Supersizing the Second Amendment? (Part I)

March 3, 2010

By Adam Winkler, Professor of Law, UCLA School of Law. Professor Winkler signed an amicus brief filed in McDonald v. City of Chicago supporting incorporation through the Privileges or Immunities Clause of the Fourteenth Amendment.

Yesterday, the Supreme Court heard oral argument in the latest big gun case, McDonald v. City of Chicago. The Court will decide whether the individual right to keep and bear arms recognized in 2008's D.C. v. Heller extends to the states. I was at oral argument and there seemed to be two big winners: gun rights advocates and gun control advocates.

The gun rights folks, like the NRA, seemed poised to win the case. Of the five Justices who voted with the majority in Heller, all appeared to be inclined to hold that the right to bear arms is a "fundamental" right such that it applies to state laws. (Well, not all of the five: Justice Clarence Thomas said nothing, extending his streak of silent oral arguments that dates back to 2006.)

Just like in the Heller oral argument, Justice Anthony Kennedy, the swing vote, showed his cards. "If [the right to bear arms is] not fundamental, then Heller is wrong, it seems to me." Chief Justice John Roberts said, "I don't see how you can read Heller and not take away from it the notion that the Second Amendment, whether you want to label it fundamental or not, was extremely important to the framers in their view of what liberty meant."

As Paul Clement, representing the NRA said, the question of whether the right to bear arms was fundamental or not was "remarkably straightforward." The fact that Clement was there at all was a surprise. The NRA was not formally a party to the suit. More striking still was that Clement was representing the NRA. After Clement, then serving as Solicitor General, filed a brief in Heller suggesting that D.C.'s handgun ban might be constitutional, gun rights activists branded him a traitor. Now he is their lawyer.

The more interesting set of questions about incorporation came from Justice John Paul Stevens, who asked repeatedly why the right should apply in exactly the same way to federal laws, on the one hand, and state laws, on the other. "Why does this incorporation have to be every bit as broad as the Second Amendment itself," he asked. He harkened back to the second Justice John M. Harlan's view that incorporated rights might impose different limits on the federal and state governments. Justice Harlan proffered this view repeatedly during his tenure, especially in obscenity cases. Courts, he argued, should treat federal speech restrictions less leniently than similar state restrictions. Federal laws apply nationwide and thus inhibit experimentation, whereas state laws impact a smaller population. The federal government is also one of limited powers, so some issues aren't appropriate for national regulation even if they are appropriate for state regulation.

Incongruent treatment of federal versus state laws never took off. Even since the mid-1950s, the Court has virtually ignored which level of government is behind a law restricting fundamental rights, be it speech, religion, or privacy. But the question is a good one. Should all levels of government be treated the same? Aren't there institutional differences between different governmental actors that should be accounted for in constitutional jurisprudence? The last time the Court considered this question was in the context of affirmative action. There, the Court held in Adarand Constructors v. Pena that federal and state laws should be treated exactly the same.

In some empirical studies of constitutional law decisionmaking, I found that federal courts often treat state and local laws differently than federal laws. In a large study of every federal decision applying strict scrutiny over a fourteen year period, I found that the best predictor of whether a law would survive that demanding standard was the identity of the governmental actor behind the challenged law. Federal laws survived far more often than state or local laws, even though the courts say they are applying the same standard. The effect is especially pronounced in free speech cases. A separate study I did of core free speech cases found that federal laws survived in over 55% of the cases, state laws about 24%, and local laws only 3%.

Note that my findings were precisely the opposite of what Justice Harlan suggested. Courts appear to be more hostile to state and especially local laws than they are to federal laws. There may be good reasons for this pattern. Federal laws are usually vetted by many different interest groups, congressmen have large staffs with good lawyers, and every law must satisfy a heterogeneous national constituency. State laws, and especially local ones, often are enacted without any vetting by interest groups and lawyers, and the demographics are often homogenous rather than diverse. If that is right, then Justice Stevens' proposal about the Second Amendment had it backwards. Courts should be more skeptical of state and local gun laws, not more deferential to them.

So gun rights advocates are likely going to win on incorporation.

Then why do I still say that gun control advocates are also seemed to be big winners?

[Part II of  "Supersizing the Second Amendment?" was subsequently published here. Image via barjack.]