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Posted by on Mar 7, 2010 in Politics, Society | 9 comments

Will McDonald v Chicago Incorporate 2nd Amendment Rights?

The Supremes are considering another 2nd amendment case which might have far reaching consequences (in a good way) on this particular battle front. George Will has a good column this week which takes a look at the history of the fight and what the implications of McDonald v Chicago might be.

It probably will result in a routine ruling that extends a 2008 decision and renders dubious many state and local gun-control laws. What could — but, judging from the justices’ remarks during oral argument, probably will not — make the ruling momentous would be the court deciding that the two ordinances at issue violate the 14th Amendment’s “privileges or immunities” clause. Liberals and conservatives submitted briefs arguing, correctly, that this clause was intended to be a scythe for slicing through thickets of state and local laws abridging fundamental liberties.

This isn’t a simple issue for those who haven’t followed this particular argument closely, but after Heller opened the door for the debate, it does’t boil down to a matter of whether or not the 2nd amendment is an individual right (SCOTUS has already determined it is) but rather on which constitutional grounds the finding is based. First they may have to speak to whether or not the 2nd amendment is one of the fundamental rights which are incorporated down to the states, or whether the states still retain the ability to restrain those rights with impunity.

But second, they would have to identify which aspect of the 14th amendment is to be used as the basis for the finding. Will it be the guarantee that no state shall deny liberty “without due process of law” or will they dig up the long abandoned “privileges or immunities” clause?

To the drafters of the 14th Amendment, the phrase “privileges or immunities” was synonymous with “basic civil rights.” But in 1873, the court held that only some of the rights enumerated in the Bill of Rights restrict states by being “incorporated” into the 14th Amendment’s “due process” clause.

Since 1897, the court has held, with no discernible principle, that some rights enumerated in the Bill of Rights are sufficiently fundamental to be “incorporated” but others are not. This doctrine bears the oxymoronic name “substantive due process.” Substance is what process questions are not about.

If the court now “incorporates” the Second Amendment right via the “due process” guarantee, that will be progress because it will enlarge the sphere of protected liberty. And even Justice Antonin Scalia, who recognizes that “substantive due process” is intellectual applesauce, thinks it is too late to repudiate 137 years of the stuff. Still, three points argue for using the “privileges or immunities” scythe against the two gun ordinances.

Early indications from observers seem to indicate that they will back down and go with the due process argument. This is good news to some conservatives, believe it or not, who fear that liberals would take a finding of privileges or immunities and run with it to “discover” all sorts of other imagined rights, covering things like health care, welfare, or the continued, vigorous lifestyle of the salt marsh tit mouse.

Stay tuned to see how good George Will’s crystal ball is. We should find out before too long.

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  • DLS

    “But second, they would have to identify which aspect of the 14th amendment is to be used as the basis for the finding.”

    Yes, this is what we’re awaiting. That gun rights are individual rights hasn’t been open to (serious) question; but this case isn’t limited to an “extreme federal-individual” case where the right even is explicitly stated in the Constitution as not to be infringed (at least, by the federal government, but if it is the right of every US citizen, no “Jim Crow” state or local law may taken it away, either — that is the main point here). The explictly-defended gun rights are only one of many kinds of rights that may be claimed as US citizens; there is broad extensilbility, and I hope the Justices touch on this at length in their opinions so as to better clarify and demarcate the line (boundary) between state and federal-local sovereignty (federal supremacy is assumed in prohibiting Jim Crow infringements of federal citizenship rights of all kinds).

    I wrote in there that examples of extensibility go all the way possibly to federal entitlements, as the best example. Presumably these are intended to be realized and enjoyed by all citizens, everywhere. This is the objective resolution of politically-hot examples like abortion, for example, for if then the federal government were to create abortion entitlements or other legal rights (in the US code, explicitly, to name a more glaring example), then arguably no state or local government may reduce these (by restricting or prohibiting abortion). Given federal supremacy, the federal government in theory creates a “floor” of minimal citizens’ rights of all kinds, including entitlements (a correct federal government establishes both a uniform application of something, and the very minimum possible); if there’s overlap, the rule probably must be “no infringement” — states and localities can add to these things but can never “take away” or “deduct” from the federal standard.

    The foregoing is example of all kinds of stuff that actually comes with this case, waiting to be addressed by it. The key: Drawing the line between federal and state-local sovereignty, indicating possibly to what length at most the states and localities may encroach into the federal realm. (Practice in the US is in the other direction, as a rule, with routine federal encroachment into state and local affairs.) It’s a shame that this case has been neglected and interest is as low as it is (possibly because individual gun rights are no serious question and the gun controllers have been largely lost as well as wrongful from the beginning).

    “Where to draw the line” — a general ruling, not specific to gun control and the Second Amendment — that’s the big thing we’re waiting for, in this case.

    • tidbits

      Well, I am delighted to hear that George Will agrees with the piece I posted roughly a week ago on my site….Perhaps he read it, nah. .

  • merkin

    Heller has been one of the more interesting of the Robert’s Court. Here we have a court where four of the members have been appointed out of the current conservative narrative of opposing judicial activism, opposing legislating from the bench, basing rulings on the original intent of the authors of the Constitution, supporting states’ rights against an intrusive federal government and not to mention the long standing definition of a conservative judiciary, not overthrowing long standing precedent. And in one series of decisions they, together with Kennedy, are willing to go against all of this to accomplish a possibly desirable political result and no one is willing to call them on it.

    And it would be heartless of me to point out that the five are a bare majority, not the super majority or near unanimous majority Roberts said he would require for any major shift from long standing Supreme Court precedent.

    Just look at the loops they went through in Heller v. District of Columbia. They had to rule that the first half of the Second Amendment is in affect, just a verbal flourish, That the word militia was meant all along to mean an individual. An early adaptation of the slogan “An Army of One” I suppose.

    Then they had to overthrow the centuries old definition of collective rights, those assigned to the people as a group, and define them all as being individual rights. Oh joy, this means that the right of assembly now includes the right of me to assemble with myself. Whatever that would mean.

    Not to mention that the Heller argument was not that the D.C. laws infringed on his right to defend himself and his home but that it prevented him from doing so with his weapon of choice, a pistol. I prefer a fully automatic Uzi dear Supreme Court, can I have one please?

    And last but not least they had to duck out of Roberts’ commitment for a near unanimous court when long standing precedent is being tossed out. What they came up with was that they could use a slim majority to overthrow long standing precedent when the most recent ruling upholding the precedent had vigorous dissenting opinions. An exception strangely absent from Roberts’ confirmation testimony. Almost as if it was dreamed up just to justify this abandonment of principle .

    Coupled with Roberts’ ability to stare down his own hypocrisy without blinking, I am sure that with this level of disregard for precedent and ability to ignore the conservative meme these five will be able to advance these this highly political goal all the way to becoming a fundamental right.

    And I am not sure but what we will be better off when they do. I am a supporter of expanding personal rights.And as they noted in Heller this lays the way clear to require the registration of all firearms as the best method to prevent felons from buying weapons.

    But tell me defenders of the conservative meme, the way they are doing it, doesn’t it make you feel just a little dirty?

  • DLS

    Tidbits, I don’t share your suspicion of Scalia’s willingless to be expansive otherwise, if it suited him or those like him politically. But it’s worth considering. Who knows, maybe he’s recoiling from how many have reacted (negatively) to the Citizens’ United ruling.

    • tidbits


      Your point about the reaction to Citizens United is worhty of consideration. It has even rekindled the idea of court-stacking as you probably know.

      While alluded to but not elucidated in my piece, Scalia has for years tried to carve out a middle ground between substantive due process and broad based privileges and immunites that would allow him to advance certain causes that are dear to him without embracing substantive due process or privileges and immunities. The real bombshell was that he openly embraced substantive due process after decades of condemning it while ceding grudgingly that it was the current law of the land.

      This is a really weak explanation of his “middle ground”, but basically it calls for overturning state laws that directly contradict, in toto, constitutional rights where there is no cure by process. Thus, he could keep the community standards basis for pornograpghy because it involves a (community standards) process, while overruling the Chicago gun ban because it is a total ban on a constitutional right without a process cure. Of course, the nuanced fly in the ointment is that the Chicago law does not ban all arms, only handguns….thus, perhaps, his Hobson’s choice between substantive due process and privileges and immunities.

      I stand by my opinion that Scalia is the most activist justice in a generation.

  • DLS

    While you’ve effectively warned me in advance of my hopes for a clarity from Scalia (who is on a skewer in this instance) and the other Justices in clarity and demarcation of federal versus state-local power as well as jurisdiction where there is possible “overlap” (and federal supremacy issues) of direct federal-citizen and state-local-citizen laws and rights (including “soft” implicit rights through entitlements and such).

    I have an interest in this subject and resolution of the possible overlap problem this case permits.

  • russnj

    Finnaly a way to be safe whare when i go, to peotect my loved ones. And not just hoping a ganster will take pitty on us as he robs and beats us almoat to death

  • New Cat

    I don’t have a dog (at least when it comes to guns) in this race but I sure am learning and enjoying this discussion.

  • DLS

    I’m not a former(?) judge like Tidbits or an attorney, but interested in this for other reasons.

    The federalism issue is the setting of boundaries and limits that the state-local and federal government share. If the federal right here, extremely protected (“shall not be infringed”) is found to be part of something more general (why I am curious about it), there are all kinds of other rights (anything that is a legal right, meant to be enjoyed by citizens) that the states and localities could not interfere with. We can envision a “cascade” down from gun rights to others that have “softer” protections, but about which the matter of degree actually is irrelevent. There are gun rights. Then there are things like Social Security benefit rights that the states and localities could interfere with, for some bizarre reason, even reviving McCullough vs. Maryland’s situation, to try to tax something federal again, out of greed or to make people suffer less benefits than they would otherwise get (“the power to destroy”) because they don’t like the federal thing, in this case (imagine a far-right state government opposed to Social Security). Then you get to the hot issue of abortion — any new federal abortion health-care or other entitlement (even a change to the US Code explicitly providing for abortion laws and entitlements), with which state-local interference would be illegal, if the federal “right” involved also were protected. Clear demarcation of federal versus state-local overlap and conflict in all cases like this, of all kinds, would be refreshing and welcome, I believe.

    Regarding Scalia “on the skewer,” it’s a theory he make, and even be “compelled” due to statements he has made, a ruling that is, despite his reputation as a “conservative,” in favor of (state and local) gun control.


    What’s remarkable to me is the lack of interest in this case, more than any typical political noise about it were there more interest.

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