deeply rooted in this nation's history and tradition." Washington v. Glucksberg, 521 U.S. 702, 720-21, 117 S. Ct. 2258, 117 S. Ct. 2302, 138 L. Ed. 2d 772 (1997). It gave an  affirmative answer. Suppose the same question were asked about civil jury trials. That institution also has deep roots, yet the Supreme Court has not held that the states are bound by the seventh amendment. Meanwhile the Court's holding that double-jeopardy doctrine is not "so rooted in the traditions and conscience of our people as to be ranked as fundamental," Palko v. Connecticut, 302 U.S. 319, 325, 58 S. Ct. 149, 82 L. Ed. 288 (1937) (concluding that it is enough for the state to use res judicata to block relitigation of acquittals), was overruled in an opinion that paid little heed to history. Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969). "Selective incorporation" thus cannot be reduced to a formula.

Plaintiffs' reliance on William Blackstone, 1 Commentaries on the Laws of England 123-24, for the proposition that the right to keep and bear arms is "deeply rooted" not only slights the fact that Blackstone was discussing the law of another nation but also overlooks the reality that Blackstone discussed arms-bearing as a political rather than a constitutional right. The United Kingdom does not have a constitution that prevents Parliament and the Queen from matching laws to current social and economic circumstances,  as the people and their representatives understand them. It is dangerous to rely on Blackstone (or for that matter modern European laws banning handguns) to show the meaning of a constitutional amendment that this nation adopted in 1868. See Nicholas Quinn Rosenkranz, Condorcet and the Constitution, 59 Stan. L. Rev. 1281 (2007). Blackstone also thought determinate criminal sentences (e.g., 25 years, neither more nor less, for robbing a post office) a vital guarantee of liberty. 4 Commentaries 371-72. That's not a plausible description of American constitutional law.

One function of the second amendment is to prevent the national government from interfering with state militias. It does this by creating individual rights, Heller holds, but those rights may take a different shape when asserted against a state than against the national government. Suppose Wisconsin were to decide that private ownership of long guns, but not handguns, would best serve the public interest in an effective militia; it is not clear that such a decision would be antithetical to a decision made in 1868. (The fourteenth amendment was ratified in 1868, making that rather than 1793 the important year for determining  what rules must be applied to the states.) Suppose a state were to decide that people cornered in their homes must surrender rather than fight back--in other words, that burglars should be deterred by the criminal law rather than self help. That decision would imply that no one is entitled to keep a handgun at home for self-defense, because self-defense would itself be a crime, and Heller concluded that the second amendment protects only the interests of law-abiding citizens. See United States v. Jackson, 555 F.3d 635 (7th Cir. 2009) (no constitutional right to have guns ready to hand when distributing illegal drugs).

Our hypothetical is not as farfetched as it sounds. Self-defense is a common-law gloss on criminal statutes, a defense that many states have modified by requiring people to retreat when possible, and to use non-lethal force when retreat is not possible. Wayne R. LaFave, 2 Substantive Criminal Law 10.4 (2d ed. 2003). An obligation to avoid lethal force in self-defense  might imply an obligation to use pepper spray rather than handguns. A modification of the self-defense defense may or may not be in the best interest of public safety--whether guns deter or facilitate crime  is a an empirical question, compare John R. Lott, Jr., More Guns, Less Crime (2d ed. 2000), with Paul H. Rubin & Hashem Dzehbakhsh, The effect of concealed handgun laws on crime, 23 International Rev. L. & Econ. 199 (2003), and Mark Duggan, More Guns, More Crime, 109 J. Pol. Econ. 1086 (2001)--but it is difficult to argue that legislative evaluation of which weapons are appropriate for use in self-defense has been out of the people's hands since 1868. The way to evaluate the relation between guns and crime is in scholarly journals and the political process, rather than invocation of ambiguous texts that long precede the contemporary debate. See Clark v. Arizona, 548 U.S. 735, 126 S. Ct. 2709, 165 L. Ed. 2d 842 (2006) (state may reformulate, and effectively abolish, insanity defense); Martin v. Ohio, 480 U.S. 228, 107 S. Ct. 1098, 94 L. Ed. 2d 267 (1987) (state may assign to defendant the burden of raising, and proving, self-defense).

Chicago and Oak Park are poorly placed to make these arguments. After all, Illinois has not abolished self-defense and has not expressed a preference for long guns over handguns. But the municipalities can, and do, stress another of the themes in the debate over incorporation of the Bill of Rights: That the Constitution establishes  a federal republic where local differences are to be cherished as elements of liberty rather than extirpated in order to produce a single, nationally applicable rule. See New State Ice Co. v. Liebmann, 285 U.S. 262, 311, 52 S. Ct. 371, 76 L. Ed. 747 (1932) (Brandeis, J., dissenting) ("It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country."); Crist v. Bretz, 437 U.S. 28, 40-53, 98 S. Ct. 2156, 57 L. Ed. 2d 24 (1978) (Powell, J., dissenting) (arguing that only "fundamental" liberties should be incorporated, and that even for incorporated amendments the state and federal rules may differ); Robert Nozick, Anarchy, State, and Utopia (1974). Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon. How arguments of this kind will affect proposals to "incorporate" the second amendment are for the Justices rather than a court of appeals.

RR

Sotomayor and Hatch on Second Amendment Incorporation

Sen. Orrin Hatch (R-UT) today questioned Supreme Court nominee Judge Sonia Sotomayor on Second Amendment application to the states.  The exchange--or, rather, Hatch's statements--reveal several political and doctrinal problems for those who simultaneously favor Second Amendment incorporation, originalism, and a restrained judiciary.  Under Supreme Court precedent, these values are in fundamental tension in the incorporation debates, and only the Supreme Court can provide a solution.  (But, ironically, the solution for this camp may be worse than the problem.)

Here's part of the exchange:

Hatch: I understand.  Let me turn to your decision in Maloney v. Cuomo.  [Our post, by RR, here.]  This was the first post-Heller decision about the Second Amendment to reach any federal court, or federal appeals court.  I think I should be more specific.  In this case, you held that the Second Amendment applies only to the federal government, not to the states, and this was after Heller.  And am I right that your authority for that proposition was the Supreme Court's 1886 decision in Presser v. Illinois?

Sotomayor: That, plus some Second Circuit precedent that had held . . .

Hatch: OK

Sotomayor: . . . that it had not been--that the amendment had not . . .

Hatch: But Presser was definitely one of the . . .

Sotomayor: It was, but . . .

Hatch: . . . cases you relied on?  OK.  In that case--or, I should say, that case involved the Fourteenth Amendment's Privileges and Immunities Clause.  Is that correct?  You're aware of that?

Sotomayor: It may have.  I haven't read it recently enough to remember exactly.

Hatch: You can take my word on it.

Sotomayor: OK.  I'll accept . . .

Hatch: Thank you.  Last year's decision in Heller involved the District of Columbia, so it did not decide the issue of whether the Second Amendment applies to the states or is incorporated, but the Court did say that its 19th century cases about applying the Bill of Rights to the states, quote, "did not engage the sort of Fourteenth Amendment inquiry required by our later cases," unquote.

Now here's my question: Am I right that those later cases to which the Court referred involved the Fourteenth Amendment's Due Process Clause rather than its Privileges and Immunities Clause?

. . .

Isn't the Presser case that you relied on in Maloney to say that the Second Amendment does not apply to the states one of those 19th century cases where they've used the Privileges and Immunities Clause, not the Fourteenth Amendment Due Process Clause, to incorporate?

. . .

Well, the reason, the reason I'm going over this is because I believe you've applied the wrong line of cases in Maloney, because you were applying cases that used the Privileges and Immunities Clause and not the cases that used the Fourteenth Amendment Due Process Clause.

. . .

Well the point that I'm really making is that the decision was based upon a 19th century case that relied on the Privileges and Immunities Clause, which is not the clause that we used to invoke the doctrine of incorporation today, and that's just an important consideration for you as you see these cases in the future.

The problem is that the values of Second Amendment incorporation, originalism, and a restrained judiciary (or at least a restrained circuit judge, one who does not make policy) run up against each other under the Court's jurisprudence.  Under Hatch's 19th century cases--which, alas, are still good law--Judge Sotomayor could not have incorporated the Second Amendment by way of the Fourteenth Amendment Privileges or Immunities Clause.  Everyone--including the Seventh and Ninth Circuits--seems to agree on this.

But then judicial restraint runs up against incorporation: a restrained circuit court judge should not incorporate the Second Amendment under the Due Process Clause; this is a job for only the Supreme Court.  (Favoring incorporation over the value of a restrained circuit judge puts Hatch in the surprising company of the Ninth Circuit--the archetypal "activist" court--and at odds with a Seventh Circuit panel that included Judges Easterbrook and Posner.)

And originalism runs up against both Due Process incorporation and the desire for restrained circuit judges.  An originalist method would point to incorporation--by way of the Privileges or Immunities Clause, not the Due Process Clause.  But this would have required Judge Sotomayor to vote to ignore those 19th century cases--clearly beyond a restrained circuit judge's authority.

The best a restrained circuit judge could do is exactly what Judge Sotomayor--and Judges Easterbrook and Posner--did: punt on Second Amendment incorporation until the Supreme Court rules.

Those simultaneously committed to Second Amendment incorporation, originalism, and a restrained judiciary shouldn't fault Judge Sotomayor for her restrained decision in Maloney.  Instead, they should press the Supreme Court to overturn those 19th century cases and incorporate the Second Amendment by way of the Fourteenth Amendment Privileges or Immunities Clause.

But for this crew, this solution might well be worse than the problem.  A revitalized Privileges or Immunities Clause could provide strong ammunition for those who seek more and broader unenumerated (and politically controversial) rights through the courts and a greater role for the federal courts in protecting individual rights against the states.

SDS

Another Cert. Petition Urging Second Amendment Application to States

Individual plaintiffs, the Second Amendment Foundation, and the Illinois State Rifle Association filed a petition today asking the Supreme Court to reverse last week's Seventh Circuit ruling and apply the Second Amendment individual right to bear arms to the states.  (Alan Gura, the attorney who represented the respondents last term in D.C. v. Heller, filed the cert. petition.)

The NRA filed a cert. petition in the case last week.

Both petitions argue that the case presents a good opportunity for the Supreme Court to resolve a split in the circuits and set its incorporation doctrine right. 

But while the NRA argues primarily for "selective incorporation" via the Fourteenth Amendment's Due Process Clause, Gura's brief forcefully argues for incorporation via the Privileges or Immunities Clause--and, necessarily, for overruling the Slaughterhouse Cases:

More critically [than resolving the circuit split], it is never too late to undo an error as grievous as that contained within The Slaughter-House Cases.  Opportunities to correct such mistakes should be seized when they present themselves.

Brief at 29 (emphasis added). 

The Slaughterhouse Cases, of course, read the Privileges or Immunities Clause unduly narrowly, leaving that clause all but empty and surely no vehicle for applying the Bill of Rights to the states.  Without the Privileges or Immunities Clause--the most obvious vehicle for incorporation, and the clause that the Fourteenth Amendment framers and ratifiers assumed would operate as a vehicle for incorporation--the Court used the Due Process Clause and a process called selective incorporation.  Under the selective incorporation approach, the Court looks to whether a claimed right is sufficiently important and historically grounded to apply to the states.

But the Slaughterhouse Cases' narrow reading of the Privileges or Immunities Clause is widely regarded as a mistake.

Gura's brief--and the work of Seventh Circuit amicus Constitutional Accountability Center--seek to set this right.  The move to overturn the Slaughterhouse Cases pits the original understanding and original intent of the Fourteenth Amendment (which suggests that the Privileges or Immunities Clause was designed to incorporate fundamental rights against the states) against the long-standing selective incorporation practice of the Court (which uses the Due Process Clause as the vehicle for incorporation).

This is a bold move, in the sense that selective incorporation under the Due Process Clause is probably the path of lesser resistance.  (Gura argues this, as well.)

But it's also a move that could effect a sea change in the way we understand national citizenship and the way we protect fundamental rights--enumerated and unenumerated--against the states.

SDS

Wydra and Gans on Privileges and Immunities, Incorporation, Second Amendment

I spoke this afternoon with Elizabeth Wydra, Chief Counsel of the Constitutional Accountability Center, and David Gans, Director of the Constitutional Accountability Center's Human Rights, Civil Rights, and Citizenship Program, about their work on the Fourteenth Amendment Privileges or Immunities Clause, incorporation of the Bill of Rights, and the Second Amendment.

The full interview is here.  (24 minutes, mp3 file.)

I've covered the CAC's excellent work on these issues here, here, and here.  Wydra and Gans filed an amicus brief in NRA v. City of Chicago, the Seventh Circuit's decision last week declining to apply the Second Amendment to the states.  (My post is here.)  Gans and CAC founder and President Doug Kendall wrote The Gem of the Constitution: The Text and History of the Privileges or Immunities Clause of the Fourteenth Amendment. 

Their argument--that the Privileges or Immunities Clause of the Fourteenth Amendment incorporates fundamental rights--has been very much in play in the three circuit court cases since D.C. v. Heller on Second Amendment incorporation.  One issue I was particularly interested in: How does incorporation under the Privileges or Immunities Clause change the landscape for fundamental rights protection against the states?  Answer: Listen to the interview, or see below.

Here are some highlights:

On the Gem:

Gans: The story of the Gem and of the Privileges or Immunities Clause is that this was the center piece of the Fourteenth Amendment and was designed to be the place where the constitution protected substantive fundamental rights against state incursion.  The name comes from one of the framers, who said the Fourteenth Amendment is going to be the Gem, because it puts the Declaration of Independence in the Constitution.  The idea was that the inalianable rights mentioned in the Declaration would be protected against the states in the Gem, and it would embody those protections of liberty and equality that had been flagrantly violated in the years leading up to the Civil War.  Sadly the Supreme Court in the 1870s wrote the Privileges or Immunities Clause out of the constitution in the Slaughterhouse Cases and left it to protect a very narrow set of rights and excluded from the protection all the substantive fundamental rights that we view as the heart of liberty.  And so the mission of the Gem was to show the framers’ vision that the Privileges or Immunities Clasue was meant to protect substantive fundamental rights, including both rights that were explicitly enumerated in the Bill of Rights and a pretty wide set of rights that were viewed as fundamental but weren’t specifically enumerated . . . and to show how Slaugeterhouse decimated this original meaning of the Privileges or Immunities Clause.   

On Second Amendment Incorporation: 

SDS: And so does that mean that the Privileges or Immunities Clause is a cleaner vehicle for incorporation . . . and if so by what standard do we measure incorporation under the Privileges or Immunities Clause?

Wydra: [The Second Amendment cases are] possibly one of the cleanest cases for incorporation under the Privileges or Immunities Clause because we have such clear and voluminous history that shows that the framers of the Fourteenth Amendment were particularly concerned that one of the privileges or immunities of citizenship that the new amendment would be protecting would be the individual right to keep and bear arms against state infringement.  And the history shows, as we set  forth in our amicus brief [in the Seventh Circuit case], that this desire to protect the right to bear arms for individuals in the wake of Reconstruction was motivated in large part because the framers of the Fourteenth Amendment wanted to make sure that the newly freed slaves and their northern allies would have the means to protect themselves, their families and their property against the former rebel militias in the South, which were attempting to disarm freedman and unioinists and perpetuating violence against them.  This is why we feel like the Second Amendment cases really do present a unique opportunity to get the scholarly consensus and work that we’ve set forth in the Gem before the Court and hopefully try to put the court’s Privileges or Immunities jurisprudence back on the right track . . . that the court takes this opportunity to right the wrongs of Slaughterhouse.

 

On Fundamental Rights Incorporation:

 

SDS: And so you’ve argued, as I understand your argument, that the rights in the Bill of Rights are incorporated or ought to be incorporated via the Privileges or Immunities Clause.  What additional rights then would be incorporated that perhaps the court has found as a matter of due process or even that the court hasn’t found as a matter of due process?  What rights are we talking about here?

Gans:  the set of rights in many ways might stay the same [as under the Due Process Clause].  [T]he right to bodily integrity was very important . . . the right of personal security . . .  In terms of the so-called right to privacy cases protection of family integrity was hugely important to the framers partially because of the legacy of slavery marriage was impossible, families were destroyed, and making sure that the newly freed slaves were protected in those family rights was extremely important . . .  .

SDS: Fundamentally do you think individual rights practice and individual rights that are protected by the Fourteenth Amendment will change [if the Privileges or Immunities Clause becomes the vehicle for incorporation]?

Wydra:  The rights that are protected currently would only be strengthened, and we think that that is not insignificant; that is actually a very important development if the court were to restore the Privileges or Immunities Clause.  And perhaps just as important the court would be restoring a portion of our constitution that was intended to preserve substantive fundamental rights and would be giving power back to this important provision of our Constitution; and providing coherence to the constitutional rights protection is no small thing.  We think that it [would] help us ground discussions of [what unenumerated rights are protected] so that they will be productive. 

 

On Incorporation Standards under the Privileges or Immunities Clause:

 

SDS: What would we look to to determine what rights that are unenumerated the Privileges or Immunities Clause protects?

Gans: One . . . what counts as a fundamental right under history and tradition would be a relevant source.  Two, there’s a pretty rich history from reconstruction that informs it in terms of what are the rights that the framers of the Fourteenth Amendment cared about [e.g., the right to bear arms].  And you could make a similar point about uneumerated rights.  The value added in the Privileges or Immunities Clause is the idea that when you’re a citizen of the United States, that comes with a wide array of substantive rights--the rights to participate in society--and right now that’s lost.

 

On Citizenship:

 

SDS:  Using the Privileges or Immunities Clause of the Fourteenth Amendment is a validation of federal citizenship that seems to have been stripped away at the Slaughterhouse Cases and never really fully restore.

Wydra: Yes, I think that’s right, and it brings up an interesting point about the Seventh Circuit decision in this case where they raise a point at the end of the opinion about the principle of federalism trumping whatever individual right to keep and bear arms in self-defense that there might be.  The principle of federalism is extremely important, and one of the crown jewels of our constitutional order is this vibrant federalism, but the Fourteenth Amendment stands directly contrary to that argument.  The states are wonderful laboratories of democracy, but the Fourteenth Amendment stands for the proposition that certain fundamental rights are not subject to local experimentation, that they are protected by the federal government against state infringement.

 

SDS

Second Amendment Not Applicable to States, Seventh Circuit Rules

A three-judge panel of the Seventh Circuit ruled today that the Second Amendment does not apply to the states and therefore does not restrict state and local governments from enacting gun-control laws.

The ruling addresses the central question left open by the Supreme Court in D.C. v. Heller, its Second Amendment case last term: Does the Fourteenth Amendment incorporate the Second Amendment to the states?

The Seventh Circuit (Chief Judge Easterbrook, writing, and Judges Bauer and Posner) unanimously rejected the plaintiffs' two main arguments: that the Fourteenth Amendment Privileges or Immunities Clause incorporates the Second Amendment; and that the individual right to bear arms, protected by the Second Amendment, is fundamental and therefore should be incorporated under the prevailing "selective incorporation" approach.

The court's ruling was quite modest--i.e., non-"activist"--adhering to Supreme Court precedents that, while questionable (at best) in their reasoning, nevertheless remain on the books.  Thus on the P or I claim, the court declined to read around the Slaughter-House Cases (holding that the P or I Clause does not incorporate the Bill of Rights, en bloc, to the states), and U.S. v. Cruikshank, Presser v. Illinois, and Miller v. Texas (all rejecting arguments that the P or I Clause incorporates the Second Amendment to the states): 

Although the rationale of Cruikshank, Presser, and Miller is defunct, the Court has not telegraphed any plan to overrule Slaughter-House and apply all of the amendments to the states through the privileges and immunities clause, despite scholarly arguments that it should do this. 

Slip Op. at 5 (citing Amar's America's Constitution: A Biography).

Anyone who doubts that Cruikshank, Presser, and Miller have "direct application in [this] case" need only read footnote 23 in Heller.  It says that Presser and Miller "reaffirmed [Cruikshank's holding] that the Second Amendment applies only to the Federal Government."  The Court did not say that [these cases] rejected a particular argument for applying the second amendment to the states.  It said that they hold "that the Second Amendment applies only to the Federal Government."  The Court added that "Cruikshank's continuing vitality on incorporation" is "a question not presented by this case."

Slip Op. at 3-4 (internal citation omitted).

The court thus declined to read the P or I Clause as a vehicle for Second Amendment incorporation, leaving that question to the Supreme Court.  (For more on the P or I Clause and incorporation, see here.)

As to fundamental rights and selective incorporation, the court also deferred, relying on the unique federalism feature of the Second Amendment:

One function of the second amendment is to prevent the national government from interfering with state militias.  It does this by creating individual rights, Heller holds, but those rights may take a different shape when asserted against a state than against the national government.  Suppose Wisconsin were to decide that private ownership of long guns, but not handguns, would best serve the public interest in an effective militia; it is not clear that such a decision would be antithetical to a decision made in 1868 [the year the Fourteenth Amendment was ratified]. . . .

Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon.  How arguments of this kind will affect proposals to "incorporate" the second amendment are for the Justices rather than a court of appeals.

Slip Op. at 6-7, 9.

The ruling creates a split: the Second and Seventh Circuit have now both rejected incorporation; the Ninth Circuit has accepted it (although that case is on en bancreview).  (Judge Sotomayer was on the Second Circuit panel rejecting incorporation.)

The issue will surely go to the Supreme Court; the only question is when.  This'll give the Court a chance not only to rule on whether to incorporate the Second Amendment to the states, but, perhaps even more importantly, how.

SDS

It's Time to Work Out a Coherent Basis for Incorporation

David Gans, the Director of the Human & Civil Rights Program at the Constitutional Accountability Center, argued earlier this week that Monday's Ninth Circuit Second Amendment case gets us closer to working out a coherent basis for incorporation of the Bill of Rights via the Fourteenth Amendment Privileges or Immunities Clause (and not the Due Process Clause).  Gans:

The Nordyke opinion moves our country a big step closer to a historic opportunity for the Supreme Court to finally recognize that Slaughter-House was wrong when written, and restore the Privileges or Immunities Clause to its rightful place.

Gans and CAC founder and President Douglas Kendall published an important report late last year tracing the history of the P or I Clause and arguing that it, not the Due Process Clause, was originally (and still is) the proper basis for incorporation.  They also filed an amicus brief making this argument in the Seventh Circuit Second Amendment case.

Gans's post is an excellent analysis of this component--incorporation via P or I--of the Ninth Circuit decision.  But I'll add to Gans's post this:  The Ninth Circuit's narrow, almost too clever rejection of P or I as a basis of incorporation is itself a clear illustration of the disarray in incorporation jurisprudence and a strong argument for clarifying incorporation doctrine by using the much simpler, more obvious, and historically correct vehicle of the P or I Clause.

This is what I mean.  The Ninth Circuit rejected the P or I Clause as the basis for incorporation by turning to its own prior ruling on the issue in Fresno Rifle.  The Ninth Circuit in that case rejected Second Amendment incorporation, but it didn't specify the clause--P or I, or Due Process--upon which it rejected incorporation.  So the Nordyke panel looked more closely at Fresno Rifle and discovered that Fresno Rifle relied upon Cruikshank and Presser--two cases that "involved direct application and incorporation through the Privileges and Immunities Clause, but not incorporation through the Due Process Clause."  Thus, the Nordyke panel said, Fresno Rifle was really a rejection of incorporation via P or I.  The Nordyke panel made Fresno Rifle into the Ninth Circuit's Slaughterhouse, or at least its Cruikshank and Presser.

This is exactly the kind of analytical gymnastic--building bad case cleverly upon bad cases--that, at the Supreme Court, led to the "current disarray" of Fourteenth Amendment jurisprudence.  Saenz v. Roe (Thomas, J., dissenting).

This is more than just critique of the Ninth Circuit's approach.  It's also a prudential argument--to complement Gans and Kendall's originalism and textual arguments--to work out a coherent basis for incorporation now. 

If the Ninth Circuit needs to make this kind of clever maneuver to incorporate via Due Process--and to avoid incorporation via P or I--isn't it time for the Court to overturn Slaughterhouse and incorporate via the much cleaner P or I?

SDS

Ninth Circuit: Second Amendment Incorporated, Gun Restriction Upheld

A three-judge panel of the Ninth Circuit today ruled that the Fourteenth Amendment Due Process Clause incorporates the Second Amendment individual right to bear arms against state and local governments.  At the same time, the panel upheld a county ordinance making it a misdemeanor to bring onto or to possess a firearm or ammunition on county property against a Second Amendment challenge.

The panel's ruling in Nordyke v. King makes the Ninth Circuit the first circuit to apply the Second Amendment to a state or local government after the Supreme Court left the issue open last term in D.C. v. Heller.  Second Amendment incorporation is also now before the Seventh Circuit; the issue is almost certainly headed for the Supreme Court.

The plaintiff-appellants in the case were long-time gun show hosts at the county's public fairgrounds.  They argued that the county ordinance prohibited them from hosting future gun shows at the site.

In ruling that the Fourteenth Amendment Due Process Clause incorporates the Second Amendment, the panel "canvass[ed] the attitudes and historical practices of the Founding era and the post-Civil War period" to determine whether the right to keep and bear arms is "necessary to an Anglo-American regime of ordered liberty" and whether it is "deeply rooted in this Nation's history and tradition."  The panel concluded that it was.

Notably, the panel specifically rejected the claim that the Fourteenth Amendment Privileges or Immunities Clause did the work of incorporation.  (The P or I Clause is in play at the Seventh Circuit, as well.  It's gained some attention in an amicus filing at the Seventh Circuit and in recent scholarly work arguing that the P or I Clause, not the Due Process Clause, ought to be doing the incorporating.)  Instead, the panel re-read an earlier case from the Ninth Circuit, Fresno Rifle v. Van de Kamp, as foreclosing the P or I argument--perhaps a bad omen for advocates of the P or I argument in the Seventh Circuit.

Having ruled that the Due Process Clause incorporates the Second Amendment, the panel then upheld the county's gun ordinance, with surprisingly little analysis.  The panel avoided determining the level of scrutiny by holding that the ordinance did not infringe upon the core purpose of the right as articulated by Heller:

Heller tells us that the Second Amendment's guarantee revolves around armed self-defense.  If laws make such self-defense impossible in the most crucial place--the home--by rendering firearms useless, then they violate the Constitution.

But the Ordinance before us is not of that ilk.  It does not directly impede the efficacy of self-defense or limit self-defense in the home.  Rather, it regulates gun possession in public places that are County property.

And the county has great latitude in doing that based on the principles in Harris v. McRae (!) (holding that government need not fund abortions, even though women have a substantive due process right to abortions):

If we apply these principles here, we conclude that although the Second Amendment, applied through the Due Process Clause, protects a right to keep and bear arms for individual self-defense, it does not contain an entitlement to bring guns onto government property.

The panel also rejected the plaintiff-appellants' First Amendment and Equal Protection challenges to the ordinance.

SDS

More--Much More--on Privilages or Immunities

I posted last week on Gans and Kendall's (The Constitutional Accountability Project) excellent report The Gem of the Constitution: The Text and History of the Privileges or Immunities Clause of the Fourteenth Amendment.  Since then they've been guest-blogging at Balkinization, posting a series of must-read conversation starters on the P or I Clause.

Their first post sets out their general thesis that the Court in the Slaughterhouse Cases got the text and history of the P or I Clause wrong, leaving a void in constitutional protections of fundamental rights that the Court later filled with Substantive Due Process.  But this solution is both doctrinally weak (at best) and politically divisive.  Gans and Kendall's solution: "Restore the text of the Privileges or Immunities to its rightful place" and allow the Clause to do the substantive work that by its plain text and history it was intended to do.

The second post argues that the P or I Clause, not the Due Process Clause, should be the vehicle for Second Amendment incorporation to the states, post Heller.  This argument should appeal to (true) originalists, but it puts conservatives (who are also committed originalists) in a bind:

The dilemma for conservatives is that an originalist ruling that overrules Slaughterhouse and restores the Privileges or Immunities Clause to its intended constitutional role will simultaneously undergird the Court’s existing fundamental rights jurisprudence, which has produced rulings such as Roe v. Wade. While conservatives will certainly continue to attack these rulings as illegitimate, it’s far easier to say that the entire enterprise is out of bounds (as conservatives have said for years about substantive due process).

The most recent post argues that fundamental rights under Substantive Due Process--even those in Roe v. Wade and Lawrence v. Texas--are (actually and better) rooted in the P or I Clause.  And there's a political advantage for progressives in so rooting them:

There is an important lesson here. For too long, progressives have ceded the Constitution’s text and history to conservatives, staking their claim more on the Supreme Court’s interpretation of the Constitution than the document itself. . . . For many, this leaves the impression that progressives don’t care about the Constitution’s text and history.

That is why it is so important for progressives to engage in the coming debates about the Privileges or Immunities Clause, and its role in protecting substantive fundamental rights. Progressives may not like the individual, Second Amendment right recognized in Heller, but they cannot afford to sit out the upcoming fight over the incorporation of the Second Amendment. Instead, progressives should treat these incorporation cases as a tremendous opportunity. For years, debates over the Fourteenth Amendment’s protections have run aground, a casualty of persistent attacks that the Court had no basis to use the Due Process Clause to protect fundamental rights. Now is the chance to change the American constitutional conversation about fundamental human and civil rights.

I worry that these last two posts overstate the political point.  The second post--arguing that the P or I Clause puts politically conservative originalists in a bind--assumes that opponents of Substantive Due Process fundamental rights would be torn between their categorical opposition to rights not specifically enumerated and their commitment to originalism.  This is unlikely:  The latter would surely yield to the former.  And even if it wouldn't, we can easily imagine an "originalist" interpretation of the P or I Clause that would not include the right to an abortion or the right to sexual privacy (contrary to Gans and Kendall's argument in the third post):  First, an originalist would certainly claim that the more general right to bodily integrity (even if in the P or I Clause) does not include the more specific right to an abortion (drawing on the method of Washington v. Glucksberg); and second, notwithstanding Gans and Kendall's good evidence to the contrary, an originalist interpretation of the P or I Clause may very well not include the right to bodily intergrity.  (As we've seen in Heller itself, nobody has a monopoly on originalist interpretation.)

But even if the political point is overstated, its more modest version--that progressives might find some political advantage in couching rights in P or I terms--is nevertheless important.  And the posts in general are excellent and thoughtful--good complements to the report.  I highly recommend these.

SDS

The (Sad) History and (Hopeful) Future of 14th Amendment Privileges or Immunities

The Constitutional Accountability Center released a report by David H. Gans, Director of the CAC's Human Rights, Civil Rights, and Citizenship Program, and Douglas T. Kendall, CAC founder and president, titled The Gem of the Constitution: The Text and History of the Privileges or Immunities Clause of the Fourteenth Amendment.  The report, as its title suggests, traces the history of the 14th Amendment P or I Clause.  But it also argues for a more robust P or I Clause--a clause that provides a more obvious and less divisive vehicle for protection of substantive rights than the Due Process Clause--and offers evidence and hope for a more robust clause.  The report:

This narrative pushes for a change in this constitutional conversation [on substantive Due Process], which is dividing Americans on a topic--substantive constitutional rights and freedoms--that should be holding us together.  It tells the sad history of the Privileges or Immunities Clause, which was supposed to be the centerpiece of Section One of the Fourteenth Amendment.  Instead, this Clause was written out of the Constitution in 1873 by a Supreme Court unwilling or disinclined to force the "new birth of freedom" Lincoln promised the nation at Gettysburg on a country that was by then retreating from the promises of Reconstruction.  For 135 years, this critical constitutional text has laid dead or dormant.

This story of the creation and destruction of the Privileges or Immunities Clause is a page-turning history, filled with American heroes and villains, hope and bitter disappointment, which has never fully gotten its due in our history books. . . .  But this narrative is about more than detailing this new scholarly consensus and helping to set the historical record straight.  Two Supreme Court cases decided in the last 10 years--Saenz v. Roe (1999) and Heller v. District of Columbia (2008)--set the stage for the Privileges or Immunities Clause to finally assume its intended place as the vehicle through which fundamental rights and liberties of citizens are protected.

SDS

Pres-Elect Obama and the Fourteenth Amendment

An interesting, albeit brief, article from Huffington Post by Douglas  Kendall, entitled  Obama and the Constitution: Our Nation's Unfinished Business, provides the following Constitutional goals for the new Administration:

Birthright citizenship is guaranteed by the opening words of the Fourteenth Amendment, yet conservative politicians and activists each year argue that persons born in this country to undocumented immigrants should be stripped of the citizenship the Fourteenth Amendment plainly confers.

The Privileges or Immunities Clause was written to protect the substantive fundamental rights of all Americans, but was effectively read out of the Constitution by the Supreme Court in 1873. That precedent still stands today.

Congress was meant to have broad power to enforce the constitutional rights guaranteed by the Reconstruction Amendments. After all, a Supreme Court that decided Dred Scott could easily write fundamental protections out of the document. But shortly after Reconstruction, the Supreme Court sharply limited the enforcement powers of Congress. Today these precedents remain, and are used to invalidate civil rights legislation, such as the Violence Against Women Act. While the Court often defers to congressional exercises of its enumerated powers, it rarely does so when Congress attempts to enforce constitutional guarantees of liberty and equality.

These issues (and more) will be discussed at the ACS meeting, today and tomorrow.   

Thinking about attacking the precedent of The Slaughterhouse Cases, 1873, once seemed an exercise in windmill tilting.  Interestingly enough, the idea came up in my classroom discussion of the Second Amendment case from last term, District of Columbia v. Heller.

RR