Michael C. Dorf

Does the Second Amendment Bind the States?

By MICHAEL C. DORF
Wednesday, October 6, 2009

In 2008, in District of Columbia v. Heller, the Supreme Court invalidated a Washington, D.C. handgun ban as applied to home possession by a law-abiding citizen. The 5-4 majority said that the Second Amendment protects an individual right to possess firearms for self-defense. Although recognizing the government's ability to regulate firearms possession, Justice Scalia's opinion for the Court found that a complete ban on handguns went too far.

Heller involved the District of Columbia, an arm of the federal government. Accordingly, the case did not provide an opportunity for the Court to rule on whether the Second Amendment limits state and local gun control laws. Three Nineteenth Century precedents say that the Second Amendment does not limit state (or by implication, local) gun control laws. However, as the Heller Court observed in a footnote, those cases pre-date Twentieth Century cases setting forth the modern approach to determining which provisions of the Bill of Rights apply to the states. The Court thereby invited gun right advocates to challenge state and local laws. They readily accepted the invitation.

Last week, the Court announced that it would hear a case, McDonald v. Chicago, posing the question whether the Second Amendment applies to the states and their sub-divisions. In lawyer's jargon, McDonald requires the Court to say whether the Fourteenth Amendment "incorporates" the Second Amendment against the states. As I shall explain in this column, the case poses an intellectual challenge for the Justices who were in the Heller majority. To see why, we will need to begin by reviewing the story of how other constitutional rights came to be incorporated against the states.

The Original Bill of Rights Limited the Federal Government, But Not the States

Two provisions of the Bill of Rights--the First Amendment, which specifically refers to "Congress," and the second clause of the Seventh Amendment, which refers to federal courts--make clear by their language that they are only limits on federal action. The balance of the Bill of Rights, however, sets out rights of the People that, taken at face value, could be said to bar infringements by the states and their sub-divisions as well as by the federal government.

Yet that was not how the Bill of Rights was originally understood. In the first Congress, James Madison proposed an amendment that would bar states from violating "the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases." The proposal was defeated, largely because Madison's fellow representatives saw the Bill of Rights as a check on the federal government alone. State constitutions, they thought, already provided whatever rights were needed against state (and local) violations.

The Supreme Court confirmed that the original Bill of Rights only limited the federal government in the 1833 case of Barron v. City of Baltimore.

Incorporation Against the States Via the Privileges or Immunities Clause?

There matters stood until 1868, when the Fourteenth Amendment was adopted. It states, in relevant part: "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."

The Privileges or Immunities Clause appears to be a quite natural way of saying that the Bill of Rights, formerly only a limit on the federal government, is now a limit on the states as well. Under this straightforward reading, the "privileges or immunities of citizens of the United States"--that is, the rights set forth in the Bill of Rights--are protected against each "State."

And in fact, there is pretty good evidence that the Privileges or Immunities Clause was expected to incorporate the Bill of Rights against the states. Article IV of the original Constitution protects against interstate discrimination with regard to "all Privileges and Immunities of Citizens in the several States." That Privileges and Immunities Clause was famously interpreted by Justice Bushrod Washington (a nephew of the first President) in the case of Corfield v. Coryell as encompassing those fundamental rights enjoyed by "citizens of all free governments." The framers and ratifiers of the Fourteenth Amendment were well aware of Corfield, and by choosing to parallel the Article IV language, they can be understood to have intended to adopt its approach.

Nonetheless, the Supreme Court rejected that broad reading of the Privileges or Immunities Clause shortly after its adoption. In the 1872 Slaughterhouse Cases, the Court read the Clause very narrowly, essentially as protection for rights that were already protected by the language and structure of the pre-Fourteenth Amendment Constitution. From that moment forward, the Privileges or Immunities Clause has been treated as nearly a dead letter.

Incorporation Via the Due Process Clause

Yet as most Americans know, the Bill of Rights does limit the states and their subdivisions. State officials cannot ban political rallies or coerce confessions from criminal suspects without violating the First and Fifth Amendments, respectively. Given Barron and Slaughterhouse, what makes these and other provisions of the Bill of Rights applicable to the states?

The answer is the Due Process Clause of the Fourteenth Amendment. In a series of Twentieth Century cases, the Court held that most of the provisions of the Bill of Rights do limit the states after all. For example, in order to deprive a person of his life, due process means that a trial by jury must be given, as set forth in the Sixth Amendment. To deprive a person of her freedom from unreasonable searches and seizures, due process means that the probable cause and warrant requirements of the Fourth Amendment must be honored.

The Due Process Clause works well as a basis for incorporation of the procedural rights in the foregoing examples. But it provides an awkward textual basis for incorporating more substantive rights, like the First Amendment's protection for speech and the press. Those rights do not merely require the government to provide trials for political dissidents; they forbid prosecution for sedition outright.

Nonetheless, under a doctrine that has come to be known as "substantive due process," the Court has held that the Due Process has a substantive component. Under this approach, no amount of fair process suffices to infringe certain fundamental substantive liberties, so that any unwarranted substantive infringement is, ipso facto, a violation of due process.

Academics and Supreme Court Justices alike have long been troubled by the seemingly oxymoronic character of the substantive due process doctrine. The late law professor and dean John Hart Ely likened it to "green pastel redness." The late Justice Hugo Black tried to get around the doctrine by arguing that the Fourteenth Amendment as a whole, including the Privileges or Immunities Clause, accomplishes incorporation. And in his dissenting opinion in the 1999 case of Saenz v. Roe, Justice Clarence Thomas suggested that the Slaughterhouse Cases might be overruled and, if that were to occur, then some of the work now done by the Due Process Clause could be shifted to the Privileges or Immunities Clause.

Incorporation and Textualism

Despite the criticisms, the Due Process Clause remains the basis for incorporation of most of the provisions of the Bill of Rights. And that, in turn, poses a jurisprudential problem for the self-described textualists in the Heller majority--especially Heller's author, Justice Antonin Scalia.

Justice Scalia has been one of the most vocal critics of substantive due process, which is, after all, the basis for the Court's recognition of unenumerated rights such as those protecting abortion and same-sex sexual conduct. The Constitution does not mention these rights, Scalia says, and therefore the Court has no business recognizing or enforcing them.

Yet the Constitution also does not mention a right to firearms possession as a limit on the states. The way that right will limit the states, if it does limit them, is via substantive due process or, if the Court chooses to overrule the Slaughterhouse Cases, via the Privileges or Immunities Clause. Neither doctrinal path will offer a sound basis for distinguishing between enumerated and unenumerated rights.

To be sure, the incorporation of enumerated rights feels more textually rooted than the recognition of unenumerated rights, because it begins with the text of the Bill of Rights. However, it does not end there. Justice Black argued that the Bill of Rights should be incorporated "jot for jot," so that any right against the federal government would be enforceable to an equal degree against the states. He lost that battle along both fronts: The Court applies some unenumerated rights (such as contraception and abortion) against the states, even as it does not apply some of the rights that are enumerated in the Bill of Rights against the states.

How did the Court decide which provisions of the Bill of Rights to incorporate? It asked, as the Court said in the 1968 case of Duncan v. Louisiana, which rights are "fundamental to the American scheme of justice." And under that test, most but not all of the provisions of the Bill of Rights were incorporated. The rights not incorporated include those described in the seldom-used Third Amendment, the grand jury requirement of the Fifth Amendment, the civil jury trial right of the Seventh Amendment, and, thus far, the Second Amendment. (In addition, the criminal jury trial right of the Sixth Amendment has been interpreted less strictly with respect to the states than with respect to the federal government.)

Accordingly, if Justice Scalia wants to say that the Second Amendment right to firearms possession does limit the states, he must either accept the idea that Justices are qualified to say which rights are more fundamental than others--a process he has criticized as unprincipled with respect to unenumerated rights--or commit himself to Hugo Black's jot-for-jot approach, which would entail massive costs for the state courts; they would need to greatly expand their use of juries if the Seventh Amendment were incorporated. (The first sentence of the Seventh Amendment is not limited by its text to federal courts, in the way that the second sentence is.)

Stare Decisis and the Textualist's Dilemma

Might Justice Scalia and his fellow travelers invoke stare decisis--the principle of respect for precedent--as a means of justifying incorporation of the Second Amendment but not the Seventh Amendment, under the principle that only the most fundamental enumerated rights apply to the states? The problem is that that move itself would appear to be unprincipled.

If the Court were really to adhere to stare decisis in this area, that would mean upholding the Nineteenth Century cases that hold that the Second Amendment does not apply to the states. If the Court were instead to say that the Nineteenth Century caseshave already been sapped of their strength by the modern incorporation cases, then one would have to ask why Justice Scalia feels free to disregard that same line of modern cases insofar as it authorizes the recognition of unenumerated rights (such as abortion) as well as enumerated ones (such as free speech). A commitment to precedent would not distinguish between these two faces of modern substantive due process doctrine. Meanwhile, shifting the basis for the doctrine to the Privileges or Immunities Clause could hardly be justified in the name of precedent, and even if it could, the shift would not help: The text of the Privileges or Immunities Clause does not favor enumerated over unenumerated rights, nor, for that matter, does it favor incorporating the Second Amendment over the first sentence of the Seventh Amendment.

In the end, Justice Scalia, like Justice Black before him, is a peculiar sort of textualist. His real commitment is to avoiding the appearance that judges are finding constitutional rights in their own subjective values, rather than in the text of the Constitution. Incorporation of the Bill of Rights--or at least Black's version of jot-for-jot incorporation--avoids this appearance because it enables the judge to point to a textual basis for each right enforced against the states.

But the Black/Scalia version of textualism is peculiar, or at least ironic, because the text of the Constitution itself points away from it. The Ninth Amendment says that "enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." Justice Scalia and others have tried heroically to escape the plain meaning of this rejection of their brand of textualism by arguing, among other things, that the rights retained by the People are not constitutional rights. Yet that is a highly strained reading: Everywhere else that the Constitution uses the term "rights," including in the first half of the Ninth Amendment itself, that term clearly refers to constitutional rights.

To be sure, the McDonald case does not directly present any question about unenumerated rights. In Heller, Justice Scalia emphasized for the Court that the enumerated text of the Second Amendment was the driving force behind the decision to find an individual right to firearms possession. In McDonald, the Court could simply say that the protections of the Second Amendment are on par with most of the other protections of the Bill of Rights.

That sort of minimalist decision would not be persuasive, however, for the principles underlying the incorporation doctrine do not readily admit of the sharp distinction that Justice Scalia and others would draw between enumerated and unenumerated rights. That was the core point that conservative Fourth Circuit Appeals Court Judge J. Harvie Wilkinson made in a recent article in the Virginia Law Review. Judge Wilkinson thought that Heller employed the same core methodology as Roe v. Wade, notwithstanding the enumeration in the Second Amendment's text of a "right to bear arms." Given the contest over the meaning of that language, he said, the right at issue in Heller was at best "ambiguously" enumerated, and therefore the very concerns that drive conservatives to question recognition of unenumerated rights should have, but were not, in play in Heller. Whether they will come into play in McDonald remains to be seen.


Michael C. Dorf, a FindLaw columnist is the Robert S. Stevens Professor of Law at Cornell University. He is the author of No Litmus Test: Law Versus Politics in the Twenty-First Century and he blogs at michaeldorf.org.

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