McDonald v. Chicago: revolution or restoration? (Part 6)

November 22, 2009 | By TIMOTHY SANDEFUR

Author: Timothy Sandefur

(Part 1; Part 2; Part 3; Part 4; Part 5)

McDonald v. Chicago is mostly being discussed as a case involving gun rights, and that’s not surprising: the case is a challenge to Chicago ordinances that essentially make it illegal to possess firearms. Last year, the Supreme Court for the first time ever, held that the Second Amendment does protect an individual’s right to possess firearms for personal defense. But that case only involved the federal government. In this case, the question is whether the Second Amendment right must also be respected by states—in lawyer’s parlance, whether that right is “incorporated” against states.

“Incorporation” is the name for the doctrine that the Fourteenth Amendment requires states to abide by all the guarantees in the Bill of Rights. The term came to be used in the early twentieth century, and the idea is generally traced to the 1925 case of Gitlow v. New York, when the Supreme Court said that states were not allowed to violate the First Amendment’s protection of freedom of the press. The plaintiffs in the McDonald case are asking the Supreme Court to “incorporate” the Second Amendment to the states through the Fourteenth Amendment.

Today’s incorporation doctrine is very similar to what the Amendment’s authors intended, but it’s different in some significant ways. First, it comes under the Amendment’s Due Process Clause instead of the Privileges or Immunities Clause. And, second, under the theory of “selective incorporation,” the Court has not required the states to follow each of the amendments verbatim: only those it considers essential to “ordered liberty.” There’s a subjective element to this that has raised a lot of criticism.

Using the due process clause actually makes a lot of sense, and that’s what the Supreme Court did in the 1897 case of Chicago B. & Q. Railroad, sometimes said to be the first incorporation decision. It isn’t: in fact, it’s a due process case. What the Court said there was that for a state to deprive a person of property without just compensation would be an arbitrary act, an act that is inconsistent with the traditional requirements of fairness that are essential to what we consider “due process of law.” That’s true: the guarantees of the Constitution are a fundamental part of American law, and for government to act in a way that violates those guarantees is such a departure from what we consider lawful, that it would indeed violate due process of law.

But that’s not the exact same thing as the Privileges or Immunities Clause. As Professor Akhil Reed Amar explains in his masterful book The Bill of Rights: Creation or Reconstruction, the Privileges or Immunities Clause asks whether or not something is a traditionally recognized individual right, or necessary to the exercise of an individual right—whether a common law right, or a constitutionally specified right, or a natural right—and then forbids the states from violating those rights. The due process clause, by comparison, only forbids states from depriving people of life, liberty arbitrarily. These two things overlap, but they aren’t the same.

Worse, using the due process clause has allowed critics to argue that this theory of “substantive due process” is invalid. They argue that judges use the theory to force their personal preferences onto the law. That may happen sometimes, but this theory of “substantive due process” is a legitimate, and crucially important part of our Constitution—just like “separation of powers” or “the separation of church and state.” Yes, sometimes these ideas are abused, but they’re fundamentally correct—as we’ll see in our next installment.

If the Supreme Court does decide to incorporate the Second Amendment to the states, and to use the Privileges or Immunities Clause to do so, it will have to overrule its mistake in the Slaughter-House Cases, and that means that courts will also be open to providing more meaningful protection for other individual rights—and in particular, the right of entrepreneurs and business owners to earn an honest living without unreasonable government interference.