Lest we get too euphoric too soon...
from the Wall St. Journal, today:
JUNE 29, 2010
Five Gun Salute
The High Court's four liberals are holding out to overturn Heller.
Judicial liberals have been discovering the virtues of legal precedent now that conservatives are finally winning a few cases at the Supreme Court, but in yesterday's major gun rights case that all went out the window. The four liberal Justices rejected a 2008 landmark precedent as well as one of their own bedrock Constitutional principles.
That's the most surprising news in yesterday's 5-4 decision in McDonald v. Chicago, which ruled that the Second Amendment protects the same Constitutional right in the states as it does in Washington, D.C. The decision is the logical extension of 2008's District of Columbia v. Heller, which ruled for the first time that the Second Amendment was an individual right like the rest of the Bill of Rights. In McDonald, the Justices established that this right also applies to the states via the Fourteenth Amendment and cast doubt on a Chicago ordinance banning handguns.
Most Court followers had expected the decision to "incorporate" the Second Amendment to the states to be relatively easy and perhaps draw a large majority. Over nearly a century of cases, the High Court has extended to the states most of the rest of the Bill of Rights including part or all of the First, Fourth, Fifth, Sixth and Eighth Amendments. It would be passing strange for the Second Amendment to be the lone outlier.
All the more so given that Justice Samuel Alito's plurality opinion used "substantive due process" under the Fourteenth Amendment to justify the decision. This is the logic that liberals have long used to apply the other Bill of Rights to the states, and objections to it have most often come from conservatives. Justice Antonin Scalia mentioned his own "misgivings about Substantive Due Process" as a matter of original Constitutional interpretation in his concurring opinion yesterday. But he said he "acquiesced" in this decision "'because it is both long established and narrowly limited.'"
Justice Alito's majority opinion was indeed careful to define the reach of substantive due process, saying that it should apply only to those rights that are "fundamental to our scheme of ordered liberty." Heller had decided that basic question, the Justice wrote, and thus to decide not to apply it to the states would "treat the right recognized in Heller as a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees that we have held to be incorporated into the Due Process Clause." This reasoning was endorsed by Justices Scalia, Anthony Kennedy and Chief Justice John Roberts.
Justice Clarence Thomas joined the majority ruling but did so using what he called a "more straightforward path" to incorporation, using a long-dormant part of the Fourteenth Amendment known as the Privileges or Immunities Clause. The Supreme Court had made that clause all but a dead letter with The Slaughter-House cases of 1873, though Justice Alito acknowledged that "many legal scholars dispute the correctness" of that decision. He's referring in particular to libertarians who want to revive the Privileges or Immunities Clause to enforce property rights and other protections against state regulation.
The majority opinion does leave room for some state and local gun regulation. And the liberals could have joined the majority to help shape the opinion and allow for even more state and local latitude. So it's striking that they instead came out in full-throated dissent and refused to accept even the basic finding in Heller.
Justice Stephen Breyer, joined by Sonia Sotomayor and Ruth Bader Ginsburg, even did a rare turn as a states' rights advocate, noting that incorporation will curtail the ability of states to craft their own gun laws. This problem doesn't seem to bother Justice Breyer or the other liberals when they overturn state laws based on a "right to privacy" that, unlike the Second Amendment, is mentioned nowhere in the text of the Constitution.
All of this suggests that the liberals have decided to bide their time and wait for a fifth vote so they can overturn both Heller and McDonald. This means that the matter of Second Amendment rights is far from settled, and the National Rifle Association and other advocates had better keep their legal guard up.
Elena Kagan may soon replace John Paul Stevens on the Court, and it's notable that Justice Stevens used his final opinion to issue a blistering attack on the Constitutional "orginalism" that informs some of today's conservative Justices. Mr. Scalia fired back in delightfully brutal fashion, and if you want to understand the Court's current philosophical divide, you could do worse than to read all of the opinions in McDonald.
As for Ms. Kagan and gun rights, as a clerk to former Justice Thurgood Marshall, she declared herself "not sympathetic" to a Second Amendment case similar to the issue in Heller. As an aide in the Clinton White House, she advocated aggressive gun control regulations. Despite yesterday's welcome extension of gun rights to the states, the liberal effort to make the Second Amendment a second-rate right is a long way from over.
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