« Impeachment as process | Main | Life After Tenure »

Friday, January 18, 2019

Why Is the First Set of Amendments Unequal?

In response to my post earlier this week about the Second Amendment, Orin Kerr asked why I think that there is no compelling reason for treating the provisions within the Bill of Rights as equals. Here are a few thoughts:

  1. The first ten amendments were not understood originally as a set. In other words, there was no thought that they would be treated alike except that they limited only the federal government.
  2. When people did start thinking of the Bill of Rights as a set (most notably John Bingham), that was only to say that they should all apply to the states as well. 
  3. There are significant differences among the parts of the Bill of Rights. The Fourth Amendment refers to reasonableness as a standard and the Eighth Amendment invokes proportionality for fines and bail. Other provisions do not contemplate balancing in this way. Likewise, the right to counsel in the Sixth Amendment is treated as a positive right (for the indigent) in a way that the others are not. The Tenth Amendment is structural in a way that other provisions are not. 

This does not mean that the Second Amendment must be assessed under a lower standard of review than the First Amendment. All I am saying is that you cannot persuasively argue that they must be treated alike because they are both in the Bill of Rights, which is one claim in Judge Bibas's dissent. 

Posted by Gerard Magliocca on January 18, 2019 at 03:36 PM | Permalink


Sorry Article 1.

Posted by: anon | Jan 21, 2019 12:29:35 PM

#1 The 9th and 10th amendments were tacted on to appease the Framers who were fearful of a strong central government.

#2 Nowhere in the Constitution is the idea of incorpration against the states mentioned or even considered. In fact, Article 2 contains limitations on the states that would be pointless if incorporation were part of the original intent of the Founders.

#3 The Sixth Amendment was never originally understood to apply to indigent defendants at the time of the founding.

Posted by: anon | Jan 21, 2019 12:28:56 PM

Regarding Proposition #1: What does it matter whether the rights were originally considered as constituting a set or not? How does that change their relative constitutional status? Since the anti-Federalists and others clamored for rights to be added as part of the deal for the new constitution, does that historical tidbit weigh in favor of the rights' being adjudged to possess equal status?

Regarding Proposition #2: Did (post-Civil war?) folks really think the tenth would/ought to apply against the States too? (Your own "structural" point belies this). Why would the set's application to the States or not affect their status *relative to one another*?

Regarding Proposition #3 :If anything, why doesn't this work against your position? The 4th Am bears a reasonableness standard, whereas the 2nd says "shall not be infringed" full stop? You may say this begs the question (e.g., for 1rst Am states Congress shall pass "no" law, but the constitutional jurisprudence suggests otherwise). However, that response in turn begs the question of the jurisprudence's validity and soundness (if not its sensible and practical value).

Posted by: Guestymcguestguest | Jan 21, 2019 4:14:47 AM

Won't the equal rights amendment make all rights equal? Or will some rights still be more equal than others?

Posted by: ERA or RAE | Jan 21, 2019 12:01:10 AM

Let's take the under-inclusive doctrine in Brown v. EMA.

Large Capacity Magazines are involved in 70% of gun homicides.

If we can ban large-capacity magazines to save lives, surely we can (and should) ban small capacity magazines to save literally a dozen-times more lives. But since we can't ban small-capacity magazines that kill 12x more people than large-capacity magazines, then we can't ban large-capacity magazines either.

And yet judges who review large-capacity magazine bans have never even heard of the under-inclusive doctrine.

Posted by: Causeinski | Jan 19, 2019 2:51:32 AM

We just want to make sure that all the moral discoveries of the last century--no waiting periods, no background checks, no excise taxes, no licenses, etc.--apply to the rights we exercise too.

We don't want to fund public university ethics departments just so their discoveries aren't applied to our rights as well.

If you discover a moral principle with our tax money, make sure it applies to all rights (goes into the public domain) rather than only applying it to your favorite rights (copyrighted).

Posted by: the moral sphere and the public domain | Jan 19, 2019 12:40:03 AM

Let's say that it violates a woman's right to privacy for the government to keep a list of women who've had an abortion.

What gun-owners want is for it to also violate a woman's right to privacy for the government to keep a list/registry of gun-owners.

If it's morally reprehensible for the government to keep a list of people who've exercised one right (having an abortion), then it should be equally morally reprehensible for the government to keep a registry of people who've exercised any other right (like keeping or bearing arms).

And the way you make sure the government doesn't keep a list of people who buy or carry guns is for them to not be any part of the transaction--no background checks, no licenses, no gun registries, etc.

Posted by: A Private's right to privacy | Jan 19, 2019 12:33:22 AM

We're not asking that the first and second be treated the same. Many gun-control laws were struck down not in the speech context, but in the voting or abortion context, for instance.

What we want is you to apply your moral principles--no waiting periods, no background checks, no excise taxes, no licenses, etc.--to all rights, not just the rights that you happen to favor.

But it's shorter to just say, treat all the amendments the same--because they are fewer exceptions to that rule than the rule "treat all amendments uniquely".

Posted by: Devonian Wreath | Jan 19, 2019 12:20:36 AM

If someone challenges a gun-control law before they're arrested under it, people say, "Oh, are you planning on breaking the law?"

But if someone challenges a speech-control law before they're arrested under it, people say, "You must be a free-speech advocate?"

Why the separate treatment? Why are gun-owners presumed to be lawless, while book-owners are presumed to be lawful--when both are constitutional rights?

Posted by: Going down in the Challenger | Jan 18, 2019 11:32:02 PM

Let's look at the facial challenge doctrine.

Wouldn't the same underlying principles that animate the facial challenge doctrine also apply to any other rights?

If we can challenge speech laws before we're arrested under them because they may apply to us in the future, then shouldn't be be able to challenge any gun law that may apply to us in the future?

That's what we mean by treating the amendments the same.

Posted by: Future Self | Jan 18, 2019 11:27:50 PM

Let's assume that the reason we have the overbreadth doctrine is because of the prior notice clause of the sixth amendment--You have a right to know ahead of time exactly what is legal and what isn't.

Then wouldn't it apply both to the first and the second amendment? If it has nothing to do with the first, then shouldn't it also be applied to the second?

If the reason we can't tax the ballot isn't because people have a right to vote, but because the poor have a right to exercise any and all of their rights equally under the fourteenth amendment, then wouldn't bans on taxing rights apply to all rights?

Posted by: indigent under the sixth and the second | Jan 18, 2019 11:07:25 PM

I think what the judge is suggesting is that in the same way that there's more than one speech-control law that's unconstitutional under the first amendment, so there must also be more than one gun-control law that's unconstitutional under the second amendment.

Obviously not every law that's unconstitutional under the first (or the second) is also unconstitutional under the second (or first), but that MOST of the laws that are unconstitutional under one must also be unconstitutional under the other BECAUSE the underlying law is unconstituional regardless of what it applies to.

For instance, if background checks or waiting periods (prior restraints) are inherently immoral--not just infringements on first amendment rights--then they must be unconstitutional in all contexts.

That is, if waiting periods violate the right to exercise your rights on demand (with all deliberate speed!), then it's unconstitutional no matter what right it applies to.

Posted by: Kant let you do that | Jan 18, 2019 10:32:27 PM

So are you saying the ban on excise taxes on newspapers and bibles shouldn't apply to firearms because of the reasonableness standard in the fourth amendment?

Or that the requirement that cars have silencers (mufflers) in the Americans with Disabilities Act not apply to firearms because of the proportionality principle of the eighth amendment?

Posted by: the unreasonableness standard | Jan 18, 2019 9:24:34 PM

Obviously the first and second don't need to be treated equally, just as we don't treat the first and sixth amendment equally.

We just want to make sure that the facial challenge doctrine, the overbreadth docrtine, and the least-restrictive-means test are all used and have effect in the second amendment context. That judicial review means something and every firearms regulation isn't taken as the supreme law of the land (rather than the second amendment).

We just ask that the second amendment is taken as seriously as the fist amendment. No background checks, no waiting periods or prior restraint, no fees or excise taxes, no licenses, etc.

Posted by: Second Among Equals | Jan 18, 2019 8:21:24 PM

And yet in some ways we do treat the amendments the same.
For instance, we all agree that minors have the right to speak (1A) and the right to remain silent (5A) and are presumed innocent until proven guilty (6A), can't be executed (8A), and are free to have abortions (9A).
That is, we would never say that only the first amendment applies to minors, or the poor, or to the disabled.

We're not saying that all the amendments work the same way; we're saying that the second amendment also works, i.e., has real-world effects that strike down legislation.

Posted by: Trigger Warning | Jan 18, 2019 8:05:08 PM

Number 1 isn't quite clear, since Madison makes quite clear during the debates that each and every one of the amendments is intended to limit the majority from voting away rights from the minority.

Posted by: YesterdayIKilledAMammoth | Jan 18, 2019 5:59:15 PM

Thanks very much for the explanation, Gerard.

For what it's worth, I didn't read Bibas's dissent as arguing that the First and Second Amendments "must be treated alike because they are both in the Bill of Rights." Rather, I tend to read it as echoing the Supreme Court's conclusion in Heller that the basic methodological approach for interpreting the Second Amendment shouldn't be wholly unique. Here's what appears on the page in Heller that Bibas cites:

Justice BREYER moves on to make a broad jurisprudential point: He criticizes us for declining to establish a level of scrutiny for evaluating Second Amendment restrictions. He proposes, explicitly at least, none of the traditionally expressed levels (strict scrutiny, intermediate scrutiny, rational basis), but rather a judge-empowering “interest-balancing inquiry” that “asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute's salutary effects upon other important governmental interests.” Post, at 2852. After an exhaustive discussion of the arguments for and against gun control, Justice BREYER arrives at his interest-balanced answer: Because handgun violence is a problem, because the law is limited to an urban area, and because there were somewhat similar restrictions in the founding period (a false proposition that we have already discussed), the interest-balancing inquiry results in the constitutionality of the handgun ban. QED.

We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges' assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad. We would not apply an “interest-balancing” approach to the prohibition of a peaceful neo-Nazi march through Skokie. See National Socialist Party of America v. Skokie, 432 U.S. 43, 97 S.Ct. 2205, 53 L.Ed.2d 96 (1977) (per curiam). The First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrong headed views. The Second Amendment is no different. Like the First, it is the very product of an interest balancing by the people—which Justice BREYER would now conduct for them anew. And whatever else it leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.


From what I can tell, it's right that Bibas limits the relevant category to "the Bill of Rights" and not the broader category of enumerated rights (many of which are found in the Bill of Rights) as was the case in Heller. But I'm not sure that was intended to be a significant change, or that Bibas was suggesting that all parts of the Bill of Rights must be treated exactly the same way.

Posted by: Orin Kerr | Jan 18, 2019 4:35:51 PM

Post a comment