Our AP Government class did a mock court session on McDonald v. Chicago, a gun control case. Ashley wrote for the petitioners, I was Chief Justice, and we have guest bloggers Alyssa and Veronica writing for the respondents.
SUPREME COURT OF THE UNITED STATES
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No. 08–1521
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OTIS MCDONALD, et. al., PETITIONER v. CITY OF CHICAGO
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
[May 20, 2010]
At issue in this case is whether or not the Second Amendment should be incorporated as against the states. This Court rejects the petitioners’ argument that the Privileges or Immunities clause of the Fourteenth Amendment is a suitable vehicle for such incorporation, moreover, this Court believes that incorporation by any means should be avoided. This stems from nearly 200 years of precedent, as well as concerns about how such incorporation would affect states’ police powers and the ability of police officers to effectively protect ordinary people. A second argument, not fully explored in the oral arguments but often used in incorporation cases, for incorporation through the Due Process Clause, also fails upon a closer examination.
I
AThe clauses at issue are found in §1 of the 14th Amendment, which states that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws” (United States Constitution Amend. XIV). The petitioners argue that this language should be sufficient to force the States to adhere to any and all provisions set forth in the Bill of Rights. In so arguing, however, they fail to take into account that the Court has struck down that reasoning ever since the
Slaughter House Cases, 83 U.S. 36 (1873) where they found that the Fourteenth Amendment protects only those rights which “owe their existence to the Federal government, its National character, its Constitution, or its laws”. The right to bear arms is not such a right; even the petitioners freely acknowledge that it is considered a fundamental right, one that dates from old English common law. Other rights which are now considered even more “fundamental” than gun ownership, such as freedom of speech, were not always so considered and therefore merit the extra protection that incorporation provides.
Aside from the fact that the Court has never incorporated any provisions from the Bill of Rights against the states through the Privileges or Immunities Clause, incorporation in such a way has rather disturbing consequences.
The right to keep and bear arms is not a right granted by the Constitution. What the Constitution does do is prevent the federal government from infringing on that right. While the petitioners in this case may view the difference between “the government may not prevent people from bearing arms” and “citizens have the right to bear arms” as splitting hairs, such a distinction has been made ever since United States v. Cruikshank 92 U.S. 542 (1876), when Chief Justice Waite ruled that
“[The right to bear arms] is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government.”
The right to bear arms is therefore an unenumerated right in the Constitution. Petitioners would wish to see it included in the Privileges or Immunities Clause even if the Second Amendment, the core issue in this case, was not included in the Constitution. Suddenly, it becomes impossible to define the exact reach of the Fourteenth Amendment; any person who imagines that one of their rights, enumerated or unenumerated, is being challenged, can take their case to court. For 140 years, the Due Process Clause has been used to incorporate the Bill of Rights, while acknowledging that the Privileges and Immunities Clause, although valuable, does not have a part in the incorporation debate. This Court is loath to overturn such precedent, and the petitioners’ performance during oral arguments did nothing to change that view.
B A better path to take would have been to argue for incorporation based on the Due Process Clause. While briefly explored during oral arguments, this path was not covered in as much depth. However, because it has been used in every other incorporation case, it would be a sad mistake to not address it here. While still not enough to justify incorporation, it makes more sense to use it as a basis for argument because of its long history in incorporation cases.
There can be no question that handgun bans -- or indeed, any weapons bans, including the Chicago one -- have no issues under procedural due process as long as they are properly passed by the state or local legislatures. Substantively, however, they merit closer examination. Because the issue here is a fundamental right and also raises a Constitutional question, we apply the strict scrutiny test. The test, designed in Footnote Four of United States v. Carolane Products 304 U.S. 144 (1938) as a more rigorous version of the rational basis test, is applied to cases involving fundamental rights. States must show that there is a compelling government interest in infringing on individuals’ rights and liberties, as well as showing that the law or policy in question is narrowly tailored to achieve that interest. In this case, the government interest is obvious: protecting the lives and safety of its citizens (this goes along with police powers, which will be discussed more in depth in a later section). It is this court’s judgement that that interest is sufficiently compelling to allow gun regulations and bans, even though such legislation may facially appear to contradict the Constitution. As to the legislation being narrowly tailored, this Court sees no reason why a ban on several specific types of weapons, which are known to play central roles in multiple types of violent crimes violates this stipulation.
CAlso worth discussion here is the text of the Second Amendment itself, which reads “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” (United States Constitution, Amendment II). The version ratified by the states, however, reads “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”. Regardless of which version is considered, it should be quite clear that the amendment is meant to provide for the people’s right to bear arms in national defense. It sprung from the people’s distrust of both the federal government and the standing army. Nothing in either the text of the amendment or the intent of the Founders was meant to provide for individual self-defense; the dual purpose was to protect the people from the threat posed by the army, and to provide a supplement to the army when the nation as a whole faced a threat. Because the amendment was designed specifically to promote national security, it would be a mistake to apply it to the states.
An additional argument against incorporation here is the changed perception of the militia. In the brief for Kay Bailey Hutchinson and multiple other Congresspeople it is argued that “The Constitution vests Congress with authority to raise a standing army and to call forth and regulate the militia. U.S. CONST. art. I, § 8, cl. 12, 15-16”, and therefore incorporation would threaten Congress’s war powers. However, militias have both widely fallen out of use (the last use was during World War II, and that was only small-scale local action) and negatively viewed. State National Guard units have mostly taken over militia duties as originally envisioned, and police officers deal with individual altercations. “Militia” has become to many people the nebulous, gun-toting groups in the Midwest who get arrested for killing police officers (the Hutaree militia are one, albeit extreme, example of this). Even in the decades immediately following the ratification of the Constitution, during the Whiskey Rebellion and the War of 1812, the militia was viewed as ineffective. Not incorporating the Second Amendment (ie, letting the status quo prevail) would not mean that people would not be allowed to bear arms, and therefore does not place an undue burden on Congress’s war powers.
One last argument in this section has to do with the original intent of the Fourteenth Amendment. It has been argued in multiple articles and amicus briefs, and to a lesser extent in the oral arguments for this case, that the Second Amendment, above other amendments, is especially suited to incorporation because of the Fourteenth Amendment’s history. One of the major reasons for the Fourteenth Amendment’s passage was to constitutionally validate both the Freedman’s Bureau Act and the Civil Rights Act of 1866. Both those Acts had provisions to prevent the disarmament of black Union soldiers and to prevent states of the former Confederacy from denying their black citizens numerous rights, including their constitutional right to keep and bear arms. Does that mean that protecting Second Amendment rights was the main cause, or even one of the causes of the Fourteenth Amendment? No. It means that the Fourteenth Amendment was being used to stop discrimination, to ensure that rights applied equally to blacks and whites. The right to keep and bear arms was one of several rights that the Acts kept from being distributed only to select people based on their race.
IIWith the Constitutional basis for our judgment explained, we move on to several other, more practical reasons for our ruling. Because the Second Amendment deals with possession of an instrument that is designed to kill and injure other people, it is necessary to consider the effects of incorporation in a different light than incorporation of other Bill of Rights provisions.
AThis is also an issue of federalism, and of state’s police powers. Forty-four state constitutions provide for the right to keep and bear arms (the exceptions are California, Iowa, Maryland, Minnesota, New Jersey, and New York). In nearly every case in which the arms right is protected, an individual right or a self-defense right is also explicitly protected. This leads to the question of why incorporation of an amendment written to apply specifically to the federal government is necessary. State and local governments know best how to combat crime in their own jurisdictions. A single, inflexible federal law has the power to do far more harm than good in this case. Each city has its own local flavor, its own problems with gang violence, drug deals, and violent crimes, and their administrators know better than the federal government which weapons should be restricted and to what extent the restrictions should go.
It is important to note that the Second Amendment is not unique in this respect. The Fifth Amendment right to indictment by a grand jury was held to be not incorporated against the state in Hurtado v. California, 110 U.S. 516 (1884). Both then and now, multiple state constitutions protect the right to a grand jury indictment. Justice Matthews, who wrote the majority opinion in Hurtado, was concerned that states be able to make their own laws without federal infringement, and that the Constitution not be considered static and bound specifically to any one time.
As per the police powers granted to states, states have the authority to make and enforce laws that provide for the public health and safety of its citizens. It is hard to imagine any laws more conducive to health and safety than those which restrict gun possession to those who have passed strict background checks, or those which keep the favored weapons of gangs out of their hands. Incorporation of the Second Amendment would unfairly restrict these police powers and prohibit state and local governments from protecting their citizens to the fullest extent.
BWe reject as naive and unfounded the petitioners’ assertion that gun ownership is a deterrent to crime. Both hypothetical situations presented as justification for incorporation are flawed. Flashing a gun (be it at police officers that one fears have nefarious intentions or at someone who is trying to attack one in the street) is often just an incitement to more violence, rather than a deterrence from violence. The street violence in particular that could arise from incorporation is chilling: one could be shot and possibly killed for minor theft, and gang violence could easily spill over into crowds of innocent passers-by. As to the idea of “someone is less likely to break into your house if they know you have a gun”, the burglar would have no way of knowing who does or does not own a gun. In any case, selective bans and restrictions do not unduly limit people’s ability to defend themselves.
The petitioners also do nothing to further their case by suggesting that even if the Second Amendment is incorporated, only “responsible people” will be allowed to own guns, and that restrictions and background checks would still be allowed. In essence, they seem to be arguing, nothing will change . . . except there will be more guns on the streets and available in black markets. While Heller left in place many restrictions on gun ownership, such restrictions seem to be contrary to the spirit of incorporation. Rights that have been incorporated (such as the right to a speedy trial and the right to notice of accusations) are generally incorporated in full, and with no restrictions. One major exception is the right to free speech, which can be limited at both a federal and state level by the Bad Tendency Test. For instance, one’s right to yell “Fire” in a crowded theatre is not protected by the First Amendment. There have been multiple cases which deal, essentially, with the topic of speech v. life. In such cases, the Court has ruled consistently on the side of life. In this case, where the topic of issue is guns (which are far more dangerous than words) v. life, there is no compelling reason to rule against life.
When considering whether or not to incorporate provisions in the Bill of Rights against the states through the Fourteenth Amendment, two general principles are considered.
The first and most restrictive was established in Palko v. Connecticut, 302 U.S. 319, 325 (1937), and is that of “ordered liberty”: rights in the first 10 amendments will be incorporated if they are “of the very essence of a scheme of ordered liberty”. The right to bear arms is not one such right. In fact, the proliferate and generally unregulated purchase and use of guns that will result from incorporation is detrimental to ordered liberty. To cite only two of the multitude of examples, guns used during the commission of violent crimes are used to deprive people of liberty (and on occasion their lives) and guns on the streets can be used to incite violence and prevent police officers from doing their jobs, which takes away from order. The argument that guns are necessary to the militia is both outdated (as explained above) and less significant when compared to the other, less noble and more dangerous uses of guns in the hands of many citizens.
The second principle, which is both more widely used and less restrictive, has largely replaced the ordered liberty standard. In Duncan v. Louisiana, 391 U.S. 145 (1968), the court held that all rights “fundamental to the American scheme of justice” should be applied to the states. This has allowed the incorporation of almost all elements of the Bill of Rights (Duncan itself incorporated the right to a jury trial in non-petty criminal cases). However, it does not apply to the Second Amendment. Indeed, as with the ordered liberty standard, this is an argument against incorporation in this case. Gun possession by civilian individuals traditionally has nothing to do with justice -- unless, of course, we are talking about vigilante justice. Such “justice” is not condoned nor desired by any rational government, and the fact that such “justice” could arise from incorporation is disturbing. Additionally, prosecutors at the federal and state levels would have a much harder time winning convictions in gun possession cases and in cases where guns are used during the commission of a violent crime. They may be pressured into accepting less restrictive plea deals for criminals, or be forced to release them all together. Incorporation is therefore not only not fundamental to justice, it would inhibit justice from being carried out.
III
It is in this Court’s best interest to consider the long-term effects of incorporation. The consequences are overwhelmingly negative.
ABlanket incorporation of the Second Amendment would lead to potentially countless lawsuits, as people attempt to define the reach and scope of the newly incorporated amendment. Are background checks still allowed? What about gun shows? How tightly would purchases there be regulated, if at all? Would the ban on felons owning guns still be in place? The hours and money spent and wasted on such suits is incalculable.
This problem would not be solved by ruling for incorporation with restrictions. Heller was such a case, and in the year and a half after that decision, courts in multiple states faced over 190 suits. Even restrictions that Heller specifically cited as being left in place (such as 18 U. S. C. § 922(g)(9), barring people convicted of domestic violence from owning firearms) are being challenged and even overturned in federal courts (see United States v. Skoien, No. 08-3770, United States Court of Appeals for the 7th Circuit).
BOne group of people who will be greatly negatively impacted by Second Amendment incorporation are the police officers and law enforcement officials. Police, especially those who work in high-risk areas such as gang turf (which is, unfortunately, in abundance in many urban areas such as Chicago) will be put at a much greater risk if guns are as widely available as they would be under an incorporated Second Amendment. They will also have a harder time arresting suspects, and prosecutors will have a harder time gaining convictions, because of the Fourth Amendment’s exclusionary rule.
Incorporating the Second Amendment would also have an adverse effect on the Fourth Amendment, which protects against unlawful search and seizure. As noted in the brief for the Association of Prosecuting Attorneys, police officers are able to arrest people if they suspect the person of possession of an illegal weapon. In many cases, when investigating the people arrested, they are brought up on additional charges, such as drug possession. All of these arrests would be imperiled with an incorporated Second Amendment, because all weapons would be presumed legal. Any arrests in which the arrestee were armed could be challenged, and, in extreme cases, the very definition of “reasonable suspicion” in firearms cases could be imperiled. Prosecutors, as explained in II.C. would also be adversely affected.
Last but not least, it has been shown that these gun control laws are effective, both in stopping violent crimes and in bringing the perpetrators to justice. In just one instance, when the District of Columbia enacted its handgun ban, homicide rates dropped by 25% (Philip J. Cook et al., Gun Control After Heller: Threats and Sideshows from a Social Welfare Perspective, 56 UCLA L. Rev. 1041, 1076 (2009).
IVIn holding that the Second Amendment does not apply to the states, this Court re-affirms a long line of decisions that have held exactly the same thing:
Slaughter House Cases, 83 U.S. 36 (1873),
United States v. Cruikshank, 92 U.S. 542 (1876),
Presser v. Illinois 116 U.S. 252 (1886), and
Miller v. Texas, 153 U.S. 535 (1894).
Incorporating the Second Amendment is an unjustifiable idea both legally and socially. The judgment of the United States Court of Appeals for the Seventh Circuit is affirmed.
It is so ordered.
If some of this doesn't quite track with what's in Ashley's brief for the petitioners, I'm sorry, we're in two different periods of AP Government and the arguments varied from class to class.
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