The Path Not Taken: Will the Supreme Court Apply the 2nd Amendment to the States?

No, you’re not mistakenly on Volokh – here’s a thoughful legal analysis of upcoming 2nd Amendment litigation from commenter Roland Nikles:

In District of Columbia v. Heller (2008) the Supreme Court struck down a Washington D.C. gun control ordinance and confirmed that the second amendment to the U.S. Constitution grants an individual right to bear arms. It’s about more than well regulated militias. The question now is does the Second Amendment similarly restrict state and local government gun control statutes. The Supreme Court will hear oral argument on this question Tuesday, March 2, 2010, in McDonald v. Chicago.

This case will make a big splash in the news, so here’s a quick primer. The Bill of Rights binds Congress. The second amendment applied in Heller because Congress is in charge of the District of Columbia. In order to understand the issue before the court you must know that the Supreme Court has repeatedly held that the Bill of Rights (i.e. the first ten amendments adopted in 1791) does not apply to the states as such. See, e.g. U.S. v. Cruikshank (1876) 92 U.S. 542. Instead, the court has selectively made provisions of the Bill of Rights applicable to the states through the due process clause of the 14th Amendment. This substantive due process analysis asks the question whether a particular right is so fundamental that it is “implicit in the concept of ordered liberty” so that it must be binding on the states. For example, in Palko v. Connecticut, 302 U.S. 319 at 324-25 (1937) the court found that the fifth amendment right against double jeopardy is of such a fundamental nature that it is implicit in the concept of ordered liberty and thus binding on the states.

The court did not need to take this path of substantive due process analysis. http://www.bartelby.com/119/1.html (Frost). It could have, and probably should have said that the Bill of Rights is binding on the states by virtue of the privileges and immunities clause in the 14th Amendment. Section 1 of the 14th Amendment provides:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

If there is a second amendment right to bear arms as a U.S. citizen, which the court has found in Heller, the court’s analysis might be that states may not abridge the “privileges and immunities,” broadly understood as rights, granted by the Bill of Rights, including the right to bear arms. However, this argument is foreclosed without some serious backtracking because for the past 139 years, since The Slaughterhouse Cases, the court has gone down a different path – the path of substantive due process.

In McDonald the NRA is challenging the gun control measures of the cities of Oak Park and Chicago. The substantive due process path the court has taken for the past 139 years presents a problem for the claimants. Is the right to own a gun without registration so fundamental that it is “implicit in the concept of ordered liberty?” The answer to this question is not so clear. Based on substantive due process analysis, you might think that the concepts of federalism, state rights, and public interest to exercise the police power to control gun violence should trump an individual’s right to pack a Saturday night special in a crowded bar without a permit. For this reason, the NRA in McDonald is asking the court to overturn 139 years of constitutional doctrine, to go back to the road not taken in The Slaughterhouse Cases, and make the second amendment directly applicable to the states through the privileges and immunities clause of the 14th Amendment.

The popular view is that Roberts, Scalia, Alito, and Thomas would be willing to do this. They are not fans of substantive due process analysis. Among other things, substantive due process analysis has been used to create rights that are not enumerated anywhere in the constitution, e.g. the right of privacy (Griswold, Roe). The whole movement of originalist interpretation has fought against this. It may be that these four justices would be willing to go back 139 years, declare the path of substantive due process a mistake and a dead end, and make the entire Bill of Rights applicable to the states through the privileges and immunities clause. This would invite attack on all of the substantive due process cases based on “privacy” and other unenumerated rights.

Throwing out 139 years of constitutional history would be a revolutionary act. The implications would be far reaching and unpredictable. For this reason, my money is on Kennedy joining the liberal wing of the court and rejecting the privileges and immunities argument in this case. If so, the likely outcome will be that the 2nd Amendment will not be made applicable to the states because the right to be free from gun control legislation is not so fundamental as to be implicit in the concept of ordered liberty. Stay tuned.
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8 thoughts on “The Path Not Taken: Will the Supreme Court Apply the 2nd Amendment to the States?”

  1. _”If so, the likely outcome will be that the 2nd Amendment will not be made applicable to the states because the right to be free from gun control legislation is not so fundamental as to be implicit in the concept of ordered liberty.”_

    Which flies directly in the face of the entire _explicitly stated_ intention _and text_ of the Bill of Rights. The Right to bear arms is in the Bill of Rights because it is implicit in the concept of ordered liberty. If you can argue that away you can argue any of the rest away. Hence if the 1st or 4th or 5th amendment are implicit in the concept of ordered liberty, the 2nd must be by nature of the others. This seems to me inescapable- if you consider these rights fundamental, resulting in their inclusion in the bill of rights… or if you consider them fundamental _because_ they are in the bill of rights, either way I don’t see how you can take some but not all without doing away with equating the bill of rights as fundamental to human liberty.

  2. Mark and Demosophist:

    Mark is correctly expressing the rationale to extend the 2nd Amendment to the states through substantive due process analysis. Based on Heller I think we can say that Stevens, Ginsburg, Breyer, and Sotomayor will defer to the states. It will be very interesting to see where Kennedy comes out on it. One outcome may be Kennedy joins the Stevens group for the “privileges and immunities” clause argument and that he joins the Scalia group for the incorporation through substantive due process clause, as Mark suggests.

  3. The Right to bear arms is in the Bill of Rights because it is implicit in the concept of ordered liberty.

    Well, to be a bit clearer this sounds a little clouded to me. If it were implicit why bother to make it explicit? That is, the whole notion that the Bill of Rights isn’t binding on the states without the concepts expressed in the 14th Amendment has its origins in the long history of slavery, and the fairly obvious fact that these rights were not considered implicit for slaves. Clearly this was a flaw, but it’s not entirely clear that it was a flaw in the law. Viewed this way the 14th Amendment merely makes clear what ought to have been clear all along. And assuming we, as a society, have caught up to the original intent… the clauses referenced in the 14th are somewhat redundant.

  4. I wanted to say thanks to Roland for this. We’ve crossed swords on other topics, but this is an excellent framing of the issues. The explanation leaves me glad to be a member of the NRA, but somewhat puzzled why it takes a left of center attorney to explain the stakes more clearly than they do…

  5. bq. _Which flies directly in the face of the entire explicitly stated intention and text of the Bill of Rights._

    No, the intention of the Bill of Rights was to constrain the power of the federal government. Can you imagine a Quaker representative from Pennsylvania agreeing that the federal government should not have the power to abridge gun ownership, while state and local communities could? The cypher is what was meant by the Fourteenth Amendment, and how radical was the intent to reorganize the relationship between the federal and state governments following the Civil War.

  6. No, the intention of the Bill of Rights was to constrain the power of the federal government.

    Isn’t it more accurate to say that the intention was to limit the power of the state relative to the individual? At any rate, that’s the reasoning behind classical liberalism or Lockeanism, which passes for the founding ideology of the nation. I don’t quite understand why one would limit the power of the federal government to meddle with individual liberty, but make it optional for state governments. I know there is this history of state sovereignty, but since that principle was used to justify the enslavement of millions something had to be done. I guess I’d argue that if we still rest the extension of the Bill of Rights on the language of the 14th Amendment it makes more sense to use the privileges and immunities language than the substantive due process language, as the former more accurately reflects the issues decided by the Civil War.

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