Incorporation & Gun Rights

As DSL (I think) has noted, today the Supreme Court heard oral arguments in the “Chicago Gun Case,” McDonald v. Chicago.  At issue in this case is whether the Fourteenth Amendment requires that the constitutional right recently recognized in Heller v. DC apply to the states as well as the federal government.  For commentary, see Volokh Conspiracy and SCOTUSBlog.  (See also this series of posts @ VC; also this list of briefs in the case.)  As for my random thoughts on the matter:

1.  Background:  There are two separate arguments made for incorporation.  First, there’s the argument that the original meaning of the Privileges & Immunities Clause applied the Bill of Rights to the states.  One can indeed make a decent originalist case for P&I incorporation, and that’s exactly what Alan Gura, the lead attorney in this case, did.  OTOH, the question isn’t entirely closed; one can still argue against P&I incorporation on originalist grounds.  Part of the reason this dispute persists is historical:  when the Fourteenth Amendment was adopted, the main focus wasn’t on Sec. 1 (where both the Due Process and Privileges & Immunities clauses reside), but rather on the other sections.  Hence, you don’t have the sort of long, extended discussions of Section 1’s probable meaning(s) that you had with the ratification debates surrounding the original Constitution.  Since I tend not ignore constitutional issues that get lots of attention, I’m not really competent to judge who’s right on this question.

2.  Second, one can argue, as the NRA did, that an individual right to keep & bear arms is among those rights encompassed by the term “liberty” in the Due Process Clause, and that said right should therefore receive judicial protection against state action under the doctrine of “substantive due process.”  Interestingly, though most originalists believe that this doctrine has no foundation in the Fourteenth Amendment’s original meaning, I did recently come across an article suggesting that such pessimism may be premature.

3.  I’ve only skimmed the 77-page transcript of the oral argument, but based on what I saw, and commentary I’ve read elsewhere, it looks like the Privileges & Immunities argument is a non-starter for the court.  It seems even justices (e.g., Scalia) favorably disposed to originalist arguments are more concerned about stare decisis, given that the Slaughterhouse Cases’ evisceration of the P&I clause over a century ago.  Though I’m somewhat sympathetic to originalism, there’s also something to be said for respecting stare decisis, even for cases that were wrongly decided.

4.  That said, it seems both the conservatives & liberals were supportive of Due Process incorporation, with the probable fault line being what standard of review should be utilized.  (Good thing the NRA decided to focus on this argument….)  This isn’t entirely surprising to me; unlike the “Standard Model” (i.e., individual rights reading) of the Second Amendment, the notion of Due Process incorporation is a thoroughly mainstream one.  If the Second Amendment does indeed protect an individual right to keep & bear arms, the Court would look pretty silly if it didn’t incorporate it against the states.  Particularly since it’s long since done so in the case of rights nowhere explicitly mentioned in the constitutional text (e.g., abortion).

5.  OTOH, I’d be cautious about drawing too many conclusions from the oral argument.  I remember listening to the arguments from the Heller case, and seeing predictions of a unanimous or near-unanimous verdict.  This is one reason I’m reluctant to expend much time parsing the transcripts; I’d rather just wait for the opinion(s) themselves to come out.  I’m particularly curious how the liberal justices will react:  will they recap Breyer’s Heller dissent?  Or will they accept incorporation, and instead urge a relaxed standard of review (which would leave many/most state-level gun laws intact)?  And if the latter, how would they reconcile such a stance with their endorsement of Breyer’s Heller dissent?

6.  If 2A incorporation does win Supreme Court endorsement, then the key question becomes implementation.  How exactly do judges go about deciding whether gun registration is constitutional?  Or concealed-carry laws?  Or laws requiring trigger locks?  My thought:  for starters, they probably ought to read this article by Eugene Volokh.  Admittedly, Volokh is pro-gun-rights, but his article is less a brief for striking down all gun laws, and more of an extended meditation on what sorts of questions judges should consider when deciding the constitutionality of a given gun-control law.  He’s more concerned with defining the problem, than with arriving at specific answers.  Another noteworthy article is this one by Robert Churchill, which discusses Founding-era restrictions on gun possession (rare) and use (frequent).  Interesting how this nation “conceived in liberty” was hardly a libertarian paradise at birth….

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