Wednesday, June 30, 2010

Supreme Court: Gun Right Decision #2--A Fundamental Right & A Blatantly Ideological Court

The right to keep and bear arms may not be infringed by state or local governments. That's what a deeply divided Supreme Court held Monday in McDonald v. Chicago.

The decision builds upon another 5 to 4 ruling 2 years ago in D.C. v. Heller. In that case, the Court ruled that the 2d Amendment right belongs to individual persons, and not merely to states in maintaining militias. (That decision was discussed at the time on New York Court Watcher: Supreme Court: Right on the Gun Right, June 27, 2008.)

The bottom line when these 2 landmark rulings are taken together? Virtually any state, local, or federal gun control law is now subject to serious challenge.

Just like free speech, the right to bear arms is now "fundamental" as a matter of federal constitutional law. And just like laws that restrict free speech--or other rights deemed "fundamental"--laws that restrict the right to bear arms are now constitutionally suspect. Such laws will have to be really necessary to survive. Being merely reasonable just won't do.

The basis for Monday's ruling is fascinating. Both in terms of its constitutional building blocks and the Justices' bald and ironic ideological voting.

First, the constitutional building blocks (with apologies to readers to whom much of this is all too familiar):
1) The 2d Amendment is a restriction on the federal government alone. Like the rest of the Bill of Rights, it does not apply to the states or local governments.

2) The 14th Amendment, ratified following the Civil War in 1868, is directed at the states. Among other things, it prohibits states from abridging United States "privileges or immunities, and it prohibits them from depriving "liberty" without "due process."

3) Many years later, the Supreme Court began to rule that the 14th Amendment made some rights reflected in the Bill of Rights applicable to the states. I.e., the states were not allowed to violate those rights anymore than the federal government was allowed to do.

(The most seminal of these decisions, and one of the most seminal in all constitutional law, was that in Palko v. Conn. [1937] where Justice Benjamin Cardozo--widely recognized as one of the very finest and most influential of jurists in American history--articulated the concept of "fundamental rights." These are rights which are "implicit in the American scheme of ordered liberty"and, therefore, essential to the "liberty"guaranteed against the states by the 14th Amendment, as well as by the Bill of Rights against the federal government. Free speech and freedom of religion were specifically mentioned as among them.)

4) Ultimately, in a series of decisions in the 1960's--during the "liberal activist" era under Chief Justice Earl Warren--the Supreme Court "incorporated" virtually the entire Bill of Rights into the 14th Amendment. Rights previously incorporated, such as speech and religion, were vigorously enforced against states and localities; and most of the rights of the accused were given the same protection against states and localities as they were against the federal government.

(The Court in yesterday's McDonald decision relied on many of those decisions, and especially on Duncan v. La. [1968] where the Court had "incorporated" the right to a jury trial into the 14th Amendment. Importantly, the Court in the Duncan decision had expanded the concept of "fundamental rights" and "incorporation"to include rights that had been traditionally important in American history. It modified the narrower view taken in Palko that encompassed only those rights that were the "very essence" of liberty.)

5) In 2008, the Court decided in D.C. v. Heller that the right to bear arms in the 2d Amendment belongs to individuals, not only states and their militias. According to the majority, the language of the 2d Amendment ("A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.")--especially the second clause--and the history at the Founding, made clear that the Framers believed that individual persons, not just state militia's, had a right to own firearms to protect themselves and their freedom from tyranny.

(The Court's Heller decision contravened the view of the 2d Amendment embraced by the Court in its prior decisions. In several precedents, including U.S. v. Cruikshank [1876], U.S. v. Miller [1939], and Lewis v. U.S. [1980], the Court's rulings were based on the view that the 2d Amendment's right to bear arms was tied to the right of states to maintain militias.)

6) Now, in McDonald v. Chicago, the Court has held that this right of individuals to keep and bear arms is one of those fundamental rights that is guaranteed by the 14th Amendment against state and local governments. I.e., it's "incorporated." The 2008 Heller decision applied the newly recognized individual right against the District of Columbia, a federal entity. The 14th Amendment "incorporation" question--i.e., the applicability of the right to bear arms to state and local laws--was not answered until Monday's ruling in McDonald.

(Monday's decision, like the Heller decision in 2008, departed from the Court's previous view of the right to bear arms. In Presser v. Ill. [1886], the Court rejected the argument that the 14th Amendment's guarantees were intended to include such a right. I.e., the Court rejected the "incorporation" of the 2d Amendment. And the several later rulings, including the already mentioned Miller and Lewis decisions, presupposed that the right to bear arms was only a protection of state militias against federal interference.)

So there it is in a nutshell. OK, a bit longer than a nutshell. In one line: the right to bear arms is an individual one that is "fundamental" and, thus, constitutionally protected against all governments, state and local as well as federal.

Beyond the foregoing, what is fascinating about Monday's decision is the blatant ideological voting of the Justices. Both sides--majority & dissent, conservative & liberal.

Consider first what the conservative majority did. That's Justice Alito (who authored the Court's opinion), Chief Justice Roberts, and Justices Scalia, Kennedy, and Thomas (who authored a concurring opinion for reasons that are irrelevant to the point here).

These 5 conservative Justices interpreted the 14th Amendment to include a right which wasn't considered there since that Amendment was ratified in 1868--i.e., for the 1st time in over 140 years. These conservatives effectively rewrote the 14th Amendment so that it now includes the 2d Amendment.

These conservative Justices did so by embracing the "liberal-activist" decisions of the Warren Court in the 1960's which had read into the 14th Amendment most of the Bill of Rights. These are decisions that have been roundly condemned by conservative jurists and commentators, both then and now, as epitomizing illegitimate judicial activism. Those decisions were suddenly beloved by the conservatives as a means of justifying the "incorporation" of the right to bear arms.

These conservative Justices thus imposed severe restrictions on state and local governments. That's the strong arm of federal power--and judicial power at that--exercised to limit the reasonable exercise of state and local police power.

These conservative Justices rejected the Court's previous jurisprudence on the right to bear arms, broke with the positions it had taken in relevant precedents, and overruled the judgments of state and local legislators who have adopted gun control laws. That's unelected, federal, judicial power exercised to invalidate the decisions of the state and local, elected representatives of the people.

This is raw judicial activism condemned ad nauseam by the conservative Justices and their supporters. But now used by these conservative Justices and applauded by their supporters in the service of their favored gun rights.

(This is not an unusual phenomenon--i.e., judicial activism by conservative Justices. See e.g., the Citizens United [corporate election spending]decision discussed in Supreme Court: Lessons from the Campaign Reform Decision, Jan. 23, 2010.)

[Disclosure: I should make clear that I am not opposed to judicial activism. Much of what we cherish as Americans is a direct result of its wise exercise throughout our history. I also happen to agree with the Court's decision in McDonald and would have voted with the conservative Justices. I think it is virtually beyond dispute that the right to bear arms was viewed by the Framers of the Constitution and by the drafters of the 14th Amendment as a fundamental right, and that it is so viewed by Americans today.
I'm not a fan of guns. But I am a big fan of vigorous judicial protection of constitutional liberties. And this is certainly one of them.]

Now for the liberal Justices. That's Justices Breyer (who wrote the main dissenting opinion), Stevens (who wrote a separate dissent), Ginsburg, and Sotomayor. Just add "not" or "the opposite" to what was said about their conservative colleagues.

Now the liberal Justices are enamored of a narrow interpretation of a guarantee in the Bill of Rights. Now a narrow interpretation of the 14th Amendment. Now a narrow view of the Court's "incorporation" decisions of the 1960's. Now restraint in the exercise of judicial power. Now an abiding respect for older views expressed in earlier precedents. Now deference to the judgments of the elected representatives of the people. And all of the foregoing in the service of favored gun control laws--or stated otherwise, to dilute their disfavored gun rights.

Oh well, sorry to have to pull the curtain again on these judicial Wizards of Oz. But the Justices' votes and the Court's decisions are largely a function of ideological perspectives and preferences. Or if you prefer, the Justices' philosophical views of the Constitution, the judicial role, and the American Republic.

But however characterized, the votes and decisions (whether conservative or liberal)--including the decision in McDonald--are not the result of some judicially restrained, mere application, of pure law and law alone, to the facts of a case. (And are some of the Senators currently questioning Supreme Court nominee Elena Kagan really so deluded that they believe otherwise? Or that cases reaching the Court can be decided so mechanically?)