Friday, February 1, 2013

The Road Not Taken

[At our Division 4 (ABA Forum on Construction) dinner in Naples this week, we briefly discussed the current Supreme Court's substantive due process analysis.  I initially posted the analysis, below on "Winds of Change" at the time of the McDonald v. Chicago arguments in 2010.  How time flies.  And, of course, not being a constitutional law scholar per se, I couldn't remember the outline below.  I'm reposting here for anyone who would like a quick primer on substantive due process analysis--and so I can find this more readily next time]

In District of Columbia v. Heller (2008) the Supreme Court struck down a Washington D.C. gun control ordinance and confirmed that the second amendment to the U.S. Constitution grants an individual right to bear arms. It's about more than well regulated militias. The question now is does the Second Amendment similarly restrict state and local government gun control statutes. The Supreme Court will hear oral argument on this question Tuesday, March 2, 2010, in McDonald v. Chicago. 

This case will make a big splash in the news, so here's a quick primer. The Bill of Rights binds Congress. The second amendment applied in Heller because Congress is in charge of the District of Columbia. In order to understand the issue before the court you must know that the Supreme Court has repeatedly held that the Bill of Rights (i.e. the first ten amendments adopted in 1791) does not apply to the states as such. See, e.g. U.S. v. Cruikshank (1876) 92 U.S. 542. Instead, the court has selectively made provisions of the Bill of Rights applicable to the states through the due process clause of the 14th Amendment. This substantive due process analysis asks the question whether a particular right is so fundamental that it is "implicit in the concept of ordered liberty" so that it must be binding on the states. For example, in Palko v. Connecticut, 302 U.S. 319 at 324-25 (1937) the court found that the fifth amendment right against double jeopardy is of such a fundamental nature that it is implicit in the concept of ordered liberty and thus binding on the states.

The court did not need to take this path of substantive due process analysis. (Frost). It could have, and probably should have said that the Bill of Rights is binding on the states by virtue of the privileges and immunities clause in the 14th Amendment. Section 1 of the 14th Amendment provides:

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

If there is a second amendment right to bear arms as a U.S. citizen, which the court has found in Heller, the court's analysis might be that states may not abridge the "privileges and immunities," broadly understood as rights, granted by the Bill of Rights, including the right to bear arms. However, this argument is foreclosed without some serious backtracking because for the past 139 years, since The Slaughterhouse Cases, the court has gone down a different path - the path of substantive due process.

In McDonald the NRA is challenging the gun control measures of the cities of Oak Park and Chicago. The substantive due process path the court has taken for the past 139 years presents a problem for the claimants. Is the right to own a gun without registration so fundamental that it is "implicit in the concept of ordered liberty?" The answer to this question is not so clear. Based on substantive due process analysis, you might think that the concepts of federalism, state rights, and public interest to exercise the police power to control gun violence should trump an individual's right to pack a Saturday night special in a crowded bar without a permit. For this reason, the NRA in McDonald is asking the court to overturn 139 years of constitutional doctrine, to go back to the road not taken in The Slaughterhouse Cases, and make the second amendment directly applicable to the states through the privileges and immunities clause of the 14th Amendment.

The popular view is that Roberts, Scalia, Alito, and Thomas would be willing to do this. They are not fans of substantive due process analysis. Among other things, substantive due process analysis has been used to create rights that are not enumerated anywhere in the constitution, e.g. the right of privacy (Griswold, Roe). The whole movement of originalist interpretation has fought against this. It may be that these four justices would be willing to go back 139 years, declare the path of substantive due process a mistake and a dead end, and make the entire Bill of Rights applicable to the states through the privileges and immunities clause. This would invite attack on all of the substantive due process cases based on "privacy" and other unenumerated rights.

Throwing out 139 years of constitutional history would be a revolutionary act. The implications would be far reaching and unpredictable. For this reason, my money is on Kennedy joining the liberal wing of the court and rejecting the privileges and immunities argument in this case. If so, the likely outcome will be that the 2nd Amendment will not be made applicable to the states because the right to be free from gun control legislation is not so fundamental as to be implicit in the concept of ordered liberty. Stay tuned.

[Update.  As it happened, of course, Alito's majority opinion in McDonald was not revolutionary. The court incorporated the second amendment and made it binding on the states based on a traditional substantive due process analysis.  They did not walk on new ground]

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