an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Justice Stevens’s dissenting opinion in McDonald v. Chicago is remarkable for many reasons. This post focuses on Stevens’s argument that provisions of the Bill of Rights need not apply in the same way everywhere. The Justices in the majority did not fully come to terms with Stevens’s claim. Understanding Stevens’s argument and assessing its implications require reading McDonald through the lens of some earlier cases in which Stevens also wrote about Bill of Rights uniformity.
In McDonald, the Supreme Court held that the Second Amendment individual right to possess arms for self-defense as recognized by DC v. Heller (invalidating a federal ban on readied handguns in the home) is applicable to the states just as to the federal government. Justice Alito, joined by three other Justices, found the Second Amendment right incorporated against the states via the Due Process Clause of the Fourteenth Amendment. Justice Thomas supplied the fifth vote for applying the Second Amendment to the states but he viewed the right applicable to state government through the Fourteenth Amendment’s Privileges or Immunities Clause.
In his dissenting opinion, Stevens argued that the question in McDonald was “not whether the Second Amendment right to keep and bear arms . . . applies to the States” but rather “whether the particular right asserted by petitioners applies to the States because of the Fourteenth Amendment itself, standing on its own bottom.” (Stevens construed the petitioners’ claim as about the right to keep a keep a handgun in the home, i.e. not necessarily tied to self-defense, but this is not important for present purposes.) In other words, because the Second Amendment only constrains the federal government, the question was whether the Fourteenth Amendment’s Liberty Clause (which does constrain the states) itself includes the right to keep arms. Incorporation was, therefore, a “misnomer.” And Heller, which involved only the meaning of the Second Amendment, “sheds no light” on whether there is a right held against state government under the Fourteenth Amendment. “Inclusion in the Bill of Rights,” Stevens wrote, “is neither necessary nor sufficient for an interest to be judicially enforceable under the Fourteenth Amendment” against the states.
Further, Stevens argued, because the Liberty Clause of the Fourteenth Amendment uniquely applies to the states, the scope of a right can apply differently to the states than it applies to the federal government (to which the Bill of Rights applies directly). Stevens explained: “The rights protected against state infringement by the Fourteenth Amendment’s Due Process Clause need not be identical in shape or scope to the rights protected against Federal Government infringement by the various provisions of the Bill of Rights.” While, Stevens noted, the Court has applied fully some (but not all) provisions of the Bill of Rights against the states, “elementary considerations of constitutional text and structure suggest there may be legitimate reasons to hold state governments to different standards than the Federal Government in certain areas.” Thus, he wrote, “the ‘incorporation’ of a provision of the Bill of Rights into the Fourteenth Amendment does not, in itself, mean the provision must have precisely the same meaning in both contexts.” (In making this point, Stevens drew upon the view of Justice Harlan in Williams v. Florida and other cases.)
Stevens thought there are good reasons not to hold the states to the same standard of rights that apply against the federal government. Variation in how rights apply, he argued, can produce the federalism benefits of experimentation. Uniformity, by contrast, undermines tailoring rights to local conditions. In addition, he contended, insisting on uniformity in rights leads to a watered-down version of rights—one that is palatable to all jurisdictions.
This did not mean that congruence between how rights apply to the federal government and the states is never warranted. Stevens noted approvingly that most criminal procedural protections of the Bill of Rights apply in the same way in state and federal court. “The need for certainty and uniformity is more pressing, and the margin for error slimmer, when criminal justice is at issue.” (Elsewhere in his opinion, Stevens also refers to “matter[s] not critical to personal liberty or procedural justice,” rights like “the ability independently to define one’s identity” that lie at the “conceptual core” of the Liberty Clause, and the interests of politically powerless groups – though it is not clear that Stevens’s point is that there should be no variation with respect to these rights also.) Stevens therefore thought Malloy v. Hogan and other cases cited by Justice Alito in his opinion that seemingly reject any possibility of variation between how a provision of the Bill of Rights applies to the federal government and the states had to be understood in the special context of criminal justice.
According to Stevens, the right to keep arms does not require uniform application to the federal government and the states. Based on a textual and historical argument, Stevens concluded that the right the petitioners claimed in McDonald did not fall within the scope of “liberty” the Fourteenth Amendment protects. But even if it did, he argued that the Court should stay its hand. Given wide variations in crime rates and demographics, he argued, “this is a quintessential area in which federalism ought to be allowed to flourish without this Court’s meddling.” In his view, the Court should decline to apply the rule of Heller to the states because the Court lacks the “technical capacity and . . . localized expertise” to determine the proper scope of gun regulation (and therefore the scope of the corresponding right). States and localities, he argued, are in a much better position to set the proper contours in this area and they should be allowed to do so “so long as the regulatory measures they have chosen are not arbitrary, capricious, or unreasonable.” In other words, the right recognized in Heller could and should “apply on different terms” to the states compared to the federal government.
In his plurality opinion, Justice Alito rejected Stevens’s “special incorporation test applicable only to the Second Amendment.” In Alito’s view, a “two-track” approach by which “in order to respect federalism and allow useful state experimentation” the Second Amendment “should not be fully binding on the States” was inconsistent with the Court’s interpretations of the Bill of Rights and with the fact that the Bill limits the ability of states and localities to experiment.
Justice Scalia also wrote a concurring opinion in which he criticized Stevens for (among other things) his willingness to treat the Second Amendment as different from other provisions of the Bill of Rights. In Scalia’s view, Stevens’s proposed Liberty Clause analysis would put too much discretion in the hands of judges. “Deciding what is essential to an enlightened, liberty-filled life is an inherently political, moral judgment—the antithesis of an objective approach that reaches conclusions by applying neutral rules to verifiable evidence.” Scalia complained also that under Stevens’s approach, “whatever the Constitution . . . may say, the list of protected rights will be whatever courts wish it to be.” Scalia further thought that Stevens’s call for localized experimentation was a smoke-screen for judicial power: “The implication of Justice Stevens’s call for abstention is that if We The Court conclude that They The People’s answers to a problem are silly, we are free to “intervene . . . but if we too are uncertain of the right answer, or merely think the States may be onto something, we can loosen the leash.”
A different image emerges, however, if we read Stevens’s dissent in McDonald in light of his dissenting opinions in other cases in which he has argued in favor of variation in how the Bill of Rights applies. As I discussed in an earlier post, in Kansas v. Marsh (and in other cases)Stevens argued that state courts should be free to apply provisions of the Bill of Rights that protect criminal defendants more stringently against state government than Supreme Court case law requires. Under this approach, the Court should, therefore, deny review in criminal cases in which the state is arguing that a state court has over-enforced the Bill of Rights in favor of the defendant.
Stevens made no mention of Marsh in McDonald. But both cases rest on similar ideas: Provisions of the Bill of Rights need not apply in the same way everywhere. So long as states do not drop below a national floor, they can pursue different approaches. Variation can be a good thing because it produces the federalism benefit of experimentation.
The specific sort of variation Stevens had in mind in Marsh is, of course, distinct from that in McDonald because the starting points in the two cases differ. In Marsh, state government and the federal government begin equally constrained by the Bill of Rights as the Supreme Court understands it; a state court can apply more stringent rules against state government in state criminal proceedings than apply in federal court. In McDonald, state government is less constrained by the Second Amendment than is the federal government under the Court’s precedents. Nonetheless, in both Marsh and McDonald, Stevens is in favor of variable application of Bill of Rights provisions.
Reading Steven’s dissent in McDonald through the lens of Marsh also suggests the possibility that state courts could apply stronger Second Amendments against state government than the Supreme Court itself imposes. As in Marsh and criminal rights, state court decisions could raise the level of Second Amendment rights against the states above what the Supreme Court requires. Indeed, state court generosity could result in state government being more constrained than is the federal government under the Court’s post-Heller case law.
We don’t know whether Stevens would advocate applying his approach in Marsh beyond the context of criminal cases so as to allow state courts to construe the Second Amendment more broadly against state government. (An issue here is that state government tries state defendants only in state court. Second Amendment cases against a state can be brought in either state or federal court. Extending Stevens’s approach in Marsh to the Second Amendment therefore raises the possibility that a state court would invalidate a state law that a federal court has held constitutional.)
One reason for thinking Stevens might apply his approach in Marsh more broadly is that (perhaps uniquely among Supreme Court Justice) Stevens’s notion of federalism includes the possibility of differences between federal and state judges on issues of federal constitutional law. Throughout his dissent in McDonald, Stevens presents his concern as centered on federal courts. Stevens complains, for example, of “federal courts’ imposing a uniform national standard,” and of “a federal court insist[ing] that state and local authorities follow its dictates.” In advocating restraint, he says “it is more in keeping . . . with our status as a court in a federal system to avoid imposing a single solution . . . from the top down.”
In criticizing Stevens’s position in McDonald as aggrandizing judicial power, Alito and Scalia refer generally to “courts” and “judges.” They do not recognize Stevens’s particular focus on delineating the proper role of federal courts (including the Supreme Court) in the federal system. Accordingly, they misconstrue Stevens’s analysis as based on a framework invented just for gun rights and they miss much of the richness of Stevens’s federalism argument. Posted
by Jason Mazzone [link]
"Reading Steven’s dissent in McDonald through the lens of Marsh also suggests the possibility that state courts could apply stronger Second Amendments against state government than the Supreme Court itself imposes."
This is generally the case, so I'm not sure if his dissent makes it a particularly notable.
Lest we forget, Stevens was a Nixon/Ford appointee, so his more restrained, state discretion approach here is not that surprising. It would be interesting to see how he would have decided cases if he was on the Warren Court. Would he incorporate as fully or take a middle of the road approach?
This is particularly interesting since I'd like to know the breadth of his "state should have discretion" argument. Other than juries, and is he really fully on board with non-unanimous juries?, that simply isn't the rule now.
Well, it is in respect to obscenity, but Stevens doesn't support that. He opposes the exception as a whole, but at the very least supports national standards.
So, it seems a bit curious that the 2A is singled out. In respect to speech and let's say sexual conduct or abortion rights, local discretion doesn't seem to be a big thing for him. This too leads me to be curious about how he would decided without decades of precedent on the matter.
I personally really convinced by his dissent in McDonald. A one-way ratchet (states can offer more defense) on criminal matters isn't really on point, unless you think discretion on guns is equally protective of liberty.
"The Justices in the majority did not fully come to terms with Stevens’s claim."
Not really much there to come to terms with. It's just one of the stock rhetorical tactics for pretending you're not really advocating that the 2nd amendment be ignored, while letting all the jurisdictions that want to ignore it do so.
Scalia is right, that's not how the Bill of Rights works. It's how people try to keep it from working.
As for Jason's ridiculous assessment that Steven's decision might be based on Federalist principles, one needs to read no further than his descent in Printz. I also take umbrage at this idea that the court is split along lines of liberalism and conservatism; It is not. The court is split along nihilist and constructionist, and Stevens is firmly entrenched in the nihilist camp.