Legal Commentary

Chicago's gun regulations are now under assault in the wake of Heller. The open legal question is whether the Second Amendment should be incorporated against the states under either the Fourteenth Amendment?s privileges and immunities clause or due process clause. But the question is merely formally open: I predict that federal courts will enforce the Second Amendment jot-for-jot against the states. The reason is simply that jot-for-jot mechanical incorporation makes life easier for federal judges: Why use one?s imagination to think about how states differ from the feds, when one can mechanically follow a SCOTUS precedent?

Yet here is the paradox of such unimaginative jot-for-jot incorporation: It actually undermines the Second Amendment. The Bill of Rights, you will recall, was demanded by the Anti-Federalists to protect states? powers from the federal government. If there was one institution of the federal government that the Anti-Federalists feared and loathed more than any other, it was the federal judiciary. (On this point, see, for instance, Brutus's essays). The whole point of the Second Amendment, therefore, was to insure that the federal government -- especially federal courts -- would respect state autonomy regarding guns. And the whole effect of jot-for-jot incorporation of the Second Amendment is to confer on federal judges the power to eliminate Illinois? power over guns.

How could courts be driven to such a perverse result? The answer, as I explain after the jump, is the result of Rights Fundamentalism ? the pernicious notion that, because some interest is dubbed ?Fundamental,? federalism is somehow irrelevant to their scope. Such Fundamentalism leads us to histrionic politics and wooden doctrine: We ought to scrap this Old Time Religion.

Keep in mind that a right can be deemed ?Fundamental? by SCOTUS and yet be amenable to variation through the states? political process. Rights to compensation when one?s property is taken, for instance, are heavily dependent on states? definition of ?property? after Tahoe-Sierra, and the adjudication of regulatory takings cases against state and local governments is largely the business of state courts after San Remo Hotel. Likewise, the right of parents to control the education and upbringing of their children is fundamental under Pierce v Society of Sisters and Meyer v Nebraska, yet states have enormous latitude in requiring parents to send their kids to school, vaccinate their kids, and so forth. The right to a jury in a criminal trial is fundamental, yet states control whether juries must be unanimous or contain twelve persons.

Federalism, as Justice Harlan the Younger insisted in his Roth dissent, can play an important role in circumscribing the scope of even a fundamental right. The trick is to define carefully the circumstances under which the federal courts will suspend the states? latitude to experiment. Under the Fourteenth Amendment, the key circumstance is obviously racism: As John Harrison has cogently argued, the 39th Congress wanted to protect privileges and immunities from racist infringement, not from any old regulation. So why not allow Chicago to restrict guns so long as they do so in a race-neutral way? Or, at the very least, why not allow Chicago to restrict guns so long as their police force reasonably performs the function of providing Chicago?s residents with protection from crime?

The true irony is that jot-for-jot incorporation of the Second Amendment against Chicago will not prevent regulation of the right to bear arms: It will simply re-allocate the power to impose such regulation from non-federal legislatures to federal courts. Justice Scalia?s opinion in Heller acknowledges that the Second Amendment permits ?longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.? Justice Scalia claims that Fundamental Rights are not subject to interest balancing -- but numerous doctrines, form the ?undue burden? test in Casey to ?ad hoc balancing test? of Penn Central say he?s wrong. Absent such balancing, I am at a loss to see how federal courts plan to determine whether the Fourteenth Amendment prohibits (for instance) a ban on concealed weapons or a requirement that gun-owners be licensed to use their weapons safely.

Rather than fall back on what Justice Scalia has called under other circumstances ?the good ol? totality of the circumstances test,? why not instead just acknowledge that federalism plays an important role in circumscribing the scope of the Fourteenth Amendment? Why not allow the states to make such policy judgments, so long as they do not oppress a discrete and insular minority?

The dogma of Rights Fundamentalism stands in the way. So we will soon all be treated to the spectacle of federal judges balancing governmental interests against individual rights, using their raw and untutored political instincts as a guide, while insisting that elected state and local legislatures cannot be trusted to make reasonable regulations because, after all, the right is Fundamental.