Contrary to what you might have thought, not everything in the Bill of Rights applies against state and local governments. It's only through a haphazard process called "selective incorporation" that the Supreme Court has determined which facets of the Bill of Rights apply to states -- such as the 1st and 8th Amendments -- and which do not, such as the 7th Amendment right to a trial by jury in civil cases whenever twenty dollars or more is at stake. And, similarly, a set of late-19th Century precedents (Cruikshank, Presser and Miller) held that the 2nd Amendment does not restrict states from passing their own restrictions on the right to keep and bear arms.
There has been an increasing amount of historical and legal scholarship that argues that this whole line of cases is wrong, starting with the Court's opinion in The Slaughter-House Cases (1873) to strangle in the nursery the 14th Amendment's newly-enacted protections of the privileges or immunities of all citizens, which was intended to federalize the protection of individual liberties in the wake of the Civil War. If accepted, these arguments -- presented best in the Constitutional Accountability Center's paper The Gem of the Constitution -- would restore the original progressive intent of the 14th Amendment and the guarantees of all the Bill of Rights (as well as some group of unenumerated rights) against both federal and state action. Or, at a minimum, the Court could determine that the incorporation doctrine (via substantive due process) should apply to the Second Amendment.
[In the meantime, as you may recall, the Court held in its 2008 Heller decision that the Second Amendment does protect an individual right to bear arms as against federal restrictions, subject to qualifications the Court promised to sort out later.]
Which brings us to yesterday, an appeal of a decision of the United States Court of Appeals for the 7th Circuit regarding a Chicago gun control regulation, maintaining that no matter how poorly-reasoned they found the earlier Second Amendment cases, only the Supreme Court itself could overturn them and find the Second Amendment's reach to extend to state and local laws. As Judge Easterbrook noted during oral argument, "I entirely appreciate your argument that the Slaughter-House Cases are wrongly decided. But as is often said in the bureaucracy, that's above our grade level."
But at this paygrade, the Privileges or Immunities argument just isn't going to fly. Let's go to yesterday's transcript, with Alan Gura arguing on behalf of the gun owners:
JUSTICE SCALIA: No, no. I'm not talking about whether -- whether the Slaughter-House Cases were right or wrong. I'm saying, assuming we give, you know, the Privileges and Immunities Clause your definition, does that make it any easier to get the Second Amendment adopted with respect to the States?
MR. GURA: Justice Scalia, I suppose the answer to that would be no, because -
JUSTICE SCALIA: Then if the answer is no, why are you asking us to overrule 150, 140 years of prior law, when -- when you can reach your result under substantive due -- I mean, you know, unless you are bucking for a -- a place on some law school faculty -
(Laughter.)
MR. GURA: No. No. I have left law school some time ago and this is not an attempt to -- to return.
JUSTICE SCALIA: What you argue is the darling of the professoriate, for sure, but it's also contrary to 140 years of our jurisprudence. Why do you want to undertake that burden instead of just arguing substantive due process, which as much as I think it's wrong, I have -- even I have acquiesced in it?
The entire Court, it seemed, had problems with Gura's attempt to assert that the Privileges or Immuntities Clause protected various unenumerated (i.e., not explicit) rights as understood at the time of the 14th Amendment. So, then, how do we determine the contours of a Second Amendment right as to state and local regulation via incorporation?
JUSTICE BREYER: There are two ways. One is that -- look at -- all you have to do is look at the briefs. Look at the statistics. You know, one side says a million people killed by guns. Chicago says that their -- their gun law has saved hundreds, including - and they have statistics -- including lots of women in domestic cases. And the other side disputes it. This is a highly statistical matter. Without incorporation, it's decided by State legislatures; with, it's decided by Federal judges.
Now, think of this, too: That when you have the First Amendment, or some of the other amendments, there is always a big area where it's free speech versus a whole lot of things, but not often free speech versus life. When it's free speech versus life, we very often decide in favor of life. Here every case will be on one side guns, on the other side human life. Statistics, balancing life versus guns. How are Federal judges in your opinion, rather than legislatures in the States in a Federal system, how are Federal judges supposed to carry this out? I want to see where we are going.
[...]
JUSTICE SCALIA: There is a lot of statistical disagreement on whether the Miranda rule saves lives or not, whether it results in the release of dangerous people who have confessed to their crime but the confession can't be used. We don't -- we don't resolve questions like that on the basis of statistics, do we?
MR. GURA: That's correct, Justice Scalia, and as your opinion -
JUSTICE SCALIA: Well, why would this one be resolved on the basis of statistics? If there is a constitutional right, we find what the minimum constitutional right is and everything above that is up to the States. If you want to have, you know -- I think we mentioned in Heller concealed carry laws. I mean, those are -- those are matter that we didn't decide in Heller. And you may have a great deal of divergence from State to State, and on that I suppose you would do statistics, wouldn't you? Or the legislature would.
Former Bush administration Solicitor General Paul Clement, arguing on behalf of the NRA, understandably given his talents (seriously: regardless of ideology, Clement is an extraordinary advocate) received a wide, uninterrupted berth here to make the case for robust incorporation:
Just to dwell for a moment if I'd could on the First and Second Amendment, I think it's striking, very striking, that if this Court's not going to reconsider its Privileges or Immunities Clause jurisprudence, the Cruikshank case actually stands as very good precedent for incorporating the Second Amendment, just as it was the precedent this Court relied on in incorporating the assembly and petition rights of the First Amendment in the DeJonge case. And the reason is Cruikshank -- the whole reason that Cruikshank said the First and Second Amendments aren't privileges of national citizenship is because they were preexisting rights that didn't depend on the Constitution for their existence.
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 preexisted our very Constitution. And so it's not surprising that DeJonge cited Cruikshank as favorable precedent for incorporation.
I think the exact same logic would apply to the Second Amendment here and, as I say, I do think the consequence of that, certainly the most logical consequence, would be to carry over the jurisprudence under the Second Amendment. Now, right now that's not carrying over a lot, right. That's carrying over the Heller case.
But I think in a way that points up to the fact that one of the virtues of incorporation is that, because the Miller decision of this Court sowed confusion, we do not have substantial Second Amendment jurisprudence. And I would think that 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.
And I think in the more recent incorporation cases, this Court was quite candid that it wasn't going to adopt sort of a shadow version of the Federal guarantee or some watered down version of the Federal guarantee, but it really saw the virtue of incorporating not just the right but the jurisprudence that came with that right.
And so I do think that's in a sense something that counts in favor of incorporating the Second Amendment and doing so through the Due Process Clause, the same way this Court has dealt with the other substantive guarantees of the Bill of Rights. And I think if you apply that jurisprudence, the case really is very straightforward. In fact, I think if you compare the First Amendment and the Fourth Amendment to the Second Amendment, they have the same textual guarantee to the people, they trace their origins to preexisting rights back to the English Bill of Rights, back to even earlier constitutional history.
James Feldman, for the City of Chicago, defending the ordinance:
MR. FELDMAN: Mr. Chief Justice, and may it please the Court:
The Second Amendment should not be incorporated and applied to the States because the right it protects is not implicit in the concept of ordered liberty. States and local governments have been the primary locus of firearms regulation in this country for the last 220 years.
Firearms unlike anything else that is the subject of a provision of the Bill of Rights are designed to injure and kill. And the very same features that make firearms valuable for self-defense as the court noted in Heller -
JUSTICE SCALIA: When is the last time an opinion of ours made that the test, implicit in the concept of ordered liberty? It sounds very nice. But when is the last time we used it? I think it was 1937.
It didn't get better in terms of making the case for no Second Amendment protection on the state/local level:
CHIEF JUSTICE ROBERTS: I don't see how you can read -- I don't see how you can read Heller and not take away from it the notion that the Second Amendment, whether you want to label it fundamental or not, was extremely important to the framers in their view of what liberty meant.
MR. FELDMAN: I -- it was important, but actually what Heller says is this: The Second Amendment preexisted the -- its inclusion -- or the right that's in the Second Amendment preexisted its inclusion in the Bill of Rights. But the reason it was codified, the reason it -- the reason it was put in the Bill of Rights was because the framers were concerned about the Federal government disarming the militia.
The right of self-defense which had been previously recognized and highly valued, I would agree, was -- had -- according to Heller, quote, had little to do with its codification ... with its inclusion in the Constitution.
JUSTICE SCALIA: That may be the reason it was put there. But it was put there. And that's the crucial fact. It is either or it is not there.
And if it's there, it doesn't seem to me to make any difference why they chose to put that one there as opposed to other ones that they didn't put there. It's either there or not.
Justice Breyer tried to draw lines:
JUSTICE BREYER: Still, I take from what you are saying that -- let's make up an imaginary importance of ordered liberty chart, and we give it to James Madison and the other framers. And he would say insofar as that right to bear arms is important for the purpose of maintaining the militia, it's high on the ordered liberty chart. Insofar as the right to bear arms is there to shoot burglars, it's low on the ordered liberty chart.
And if that's what they would say, it's conceivable that part of this amendment would go through and be incorporated, namely that part which would prevent a law that would disarm people to the extent they couldn't form militias. But that part which would disarm people to the extent that they couldn't shoot burglars, that would not be incorporated.
Thud.
JUSTICE BREYER: Step one -- step one is, make my chart. Step two is, look at what's high. Step three is, even that that high part, even that high part, nobody could think was incorporated.
MR. FELDMAN: I -- in our view, the things that the framers -- the framers had their reasons for putting -
JUSTICE BREYER: That's how you think Madison went about his job?
MR. FELDMAN: No. No, I think that -
CHIEF JUSTICE ROBERTS: He did, actually. He did. That's how he went about it.
JUSTICE BREYER: I'm asking Counsel. Do you think that's how Madison went about his job?
It didn't quite work, but then towards the end of Feldman's argument the contours of a liberal path became clearer:
JUSTICE STEVENS: If you look to Justice Harlan's dissent in Griswold, where he says the Fourteenth Amendment stands on its own bottom and it can be either more or less than the provision of the Bill of Rights, and there is no reason in the world why this Court could not adopt the same position here and say: Insofar as incorporated, it applies only within the home. The Court had ample precedent for that.
MR. FELDMAN: And actually the other point I make is if you approach it from the other point of view, the case has not been made here -- it hasn't even been brought -- that the City of Chicago is denying people the -- the right to have any kind of firearm or the right to have any kind of reasonable means of self-defense.
... [W]hat I would say is if the Court -- what I was saying is that if the Court approaches it from the standpoint of perhaps if there is -- if the Court chooses in an appropriate case to recognize a fundamental right to self-defense, it would then raise those kinds of questions. And someone could make the case that they are being denied any rights of self-defense or any reasonable right to exercise self-defense because of a jurisdiction's firearms regulations; the Court could address that. That's not a claim that has been made in this case, that's not a claim that could be made in this case.
JUSTICE SCALIA: See, the right to keep and bear arms is right there, it's right there in the Bill of Rights. Where do you find the right to self-defense?... You -- you want us to impose that one on the States but not -- not the explicit guarantee of the right to keep and bear arms. That seems very strange.
MR. FELDMAN: No, actually I -- I don't want to impose that on the States. I think it's very unlikely that the Court would ever be called upon to, because our history for the last 200 years -- 220 years had been of reasonable State and local regulation of firearms that responds to local conditions, to local threats of violence and so on that occur. And I don't see any reason to think that there will be a jurisdiction that would try to sufficiently ban firearms that people wouldn't have a reasonable means of self-defense.
JUSTICE SCALIA: The District of Columbia did.
MR. FELDMAN: Well, the District of Columbia in any event is controlled by Second Amendment as it - as it's written. That's not the question in this case.
JUSTICE SOTOMAYOR: Would you be happy if we incorporated it and said, reasonable regulation is part of the incorporation? And how do we do that?
[...]
MR. FELDMAN: Right. Well, it's just our view would be that what Chicago has done here, which is permit you to have a -- permit you to have long guns but ban handguns, is the kind of regulation that throughout our history jurisdictions in their own -- that are most familiar with their own particular needs and their own particular problems, and in a position to balance the - the need for self-defense with the risk to the use of firearms -- for violence, for accidental death and or suicide -- that the City of Chicago has come up with something that is well within our tradition. And -
JUSTICE SCALIA: What you were urging is really a mixed blessing for gun control advocates. To the extent we sever the Federal guarantee from what the States are obliged to comport with, we encourage a stricter Federal Second Amendment, one that forbids all sorts of regulations that the Federal Government might otherwise be allowed to do, because it doesn't matter, the States can take care of it.
I mean, you know, if -- if you sever the two, you are encouraging a broader prohibition at the Federal level, and that's what -- Heller was very careful not to impose such a broader definition precisely because it realized that -- that this is a national problem.
MR. FELDMAN: I -- I think that, if I may - that the restriction that the Second Amendment imposes on the Federal Government should be and is controlled by what the meaning of that Second Amendment was in 1791. It shouldn't vary one way or the other with whether there is incorporation against the States.
Lookit: regardless of where you come down as to the scope of the rights secured by the Second Amendment, it seems somewhat absurd to claim that they only apply as against federal legislation and don't also provide some shield against state and local encumbrances as well. As for the extent of that shield, wait until June.