The Supreme Court today held that the Second Amendment — as recently redefined in D.C. v. Heller — applies to the states and not just the federal government, which will almost certainly result in a gun ban in Chicago being nullified. This was inevitable as soon as Heller was decided, so the only suspense with today’s ruling was with respect to 1)the size of the majority and 2)what rationale they would use to “incorporate” the Second Amendment. It turns out that the case was decided with the same 5-4 lineup as Heller, and the Court chose to incorporate the 2nd Amendment through the due process clause of the 14th Amendment rather than the privileges and immunities clause.
To briefly explain what’s at stake here, the Supreme Court in the 1873 Slaughterhouse Cases essentially eviscerated the recently enacted 14th Amendment, and in particular gave the privileges and immunities clause an implausibly narrow meaning. (As one of the dissenters noted, if the 14th Amendment meant what a bare majority of the Court claimed, “it was a vain and idle enactment, which accomplished nothing and most unnecessarily excited Congress and the people on its passage.”) And while the due process clause has been revived in the 20th century — first as a vehicle for now-discredited property rights opinions, and then as a means of incorporating most of the Bill of Rights and protecting unenumerated rights in cases such as Roe v. Wade and Lawrence v. Texas — the privileges and immunities clause has remained an empty shell, protecting only a narrow set of pre-Civil War rights such as the right to travel. The case today was seen by some litigators as a chance to revive the privileges and immunities clause, but not surprisingly the Court didn’t take the bait. Four members of the Court’s majority, through Alito, relied on straightforward due process incorporation. Thomas, however, did urge a revival of the privileges and immunities, but stood alone. Scalia, conversely, concurred to explain why in this case tradition trumped original intent (which, to me, is another data point for my belief that whatever the conventional wisdom Thomas is a more principled and substantively interesting justice than Scalia.)
Leaving aside the rationale, I think that the outcome of the case is unexceptionable; if there’s a problem with the outcome, it’s with Heller itself. On a literal level, Stevens is right to argue in his dissent that according to the standard the Court theoretically applies to determine whether a right is incorporated against the states — which is to ask whether the right in question is “implicit in the concept of ordered liberty” — the 2nd Amendment probably wouldn’t apply. But I can’t endorse the logic, or Breyer’s similar argument that the 2nd Amendment is not “fundamental to the American scheme of justice.” Here, I have to admit that Scalia has the dissenters dead to rights: the arguments prove too much. It is true that plenty of functioning liberal democracies allow draconian regulation of firearms, and that the status of the Second Amendment remains the subject of a substantial ongoing dispute. The problem is that exactly the same thing can be said about virtually of all the specific criminal procedure guarantees that were incorporated against the states throughout the 20th century — lots of liberal democracies do without them, and there was no true consensus at the time of their incorporation that they were fundamental rights. Since I believe that these criminal procedure guarantees should have been incorporated, I can’t disagree with the majority today, and I don’t think that the dissenters did themselves much credit here. I’m leery (if cautiously optimistic) about the policy impact of today’s ruling, but based on the standards of incorporation the Court has actually been applying for many decades, the Second Amendment clearly qualifies.
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