Two years ago, the Supreme Court of the United States held that the Second Amendment protects an individual's right to bear arms, leaving for another day two questions: (1) what is the extent of that right?, and (2) to what extent does the Second Amendment apply as a restriction on state and local laws?
Today's Supreme Court opinion in McDonald v. Chicago is all about the second one. I tried to explain what this question was all about back in March when the Court held oral argument in the case. Basically, through a haphazard process called "selective incorporation" the Supreme Court had determined which facets of the Bill of Rights applied to states -- such as the 1st and 8th Amendments -- and which did not, such as the 7th Amendment right to a trial by jury in civil cases whenever twenty dollars or more is at stake. And that a series of late-19th Century precedents (Cruikshank, Presser and Miller) had held that the 2nd Amendment did not restrict states from passing their own restrictions on the right to keep and bear arms.
Well, as of today, that's no longer the case. In a 5-4 decision authored by Justice Alito, the Court has held that the Second Amendment applies as a restriction against state and local efforts to restrict the right of individuals to keep and bear arms. Like Heller itself, it's an opinion which reads much more like historical analysis than legal analysis, because there just isn't that much law on this topic. That said, in sum Justice Alito writes:
Our decision in Heller points unmistakably to the answer. Self-defense is a basic right, recognized by many legal systems from ancient times to the present day, and in Heller, we held that individual self-defense is "the central component" of the Second Amendment right... ("inherent right of self-defense has been central to the Second Amendment right"). Explaining that "the need for defense of self, family, and property is most acute" in the home, we found that this right applies to handguns because they are "the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family. (noting that handguns are "overwhelmingly chosen by American society for [the] lawful purpose" of self-defense); ("[T]he American people have considered the handgun to be the quintessential self-defense weapon"). Thus, we concluded, citizens must be permitted "to use [handguns] for the core lawful purpose of self-defense."
As for some flavor of that history, much goes to the passage of the Fourteenth Amendment, and how those who supported it saw the right to bear arms:
In debating the Fourteenth Amendment, the 39th Congress referred to the right to keep and bear arms as a fundamental right deserving of protection. Senator Samuel Pomeroy described three "indispensable" "safeguards of liberty under our form of Government." 39th Cong.Globe 1182. One of these, he said, was the right to keep and bear arms:
"Every man . . . should have the right to bear arms for the defense of himself and family and his homestead. And if the cabin door of the freedman is broken open and the intruder enters for purposes as vile as were known to slavery, then should a well-loaded musket be in the hand of the occupant to send the polluted wretch to another world, where his wretchedness will forever remain complete." Ibid.
Even those who thought the Fourteenth Amendment unnecessary believed that blacks, as citizens, "have equal right to protection, and to keep and bear arms for self-defense." Id., at 1073 (Sen. James Nye); see also Foner 258–259.
Evidence from the period immediately following the ratification of the Fourteenth Amendment only confirms that the right to keep and bear arms was considered fundamental. In an 1868 speech addressing the disarmament of freedmen, Representative Stevens emphasized the necessity of the right: "Disarm a community and you rob them of the means of defending life. Take away their weapons of defense and you take away the inalienable right of defending liberty." "The fourteenth amendment, now so happily adopted, settles the whole question." Cong. Globe, 40th Cong., 2d Sess., 1967.
And they just couldn't see things any other way:
Municipal respondents’ remaining arguments are at war with our central holding in Heller: that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home. Municipal respondents, in effect, ask us to treat the right recognized in Heller as a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees that we have held to be incorporated into the Due Process Clause....
Under our precedents, if a Bill of Rights guarantee is fundamental from an American perspective, then, unless stare decisis counsels otherwise, that guarantee is fully binding on the States and thus limits (but by no means eliminates) their ability to devise solutions to social problems that suit local needs and values. As noted by the 38 States that have appeared in this case as amici supporting petitioners, "[s]tate and local experimentation with reasonable firearms regulations will continue under the Second Amendment."
And if you don't like it because you believe a lack of strong gun control makes your city unsafe, write the majority, get your own damn gun:
[P]etitioners and many others who live in high-crime areas dispute the proposition that the Second Amendment right does not protect minorities and those lacking political clout. The plight of Chicagoans living in high-crime areas was recently highlighted when two Illinois legislators representing Chicago districts called on the Governor to deploy the Illinois National Guard to patrol the City’s streets. The legislators noted that the number of Chicago homicide victims during the current year equaled the number of American soldiers killed during that same period in Afghanistan and Iraq and that 80% of the Chicago victims were black. Amici supporting incorporation of the right to keep and bear arms contend that the right is especially important for women and members of other groups that may be especially vulnerable to violent crime. If, as petitioners believe, their safety and the safety of other law-abiding members of the community would be enhanced by the possession of handguns in the home for self-defense, then the Second Amendment right protects the rights of minorities and other residents of high-crime areas whose needs are not being met by elected public officials.
Justice Thomas provides the fifth vote by latching onto the Privileges or Immunities Clause, not Due Process, as the means by which he believes the Bill of Rights is applied to state and local governments. Interesting, but not that relevant anymore.
The lead dissent is penned by Justice Breyer, on behalf of himself and Justices Ginsburg and Sotomayor. (Stevens dissents separately, which we'll get to.) Why dissent?
I can find nothing in the Second Amendment’s text, history, or underlying rationale that could warrant characterizing it as "fundamental" insofar as it seeks to protect the keeping and bearing of arms for private self-defense purposes. Nor can I find any justification for interpreting the Constitution as transferring ultimate regulatory authority over the private uses of firearms from democratically elected legislatures to courts or from the States to the Federal Government. I therefore conclude that the Fourteenth Amendment does not "incorporate" the Second Amendment’s right "to keep and bear Arms." And I consequently dissent.
The Court based its conclusions almost exclusively upon its reading of history. But the relevant history in Heller was far from clear: Four dissenting Justices disagreed with the majority’s historical analysis. And subsequent scholarly writing reveals why disputed history provides treacherous ground on which to build decisions written by judges who are not expert at history.
Since Heller, historians, scholars, and judges have continued to express the view that the Court’s historical account was flawed. See, e.g., Konig, Why the Second Amendment Has a Preamble: Original Public Meaning and the Political Culture of Written Constitutions in Revolutionary America, 56 UCLA L. Rev. 1295 (2009); Finkelman, It Really Was About a Well Regulated Militia, 59 Syracuse L. Rev. 267 (2008); P. Charles, The Second Amendment: The Intent and Its Interpretation by the States and the Supreme Court (2009) [and many more] ...
If history, and history alone, is what matters, why would the Court not now reconsider Heller in light of these more recently published historical views? ... At the least, where Heller’s historical foundations are so uncertain, why extend its applicability?
My aim in referring to this history is to illustrate the reefs and shoals that lie in wait for those nonexpert judges who place virtually determinative weight upon historical considerations. In my own view, the Court should not look to history alone but to other factors as well—above all, in cases where the history is so unclear that the experts themselves strongly disagree. It should, for example, consider the basic values that underlie a constitutional provision and their contemporary significance. And it should examine as well the relevant consequences and practical justifications that might, or might not, warrant removing an important question from the democratic decisionmaking process.
From there, the dissenters argue that the question of the incorporation of the Second Amendment should consideration of such factors as "the extent to which incorporation will further other, perhaps more basic, constitutional aims; and the extent to which incorporation will advance or hinder the Constitution’s structural aims"; whether recognizing a particular right will "further the Constitution’s effort to ensure that the government treats each individual with equal respect" or will "help maintain the democratic form of government"; whether it is "inconsistent . . . with the Constitution’s efforts to create governmental institutions well suited to the carrying out of its constitutional promises"; whether it fits with "the Framers’ basic reason for believing the Court ought to have the power of judicial review"; courts’ comparative advantage in answering empirical questions that may be involved in applying the right; and whether there is a "strong offsetting justification" for removing a decision from the democratic process:
[O]n any reasonable accounting, the incorporation of the right recognized in Heller would amount to a significant incursion on a traditional and important area of state concern, altering the constitutional relationship between the States and the Federal Government. Private gun regulation is the quintessential exercise of a State’s "police power"—i.e., the power to "protec[t] . . . the lives, limbs, health, comfort, and quiet of all persons, and the protection of all property within the State," by enacting "all kinds of restraints and burdens" on both "persons and property."
And this isn't something Courts are good at, they reason:
Given the competing interests, courts will have to try to answer empirical questions of a particularly difficult kind. Suppose, for example, that after a gun regulation’s adoption the murder rate went up. Without the gun regulation would the murder rate have risen even faster? How is this conclusion affected by the local recession which has left numerous people unemployed? What about budget cuts that led to a downsizing of the police force? How effective was that police force to begin with? And did the regulation simply take guns from those who use them for lawful purposes without affecting their possession by criminals?
Consider too that countless gun regulations of many shapes and sizes are in place in every State and in many local communities. Does the right to possess weapons for self-defense extend outside the home? To the car? To work? What sort of guns are necessary for self-defense? Handguns? Rifles? Semiautomatic weapons? When is a gun semi-automatic? Where are different kinds of weapons likely needed? Does time-of-day matter? Does the presence of a child in the house matter? Does the presence of a convicted felon in the house matter? Do police need special rules permitting patdowns designed to findguns? When do registration requirements become severe to the point that they amount to an unconstitutional ban? Who can possess guns and of what kind? Aliens? Prior drug offenders? Prior alcohol abusers? How would the right interact with a state or local government’s ability to take special measures during, say, national security emergencies? As the questions suggest, state and local gun regulation can become highly complex, and these "are only a few uncertainties that quickly come to mind." Caperton v. A. T. Massey Coal Co., 556 U. S. _, _ (2009) (ROBERTS, C. J., dissenting) (slip op., at 10).
Judges cannot easily make empirically based predictions; they have no way to gather and evaluate the data required to see if such predictions are accurate; and the nature of litigation and concerns about stare decisis further make it difficult for judges to change course if predictions prove inaccurate. Nor can judges rely upon local community views and values when reaching judgments in circumstances where prediction is difficult because the basic facts are unclear or unknown.
At the same time, there is no institutional need to send judges off on this "mission-almost-impossible." Legislators are able to "amass the the stuff of actual experience and cull conclusions from it." They are far better suited than judges to uncover facts and to understand their relevance. And legislators, unlike Article III judges, can be held democratically responsible for their empirically based and value-laden conclusions.
...Given the empirical and local value-laden nature of the questions that lie at the heart of the issue, why, in a Nation whose Constitution foresees democratic decisionmaking, is it so fundamental a matter as to require taking that power from the people? What is it here that the people did not know? What is it that a judge knows better?
There is a whole second battle which today's opinion reflects, and it is the final war between Justices Stevens and Scalia as to the role of judges in our constitutional system. You'll have to wait until later for my recap of that one, but it's an intense thing to read. Guess which one calls the other "oblivious" and with an approach that "invites not only bad history, but also bad constitutional law" and which one says the other's approach "puts democracy in peril"? Yeah, it's that kind of day.
[See also mille147's diary on this decision.]