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Column: Guns, the Bill of Rights and the States (New York Law Journal)

By Christopher Dunn

Later this term the U.S. Supreme Court will hear argument in a case that presents one of the most fundamental but not recently encountered questions in the area of individual rights and liberties: Does a provision of the Bill of Rights apply to states and localities, as opposed to only the federal government?

The dispute before the Court arises in the intensely controversial context of gun control and follows the Court’s 2008 ruling in District of Columbia v. Heller that Second Amendment protections extend to individuals subject to federal jurisdiction (namely the District of Columbia). Now, in a post-Heller case in which the U.S. Court of Appeals for the Seventh Circuit upheld local gun bans in Illinois (prompting death threats directed at the judges who decided the case), the Court will decide whether the Second Amendment also binds the states.

That there is any question about the applicability of a Bill of Rights provision to the states may strike many as odd, given that enforcement of the Bill of Rights against states and localities is a staple of our modern legal system. However, while the Supreme Court has held that most provisions of the Constitution’s first eight amendments do apply to the states, the Court long ago rejected the notion that the Bill of Rights applies across the board to the states, some important provisions remain unenforceable against the states, and there are arguments supporting the position that the Second Amendment does not apply to the states.

‘Incorporating’ Bill of Rights

As evidenced by the opening words of the Bill of Rights — the First Amendment’s command that “Congress shall make no law….” — the adoption of the Constitution’s first 10 amendments in 1791 was directed at the federal government. And in 1833 the Supreme Court expressly rejected the claim that the Bill of Rights reached the states.

It was not until the adoption of the 13th, 14th, and 15th amendments in the aftermath of the Civil War that the Court seriously examined the application of federal constitutional protections vis-à-vis the states. The issue arose in the Slaughter-House Cases from 1872, where the Court addressed a challenge by butchers who objected to a Louisiana statute that consolidated all New Orleans slaughtering operations into a single facility. Beyond arguing that the law created a monopoly, the plaintiff butchers challenged it on constitutional grounds, asserting the law violated their individual right to pursue their trade and therefore maintain their livelihoods.

The Court’s majority opinion, which speaks eloquently of the country’s anguish over slavery and the near destruction of the union, grappled with the issue of the constitutional rights citizens had against the federal government as opposed to the rights they had against their own states. On this point, the Court looked specifically at the 14th Amendment — enacted in 1868 — and its “privileges and immunities” clause, which provides that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

Having concluded that earlier language in the 14th Amendment created two distinct forms of citizenship — one of the United States and, separately, one of a state — the Court relied on the fact that the privileges and immunities clause speaks only of “citizens of the United States” to conclude that its restriction on the states implicated only a narrow set of rights “fundamental” to the notion of a federal government as opposed to the entire Bill of Rights. Otherwise, the Court noted ironically, it would be transformed into a “perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of this amendment.”

Despite flatly rejecting a broad view of the privileges and immunities clause, the Court still outlined a number of rights it deemed within the narrow set of rights that could be enforced against the states. These included the “right to peaceably assemble and petition for the redress of grievances,” “the privilege of the writ of habeas corpus,” and the “right to use the navigable waters of the United States, however they may penetrate the territory of the several states.”

Though the Slaughter-House Cases long have stood for the proposition that the states are not categorically bound by the first eight amendments, the Court long ago abandoned its view that the privileges and immunities clause governs the inquiry. Rather, it has shifted its analysis to the 14th Amendment’s due process clause, which provides that no “State [shall] deprive any person of life, liberty, or property, without due process of law.” And the inquiry has became one of determining whether a provision of the Bill of Rights is “incorporated” through the due process clause so as to apply to the states.

Notwithstanding its original narrow approach to the issue, the Court since the Slaughter-House Cases has found that most Bill of Rights provisions do apply to the states. As of the late 1960s — the last time the Supreme Court faced an incorporation issue — the due process clause had been found to encompass the Fifth Amendment protection against double jeopardy, the Sixth Amendment right to a jury trial in a criminal proceeding, and, in the words of the Court:

the right to compensation for property taken by the State; the rights of speech, press, and religion covered by the First Amendment; the Fourth Amendment rights to be free from unreasonable searches and seizures and to have excluded from criminal trials any evidence illegally seized; the right guaranteed by the Fifth Amendment to be free of compelled self-incrimination; and the Sixth Amendment rights to counsel, to a speedy, and public trial, to confrontation of opposing witnesses, and to compulsory process for obtaining witnesses.

The standards governing whether a specific provision is incorporated via the 14th Amendment are quite broad. For instance, in an incorporation case from 1968, the Court noted a variety of formulations it had employed when assessing incorporation of Fifth and Sixth amendment rights: “The question has been asked whether a right is among those ‘fundamental principles of liberty and justice which lie at the base of all our civil and political institutions,’ whether it is ‘basic in our system of jurisprudence’; and whether it is ‘a fundamental right, essential to a fair trial.'”

Broad and amorphous as these formulations are and as widely as they have been used to incorporate many Bill of Rights provisions, the incorporation process has not been universal. As the Seventh Circuit noted in the gun control case now before the Supreme Court, neither the Third nor the Seventh amendment has been applied to the states, nor has the grand jury clause of the Fifth Amendment or the excessive bail clause of the Eighth Amendment. And of course, there is the Second Amendment, which now is before the Court.

State Gun Control

The Second Amendment provides, “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.” In 1939 the Supreme Court in United States v. Miller rejected, without extensive analysis, the claim that this provision conferred an individual (as opposed to militia) right to possess firearms in upholding the defendant’s conviction under a federal law.

Miller was the controlling interpretation of the Second Amendment until two years ago, when the Court ruled in Heller that the Second Amendment does indeed create individual rights to gun ownership. Heller, however, presented a challenge to a Washington, D.C. gun-control law, and the District of Columbia long has been recognized as being part of the federal government for purposes of the Bill of Rights. Consequently, momentous as Heller was, its immediate impact was quite narrow in that it did not purport to address the much broader question of the reach of the Second Amendment to state and local gun-control laws.

Though the Supreme Court before Miller had ruled that the Second Amendment does not apply to the states, Heller quickly spawned challenges to state gun-control laws. For instance, in a case decided several months before the case now before the Supreme Court, a Second Circuit panel that included then-Judge, now-Justice Sonia Sotomayor addressed a post-Heller claim. At issue in Maloney v. Cuomo was the constitutionality of a New York Penal Law provision that criminalizes the possession of certain weapons. In a per curiam opinion the panel summarily dismissed the argument that Heller opened the door to it entertaining the claim that the Second Amendment reached this state law prohibition:

The Supreme Court recently held that [the Second Amendment] confers an individual right on citizens to keep and bear arms. It is settled law, however, that the Second Amendment applies only to limitations the federal government seeks to impose on this right. Heller, a case involving a challenge to the District of Columbia’s general prohibition on handguns, does not invalidate this longstanding principle.

Five months later, the Seventh Circuit decided the case now before the Supreme Court: National Rifle Association of America Inc. v. City of Chicago, Illinois which challenges two municipal ordinances banning the possession of most handguns. As did the Second Circuit, the Seventh Circuit refused even to consider the possibility that Heller meant it could hold that the Second Amendment reached states and localities. Rather, the court held that it remained bound by the Supreme Court’s pre-Heller cases holding to the contrary.

Unlike the Second Circuit, however, the Seventh Circuit offered some argument as to why, notwithstanding Heller, the Second Amendment, given its specific content, might be found not to apply to the states:

One function of the second amendment is to prevent the national government from interfering with state militias. It does this by creating individual rights, Heller holds, but those rights may take a different shape when asserted against a state than against the national government. Suppose Wisconsin were to decide that private ownership of long guns, but not handguns, would best serve the public interest in an effective militia; it is not clear that such a decision would be antithetical to a decision made in 1868. (The 14th Amendment was ratified in 1868, making that rather than 1793 the important year for determining what rules must be applied to the states.) Suppose a state were to decide that people cornered in their homes must surrender rather than fight back — in other words, that burglars should be deterred by the criminal law rather than self help. That decision would imply that no one is entitled to keep a handgun at home for self-defense, because self-defense would itself be a crime, and Heller concluded that the second amendment protects only the interests of law-abiding citizens.

Looking Forward

It is particularly difficult to foresee how the Supreme Court will handle the incorporation issue presented by the Second Amendment. Though it three times has held or suggested that the Second Amendment does not apply to the states, those rulings date back to the 19th century, and it seems highly unlikely that this Court, which has demonstrated little regard for far more recent precedent, will feel bound by them. Moreover, the Court has not faced an incorporation dispute of any kind for decades, and the doctrinal standards bearing on these controversies are so broad and amorphous as to make almost anything possible.

Beyond these more traditional legal considerations are the political forces at play. For the “conservative” members of the Court, they face a conflict between an aversion to enhancing individual rights in the Bill of Rights and a concomitant support of states’ rights on the one hand and an inclination — as reflected in Heller — to support gun ownership on the other hand. For the Court’s “liberal” members, they face the reverse situation: a conflict between a commitment to robust individual liberties and a correspondingly dim view of states’ rights on the one hand and an aversion to gun ownership on the other. How this ultimately plays out remains to be seen, though Heller suggests the gun-ownership tilt of the Court’s conservative block will carry the day.

Christopher Dunn is the associate legal director of the New York Civil Liberties Union.

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