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Supreme Court: Second Amendment Applies To States

[ 31 ] June 28, 2010 |

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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Comments (31)

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  1. This might be your best post ever. Intellectually honest and a real interesting point about Thomas. Kudos. Would love to hear more about your take on Thomas.

  2. norris hall says:

    This is a BIG A victory for home grown terrorists all over the nation.
    The supreme court has made it even easier to home grown terrorists.
    Now they can walk into a local gun shop in any city in the nation, purchase all the guns and ammunition they want, practice to their hearts content and be ready for the big day.
    The last two bombing attempts , one aboard an airliner and one in Times Square has taught them a lesson. Bombs are unpredictable. They can often fail.
    Automatic weapons, on the other hand, are very deadly and designed to work every time…even for someone with very little training in their use.
    And with the NRA protecting the rights of “suspected terrorists” to buy and use automatic weapons, their job is being made all the more easier.

    • Anonymous says:

      Terrorists and felons are not allowed to own guns

      • Holden Pattern says:

        On what particular law do you base this peculiarly stupid assertion?

        Or have I misread a particularly nice piece of snark?

        • Joe says:

          Lots of laws strip rights of felons to own guns and Heller accepted them in dicta. “Terrorists” is a bit more open-ended. But, if they are felons, same rules can apply.

        • Anonymous says:

          18 U.S.C. § 922 : US Code – Section 922

          • Holden Pattern says:

            Oh, I’m sorry. You mean “there are some laws on the books which in some cases would make it illegal for certain people to sell firearms to certain other people.” That’s not the same as “not allowed”, now is it?

            And felon-ownership restrictions are state-by-state. Of course, making it easier to get guns everywhere won’t make it any easier for all sorts of people to have guns. That never happens. Note the gun show loophole which pretty much allows anyone to buy a gun.

            Also, how do you know when someone is a “terrorist”? Recall that some recent legislation to include people on the US terrorist watch list* in the “don’t sell to these people” list was blocked by the Republicans. Do you mean “Ay-rabs or Moos-lims can’t have guns?” Pretty sure that’s not going to work, and is demonstrably false.

            *I think the watch list and the no-fly list are both pretty crappily maintained, and wouldn’t use either for much of anything, but it’s worth noting that most gun fetishists don’t have a problem with using those sorts of lists for all sorts of intrusions on constitutional rights, JUST STAY AWAY FROM MY GUNS!

    • This is some nice partisan posturing.

      This ruling only affects a small number of citizens, namely those that live in cities with blanket bans based on class of firearm. If the terrorists weren’t smart enough to leave the confines of Chicago to get their weapons before, then we truly have nothing to worry about as far as terrorism goes.

      This legislation has nothing to do with automatic weapons, and your bringing them up proves our ignorance in this matter. Automatic weapons are still essentially banned, and will be forever.

      They cannot purchase all of gun they want in any old city. Many cities and states have a limit on the number of firearms someone can buy in a single day, or month.

      You don’t know anything about guns, this case, or law in particular. Feel free to shut up whenever.

    • Adding, it’s really sick to see (someone that I assume to be) a liberal using the OMG TERRORISTS argument for anything related to domestic law. Perhaps if you studied this subject a little more you’d have something less asinine to add to the conversation.

      Seven years of OMG TERRORISTS posing as policy and discourse was ridiculous. Any more is unbearable.

    • Mark says:

      Where do you get your unfounded crap? Diane feinstein, or Barbera Boxer. Or some other real terrorist in office!!! You need a serious lesson in history and think why someone doesn’t enter your home! Your reason for living in safety is due to a homeowner that apperciates the second amendment! That yellow streak shows on you!!

  3. Incontinentia Buttocks says:

    I skimmed the ruling and the dissents and am prone to agree that the most interesting thing here is Thomas’s concurrence.

    Do you think four bolder (i.e. actually left) “left” Justices might have joined Thomas simply for the sake of overturning the Slaughterhouse Cases? Given that they had lost the battle over the 2nd Amendment in Heller, they would have at least gotten something positive accomplished!

    And why do you think that Breyer, Stevens, Sotomayor, and Ginsburg refused to do so?

    Is it: 1) that they really don’t like Heller and are trying to limit the damage?; 2) that they think the Slaughterhouse cases were rightly decided?; or 3) that they are such big such big fans of stare decisis that they will defend Slaughterhouse despite its being wrongly decided? (Though Heller is also stare decisis now, no?)

    I’m no fan of Heller‘s take on the 2nd Amendment, but, again given my very quick reading of the opinions in this case, I think Thomas was not only the most consistent conservative in this case, but the most convincing justice.

    • Scott Lemieux says:

      And why do you think that Breyer, Stevens, Sotomayor, and Ginsburg refused to do so?

      My guess is that they think that — whether it’s the best argument or not — turning the due process clause into the p & i clause has worked well enough, so why rock the boat. And I think there’s a case to be made that there’s not much point in correcting the mistake now, although I’m attracted to using the case to overturn the Slaughterhouse cases too. I’ve always thought the Court should have used the CRA to overturn the Civil Rights Cases…

  4. rea says:

    I have never understood why everyone nowdays seems to think that it was a major constitutional wrong turn for the Supreme Court to conclude that the 14th Amendment did not bar state regulation of slaughterhouses.

    • Scott Lemieux says:

      To be clear, the outcome of the case was fine. The reasoning used to justify the outcome, however, was very poor and damaging.

      • Joe says:

        Each side had a problem actually: the majority had the right holding with extreme reasoning, the minority had the right reasoning with an extreme (if a bit less so in that era) result.

  5. wengler says:

    While I might not disagree with this case’s outcome, I do wonder about the Supreme Court setting itself up to be the final arbiter of what constitutes legally available arms to the citizenry. Under this ruling I can own a semi-automatic pistol but I can’t augment it to be fully automatic with a high capacity magazine because I am barred by federal law from doing so. So I retain a sort of illusory right under the second amendment to keep(but under Heller not necessarily bear) a certain type of arms that wasn’t around at the time of the ratification, but not other arms that were(such as a cannon).

    One positive thing though is that Daley can’t keep blaming other people for Chicago’s gun problems anymore. Twenty one years in office and what to show for it but another summer of the south and west sides swimming in blood.

  6. [...] (EDIT: Scott Lemieux of Lawyers, Guns, and Money explains this case better than I would.) [...]

  7. Ralph Hitchens says:

    I guess this means the communal rights interpretation of the 2nd amendment is dead, dead, really dead.

  8. [...] Supreme Court: Second Amendment Applies To States : Lawyers, Guns … [...]

  9. [...] defer to Scott Lemieux’s legal analysis of McDonald v. Chicago, the gun rights decision handed down by SCOTUS today. I’m not going to quote it here; just [...]

  10. [...] Scott Lemieux at Lawyers, Guns and Money Possibly related posts: (automatically generated)We Could Change The Name Of The Lions, But I Doubt That Would Do Any GoodAnother Supreme Court RulingThe Supreme Court Justice Will Take Your Questions NowThe Supreme Court’s Love Affair with the Takings Clause–Not Over Just Yet [...]

  11. I’m going to agree with the first commenter; good post. I’m not envious of a society with easy gun access to criminals, but I am even less envious of a society in which gun ownership is decided in an arbitrary and frankly corrupt manner, as is the case in Chicago.

  12. I guess we’re all a well-regulated militia now.

    Seriously, I understand that part of the second amendment is written as a rationale rather than an enumeration of a right and if the 14th extends the rest of the bill of rights to the states, that’s no reason to treat the 2nd differently. But practically, does the current decision and Heller make any difference for a locality that might try to regulate guns on a well-regulated militia basis now, or is that merely “quaint”?

  13. Mike Goldman says:

    H. Rumbold has the right idea. A well-regulated militia being necessary to the security of a free state, we must regulate the militia well. Inasmuch as the second amendment is applied to the states, the right of the people to keep and bear arms shall not be infringed, subject to the regulations bearing upon the militia.

  14. Mike Goldman says:

    If I may make a further suggestion, those bearing arms may be required to enlist for a term of service in the national guard for militia training. I think it would be a good way to move forward on this issue and stop the nonsense.

  15. Jim Fleming says:

    I believe Mr. Goldman comes closest to the issue. The Congress has never adequately addressed the 2nd Amendment by establishing proper regulation of the militia (the populace of the United States).

    The people (the militia) are not the National Guard, and not the Army. They are the people and the militia.

    Congress needs to establish a way to train and regulate the militia. That would neatly attend the need for proper gun safety and defense training of all the able-bodied citizenry who ARE the true militia, and it might get rid of some of the silly anti-government attitude so prevalent today.

    My two-cents worth.

  16. [...] history in Heller isn’t all that common to his jurisprudence.    Much more instructive is his conduct in the follow-up case McDonald v. Chicago, in which both at oral argument and his separate opinion Scalia was contemptuous of Thomas’s [...]

  17. [...] most interesting example of this disagreement, as some of you will know, occurred during McDonald v. Chicago. Thomas wrote a lengthy concurrence arguing that the Bill of Rights should be incorporated through [...]

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