« Congress and Iqbal/Twombly | Main | Natural Disasters and Disability »

Monday, March 15, 2010

Grutter-izing of the Second Amendment?

For federalism fans (of which I am one), the oral argument in McDonald two weeks ago oral argument in McDonald two weeks ago was only a modest disappointment. Several members of the Court looked as if they might adopt the strategy familiar from the Sixth Amendment of formally incorporating the Second Amendment against the states but giving the states a lot of leeway to “tailor” the details of the right. That’s better than the absurdity of imposing a single limit on gun regulation on a nation bitterly divided over the issue. But this sort of doctrinal nuance has the same sort of detached academic quality of other discussions of incorporation issues – for instance, the (to my ears) completely sterile discussion of whether the right home for incorporation doctrine is the Due Process or Privileges & Immunities clause. (Query to my blogosphere colleagues: What conceivable practical difference does it make to any sensible citizen whether we hang the doctrine on one hook or the other?) What possible practical guidance do we get by some Delphic pronouncement from Kennedy that some but not all of the Second Amendment applies against the states?

We need a theory of federalism and rights, not a theory about the proper linguistic etiquette for writing a brief. That is, we need some way to determine which governmental actor ought to regulate firearms. We have three candidates on the table -- (1) federal courts using some policy-laden “balancing” test while pretending that they are interpreting the 14th Amendment; (2) Congress, using mostly the commerce clause; and (3) the States, using their reserved powers. If we focused on sensible federalism policy, then is it not obvious that the right answer, as a matter of sound federalism-and-rights policy, is (3)? And if our jurisprudence really requires us to ignore such sensible policy in favor of fly-specking of 19th century cases about oyster beds and speeches in the 39th Congress, then is our republic not truly ridiculous?

Since SCOTUS does not like making ridiculous policy, I suspect that they will Grutter-ize the Second Amendment – i.e., declare gun ownership to be a fundamental right that states cannot infringe without a really good reason but then allow states to regulate it all the same just so long as they are not too candid about it and undergo some ritual hazing by a federal judge to determine if their grounds for regulation are the least intrusive means for a blah, blah, blah. In short, we will get sensible decentralization but in a low, furtive, dishonest way. But perhaps you disagree with me about the policy merits of federalism for resolving our disagreements about guns. Consider, then, the following (after the jump):

(1) We are riven by a bitter cultural divide on guns, a divide that paralyzes Congress whenever it confronts the issue. Option #2, therefore, seems hopeless. (On the national and subnational politics of gun control, I recommend Kristen Goss's 2006 book, Disarmed: The Missing Movement for Gun Control )

(2) As for option #1 – the federal courts -- is it not obvious, as a practical matter, that federal gun rights jurisprudence would be “I-know-it-when-I-see-it” ipse dixit masquerading as legal wisdom? We had horse doctors’ doses of that sort of “rights” jurisprudence from the pre-Miller v California days, when the SCOTUS used to apply First Amendment obscenity doctrine by watching porno flicks in chambers. Do we really want to produce an equally obscene jurisprudence of firearms, in which clueless federal judges, lacking any sort of experience in law enforcement, gun safety, crime control, regulation of public spaces, etc, owlishly opine on whether some local ordinance banning guns in some range of places (bars, schools, parks, courtrooms, etc), or holding gun owners or manufacturers strictly liable for injuries, or requiring a license or safety catches violates some ill-defined federal right? Will their black robes really fool anyone into believing that they are doing law when they declare that such laws are, or are not, “reasonable”?

(3) As for the states, they are reasonably heterogeneous on opinions about firearms: With both college towns and rural outbacks, big cities and suspicious suburbs, red and blue counties. Gun owners, therefore, are hardly in any position remotely analogous to the Freedmen, unable to secure a decent hearing in the state legislatures. I understand the theory of Federalist #10 that, as a practical matter, one would not want decentralized governments to control interests that are afflicted with racial or religious zealotry that de-humanizes some minority. I also understand the theory that states’ regulation of speech and voting rights need to be monitored to preserve democratic fluidity from the entrenchment of some local faction. But is there some other sensible functional theory to explain why we should distrust the states from regulating firearms? The NRA seems to do quite well at the subnational level, winning most battles, losing a few, but mostly holding their own. Why make a federal case out of their cause?

Oh, I forgot: Gun ownership is a “fundamental right” – an incantation that absolves the speaker of making any sensible policy argument in favor of centralizing the definition of the entitlement. Driven by this magic phrase, the federal courts will probably “incorporate” the Second Amendment into the pantheon of rights. Driven by the practical reality that the right in question patently requires a lot of regulation and the federal judges are utterly unequipped to evaluate such laws, we will get Grutter-ization described above. If you, like me, find that prospect to be a pointless waste of legal fees and law review space, then you might want to re-think the foundations of “rights fundamentalism,” in which everything that is “fundamental” must somehow be defined by federal officials.

Posted by Rick Hills on March 15, 2010 at 11:12 AM in Constitutional thoughts | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Grutter-izing of the Second Amendment?:


FWIW, corporations have clearly lacked 14A citizenship since Western Turf v. Greenburg, 204 U.S. 359, 363 (1907). Of course, even if we think (or the Supreme Court thinks) corporate rights reflect the rights of their employees & stockholders, the aliens, literal protection, and Apodaca issues (as well as how we should resolve basic SDP issues like reconciling Glucksberg and Lawrence) still make the P/I v. SDP issue practically important, as well as a matter of intellectual integrity.

Posted by: Chris | Mar 16, 2010 12:43:18 PM

"withheld Article IV protections from insurance companies, probably out of a western dislike for eastern insurance corporations than any sense that text compelled such a result"

I might need more than your say-so to accept this even if "text" is the only thing I care about when interpreting the Constitution.

Also, who's to say "regulatory takings" are really a core concern of the Takings Clause, anyway? Obscenity isn't the core concern of the 1A either. OTOH, if some locality bans operative firearms (the alleged problem in Heller, the trigger lock provision said to have that effect), a core concern very well might be at stake.

Meanwhile, lots of reasonable regulations, reflecting the text and history of the right in question, will be allowed. I'm unsure however if this is comparable to the affirmative action decision cited, which in effect (according to a few on both sides) allegedly allowed the same thing, just required hiding the ball a bit better.

Posted by: Joe | Mar 16, 2010 12:14:41 PM

Assuming that the Heller Court got it right that individual armed self-defense is a "fundamental right," perhaps the greatest difference between the other "fundamental" rights incorporated is that the former has a rich history of regulation. As early as late seventeenth century England, we see gun control debates not too different from what we argue today. In my forthcoming article, I discuss how this further developed in the mid-eighteenth century in a footnote:

"In 1756, Adam Ferguson perhaps advocated the most extreme militia reform by advocating the “bold…first Step” of taking away “every Restraint…by which the People are hindered from having or amusing themselves with Arms.” This included a repeal of all the game laws. Ferguson also addressed concerns about gun control, in which opponents of his militia reform argued that an increase of quarrels and deaths by guns may occur. He knew a “few domestic Inconvenience” would occur, but that this should not “deter us from the necessary Steps, in our own Defence, against a foreign Enemy.” Soame Jenyns made a similar observation when he wrote: “If it be objected, that to balance this many lives will be lost by the institution of these forces, by the accidental discharge of their firelocks, or the too valiant use of their swords in drunken quarrels[.]” Jenyns’s justified such deaths by arguing that “these accidents may sometimes happen; but, as on the most moderate computation, every man in these corps will probably beget three children before he kills one man[.]”"

This regulation was not limited to England. The American colonies had gun regulations well before the adoption of the Second Amendment, and continued well after it. Some laws even restricted people from using their militia arms for anything but militia service. Needless to say, I think if the Court incorporates the full Second Amendment, it must do so under the test you prescribe, for as the Court continues to examine the Founding history concerning arms they will come to find that any regulation was deemed reasonable.

Posted by: Patrick J. Charles | Mar 16, 2010 11:25:55 AM

Assuming that gun ownership is a "fundamental right" based on principles of originalism and/or history, whether going back to the ratification of the Bill of Rights or to the ratification of the 14th Amendment, how have limitations upon or failure to recognize this "fundamental right" over the years (until Heller and soon, perhaps, McDonald) thwarted democracy in the U S of A? If such "fundamental right" had the force of Heller (and soon, perhaps, McDonald) behind it going back to the ratification of the Bill of Rights or to the ratification of the 14th Amendment, how would democracy in the U S of A have benefitted?

Posted by: Shag from Brookline | Mar 16, 2010 7:57:32 AM

Those who believe gun ownership is a "fundamental right" have already voiced their objections to Justice Scalia's limitations dicta in Heller as unsupported by principles of originalism and history and seem prepared to seek unlimited gun rights or at the very least strict scrutiny. The analogy to regulatory takings is good, but consider how long it took to restore reasonable balance to what constitutes a regulatory taking; in the meantime, attorneys were looking under rocks for any semblance of a regulatory taking to go to the courts. Assuming incorporation of the 2nd Amendment via McDonald, will the Court respond directly to Chicago's regulations by voiding - or approving - them, or send the case back for exploration with instructions, including perhaps more dicta?

Prof. Lash closes his comment with this:

"Indeed, the very act of engaging in this kind of analysis implies that ultimate policy-making authority lies with the people and not with the Supreme Court or academic elites. That alone would be an enormous change from the Court's current approach."

I wish he would elaborate as I am thinking of unenumerated rights of the people. Perhaps he will with his upcoming posts on the 14th Amendment's P/I Clause.

As to Rick's comment about "The intelligent, even brilliant, efforts of Lash, Solum, Caleb Nelson, and others to infuse legalistic limits into the text of our Constitution, ..." I think the backlash following oral arguments in McDonald has gotten the attention of the Court and the backlash may be reflection in the eventual decision, supporting and dissenting opinions.

Posted by: Shag from Brookline | Mar 16, 2010 6:39:35 AM

By the way, Chris, textual limits have never really gotten in the way of SCOTUS's conferring citizenship rights on corporations: They are "citizens" for the purposes of Article III diversity, right? If Louisville, C. & C.R. Co. v. Letson, 2 How. (43 U.S.) 497, 558 (1844) can expand Article III citizenship to encompass corporations, then I've little doubt that 14th Amendment P&I citizenship could likewise be expanded to encompass corporate "citizenship."

The intelligent, even brilliant, efforts of Lash, Solum, Caleb Nelson, and others to infuse legalistic limits into the text of our Constitution are a tribute to their lawyerly skills. But those limits only seem to catch on with the Court when there is some practically urgent reason for these limits to be taken seriously, as in, say, Paul v. Virginia, 75 U.S. 168 (1869), when the westerners on the Waite Court -- Waite himself, Davis, Miller, Swayne, Strong, and Field -- withheld Article IV protections from insurance companies, probably out of a western dislike for eastern insurance corporations than any sense that text compelled such a result. Let's not pretend that tidying up incorporation doctrine by hooking it to the P&I clause would somehow induce SCOTUS to shrink corporations' federally protected rights: That's water under the bridge of the mid-1880s.

Posted by: Rick Hills | Mar 15, 2010 6:28:52 PM

Good question, Josh. In my view, SCOTUS has actually relegated many ostensibly "national" rights to the control of subnational governments, even though these rights are allegedly incorporated under the 14th Amendment. Take, for instance, the Just Compensation clause: Ostensibly, the federal courts protect the right of private property against state regulations that "take" it without just compensation. In reality, the SCOTUS' decisions like San Remo Hotel v. City & County of San Francisco, Palazzolo v. Rhode Island, and Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, have essentially gutted the doctrine of regulatory takings by allowing states to define the denominator of time and space that defines the concept of "property." Likewise, the size and voting rules for Sixth Amendment juries are heavily controlled by state law. Similarly, Miller gave to local juries the issue of whether speech offends local community norms so much as to constitute "obscenity."

And so on: The SCOTUS properly relies on state law to define federal rights where SCOTUS sees no practical advantage to imposing a nationally uniform set of entitlements.

This brings me to Kurt's thoughtful comment. Of course, I agree that our federalism is "a theory of divided power whereby some matters are controlled at the national level, others at the local level" and that "it is as important to federalism that national matters remain national as it is that local matters remain local." The question is how we define the scope of national rights. Should we do so semantically or functionally? Should we look to how ten words in the 14th Amendment's P&I clause are used in other contexts to see what they "really" meant in 1868? Or should we look to the "important object" that the 14th Amendment was intended to serve and then deduce the "minor ingredients" of that Amendment from this object?

Following John Marshall's advice in McCulloch, I tend to favor the latter purposivist reading of the 14th Amendment out of a loyalty to the principle of charity: As I have argued elsewhere, I presume that John Bingham, Jacob Howard, Fessenden, Stevens, and the rest were sane men who would not impose a functionally stupid level of uniformity on the nation out of some weird aesthetic desire for uniformity without purpose. Therefore, I presume that, in divining the sense of their words, we ought to add a functional gloss: Nationalize the rights in question when there is some reason to believe that the states will do a worse job of regulating such rights than SCOTUS and/or Congress. The paradigmatic example of such a worse job would be, say, the Memphis and New Orleans riots or similar acts of majoritarian racist failure to protect a local minority. Absent some reason to believe that gun owners are suffering from some persecution remotely akin to that experienced by the freedmen, I would not question the good-faith judgment of local official about how to draw the balance between collective security and individual liberty.

Moreover, I take it to be obvious that SCOTUS simply will not undertake such a quixotic task of striking a balance between liberty and security when state officials are acting in good faith, regardless of what Bushrod Washington wrote in Corfield or Bingham wrote in some letter. They will do what they usually do when asked to engage in utterly foolish meddling with subnational affairs: They will declare with august abstraction that the right to bear arms is a national right subject to "reasonable" regulation, and then they will fall over themselves in their haste to declare virtually all but the most stringent regulations as "reasonable."

The SCOTUS has done this with regulatory takings, parental rights to raise their kids, much First Amendment doctrine (see, e.g., SCOTUS' treatment of adult use zoning since Renton), and they will do it with the right to bear arms. The pity of it is that they cannot simply say that this is what they are doing. They have to pretend deviously that they really are enforcing some sort of national right without really analyzing subnational capacity. Why? because of a Rights Fundamentalism that assumes that, if a right is "important," then it must be nationally uniform.

Posted by: Rick Hills | Mar 15, 2010 5:50:15 PM

Professor Hill,

What other provisions in the Bill of Rights would you allow localities to define in the absence of a uniform federal standard? Could the right to trial by jury differ in Texas and California? What about the warrant requirement? Why is the Second Amendment different? I elaborate on these issues in this post http://joshblackman.com/blog/?p=4288

Thanks for the great post,

Posted by: Josh Blackman | Mar 15, 2010 4:50:16 PM

Interesting. Rick, do you know the data on the extent of negative cross-jurisdictional externalities from gun ownership? For instance, I seem to recall that the studies of Texas' enactment of concealed-carry laws suggested that crime declined in Texas but increased in neighboring states, impying the possibility of an interjurisdictional race to deregulation if laws are set locally. Then there's the whole Virginia-to-NYC gun trafficking problem, which sets up a similar dynamic.

Posted by: BDG | Mar 15, 2010 2:17:50 PM

American federalism has never been solely about decentralized power. It is a theory of divided power whereby some matters are controlled at the national level, others at the local level. In other words, it is as important to federalism that national matters remain national as it is that local matters remain local. This regardless of how "hard" it is to define the contours of the separation.

There may be a thousand good policy reasons why second amendment rights should not be enforced as national rights. For constitutionalists, however, the key issue involves whether the people entrenched one policy or another through the act of constitutional amendment. Answering that question requires an analysis of constitutional text and historical understanding--including an analysis of the privileges or immunities clause.

Indeed, the very act of engaging in this kind of analysis implies that ultimate policy-making authority lies with the people and not with the Supreme Court or academic elites. That alone would be an enormous change from the Court's current approach.

Posted by: Kurt Lash | Mar 15, 2010 2:07:43 PM

"What conceivable practical difference does it make to any sensible citizen whether we hang the doctrine on one hook or the other?"

First, P/I protects citizens, but SDP protects persons, so corporations & aliens would be out under P/I incorporation. Second, if we move E/P doctrine to P/I, we get an entitlement to "protection of the laws" out of it, which matters a lot. See here and here. Third, the SDP v. P/I issue might also impact the Apodaca issue. See here.

Of course, if SDP is a contradiction in terms (as I think it is), but SDP doctrine has been influenced by the ghost of the P/I clause (as it certainly has), and we don't like "low, furtive, dishonest" things, we also should switch to P/I as a matter of intellectual honesty.

Posted by: Chris | Mar 15, 2010 1:26:03 PM

The comments to this entry are closed.