On March 2, the Supreme Court heard arguments on whether the Second Amendment applies to states, or instead is only a right against the federal government. Although it looks like America’s gun owners are going to win this case—largely thanks to the National Rifle Association—there’s some big questions as to exactly how the Court is going to decide this case, and what it means for all of us.
The U.S. Supreme Court heard arguments today in McDonald v. City of Chicago. It follows on the heels of the 2008 District of Columbia v. Heller decision, where by a 5-4 vote the Court struck down D.C.’s absolute ban on handguns and other readily-usable firearms. McDonald is a challenge to the Chicago gun ban, which—although not quite as severe as the ban in Heller—is nonetheless for all practical purposes a complete ban on guns, even in the home.
So the question in McDonald is whether the Second Amendment right to bear arms applies to the states. When the Bill of Rights was adopted in 1791, it originally only secured rights against the federal government. When the Fourteenth Amendment was adopted in 1868 after the Civil War, it extended most—but not all—of the Bill of Rights to also apply to the states, and political units of the states, such as cities. The legal term is that the Fourteenth Amendment “incorporates” rights against the states.
As the federal capital city, Washington, D.C. is directly under federal law, so Heller did not involve incorporation. So incorporation is instead the question before the Court today concerning Chicago.
What was so interesting in the argument today is how the pro-gun camp is split on this case. The traditional route for incorporating rights is through the Fourteenth Amendment Due Process Clause, which is why the NRA—which was also a party in this case—argued for this approach.
But the libertarian activists arguing this case for Otis McDonald and his co-plaintiffs were instead arguing for the Court to incorporate the right to bear arms through the little-used Privileges or Immunities Clause of the Fourteenth Amendment, and in doing so to overrule one of the biggest Supreme Court decisions of all time, called the Slaughter-House Cases, from 1873. These activists made clear that they also support incorporation through the Due Process Clause, but devoted the vast bulk of their briefs and argument time to pushing Privileges or Immunities.
(There is a third argument, that it’s possible to incorporate gun rights through the Privileges or Immunities Clause without overruling the Slaughter-House Cases, which I argued in an amicus brief filed in this case, but the Court focused on the two main arguments during the session today.)
There had been months of speculation and excitement in some libertarian circles regarding the possibility of Slaughter-House being overruled, as this would open the door to all sorts of libertarian economic rights. (It should also be noted that many libertarians oppose overruling Slaughter-House.) These activists were enthusiastically joined by liberals, who see overruling the Slaughter-House Cases as the key to declaring all sorts of new constitutional rights, from government-run healthcare to environmental “rights” to abortion to same-sex marriage.
But any hopes for the Privileges or Immunities Clause came crashing down during argument today. In the very first minute of argument, Chief Justice John Roberts declared that the McDonald lawyers faced a heavy burden if they meant to convince the Court to overrule a major precedent that had been on the books for 140 years, one that helps define the contours of federal-state relations under our Constitution.
When the McDonald team acknowledged this would be a big step, Justice Antonin Scalia weighed in strongly against it, asking why they were pressing such an argument on the Court. Scalia correctly pointed out that using the Due Process Clause was a deeply-flawed approach (for a host of legal reasons), but that it’s the way the Court had done it for a century, so why would they want to completely overhaul how constitutional rights are incorporated to the states?
Nonetheless, the McDonald team kept swinging away, trying to climb back into the box that Scalia knocked them out of by signaling that the conservative justices on the Court—the only justices that are pro-gun—were unwilling to reinvent the wheel when so much is at stake.
Then the National Rifle Association took the lectern, represented by former U.S. Solicitor General Paul Clement. The NRA argued that, “incorporating the Second Amendment through the Due Process Clause is remarkably straightforward,” and urged the Court to take the conventional route.
At this point the liberal justices, beginning with John Paul Stevens, tried to trip up Clement by getting him to allow that some Supreme Court precedents suggest that even if the Second Amendment is incorporated, that perhaps cities and states have greater latitude in restricting guns than the federal government.
But the NRA proved that it had wisely invested its resources in retaining Clement, who is one of the most successful Supreme Court litigators alive. Clement handled all their questions without ceding any ground, running the gauntlet set up by the liberal justices without a single slip.
Chicago’s lawyer then argued that the Court should not incorporate the Second Amendment through either route, and was promptly pummeled for doing so.
The conservative justices clearly weren’t with him, and the Court’s usual swing vote, moderate Justice Anthony Kennedy, drove a stake through the heart of Chicago’s position by declaring that the right to keep and bear arms is a fundamental right, and that this Court must come to that conclusion unless it were to hold that the Heller decision was wrong.
In other words, Kennedy was saying that unless Chicago convinced the Court to overrule its 2008 Heller decision, then Chicago was going to lose on the incorporation issue. And it was abundantly clear that the Court was not going to consider overturning Heller.
Chief Justice Roberts sealed Chicago’s fate on that point, saying of Chicago’s argument, “That sounds an awful lot to me like the argument we heard in Heller on the losing side.”
Then the libertarian lawyer again took the podium to offer his rebuttal arguments. As things went back to the Privileges or Immunities Clause, the conservative justices embraced the conservative argument against the McDonald team, correctly noting that overruling Slaughter-House would empower federal judges to declare all sorts of novel constitutional rights, and sit in judgment to strike down state and local laws on issues where the U.S. Constitution is silent.
Such an outcome violates our federal system of government, where the states are sovereign to makes any laws they choose through the legislatures elected by their voters on every issue where the U.S. Constitution does not empower the federal government to decide them, or declare a constitutional right.
So in the end, it’s almost certain that the Second Amendment will be incorporated to the states through the Fourteenth Amendment, and that most or all of the justices supporting incorporation will do so through the Due Process Clause. The Chicago gun ban is about to suffer the same fate as the D.C. gun ban.
There are plenty of questions, however. Will all four liberal justices oppose incorporation? Will some support incorporation, but still vote to uphold the Chicago ban? What else will be said about gun rights in the Court’s opinion that will shape future Second Amendment cases?
It’s unclear from oral argument as to which way these things will come down. We’ll find out when the Supreme Court hands down its decision, which is expected in late June.
But what we know already is that today was a good day for the NRA, and a great day for the Second Amendment.