By Benjamin Barr
With the close of the 2009-10 Supreme Court term this week, friends of freedom have much to celebrate. In January, the Court struck out in bold support of the First Amendment in Citizens United v. FEC, overturning two significant, and significantly bad, cases. At the end of its term, we should be likewise thankful that the Court affirmed the importance of the Second Amendment in McDonald v. City of Chicago by recognizing that the Amendment protects an individual’s right to keep and bear arms.
As a matter of utmost gratitude, we should rejoice knowing that Justice Breyer’s approach to gutting the Bill of Rights was soundly rejected. Under Breyer’s often-creative-and-often-wrong jurisprudence, he asked whether there was “popular consensus” that the protections afforded under the Second Amendment were “fundamental.” Had the Court embraced Breyer’s approach, individual liberties enshrined in the Bill of Rights would be protected only upon confirmed favorable peer polling. Justice Breyer’s approach resembles something of American Idol meets the Bill of Rights: Chic individual liberties go on to superstar protection, while disfavored ones would go by the wayside.
How the Court reached its majority opinion reveals further splits among the Court’s conservative, liberal, and libertarian elements. While the result in McDonald is to be applauded, the resulting judicial fracture lines will feed further cracks in the near future. Originally understood, the Bill of Rights applied only to the federal government. But under the Supreme Court’s own fiction, the Court applied the doctrine of “selective incorporation” – itself selecting when provisions of the Bill of Rights applied against state governments. Judicial hocus-pocus? Largely so.
A much simpler read of the Constitution points to the Privileges and Immunities Clause of the Fourteenth Amendment as a basis for protecting individual liberties against state government abuse. This approach would give easily understood and uniform meaning to constitutionally protected liberties without judges having to make this up on the fly. The McDonald challengers asked the Court to give up its fashionable doctrine of selective incorporation. And the Goldwater Institute joined by the Wyoming Liberty Group argued just the same – to give stable and heightened protection to individual liberties through a forthright reading of the Fourteenth Amendment.
Unfortunately, all but one Justice agreed that the incorporation doctrine would continue to be applied in deciding whether parts of the Bill of Rights protected people from state abuses. Justice Thomas wrote separately to explain that the plain text of the Privileges and Immunities Clause – “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States” – just made plain sense grammatically and historically as a guarantor of these liberties. But the Supreme Court failed to do just that five years after the adoption of the Fourteenth Amendment in its Slaughter-House Cases opinion.
The creation and maintenance of stylish judicial tests for establishing whether given liberties are protected at the local level or not does not bode well for the health of our constitutional Republic. Justice Scalia is correct to note that the judicially-fabricated incorporation doctrine is “both long established and narrowly limited.” Still, it remains troubling to see justices acquiesce to long established formulas that that do not provide strong assurance for the protection of individual liberties in an easily understood fashion.
The admirable tenor embodied by the Court in its Citizens United opinion – principles over poor precedent – went missing in McDonald. We can only hope that with what is certain to be a flurry of Second Amendment litigation challenges in the near future that the Court will strike out just as boldly in protecting the Second Amendment’s special status in civil society.
Tags: Chicago gun case