Monday, June 28, 2010

State & Local Governments Must Honor Right to Keep & Bear Arms, Supreme Court Holds

“When I'm with a pistol/I sparkle like a crystal”

The U.S. Supreme Court today held in MacDonald v. City of Chicago, by a five-to-four vote, that the Fourteenth Amendment “incorporates” the Second Amendment right to keep and bear arms for the purposes of self-defense, so that state and local governments are bound by it.  (The full set of opinions is here.)  Two years ago the Court held in District of Columbia v. Heller that the Second Amendment conferred an individual right good against the federal government in a case that invalidated DC’s ban on handguns.  Now, the case against Chicago’s handgun ban will be remanded back to the lower courts, which almost certainly will hold the city’s law unconstitutional, and more litigation challenging to state and local gun control laws across the country, now with some success, may be expected in the wake of today’s decision.

The majority opinion was written by Justice Samuel Alito and joined at least in parts by the other “conservative” Justices: Chief Justice John Roberts and Associate Justices Antonin Scalia, Anthony Kennedy, and (concurring only in parts of Alito’s opinion) Clarence Thomas.  These Justices believed that the right to keep and use handguns for self-defense is “deeply rooted in this Nation’s history and traditions” and that the framers and ratifiers of the Fourteenth Amendment (which applies to state and local governments, unlike the Second Amendment, which applies only to the federal government) considered the right to keep and bear arms fundamental.

The majority's decision was unsurprising.  Justice Scalia’s majority opinion in Heller had included much history that postdated the adoption of the Bill of Rights.  That history might have been relevant to show whether a right to keep and bear arms was deeply rooted in U.S. legal history and traditions, but it was on Scalia’s usual interpretive views irrelevant to what the framers of the Second Amendment meant when they adopted that provision, since that history came later.  Heller thus was clearly setting up today’s decision in MacDonald.

The majority and Justice Thomas disagreed about what provision in the Fourteenth Amendment protects the right to keep and bear arms.  The majority would follow much precedent and hold that it is the Due Process Clause (“nor shall any State deprive any person of life, liberty, or property, without due process of law”), whereas Justice Thomas would rely on the Privileges or Immunities Clause of that Amendment (“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”).  This disagreement will not clearly have consequences for the types of laws that will be upheld or invalidated due to this right to keep and bear arms for self-defense.

Like Heller, though, MacDonald has left unanswered the question of what sorts of firearms regulations will violate the announced right to keep and bear arms for self-defense and what sorts of regulations will be permissible.  Although both cases rejected free-form “interest balancing,” neither specified a particular judicial test to govern future cases (or even the law challenged in MacDonald itself).  MacDonald repeated Heller’s reassurance that “prohibitions on the possession of firearms by felons and the mentally ill,” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms” would remain constitutional.  But like Heller, MacDonald has provided no reasoning for these reassurances, and no doctrinal test that they would satisfy that should generally be applied by courts considering challenges to gun control laws.

Justice Stevens dissented in MacDonald.  He agreed with Justice Alito’s conclusion that there is no cognizable right here under the Privileges or Immunities Clause, and the question thus is one of the substantive protection of liberty offered by the Due Process Clause.  More generally, Stevens advocated a broad judicial role in interpreting vague, general, or “open texture[d]” constitutional language such that in as the Due Process Clause.  This is an approach targeted at some length by Justice Scalia in his separate concurring opinion.  Ultimately though, a quick glance through Stevens’s opinion suggests, he views guns as conceptually distinct from self-defense, and as deadly, hence different from other rights protected by the Court under the Due Process Clause; he sees that governments in the U.S. have by and large extended much protection for firearms possession and use (and thus little need for judicial intervention; and he would rule in favor of Chicago here.

Finally, Justice Breyer wrote a dissenting opinion joined by Justices Ginsburg and Sotomayor.  These Justices agreed with Justice Stevens’s due process analysis.  They focused on the Court majority’s conclusion that the Fourteenth Amendment “incorporates,” or makes applicable to state and local governments, the Second Amendment.  Justice Breyer’s opinion revisited and further criticized the Heller majority's historical claims.  And it analyzed the claimed right by reference also to “the nature of the right; any contemporary disagreement about whether the right is fundamental; the extent to which incorporation will advance or hinder the Constitution’s structural aims, including its division of powers among different governmental institutions (and the people as well).”  Taking into further account the courts’ role as independent protectors of unpopular minorities, these dissenting Justices also agreed that Chicago's law should be upheld.

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