Michael C. Dorf

The Potentially Far-Reaching Implications of the Supreme Court's Ruling that the Second Amendment Binds the States

By MICHAEL C. DORF
Tuesday, June 29, 2010

By MICHAEL C. DORF

On Monday, the Supreme Court issued its long-anticipated decision in the closely-watched case of McDonald v. City of Chicago. The Court ruled in McDonald that the Constitution restricts the ability of state and local governments to ban handguns. The ruling follows a controversial decision by the Court two years ago, in Heller v. District of Columbia, that the Second Amendment "right of the people to keep and bear arms" protects a right to private possession of a handgun for the defense of one's self and family in the home.

The McDonald case produced the same 5-4 conservative/liberal ideological split that Heller did, except that, this time, Justice Sonia Sotomayor replaced retired Justice David Souter among the four dissenting Justices. Despite that predictable breakdown, however, the McDonald case contains a number of interesting twists and surprises, none more far-reaching than the lead opinion's potential implications for future cases involving the use of juries in state courts.

Which Clause of the Fourteenth Amendment Was Implicated by the McDonald Case?

As I explained in a column posted just after the Supreme Court granted review in the McDonald case, the original Bill of Rights only limited the federal government, not the states. However, a series of cases culminating in the 1960s held that most of the provisions of the Bill of Rights in fact do bind the states--by virtue of the Due Process Clause of the Fourteenth Amendment, which expressly limits each "State" and, by implication, the subdivisions of states (such as cities and counties). Three Nineteenth Century cases had held that the right to keep and bear arms did not limit the states, but those cases pre-dated the modern cases "incorporating" other provisions of the Bill of Rights.

In arguing that the Second Amendment does limit the states, the lawyers for the petitioners in McDonald made a bold gamble: They did not place principal reliance on the incorporation doctrine (that is, the doctrine regarding the incorporation--or, loosely, the application--of the Bill of Rights against the states) as it developed in the 1960s. Rather, they urged the Court to base its ruling on the Privileges or Immunities Clause. That provision of the Fourteenth Amendment--which had been all but eviscerated by the Supreme Court's 1872 decision in the Slaughterhouse Cases--provides a more natural linguistic basis for applying the substantive provisions of the Fourteenth Amendment to the states than does the Due Process Clause.

And one Justice--Clarence Thomas--agreed with the petitioners' suggestion. He stated in his concurring opinion in McDonald, " The notion that a constitutional provision that guarantees only ‘process' before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of words." By contrast, he argued, no linguistic gymnastics are needed to read the Privileges or Immunities Clause as applying the Bill of Rights to the States.

Yet the balance of the Court--all eight of the other Justices--stuck with the Due Process Clause. Although acknowledging the persistent academic criticism of the Slaughterhouse Cases, these eight Justices nonetheless thought the existing doctrine to be sufficiently stable and workable to retain. And both the majority and the dissenting Justices noted that shifting the doctrinal basis for incorporation of the Bill of Rights against the States to the Privileges or Immunities Clause would itself create uncertainties, as scholars disagree over exactly what the Clause means.

Is Incorporation of the Bill of Rights Against the States a Subset of Substantive Due Process?

Even as the Court was nearly unanimous in rejecting the proposed shift from the Due Process Clause to the Privileges or Immunities Clause, the Justices sharply disagreed about whether the Due Process Clause should be read to incorporate the Second Amendment. Luckily for the petitioners, their lawyers had argued for incorporation of the Second Amendment against the states under the Due Process Clause as a backup, and the four Justices who accepted that argument combined with Justice Thomas to provide the petitioners with a victory.

As I discussed in my first column on the McDonald case, the incorporation of the Bill of Rights pursuant to the Due Process Clause of the Fourteenth Amendment presents a special problem for some of the Court's most conservative members, who have, in another context, agreed with Justice Thomas that "substantive due process"--the notion that the Due Process Clause protects substantive rights, as opposed to only procedural ones--is practically an oxymoron. How did those same Justices get around that problem in McDonald?

As Justice Antonin Scalia explained when elucidating his own reasoning, these Justices were willing to accept substantive due process as a basis for incorporating the Bill of Rights because, when used for this purpose only, the doctrine is "long established and narrowly limited."

Justice John Paul Stevens, however, thought that this move--and the parallel one in the majority opinion authored by Justice Samuel Alito--was too slick. Here, in a nutshell, is why Stevens was unpersuaded:

Presumably, the majority Justices believe that invoking substantive due process solely for purposes of incorporating the Bill of Rights is a narrowly-limited analytical move, because doing so only permits the Justices to recognize rights that are specifically enumerated in the Constitution's text, whereas recognizing a more freestanding kind of substantive due process is a gambit that cannot be cabined: It permits Justices, for instance, to decide whether unenumerated rights such as abortion, contraception, or the right to physician-assisted suicide, are protected by the Constitution.

However, Justice Stevens noted that this supposed limit imposed via incorporation is illusory, because the Court has not simply held that all the rights enumerated in the Bill of Rights apply against the states. Rather, the Court has engaged in selective incorporation, finding that most but not all enumerated rights bind the states.

Thus, Justice Stevens said, the Justices have exercised discretion in applying the incorporation doctrine, and no less so than they have in applying freestanding substantive due process. Incorporation, he argued, is a "misnomer" because selective incorporation is a "subset" of substantive due process.

A Movement on the Court Towards Total Incorporation of the Bill of Rights Against the States?

The majority's response to Justice Stevens was surprising, and easy to miss in the more than 200 pages the Justices collectively produced. As I read Justice Alito's opinion, he did not concede that incorporation has been selective. Instead, he rather strongly suggested that if faced with the question, the Court might hold that the Due Process Clause incorporates the entire Bill of Rights against the states --without any selection of any particular subset of rights at all.

In a footnote (number 13), Justice Alito noted that only four other provisions of the Bill of Rights had not, as of yet, been incorporated against the states: the Third Amendment prohibition on peacetime quartering of soldiers; the Excessive Fines Clause of the Eighth Amendment; the grand jury requirement of the Fifth Amendment; and the Seventh Amendment right to a civil jury. Justice Alito then explained that the Court has never had an opportunity to decide whether the Due Process Clause incorporates the Third Amendment and Excessive Fines Clause. And, more startlingly, he observed that the Court's "decisions regarding the Grand Jury Clause of the Fifth Amendment and the Seventh Amendment's civil jury requirement long predate the era of selective incorporation."

That last disclaimer is exactly what the Court said in Heller about the Nineteenth Century cases that had rejected the incorporation of the Second Amendment against the states. And just as that language in Heller was widely read to presage the incorporation holding in McDonald, so too this language in McDonald could be read to foreshadow future decisions incorporating the civil-jury and grand-jury requirements. Likewise, language in another footnote in the majority opinion (number 14) indicates a willingness to overrule the Court's 1972 ruling in Apodaca v. Oregon, which permits states to convict criminal defendants with a non-unanimous jury.

If Implemented, the Court's Suggestions that the Full Bill of Rights Ought to Be Incorporated Against the States Would Be Very Costly to the States

To be sure, the majority opinion in McDonald does not guarantee that the Court will incorporate the few remaining unincorporated rights against the states. Indeed, the structure of the Court's opinion implies that there is a good chance it would not.

If incorporation were automatic, in the eyes of the majority, then most of the majority's McDonald opinion would have been unnecessary. Rather than simply saying that the Second Amendment is part of the Bill of Rights and therefore incorporated, the Court extensively analyzed the historical record in an effort to "decide whether the right to keep and bear arms is fundamental to" the American "scheme of ordered liberty" or, in what the Court took to be an alternative formulation of the same question, whether the right is "deeply rooted in this Nation's history and tradition." That test leaves open the possibility, at least in principle, that a provision of the Bill of Rights might not be fundamental or deeply rooted, and thus might not be incorporated against the states.

Accordingly, one must be careful not to read too much into Justice Alito's footnotes discussing the as-yet-unincorporated rights. But one also should not read too little into them. There was no need for the Court to say anything at all about the grand- jury and civil-jury requirements. In going out of its way to say that these rights could be applicable against the states, the Justices in the majority must have realized that they would be inviting litigation over those questions.

Should that litigation succeed, it would be extraordinarily costly to the states. The vast majority of civil actions filed in the United States are filed in state courts, and the vast majority of those are resolved without the use of a jury. To read the Seventh and Fourteenth Amendments as requiring juries in a substantial fraction of these cases--as suggested by the McDonald footnote--would slow down already overcrowded dockets, leading to long delays, increased costs for litigants, and the inconvenience of more frequent jury duty for all citizens. Likewise, states that do not use grand juries to issue indictments would need to upend their criminal justice systems, which would be both disruptive and costly.

Does the Court in McDonald really mean to say that it is open to imposing such potentially heavy costs? Perhaps. In response to Chicago's argument that the Second Amendment should not be made applicable to the states because of the threat to public safety that firearms present, the Court said, in essence, "Too bad." Noting that other constitutional limits on the criminal justice system also carried costs for public safety, Justice Alito implied that such costs were simply not the Court's concern. If that is the Court's attitudes towards costs measured in lives, then it is hard to see the Justices giving a more sympathetic ear to an argument that the incorporation of some right would lead to high costs measured simply in dollars.

In the end, the best hope for avoiding the costly imposition on the states of civil- jury and grand-jury requirements may rest on cynicism. The Justices in the McDonald majority do not appear to believe that forbidding state- and local-government handgun bans imposes a cost at all; indeed, the opening pages of the majority opinion imply that Chicago's handgun ban has actually caused the increase in the city's murder rate since its enactment. In a quite different sort of case--such as one in which a state tort plaintiff seeks a civil jury to adjudicate his state-law claim--one or more members of the McDonald majority might be more sympathetic to the state's arguments about costs. Or, if that rationale would be too obviously result-driven (with costs invoked in one case, but ignored in another), the Justices who were in the McDonald majority could simply examine the historical evidence and find that the grand-jury and civil-jury rights are not so "deeply rooted" as the right to keep and bear arms is.

Of course, opting to follow such a course would come with a different kind of cost. It would be a tacit admission that Justice Stevens was right in his parting blow: Incorporation, no less than freestanding substantive due process, requires the exercise of value-laden judgment.

Throughout his distinguished judicial career, Justice Stevens acknowledged this inevitability--the inevitable role of judgment in constitutional interpretation. Unfortunately, the Senators who are now most aggressively questioning the woman who would take Stevens's seat are demanding that Solicitor General Kagan renounce the very candor that was central to this well-respected Justice's judicial philosophy.


Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University. The second edition of his book, Constitutional Law Stories, is now available. He blogs at dorfonlaw.org.

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