By Dave Kopel
America's 1st Freedom, May 2010. More by Kopel on McDonald. v. Chicago in the Supreme Court.
After the March 2 oral argument in the case of McDonald v. Chicago, most of us are optimistic that the Supreme Court will require state and local governments to respect Second Amendment rights.
Before delving into the oral argument, though, let’s take a quick look at the background of the case. As soon as the Supreme Court ruled in favor of the Second Amendment in June 2008, declaring the District of Columbia’s handgun ban unconstitutional in District of Columbia v. Heller, suits were immediately filed against Chicago’s nearly identical handgun ban.
One suit, NRA v. Chicago, was filed by Stephen Halbrook on behalf of the National Rifle Association. The other suit, McDonald v. Chicago, was filed by Alan Gura, who brought the original suit in Heller. In less than a year, both cases had moved through the lower courts and were ready for the Supreme Court.
Back in 1833, the Supreme Court ruled that the Bill of Rights applies only to the federal government—not directly to state and local governments. Heller involved a direct application of the Second Amendment, because the D.C. city council has no independent powers—all of its powers are delegated by Congress, based on Congress’s explicit constitutional power to govern the national capital district.
After the Civil War, Congress passed, and the states ratified, the 14th Amendment, which expressly limits the actions of state governments. The 14th Amendment’s Privileges or Immunities clause declares: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Legal scholars across the political spectrum agree that Congress intended this clause to protect all of the first eight amendments, especially the Second Amendment, against infringement by the states. Unfortunately, in 1873 in The Slaughter-House Cases, a 5-4 Supreme Court majority basically nullified the Privileges or Immunities clause.
Another of the 14th Amendment’s provisions, the Due Process clause, declares: “… nor shall any State deprive any person of life, liberty or property without due process of law.” The Supreme Court has interpreted this to mean that governments cannot violate certain basic rights, even if the government follows the correct formal procedures. Not until 1897, however, did the Supreme Court begin enforcing the Bill of Rights against the states through the Due Process clause. To do that, the court created a doctrine of “selective incorporation,” by which it would decide, on a right-by-right basis, whether a particular item in the Bill of Rights was so important that it should be “incorporated” into the 14th Amendment Due Process clause, and thereby made enforceable against the states. (Once something is enforceable against the states, it is also enforceable against local governments, since local governments derive their powers from the state governments.)
Eventually, almost all of the Bill of Rights was incorporated against the states, except for the Third Amendment (which forbids the peacetime quartering of soldiers in homes); part of the Fifth Amendment (the right to grand jury indictment before criminal prosecution); the Seventh Amendment (the guarantee of jury trials in civil lawsuits); and part of the Eighth Amendment (the prohibition on excessive bail). And, of course, the Second Amendment.
In the Chicago cases, the NRA and Gura each argued in favor of incorporation under both the Due Process and Privileges or Immunities clauses.
The Supreme Court granted the appeal in McDonald and made the NRA a party in the case. As the briefs were filed, Gura increasingly concentrated on reviving the Privileges or Immunities clause, but the NRA rightly recognized it was unlikely that a majority of the justices would be willing to overrule the 137-year-old Slaughter-House precedent. Therefore, in order to protect the future of the Second Amendment, it was critical that NRA put forward a strong argument for incorporation through the more straightforward Due Process clause. To do that, NRA requested part of the oral argument time, and the request was granted.
Making the case for Due Process incorporation would be Paul Clement, who previously served as solicitor general (in charge of Supreme Court litigation) during the George W. Bush administration. No one disputes that Clement is among the very best Supreme Court lawyers of our time; indeed, McDonald would be his 52nd oral argument before the court.
The March 2 oral arguments proved NRA’s request, and the choice of former Solicitor General Clement, to be a wise and necessary strategy.
Almost as soon as Gura had begun his argument, Chief Justice John Roberts made it clear that he was reluctant to overrule Slaughter-House.“Of course, this argument is contrary to the Slaughter-House cases, which have been the law for 140 years,” Roberts said. “It’s a heavy burden for you to carry to suggest that we ought to overrule that decision.”
Shortly thereafter, Justice Antonin Scalia, author of the Heller decision, fired off a barrage of questions showing that he also had no interest in the Privileges or Immunities approach—a theory which he dismissed as “the darling of the professoriate.”
By the time Gura’s time was expired, it appeared that there was little, if any, support for his Privileges or Immunities argument.
Lyle Denniston, America’s senior Supreme Court journalist, explained what happened when the time came for former Solicitor General Paul Clement to present the NRA argument: “The court then got the focus that a majority seemed to be hoping for—a full-scale plea, by former Solicitor General Paul D. Clement, to use the ‘Due Process clause’ as the vehicle for extending gun rights to the state and local level.”
Or as Legal Times put it: “The justices seemed almost to sigh in relief when former Solicitor General Paul Clement, representing the National Rifle Association on the same side as Gura, rose to reassure the justices that using the Due Process clause was a ‘remarkably straightforward’ way to apply the Second Amendment that would not involve upsetting precedent.”
During the NRA argument, the three justices who had previously dissented in Heller(John Paul Stevens, Stephen Breyer and Ruth Bader Ginsburg), along with Sonia Sotomayor, who had since replaced Heller dissenter David Souter, began searching for a way to incorporate the Second Amendment in the weakest way possible.
Normally, when an amendment in the Bill of Rights is incorporated, that right applies to the states in the same way that it applies to the federal government. For example, if the First Amendment says that the federal government may not ban a particular type of speech, then states may not ban that type of speech.
The one exception to this general rule is the Sixth Amendment guarantee of jury trials in felony criminal prosecutions. There, the Supreme Court has ruled that the Sixth Amendment applies to the states, but does not apply “jot for jot.” So whether in federal court or in state court, a criminal defendant is entitled to a jury trial. Yet state courts do not have to follow the Sixth Amendment federal standard that juries must consist of 12 persons, or the federal standard that jury verdicts must be unanimous.
Justice Stevens pressed Clement on the Sixth Amendment, but Clement responded that Sixth Amendment partial incorporation was an “outlier.” In addition, the Sixth Amendment involved a procedural, not a substantive, right. Clement continued: “I think the alliance here or the similarity between the First and the Second Amendments are very stark in this respect—this court has incorporated essentially not just the amendment and not just the right, but all of the jurisprudence as well.”
The former Solicitor General then pivoted to discuss United States v. Cruikshank, an 1875 case in which the Supreme Court ruled that the Second Amendment and the First Amendment right of assembly are not protected by the Privileges or Immunities clause. According to the Slaughter-House (mis)reading of Privileges or Immunities, the clause only protects rights that are created by the Constitution, such as the right to travel from one state to another. According to Cruikshank, the First and Second Amendments were not Privileges or Immunities, because the right to assemble and the Right to Keep and Bear Arms were pre-existing human rights that were protected (not created) by the Constitution.
Clement used Cruikshank to show that the Right to Keep and Bear Arms under the Second Amendment was, therefore, a fundamental right of the type that is protected by Due Process.
“The whole reason that Cruikshank said the First and Second Amendments aren't privileges of national citizenship is because they were pre-existing rights that didn't depend on the Constitution for their existence,” he said. “That seems to me to be a pretty good working definition of what a fundamental right is, one that is so fundamental and basic that it pre-existed our very Constitution.”
Observing that the Supreme Court is just beginning to develop a jurisprudence of the Second Amendment, Clement pointed out a practical reason for the court to reject Justice Stevens’ partial incorporation idea: “It's going to be difficult enough to develop the Second Amendment jurisprudence that you wouldn't want to make it more difficult by having to develop a federal Second Amendment jurisprudence and then some sort of shadow version of that jurisprudence for the states.”
After that, Justice Breyer opened a new line of attack: the Supreme Court should incorporate the most important purpose of the Second Amendment (in Breyer’s view, the militia) but should not incorporate less important purposes (which, according to Breyer, include home defense against a burglar).
As Clement explained, such an approach would be totally contrary to Heller, which places self-defense at the heart of the Second Amendment.
Breyer brought up William Blackstone, whose 1765 legal treatise was extremely influential in early America. According to Breyer, Blackstone said that the right to arms was “primarily a right to raise an army through parliament.” (This is an eccentric interpretation promoted by historians such as Saul Cornell and by the disgraced fraud Michael Bellesiles.)
Unfazed, Clement fired back: “This court was focused very much on Blackstone's writings in the Heller decision, and I think the majority read Blackstone actually as being primarily concerned with the self-defense right, which goes a long way to understand why the decision came out the way that it came out. … the very fact that Blackstone dwelled on the right is good evidence that it's a fundamental right that should apply to the states.”
It was then James Feldman’s turn to argue for Chicago, trying to convince the court that the Second Amendment right is for the militia only—a theory that was firmly rejected in Heller.
Asked if it would be unconstitutional for a state to ban all firearms, Feldman squirmed to avoid answering the question. He suggested that even without an incorporated Second Amendment, a total ban might be unconstitutional, but under grilling from Justice Scalia, Feldman was unable to provide a legal basis for his claim.
As for the partial incorporation lifeline, Feldman rejected it. Chicago’s position was against any form of incorporation—period. From the viewpoint of Feldman’s client, Chicago Mayor Richard Daley, this hard-line, extremist position would make sense. Partial incorporation would probably mean, at the very least, the right to own a handgun in the home for lawful self-defense, and the requirement that gun licensing laws be fairly administered. These are precisely the rights that Daley seeks to deny.
Given the direction of the argument, there’s good reason to be optimistic that the Second Amendment will be applied to the states via the Due Process clause. In the end, however, most gun laws will continue to be left up to state legislatures, city councils and the U.S. Congress. As has been the case since 1871, the NRA—America’s oldest civil rights organization—along with millions of freedom-loving Americans across our great country, will continue to promote and defend the Second Amendment: truly America’s first freedom.
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