[Some editing done after first posting; still rough probably, but will leave it there, I hope. It also is patently arbitrary not to immediately release audio on this important case, particularly given the popular interest and the unlikelihood the advocates will really act much differently. A transcript of the oral argument will be available on the Supreme Court's website, but that's simply not the same. Maybe, like noted here, a re-enactment would be useful in cases of this sort.]
With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. ... Obviously, the same test could not be used to evaluate the extent to which a legislature may regulate a specific, enumerated right, be it the freedom of speech, the guarantee against double jeopardy, the right to counsel, or the right to keep and bear arms.
-- District of Columbia v. Heller
McDonald v. City of Chicago will be up for oral argument tomorrow to determine:
Whether the Second Amendment is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home.
The result, except perhaps as to privileges or immunities (and that too -- expect some concurring opinion from Thomas), is not really in doubt. Heller repeatedly hints that ownership of firearms is a fundamental right that should be incorporated no less than any other right from in the Bill of Rights. Its discussion of the importance of firearms after the Civil War underlines that this is not akin to the grand jury, the only other right (the Third Amendment in effect applied in Griswold) not incorporated. The comment that the question has not yet been decided is mostly gratuitous and already debatable.
Some argue that federalism might make incorporation different. U.S. v. Lopez, the gun-free school case, suggests that at least some justices might give more discretion (at least in some areas of regulation) to the states here. See also, Printz v. United States (state involvement in enforcing Brady Bill). But, see Justice Thomas' concurrence there (citing a few liberal leaning scholars) a "personal" right. The conservatives, unlike some in the past, have not generally (Thomas' suggestion that the Establishment Clause is a federalism mechanism is an exception that in effect proves the rule) supported a two-tier federal/state approach in this area.
Heller after all involved a local ordinance, but though D.C. tried to raise the point during oral argument, no justice really focused on the point. This is so even though the dissent in the lower court relied expressly on the fact that no one size fits all national law was at stake that would limit state discretion, but one specifically applied to D.C. Would the justices really act differently pursuant to another local ordinance from a state? Someone can reason that they could, but this does not really convince me that they will.
The Supreme Court does allow some state discretion as shown by the test for obscenity, which relies on local community standards in certain respects. State discretion is particularly allowed for juries. Not only may the states not use grand juries even for "infamous crimes" (see Fifth Amendment) but states, and only states, can allow non-unanimous juries to convict. Note that the standard is weaker here, but still some floor is in place. For instance, the Supreme Court set a floor of six people for state criminal juries and juries that small do have to be unanimous.
There is some flexibility in these cases that the sharp debate by Scalia and Stevens in Heller tends to mask. This is on some level unfortunate and it would be appreciated if a Justice Kennedy type opinion* is forthcoming. It might be expecting too much, but a simplistic 5-4 ruling on all grounds in this case would be unfortunate and tiresome. Liberal commentators and leading Democratic political figures (including presidential candidates) accept that there is some personal right to own a firearm. We can debate if this includes the right to own a handgun in certain areas or not. But, can we not agree on a basic point that personal ownership is a sensible approach there?
On this, the dissent by Breyer in Heller was preferred, even if it was too weak as to protection of a fundamental right. Focus on broad and greatly debated interpretations of original understanding brings forth little light in the end and should be avoided if possible. At one point in Heller, a common sense approach is used to define the contours of the term "arms," to wit:
It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon.
The concurring opinions in Griswold also take a somewhat similar approach in defining "liberty," which is ultimately the main concern of tomorrow's argument. As Justice Goldberg (with an assist from his law clerk, Stephen Breyer) noted:
"Liberty" also "gains content from the emanations of . . . specific [constitutional] guarantees," and "from experience with the requirements of a free society."
Experience and state practice in particular (state constitutions are repeatedly cited by scholars of the Ninth Amendment [and perhaps "privileges or immunities"] as a means to determine "retained rights") has led to a general understanding that "ordered liberty" includes a right to own firearms, particularly in the home. [see Heller and the dissent here] By the time of the Fourteenth Amendment, the Second Amendment was generally understood to have a personal touch. Events after the Civil War underlines its importance for blacks in particular (though other threatened groups continue to see its value), adding to the original understanding that personal gun ownership was one of the protections secured by the Fourteenth Amendment. And, a "Douglas approach" would suggest other (via "emanations" or whatever) amendments (such as protection of the home pursuant to the Fourth) reaffirm the principle. The spirit at least includes protecting the home with firearms, even as society changed and arguably made the issue more complicated in various ways.
A living history approach does as well. Cruikshank is telling. It arose out of a federal prosecution of an infamous massacre in which the rights of blacks to assemble and carry firearms in particular were threatened. This reflected the post-Reconstruction Era in which state and individual threats to blacks and black ownership of weapons for self-defense was rampant. State inaction (and often involvement) repeatedly threatened the safety of blacks and a realistic security of their basic liberties. The Supreme Court rejected an approach in which federal power could be used to protect such liberties (recognized as such, but not covered by the amendment) unless the state directly violated them, and even then only if a small number of national privileges or immunities were at issue. Or, a clear violation of equal protection, defined rather narrowly.
The Supreme Court, with justices who selectively honor the first Justice Harlan's approach in other cases (cf. Civil Rights Cases [still good law] and Plessy v. Ferguson [not]), still retains a segment of this dubious approach (section II), one which ignores what was accepted by Congress and the executive (and a few judges) at the time until the period of reform passed. But, over time and influenced by the stream of history, it rejected the idea that the Bill of Rights as a whole was not among the "liberties" protected by the Fourteenth Amendment as applied to the states. Meanwhile, even in the face of modern police forces and national guard arrangements, the public generally accepted law abiding people have a right to own guns. The debate generally focused upon the terms of regulation.
So, citations to "pre-incorporation" cases are rather misleading, since as noted in Heller, they also apply to First Amendment protections. Protections in place in various ways even when many people oppose them. Thus, there has to be a reason to selectively not apply the principles of 20th Century jurisprudence to the Second Amendment. The Third is obscure but still should apply when applicable, grand juries would apply a "one size fits all" rule that would overturn modern criminal practice (this might also apply to the Seventh Amendment as to civil cases, but due process secures basic protections in both cases all the same), but most states have some state protection of a right to own firearms. This recalls the segregation context:
In view of our decision that the Constitution prohibits the states from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government.
It might be thinkable, but is it constitutionally reasonable for states to have a different rule across the board here? A few outliers don't stop the Court from setting a firm rule when the Eighth Amendment is at stake. Why here? Likewise, as with that amendment, specific applications apply general principles with an eye to common practice. The decision here is somewhat harder, but the sound result is still not too complicated.**
Well, that is open to debate, obviously.
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* See, e.g., this case setting forth a basic principle that also applies here:
In all events we think that our laws and traditions in the past half century are of most relevance here. These references show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex. “[H]istory and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry.” County of Sacramento v. Lewis, 523 U.S. 833, 857 (1998) (Kennedy, J., concurring).
Such an approach used here just might get at least six votes. Dare to dream.
** When the basic principles involved are so open to debate, see also abortion, dealing with specific applications are that much harder. This is why it's useful to have a basic settled broad principle, so we can focus on the specific regulations at hand. Heller also underlines that Supreme Court cases don't just deal with specific facts, but general principles to apply in later cases. Thus, it was not necessarily illegitimately "activist" for it to deal with other matters, such as areas of legitimate regulation.