Acquiescence to Due Process

Justice Scalia Struggles to Love a Flexible Constitution as much as He Loves Guns

If you listen to pro-gun activists, the case of McDonald v. Chicago, argued before the U.S. Supreme Court this Tuesday, is the most important thing to come before the nine Justices since District of Columbia v. Heller and just as groundbreaking Constitutionally. From my perspective, the case is more an addendum to Heller than its peer.

In Heller, the Court’s conservatives, by a five-to-four vote, shot down a Washington D.C. ban on handguns. In doing so, the Justices finally took a stand on the Second Amendment that the Court had been conspicuously ignoring for the past two centuries of American democracy. To wit, Heller’s majority decision said the Second Amendment was more than just about militias and implied an individual right to bear arms. Specifically, it allowed D.C. residents to keep handguns in their homes for personal protection.

The Court hedged its bet by stating that although outright bans were Unconstitutional, other types of “reasonable regulations” were probably okay. The Court’s silence on the rights of state and local governments to impose restrictions was particularly deafening, noting these were very different animals than a federal district, with historically far greater control over their jurisdictions.

However, the ink was not yet dry on the Heller decision before hundreds of lawsuits were filed against state and local gun bans as well as restrictions on bearing firearms outside the home. McDonald is the case the Justices agreed to look at next. Although anything is possible, the deck seems stacked that the Court will extend the same gun ownership rights and protections to U.S. citizens living outside the Beltway that it previously extended to those dwelling within its boundaries.

For starters, gun rights activists have gotten a lot smarter about public relations. Although the National Rifle Association – a group anti-gun activists love to demonize – is a major impetus behind this case, the actual face of McDonald is Otis McDonald, a spunky seventy-six year old grandfather living in a bad Chicago neighborhood who wants to keep a handgun in his home to protect himself from gangs. He presents a far more sympathetic defendant to the Justices, whose conservative clique is unlikely to suggest he follow President Obama’s lead regarding the power of community organizers.

As expected, the conservative Wall Street Journal editorial board is all for extending the end of outright gun bans to the states. “If the First Amendment's right to free speech applies to the states, then so does the Second Amendment,” they write.

At the far more liberal New York Times editorial board, the feeling is very . . . much the same, actually. While noting they strongly disagreed with the outcome in Heller, the Times editors feel the Court “should make clear that all of the protections of the Bill of Rights apply everywhere.” The Washington Post, while also at odds with Heller’s majority decision, avows, “It would seem incongruous at best and legally indefensible at worst to deny to those beyond the nation's capital a right that the Justices have ruled is embedded in the federal Constitution.”

The bad news for pro-gun activists is that McDonald really is not breaking any real new ground regarding gun rights beyond extending the territory for Heller. Nonetheless, it seems a logical and straightforward next step.

The principle argument for doing so, as set forth by Alan Gura, the lawyer who represents McDonald and the other Chicago challengers, is the Due Process clause of the Fourteenth Amendment, which states, “no state shall deprive any person of life, liberty or property without due process of law.” The Court has relied upon it in the past to establish a woman’s right to an abortion as well as prohibiting state laws against interracial marriage and gay sex. It is the logic officially favored by the NRA.

Gura also mentioned another aspect of the Fourteenth Amendment – the Immunities clause, which forbids states to make or enforce any law “which shall abridge the privileges or immunities of citizens of the United States.” Some legal scholars believe the Court would do well to embrace it as a means to shore up property rights, among other reasons.

However, it drew a cool reaction from the Court, even among the conservative Justices. The scuttlebutt is that conservatives fear progressives would use such a precedent to find other rights in the Constitution, such as a right to . . . oh, say . . . health insurance. Under prickly questioning from Justice Scalia, Gura ultimately conceded he would still be “extremely happy” if the Court settled upon the traditional Due Process clause.

Voting against McDonald on this basis would prove a tough challenge for the liberal Justices who opposed Heller, because they have repeatedly favored this logic in the past. The catch actually lies with conservative Justices, such as Scalia, who have argued vehemently many times against a legal doctrine they call “substantive due process,” claiming it is also a potentially dangerous vehicle for judicial activism and inventing non-existent Constitutional rights.

However, Scalia admitted he has reconciled himself to Due Process as a means of incorporating Constitutional rights to states, telling Gura at one point, “As much as I think it's wrong, even I have acquiesced in it.” The translation here, I think, is that Justice Scalia has discovered judicial activism can be fun when it helps bring about conservative aspirations, an observation I have pointed out previously.

James Feldman, the lawyer representing the city of Chicago, got absolutely nowhere with the Justices by insisting gun rights were not an essential attribute of “ordered liberty.” If this were true, it would mean that Heller was wrongly decided, Justice Kennedy explained to him with icy politeness.

Feldman did slightly better with the argument that, unlike other Constitutional rights, the right to bear arms pits the threat guns pose to human lives against the right to carry them, requiring a balance to be struck. Chief Justice Roberts replied he saw no way to read the Heller opinion to make the Second Amendment a less important right than any other but Justice Breyer, in particular, seemed sympathetic. Breyer and Scalia later engaged in a long debate on the matter while the lawyers stood silent.

So McDonald will almost surely be decided in favor of gun rights but it will probably take many future case-by-case challenges for the Supreme Court to define what represent reasonable restrictions. Chief Justice Roberts admitted as much. “We haven't said anything about what the content of the Second Amendment is beyond what was said in Heller.”

It is impossible to guess where this Court may draw lines but I suspect and certainly hope they will be more congenial to limitations than most ardent pro-gun activists desire. Civil liberties tend to be as close to absolute as possible, such as in the case of free speech, but there is a big difference between shooting off one’s mouth and shooting off one’s firearm – the relative hurting power of sticks and stones on bones versus names and all that.

It is pretty clear that virtually all of the Justices, much like Scalia, have acquiesced to the inevitability of an individual right to bear arms. It is interesting, however. Scalia undoubtedly defines his acquiescence in the sense of tacit consent without objection. Yet “acquiescence” also carries a specific legal definition, meaning “neglect to take legal proceedings for such a long time such as to imply the abandonment of a right.”

In this sense, one might almost conclude that by remaining silent on the exact meaning of the Second Amendment for so long, and continuing to flesh it out with maddening slowness in McDonald, it almost seems like the Supreme Court abandoned gun rights or at least its right to speak on the matter. But then I remember this is an activist Court for an active moment in U.S. history.