Constitution: Guns and the Left's Attack on Incorporation

Stephen Kershnar
Guns and the Second Amendment: The Constitution Dodges a Bullet
Dunkirk-Fredonia Observer
July 12, 2010

The recent Supreme Court decision, McDonald v. Chicago, 561 U.S. ____ (2010), is a major victory in a country whose constitution is largely disappearing. In a preceding case, District of Columbia v. Heller, 554 U.S. _____ (2008), the Court struck down a District of Columbia law that banned the possession of handguns in the home. The Court held that the Second Amendment protects an individual right to possess a gun because guns are connected to self-defense. The Court argued that this right allows individuals to possess handguns in their homes.

In McDonald, the Court considered a Chicago law that in effect banned private citizens from having handguns. On a side note, the Court noted that Chicago has one of the highest murder rates in the country (including cities like New York City and Los Angeles) and rates of other violent crimes that exceed the average in comparable cities. Several of the people who sued Chicago did so because they had been threatened or were victims of violence by drug dealers, burglars, etc. and wanted to protect themselves.

Chicago argued that neither the Fourteenth Amendment’s Privileges and Immunities Clause (“No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States”) nor the Due Process Clause (“[N]or shall any State deprive any person of the life, liberty, or property, without due process of law”) results in the states like Illinois being subject to the Second Amendment. The Second Amendment says, “A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed.” Chicago argued that the Due Process Clause does not incorporate the Second Amendment (apply it to the states). Rather, the clause only applies to the states only those parts of the Bill of Rights (the first ten Amendments) which are indispensible to a “civilized” legal system. Because there are civilized countries that ban guns, Chicago argued that the Due Process Clause does not apply the Second Amendment to the states. On this view, then, the states can ban gun ownership even if the federal government cannot.

By a 5-4 majority, the Supreme Court rejected Chicago’s argument. Writing for the majority, Justice Samuel Alito argued that the Due Process Clause incorporates the Second Amendment (applies it to the states). His argument has two parts. First, the Due Process Clauses includes a particular right in the first Eight Amendments to the Constitution only if it is (a) fundamental to the U.S.’s scheme of ordered liberty or (b) deeply rooted in the U.S.’s history and tradition. The Court found that the right to self-defense, including the right to a handgun, meets these conditions.

Alito argued that the right to self-defense, including the right to own a gun, is deeply rooted in the Nation’s history and tradition. Evidence for this can be seen in that the right was part of the rights of Englishmen before the U.S. came into existence and that this influenced the founders’ thinking. Also, there is evidence that the founders who drafted and ratified the Bill of Rights viewed the right to own a gun for self-defense as a fundamental right. In fact, Alito argued, the debate at the time was not over whether citizens had such a right, that was assumed, but whether it was adequately protected by the federal government’s limited powers or whether it warranted separate protection via the Bill of Rights. The historical importance of this right can also be seen in that four states adopted gun-right laws before the Constitution was ratified and nine more did so in the roughly thirty-year period after it went into effect.

Alito refrained from adopting the view that the Due Process Clause incorporates all of the Bill of Rights. Justice Hugo Black famously put forth this position, but the Court never adopted it. However, Alito made it clear that the Court is moving toward Black’s position.

The Court’s reasoning came under sharp attack from the right and left. Conservative Justice Clarence Thomas argued that the Due Process Clause protects only process rights and cannot restrict the content of laws in the way in which Alito suggests. For example, Thomas noted, it protects the right against double jeopardy, the right to a lawyer in criminal cases, and so on. Thomas argued that an individual’s right to own a gun is a privilege of American citizenship. Hence, it is protected by the Privileges and Immunities Clause. As the Cato Institute’s Josh Blackman and Ilya Shapiro point out, Thomas sought to reject 140 years of precedent that had been put forth in bad faith by a recalcitrant Reconstruction-era Supreme Court. Thomas’ argument rests on his theory of interpretation. He holds that the Constitution’s meaning is determined by considering how ordinary citizens would have understood the Constitution’s language at the time it was put into place.

Thomas’s approach is appealing. His theory respects the original meaning of the Constitution’s language and its structure (relation between the parts of the Constitution). His interpretation comes closest to what the people who wrote and ratified the Constitution had in mind. The downside is that he gives precedent short shrift. Alito’s argument fits better with precedent. Both produce the same result in so far as they hold that the Fourteenth Amendment incorporates the Second Amendment.

Justice Stephen Breyer argued the Second Amendment was not intended to protect an individual’s right to own a gun for self-defense. He argues that by roughly 8 to 1, professional historians of early American history agree with him and the Court should avoid second guessing the experts. Breyer argues that even if this were not the case, there are several reasons to think the Due Process Clause does not incorporate the Second Amendment. Among the reasons are that there is no consensus on whether the right to own guns is fundamental, the right does not protect minorities or others neglected by the political system, and determining the scope of the right would force judges to make decisions about gun safety and effectiveness that are outside their area of expertise.

It is hard to know how any of these reasons are relevant. The reasons are policy considerations. If judges consider them, then they cease to interpret the law (what judges are supposed to do) and start to make the law (what legislators are supposed to do). Nor is it clear where these policies come from. They are not explicitly or implicitly in the Constitution. Nor are they a part of fundamental American values such as liberty, equality, or democracy. In addition, Breyer’s reasoning fits poorly with his reasoning in other areas, for example, abortion.

The Supreme Court, especially Justices like Breyer, Stevens, Ginsburg, and Sotomayor, has in effect crossed out important parts of the Constitution (Commerce Clause, Takings Clause, and Tenth Amendment). They almost got the Second Amendment. Scary.