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
Abbe Gluck abbe.gluck 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 msl46 at law.georgetown.edu
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
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
McDonald: More Important in Theory than in Practice
McDonald v. Chicago is a very long opinion, and quite interesting theoretically, but its practical effect is likely to be fairly small. The vast majority of states already have guarantees of a right to bear arms. The case is remanded for further proceedings. The Chicago ordinance, which bans handguns in the home, is likely to be held unconstitutional under Heller. However, the big issues really have yet to be decided. Moreover, McDonald goes out of its way to restate language in Heller suggesting that a range of traditional limits on firearms will be unaffected by an individual right to keep firearms for self-defense in the home. Since most states already apply a reasonableness test for gun regulations, and uphold many different types of gun control laws, it's likely that the federal courts will be not be much more protective. McDonald, like Heller, is a symbolic opinion more than a revolution in the practical effects of the law.
In this post, therefore, I want to discuss some of the theoretical issues in the plurality opinion by Justice Alito and the concurrence by Justice Thomas.
The plurality holds that the Second Amendment is incorporated into the Due Process Clause of the Fourteenth Amendment; it self consciously continues the twentieth century practice of "selective incorporation" which began during the civil rights revolution of the 1960s. This is yet another example of how conservatives have used the rights consciousness of the 1960s to promote conservative conceptions of constitutional rights. Justice Thomas, on the other hand, argues that the right to bear arms is a privilege or immunity of citizenship protected by the Privileges or Immunities Clause. (Disclosure: I was one of a number of law professors who worked on an amicus brief arguing for a position similar to Justice Thomas).
The key modality of argument in Justice Alito's plurality opinion is precedent. But he uses precedent in an odd way. He arbitrarily divides American history into three periods. As he tells the story, in the first period, immediately after Reconstruction, the Court interpreted the Privileges or Immunities Clause narrowly, greatly limiting the rights that applied against states. In the second period the Court incorporated a few rights against the states under the Due Process Clause, but rejected many others, arguing that only fundamental rights common to all civilized countries were incorporated. (I.e., if a civilized nation would not protect the right it was not fundamental.) In the third period, the period of selective incorporation, during the 1960s civil rights revolution, the Court incorporated almost all of the rights in the Bill of Rights against the states, asking only whether the right in question was fundamental to distinctly American traditions of liberty.
Apparently, Alito seeks to merge this question with the test of substantive due process found in the 1997 decision in the assisted suicide case, Washington v. Glucksberg. ("deeply rooted in our Nation's history and traditions"). This equation is anachronistic. Glucksberg tries (unsuccessfully, as it turned out) to limit the expansion of substantive due process, by adopting a much narrower standard than the Court would have employed during the heyday of the civil rights revolution in the 1960s and 1970s. Nevertheless, Alito's attempt to link Duncan and Glucksberg is strategic, for reasons I shall describe a little later.
As I noted previously, Alito's account of history is arbitrary. There is no clear division between the Court's approaches. Some of the cases he says fall in the second period actually come before cases using the approach he associates with the first period. So why does he engage in this little exercise of mythmaking? Because he wants to get to a certain result-- incorporation of the Second Amendment--without creating other problems for himself, and he wants to pick and choose which previous precedents to respect.
This is a case about incorporation and precedents: selective incorporation and selective precedents.
From the first period, Alito wants to argue that Slaughter-House won't be disturbed. The plurality doesn't want to open up the question of the privileges or immunities clause. (At one point, he even drops a footnote saying that the court won't get into academic debates about the history of the fourteenth amendment, except, that is, a few pages later in the opinion, when he relies on academic history to support his arguments.) Alito also wants to say as little as possible about the Court's early decisions that refused to incorporate the grand jury trial right in the fifth amendment and the trial by jury right in civil cases in the seventh amendment. He notes in passing that these cases were decided before the advent of "selective incorporation." Nevertheless, at the same time, he wants to reject the approach used during the first and second periods, and insist that the only correct method for deciding incorporation cases is the method of selective incorporation, asking whether a right is fundamental to American conceptions of liberty and American institutions.
Rejecting the City of Chicago's arguments, Alito insists that the same approach to incorporation should apply for all parts of the Bill of Rights. But if that's so, the Court needs to rethink earlier decisions that did not incorporate the grand jury and civil jury rights, because these were decided using a different approach.
Alito, however, shies away from this conclusion, saying only--and cryptically--that "unless stare decisis counsels otherwise," (citing to the grand jury and civil jury cases) the rights that apply to the federal government must also apply to the same degree to the states. But his reasoning is circular. Surely one could argue that stare decisis also "counsels otherwise" with respect to the Second Amendment. Several cases (Cruikshank, Presser, Miller) reject application of the Second Amendment to the states. So why does stare decisis counsel that the grand jury and civil jury rights are not incorporated but that the Second Amendment can be incorporated?
Here's whats going on: the plurality wants to avoid lumping the second amendment right together with the grand jury and civil jury rights. If the three are in the same box, then there will be considerable resistance to incorporating all three. The plurality really, really wants to incorporate the Second Amendment right, but it really, really doesn't want to open up a can of worms. So it comes up with this highly artificial formula that seems to hold the question of incorporating the other provisions at bay.
But only for the time being. Lawyers will quickly see that language in McDonald about a single standard for federal and state governments applies in equal force to the fifth amendment grand jury right and the seventh amendment civil jury trial right. And they will bring cases arguing for incorporation of these rights. The Court will probably shoot them down, arguing stare decisis, even though stare decisis meant little when it comes to incorporating the Second Amendment. As I said: this is a case about selective incorporation and selective use of precedent.
The other major jurisprudential move in the plurality opinion is its reinterpretation of Duncan v. Louisiana, the 1968 Warren Court decision that incorporated the sixth amendment's right of jury trials in criminal cases and that symbolizes the selective incorporation approach. Alito makes two important moves here. First, Alito suggests that the Duncan standard is similar to the conservative standard for implied fundamental rights announced in Glucksberg. In essence, the plurality is acknowledging that substantive due process and incorporation are the same issue, although it prefers to use the most conservative standard possible. This standard, however, would not necessarily justify many of the Court's substantive due process decisions, including Roe v. Wade or Lawrence v. Texas. That is not an accident, of course.
Equally important, Alito's interpretation of Duncan is strongly nationalist (i.e., opposed to foreign law). In Duncan, the Court wanted to show why features of American criminal procedure like trial by jury could be fundamental rights even though many other countries did not have a common law tradition that recognized trial by jury, and even though some common law jurisdictions had limited the right. In McDonald, Alito argues that Duncan stands for the proposition that rights are fundamental if they are deeply rooted in American traditions, so that the experience of other countries is irrelevant. It's easy to see how this reinterpretation fits well with conservative concerns about the influence of foreign law on American constitutional interpretation. What the plurality does in McDonald, in other words, is reinterpret a key liberal precedent of the 1960s to buttress its argument against the use of foreign law in American constitutional argument. Very clever indeed!
Let me say a few words about Thomas's opinion. I think it is an outstanding opinion, and I think that for the most part it gets the history right. It is certainly far more historically sensitive and historically accurate than any of the other opinions in McDonald. (Of course, it cribs generously from the amicus brief I joined, so I would probably say that).
I also admire Thomas' willingness to jettison precedents that he thinks are inconsistent with the Constitution's text and original meaning. I particularly admire his rejection of United States v. Cruikshank, which he rightly describes as a mangling of the Constitution and a tepid capitulation to the terrorist tactics of southern whites after the Civil War. Obviously I don't always agree with Thomas on the merits, or everything he says in his concurrence. But he has my admiration and respect for writing an opinion like this one.
Thomas is also careful to note and leave open an important question: whether the privileges or immunities clause protects only rights enumerated in the Constitution, or also protects some unenumerated rights as well. Thomas points out that it is not necessary to resolve this issue in order to decide the question before him. I believe it is clear from the way the text was written and from the earliest constructions of the text that the clause protects at least some unenumerated rights. But I agree with Thomas that deciding this issue in McDonald is premature.
Although both Thomas and I are originalists, I don't necessarily agree with his brand of orignialism. In my view, Thomas's opinion repeatedly makes the central mistake in contemporary original meaning orignialism that I have identified and rejected in my own writings: He conflates original meaning with original expected applications and original understandings. Most of the evidence he marshals does not tell us the original meaning of the Privileges or Immunities Clause. It tells us how the generation that framed and ratified it expected it would be applied. It also offers an understanding of the principles underlying the clause. That evidence is very important for deciding how to create constructions of the Fourteenth Amendment to realize its purposes. But we should not equate those initial constructions with the original meaning of the amendment. I thus reject Thomas's argument that the Privileges or Immunities Clause is limited to those fundamental rights that persons living in 1868 would have protected, protected in the way that they would have expected. This approach cannot possibly account for the modern civil rights revolution, including rights guarantees that Thomas himself would support. Posted
by JB [link]