A Supreme Victory for Firearms Owners

The Supreme Court has ruled in McDonald v. Chicago that the Second Amendment applies to the states. Importantly, the Chicago rule was not simply a regulation of firearms, but effectively an absolute ban on ownership. If the Second Amendment does not apply to the states, the ban is allowable, but if the Second does apply, then the ban is clearly prohibited.

This question would already have been answered if the Court had ever followed Justice Hugo Black’s lead and gone for full incorporation of the Bill of Rights through the 14th Amendment, to apply to the states. However the Court has consistently gone with selective incorporation, which can either be lauded as in keeping with its traditionally conservative step-by-step approach, or ridiculed as being cowardly. More about that later.

I think the Court’s ruling is right. While there are legitimate policy reasons for wishing to limit, even prohibit, firearms ownership in a city with serious violent crime problems, there is little constitutional justification for not applying the Second Amendment to the states. Selective incorporation has indeed been a piecemeal process, but since it began, it has been a very unidirectional process. Despite the Court’s unwillingness to simply go for total incorporation, it opts for incorporation nearly every time the issue has arisen, and has never overturned a prior decision to incorporate some element of the Bill of Rights.

So the tough question for the municipalities defending their gun bans was to justify why the Second Amendment should be treated differently, why it, almost uniquely* different from the rest of the Bill of Rights. This argument was the crux of the matter, and the municipalities’ attempt was soundly rejected by the Court. Here is Justice Alito, who wrote the opinion.

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.

Oooh, you know you’re in trouble when the Court accuses you of creating second-class anything, even though they do that with their own Substantive Due Process analysis–which also is 14th Amendment jurisprudence–that applies strict scrutiny to suspect classes and fundamental rights, and the lower level rational basis scrutiny to nearly everything else. But they never call non-fundamental rights “second-class” rights. It’s not a word meant to be taken truly literally and applied across the board. It’s legal jargon, code for, “not in this case.” But the Court is absolutely right here. There’s no compelling jurisprudential reason for treating the Second Amendment differently, only policy reasons.

The best constitutional argument the municipalities make is that applying the Second Amendment would violate standards of federalism, but that’s inane** because the whole question of incorporation is about the constitutional limits of federalism post ratification of the 14th Amendment. If the Second Amendment actually applies to the states, you can’t complain about it impinging on a state’s authority under federalism, because the state doesn’t have that authority under federalism.

They also argued that the Second Amendment is different because it protects a right that is not valued for itself, but is merely instrumental. While there are millions of people who do in fact value the right of gun ownership in itself, as a matter of constitutional interpretation, this instrumental argument is probably correct. However it’s also irrelevant. If an instrumental right was seen as important enough to enshrine in the Bill of Rights, it can hardly be seen as a constitutionally subordinate right. And Alito gave zero credence to this argument.

But we have never previously suggested that incorporation of a right turns on whether it has intrinsic as opposed to instrumental value, and quite a few of the rights previously held to be incorporated—for example the right to counsel and the right to confront and subpoena witnesses—are clearly instrumental by any measure.

I am glad to see this decision come down. I think the Court has, for decades, avoided this issue. I think it’s not too much to say that the Court decided to let the political battles rage until there seemed to be a movement toward a certain, if weak, consensus. I think it’s not a mere coincidence that that the Court accepted both the Heller case and this one only after the legal profession had come to general, it not unanimous, agreement that the right to keep and bear arms was an individual right. The Court, after all, cannot enforce its own rulings, but relies largely on public acquiescence, having–as Hamilton said–neither the purse nor the sword, but only judgment. If its judgment is unpersuasive, its ruling may have little meaningful effect. (See, for example, the history of its death penalty rulings.)

But this question needed to be conclusively addressed sooner or later, and since it wasn’t sooner, at least it has been at last. And the incorporation process has moved one step closer to its presumably inevitable end of total incorporation. Ironically, Justice Alito hints at the inevitability of total incorporation, while still managing to reject it.

Alito: Municipal respondents’ main argument is nothing less than a plea to disregard 50 years of incorporation precedent and return (presumably for this case only) to a bygone era.


Unless we turn back the clock or adopt a special incorporation test applicable only to the Second Amendment, municipal respondents’ argument must be rejected.

While I generally appreciate and approve of the Court’s general unwillingness to make broad sweeping rulings that draw in constitutional questions not immediately at issue, there is a certain cowardliness here, an unwillingness to face the necessary implication of one’s own arguments. Because what could possibly set the Third and Seventh Amendments–now the sole remaining unincorporated amendments–apart on those grounds? Cornell Law Professor Michael Dorf argues that Alito just might have been signaling a move in the direction of total incorporation. That would indeed be interesting.

My colleague Ed Brayton comments on Justice Thomas’s concurrence arguing in favor of reviving and applying the privileges or immunities clause. I am in agreement with him, and would like to say more about that, but I think this post is already long enough. Perhaps in the future.

*Neither the Third or Seventh Amendments has been incorporated by the Supreme Court (although the Second District has done so for the Third), but the Court has not faced those questions in the post-14th Amendment period. See Alito’s footnote 13, noting these and the vanishingly few clauses from other amendments that have not been incorporated. So the Second Amendment was not unique in not having been previously incorporated, but would have been effectively unique in having the Court refuse to incorporate it.

**I don’t necessarily criticize lawyers for making inane legal arguments. They can only work with what they’ve got, and often precedent doesn’t leave them with much. Given the history of incorporation and the Court’s recent ,a href=”http://en.wikipedia.org/wiki/District_of_Columbia_v._Heller” target=”_blank”>Heller, the legal grounds on which Chicago’s firearms ban rested were clearly shaky. All the city’s lawyers could really hope for was that the justices would find guns as scary as drugs, and latch onto any cockamamie legal argument to rule against guns. In such a case, it’s understandable to apply an “everything including the kitchen sink” approach and toss out numerous arguments, hoping the Court will find one useful enough to latch onto to reach a pre-determined result. After Heller, though, it didn’t appear the Court would be leaning that way, and I imagine the City’s counsel didn’t have any great sense of optimism as they submitted their brief.


About J@m3z Aitch

J@m3z Aitch is a two-bit college professor who'd rather be canoeing.
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2 Responses to A Supreme Victory for Firearms Owners

  1. And the incorporation process has moved one step closer to its presumably inevitable end of total incorporation.

    While I don’t know all the in’s and out’s of the incorporation process, it seems to me that it is more piecemeal than your post might suggest. If my understanding is correct, when it comes to amendments in the bill of rights that, like the first amendment, list more than one discernible right, those rights are recognized on a case-by-case basis, and rights in some amendments that are not the 3rd and 7th haven’t been incorporated yet.

    Also, the Court, as I understand it, does not necessarily apply a given right to the states with the full force that it applies that right to the federal government. So, for example, the federal courts (I presume) would have incorporated the right to a jury trial for criminal cases, but not necessarily the obligation that a unanimous jury is necessary for a guilty verdict, whereas it is my understanding that the federal verdicts must be unanimous (I’m hard pressed to find any place in the constitution that says so, however, so maybe I’m on the wrong track altogether).

    I stand to be corrected on the points above, but will add one more thing about incorporation and the second amendment. The jury’s still out, so to speak, on what would be a constitutionally permissible regulation of arms by either the state or federal governments. I might imagine a very restrictive regulatory regime that, short of an outright, categorical ban, would pass constitutional muster.

  2. James Hanley says:


    I’m delighted you’ve found us. Your first point is correct. I edited a paragraph on that in the interests of having something approaching brevity, and contented myself with a link to Alito’s footnote on that matter. As usual, I’m amazed at my ability to edit out something that should have been left in.

    Your second point, about strength of application, is partially right, but not wholly. The Court at one time did play with the idea of not applying these clauses to the states with full strength, but as Alito notes in his opinion, they’ve stopped trying that “two track” approach. While the jury trial issue could be seen as a weaker application, I think the Court prefers (perhaps opportunistically) to see the jury trial verses the unanimous decision as substantively separate rights.

    And on the third point, you’re absolutely right. Given the Court’s emphasis on self-defense as a primary aspect of the right to keep and bear arms, I think a fair prediction is that anything that’s pretty obviously useful for self-defense will be protected. But a mortar, for example, is hardly a defensive weapon. Would I have a right to that? I imagine now that the Court has finally delved into the 2nd Amdt. we’ll find states and citizens probing the limits. And that will provide for endless further debate–hoorah!

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