Justice Clarence Thomas, the most conservative justice on the Court, declined to go along with that approach. The Due Process Clause route, called substantive due process, is at root a liberal activist theory contradicted by the history and original meaning of the Constitution. Justice Thomas instead argued that the Court should apply the right to bear arms through the Fourteenth Amendment Privileges or Immunities Clause, which was the way the Framers of the Fourteenth Amendment designed it.
The four liberal justices dissented in what should be a shocking move. Given how the Court extended First Amendment rights such a free speech and religious freedom, Fourth Amendment rights against search and seizures, and Fifth Amendment rights against self-incrimination, the Second Amendment should have been a foregone conclusion.
The four liberal justices nonetheless set forth elaborate arguments as to how and why the right to own a gun is not fundamental, and therefore cities and states should be free to regulate them in any fashion, or even completely ban them. Justice Stevens wrote his own dissent for his last day on the bench. Justice Breyer wrote another dissent, which Justice Ginsburg and Justice Sotomayor joined in full.
What’s interesting about that is it contradicts what Sonia Sotomayor said during her confirmation hearings just last year. In response to the question of whether it is settled that the Second Amendment secures an individual rights, Sotomayor told Judiciary Committee Chairman Pat Leahy, “Yes, sir.”
Really? How does that square with the dissent? The one that said, “I can find nothing in the Second Amendment’s text, history, or underlying rationale … to protect the keeping and bearing arms for private self-defense purposes.” Although that statement only concerned whether the right to own a gun is fundamental, the dissent also said that the Court should consider overruling Heller altogether.
Those statements are consistent with the decisions Sonia Sotomayor joined when she was an appeals judge on the Second Circuit. Those were the decisions that led defenders of the Second Amendment to oppose her confirmation to the Supreme Court.
Heller and McDonald are only the beginning. There are many important questions remaining about the meaning of the Second Amendment. Those questions will be answered by whoever sits on the Supreme Court over the next thirty years. McDonald is a reminder that the biggest battles over the Second Amendment will now be won or lost in the courts.
That being the case, senators should ask some very serious questions about the Second Amendment during Elena Kagan’s confirmation hearings this week.