Supreme Court (WDCpix)

In announcing on Wednesday that it would review a case that asks whether individuals have a fundamental right to bear arms under the U.S. Constitution, the Supreme Court did more than just step into a heated debate over gun control. Although McDonald v. City of Chicago is on its face about Chicago’s ban on handguns, legal experts say it also raises a far broader question of constitutional interpretation that bears on how and whether the Constitution protects a wide range of rights from state infringement. A finding that the Second Amendment protects individuals’ right to own a gun could therefore have the unexpected outcome of also providing more solid ground for recognition of the right to abortion, to sexual privacy, to gay marriage, and to a wide variety of other rights that conservative justices on the court and “originalist” constitutional scholars have long opposed.

The issue in the Chicago case, as defined in the petition to the court, is “[w]hether 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.”

Illustration by: Matt Mahurin

The court’s decision to take the case and consider whether the Second Amendment might be “incorporated” – applicable to the states – by the “privileges or immunities clause” of the Fourteenth Amendment suggests that the court is open to reconsidering a long line of cases dating back to 1873 that read that clause narrowly and thereby restricted the ability of the Fourteenth Amendment to protect fundamental rights. Although the Supreme Court has acknowledged many rights under the Fourteenth Amendment since then, it has done so based on the more tenuous argument that they’re protected by the more limited “due process” clause, which says that the State shall not “deprive any person of life, liberty, or property, without due process of law”. Lawyers and judges have at times resorted to complicated legal gymnastics to make the argument that a newly-recognized right falls under “substantive due process.”

That argument has left those rights vulnerable to an increasingly aggressive attack by conservatives who claim judges are engaging in “judicial activism” by recognizing rights not specifically enumerated in the Constitution. The “privileges and immunities clause”, which states that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States” has the potential to be read much more broadly.

The Privileges or Immunities Clause “was written to forbid state and local governments from trampling on the substantive fundamental rights of all Americans, thus securing the ‘unalienable rights’ to which the Declaration referred,” argues David Gans, Director of the Constitutional Accountability Center’s Human Rights, Civil Rights & Citizenship Program in a post at Balkinization.

Scholars from across the political spectrum appear to agree with him, and many joined in a brief submitted to the court in this case urging the justices to reverse the court’s longstanding precedent. In a “friend-of-the-court” brief drafted by the Constitutional Accountability Center, six constitutional law professors urged the Supreme Court to review the Chicago case and restore the original meaning of the Fourteenth Amendment, as protecting all “privileges and immunities” not enumerated in the Constitution.

“In discussing the fundamental rights of citizenship, the framers regularly included a long list of fundamental rights – such as the right of access to the courts, the right to freedom of movement, the right to bodily integrity, and the right to have a family and direct the upbringing of one’s children – that have no obvious textual basis in the Bill of Rights,” says the brief. “These were core rights of personal liberty and personal security that belong to ‘citizens of all free governments;’ it did not matter that they were not enumerated elsewhere in the Constitution.”

The libertarian Cato Institute and Institute for Justice similarly wrote in an amicus brief to the court: “the issue of the Second Amendment’s ‘incorporation’ implicates not only the right to keep and bear arms – important enough by itself – but the larger debate over the origin, nature, and extent of all our natural rights and how the Constitution protects them.”

While the language of the privileges and immunities clause seems clear, shortly after its adoption, in 1873, in a set of cases known as the Slaughterhouse Cases (affirming Louisiana’s right to regulate slaughterhouses), the Supreme Court narrowly read the Fourteenth Amendment to protect only “privileges or immunities” conferred by federal citizenship, not by state citizenship. It specifically did not limit the state’s police powers, the court ruled. The effect of that ruling was to gut the “privileges or immunities” clause, scholars have argued, and it’s led to serious questions and confusion over when and how states can regulate rights that are thought to be fundamental but are neither specifically conferred by the federal government nor mentioned in the constitution — often called “unenumerated” rights.

Whether the constitution protects such unenumerated rights remains one of the most hotly-debated matters of constitutional interpretation, and has sharply divided the conservative and liberal wings on the court. Justice Antonin Scalia, for example, has long criticized the notion that rights such as the right to an abortion or to privacy deserves protection by the U.S. Constitution. Although the Supreme Court has recognized some of these rights, based on its interpretation of the “due process clause” of the 14th Amendment, those cases have been increasingly attacked by the conservative members of the court, and by conservative scholars, as not being grounded in the original text of the Constitution.

“You have this assault on Roe [v. Wade] from the Right, claims of judicial activism from the right, saying judges shouldn’t be doing this,” explained Doug Kendall, President of the Constitutional Accountability Center. “There’s been an aggressive assault on the entire idea that there is incorporation and that judges should have a role in protecting liberties,” said Kendall, who organized the law professors’ submission of their amicus brief. “That’s fueled the conservative rise over the last 30 years in the courts.” In response, “there’s been a flowering of scholarship that goes back to the original debates and makes an overwhelming, compelling case for the proposition that the privileges or immunities clause was intended to protect a robust set of human and civil rights.”

Constitutional scholars ranging from Akhil Reed Amar, a liberal law professor at Yale Law School, to Randy Barnett, a conservative libertarian at Georgetown University Law School, have argued in books and articles that the “privileges or immunities clause” means what it says – that the states cannot infringe on a broad range of unenumerated civil rights of citizens. As the constitutional law professors write in their brief to the Supreme Court, “the Slaughterhouse cases read the Privileges or Immunities clause so narrowly as to essentially read it out of the Amendment,” but as Amar wrote in a 2001 Yale Law Review article the brief cites: “[v]irtually no serious modern scholar – left, right and center – thinks that this is a plausible reading of the Amendment.”

Of course, if the court does decide to breathe new life into the privileges or immunities clause, it will ignite a new debate about what those rights are. But their defenders argue those rights are vast. The Ninth Amendment specifically says that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”  The privileges and immunities clause of the 14th Amendment, the constitutional scholars argue in their brief, “is the textual hook in the Fourteenth Amendment for protection of unenumerated fundamental rights, as well those substantive fundamental rights articulated in the Bill of Rights, including the Second Amendment right to keep and bear arms.”

The law professors quote the 1866 report of the Joint Committee on Reconstruction, which interpreted the Privileges or Immunities Clause to “afford broad protections to substantive liberty, encompassing all ‘fundamental’ rights enjoyed by ‘citizens of all free Governments’: ‘protection by the government, the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject nevertheless to such restraints as the Government may justly prescribe for the general good of the whole.’“

Because the Fourteenth Amendment was focused on giving newly freed slaves the rights of citizens, says Kendall, it focused on protecting “the rights of heart and home. Your ability to control your family, your children’s education, reproductive choice and sexual intimacy.”

Not that everyone agrees with that view. A group of legal historians, for instance, filed a brief with the Seventh Circuit Court of Appeals in the McDonald case arguing that Congress’s intent in passing the Fourteenth Amendment was unclear. But until now, the Supreme Court has never agreed to hear a case that directly raised this issue.

Even if the court wants to find that the Second Amendment’s right to bear arms applies to the states, it might still sidestep the broader issue raised by this case and avoid overturning more than a hundred years’ worth of precedent. Liberals have invoked the due process clause of the Fourteenth Amendment to argue for other fundamental rights, and the court could find the right to bear arms is similarly protected by the due process clause, rather than by the privileges and immunities clause. But even that would be a victory of sort for progressives, Kendall said.

“It would force Justice Scalia to utilize substantive due process” — an idea he has long criticized in the context of abortion and other controversial rights –  “to achieve the results he wants in the guns case,” said Kendall. “As long as the court finds incorporation” — that the Bill of Rights applies against the states — “it will provide a basis for undercutting Justice Scalia’s argument against it.”

For some conservatives, then, winning the right to carry a gun could turn out to by a Pyrrhic victory.

That was a contentious issue at her confirmation hearings, with Republican gun enthusiasts warning that she doesn’t support gun ownership as a “fundamental right.” Democrats — and Sotomayor — argued that she’d never had the opportunity to rule on the issue.  In one case, she’d held that the Second Amendment did not forbid states from regulating gun possession, but she’d ruled based on her reading of what Supreme Court precedent required, she said.

Today, the court announced it would take a new gun case, McDonald v. Chicago, that will directly address the issue that’s so far been left undecided: whether the Second Amendment provides a “fundamental right” that states must respect.

The Chicago law at issue in this case bans virtually all handguns. A previous ruling from the Supreme Court, Heller v. District of Columbia, struck down a similar ban but applied only to the federal government’s authority to regulate handguns.

It’s the first time the NRA has weighed in against a Supreme Court nominee and warned senators that their votes affect how the NRA “scores” their records. Although that’s clearly had some affect, eight of the 36 senators endorsed by the NRA in their last elections have said they will vote to confirm her. Those include Democrats Max Baucus and Jon Tester of Montana, Ben Nelson of Nebraska, Arlen Specter of Pennsylvania and Tim Johnson of South Dakota, as well as Republicans Lindsey Graham of South Carolina, Lamar Alexander of Tennessee and Mel Martinez of Florida.

The NRA has also wavered on how strongly it will weigh this vote, perhaps realizing that it would alienate some key supporters. NRA spokesman Andrew Arulanandam told the LA Times that the Sotomayor vote was important but might count for less than a future Senate vote on gun control. “The NRA has yet to determine the weight of this vote, but we have informed people that this vote will count,” he said. “Sounds to me like the NRA has been getting some pushback of its own,” observes Christy Hardin Smith of Firedoglake.com.

Meanwhile, gun control groups are relishing the notion that the NRA may be losing its sway. “This vote is a test of the conventional wisdom that they are an 800-pound gorilla capable of scaring up votes,” Doug Pennington, a spokesman for the Brady Center to Prevent Handgun Violence, tells the LA Times. “Well, so far, they have been unable to keep the votes of the senators they endorsed in the last campaign.”

The gun issue was a hot topic at Sotomayor’s hearing, of course, with senators grilling her on why she would not acknowledge that the right to bear arms was an individual “fundamental” right enforceable against the states. Sotomayor answered that she was just following settled court precedent, and carefully avoiding what Jeff Sessions has called “the siren call to judicial activism.”

Hatch aggressively grilled Sotomayor during her nomination hearing on her views of the Second Amendment and the “incorporation doctrine,” among other things. He was evidently not satisfied with her answers. Today he said in a prepared statement:

Arriving at a final decision was particularly difficult because I like and highly respect Judge Sotomayor and, in general, give a great deal of deference to any President’s nominee. The prospect of a woman of Puerto Rican heritage serving on the Supreme Court brought great excitement to me and says a lot about America.

However, after thoroughly reviewing Judge Sotomayor’s record and being able to hear her testimony and responses during the hearing process, I reluctantly, and with a heavy heart, have found that I cannot support her nomination to the U.S. Supreme Court. In truth, I wish President Obama had chosen a Hispanic nominee that all Senators could support. I believe it would have done a great deal for our great country. Although Judge Sotomayor has a compelling life story and dedication to public service, her statements and record were too much at odds with the principles about the judiciary in which I deeply believe.

Here’s his full statement.

As Sessions pointed out in his question:

Many countries around the world … including some of our closest allies, take a far different view from our own country’s regarding gun ownership. Great Britain has almost a total ban on the ownership of firearms, Germany has some of the most restrictive firearms ownership laws in Europe, and in Australia, self defense is not considered a legitimate purpose for owning a gun.

What’s more, he wrote:

On October 31, 2008, members of the United Nations General Assembly passed a resolution supporting the negotiation of a global treaty on the gun trade. The United States was one of only two countries that voted against the resolution.

Sessions went on to ask Sotomayor if she would consider foreign law as a Supreme Court justice deciding whether the Second Amendment guarantees the right to gun ownership in the United States, suggesting, of course, that such consideration would be heresy. (“Isn’t foreign law then simply a vehicle by which judges indulge their own policy preferences?” Session asked.)

Sotomayor was characteristically careful in her response, noting that because “cases raising Second Amendment questions are currently pending before the Court, I would not comment on how I would decide those cases if I am confirmed.”

She did say, however, that while she wouldn’t rely on decisions of foreign courts as controlling precedent, in “some limited circumstances, decisions of foreign courts can be a source of ideas, just as law review articles or treatises can be sources of ideas.”

So now we know why Sessions, Sen. Tom Coburn (R-Okla.) and many other Republicans were so adamant that Sotomayor not “use” foreign law. Not only did it recently help ban the execution of juvenile delinquents, but it could assist the court in denying them their coveted fundamental right to assault weapons as well.

Although surely plenty of senators agree with the idea of preventing gun violence, it’s a testament to how influential the NRA has become that no one had the courage to ask Sotomayor to explain the inherent reasonableness of regulating firearms in a country where more than 50 children are killed every week by guns.

Here’s what the Brady Campaign had to say about the NRA’s statement and Sotomayor’s nomination:

“During the second day of her Senate confirmation hearings, Judge Sotomayor has now been asked for her views on the Second Amendment.  She has given clear and responsible answers, while not pre-judging any issues that may come before her on the Court.  We have been impressed with her presentation.

“In stark contrast, gun lobby extremists have revealed their preference for an activist Supreme Court Justice who would support their ‘any gun, anywhere, anytime’ ideology.  Judge Sotomayor’s comments today as well as her judicial opinions in cases involving gun laws, however, show respect for the Constitution, for precedent and for the considered judgments of legislative bodies in protecting communities from gun violence.

“Judge Sotomayor’s background and her experience as a prosecutor have given her an invaluable understanding of the devastating impact of gun violence on families and communities.  Because of her experience enforcing gun laws, she brings to the bench an appreciation of the importance of those laws in protecting our citizens.

“The Brady Campaign enthusiastically endorses Judge Sonia Sotomayor for the position of Associate Justice of the United States Supreme Court.” [The Brady Campaign's emphasis, not mine.]

It’s worth noting that despite harsh and one-sided questioning on the Second Amendment issue, Sotomayor was careful never to say how she’d vote on the matter were it to come before the Supreme Court — which it very likely will during her expected tenure. Although she’s ruled in the past that there is no “fundamental” right of an individual to bear arms that’s enforceable against state governments, the court opinion she signed onto carefully explained that the court believed that result was mandated by Supreme Court and Second Circuit precedent. The Seventh Circuit Court of Appeals, in an opinion by the conservative Chief Judge Frank Easterbrook, has reached the same conclusion.

The Supreme Court could rule differently, however, and given that its latest ruling on the gun issue was a 5-4 decision, Sotomayor’s position on the issue is important. Even if Sotomayor rules as the Brady campaign might hope, though, NRA supporters could win the day if the key gun question — whether there’s a “fundamental right” to possess a gun that’s enforceable against the states — reaches the court before President Obama gets to appoint another justice.

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Among the many legal terms mentioned over the last four days of Supreme Court nominee Sonia Sotomayor’s confirmation hearings, the term “incorporation,” when it comes to the Second Amendment right to bear arms, is probably the most confusing.

Incorporation in this context refers to whether the Bill of Rights applies to the states, as opposed to just the federal government — that is, are these rights incorporated by the Due Process Clause of the Fourteenth Amendment, because they are considered “fundamental to a scheme of ordered liberty,” as the Supreme Court has put it. The First Amendment rights to free speech and exercise of religion, for example, have been incorporated.

But the Bill of Rights has been “incorporated” to the states on a case-by-case basis, and the Supreme Court has never ruled on whether the right to bear arms enumerated in the Second Amendment is a “fundamental” right such that it should apply to the states. In fact, for years it wasn’t even clear that it was an “individual” right as opposed to the right of a state to maintain a militia, for example. Then, last year in District of Columbia v. Heller, the Supreme Court ruled for the first time that the Second Amendment does guarantee an “individual right” to gun possession, at least in one’s home.

This is why some Republicans at the Sotomayor hearings have focused so many of their questions on whether she sees the right to bear arms as a “fundamental right” and whether it applies to the states.

In the one relevant case she has ruled on, Maloney v. Cuomo, Sotomayor and two of her colleagues on the Second Circuit Court of Appeals ruled that it’s not “fundamental,” in that sense. But they argued — and she has now argued repeatedly during her confirmation hearings — that the current state of the law required that conclusion. Whether it did or not, though, remains controversial, given that the three-judge panel relied largely on a case from the 19th century that found the Second Amendment does not apply to the states. That was before the Supreme Court started ruling in a series of cases that the Fourteenth Amendment “incorporates” portions of the Bill of Rights, making them applicable to the states.

Because the Supreme Court had never revisited the question with regard to the Second Amendment, the Second Circuit — and Judge Sotomayor — argued that the 1886 case of Presser v. Illinois still stands, and that according to another Supreme Court case about the role of Courts of Appeals, they had to follow it. Other courts have agreed (pdf). In fact, the Seventh Circuit recently explicitly followed the Second Circuit’s lead on the issue, saying that “if a court of appeals could disregard a decision by the Supreme Court by identifying, and accepting, one or another contention not expressly addressed by the justices, the Court’s decisions could be circumvented with ease. They would bind only judges too dim-witted to come up with a novel argument.”

Critics who believe the Second Amendment should apply to the states, however, argue that Sotomayor and her colleagues, who addressed the issue in a short per curiam (unsigned) opinion, failed to adequately address whether under the Supreme Court’s due process analysis, gun ownership is a “fundamental right” and therefore applies to the states.

The National Rifle Association earlier today issued a statement opposing Sotomayor’s confirmation.

A New York lawyer and owner of nunchucks — a weapons used in martial arts that is prohibited by the New York law that was upheld by Sotomayor and her colleagues in the case Maloney v. Cuomo — has asked the high court to use his case to decide the issue once and for all.

Wayne LaPierre, Executive Vice President of the National Rifle Association, and Chris Cox, Executive Director for the NRA’s Institute for Legislative Action said this in explanation:

We believe any individual who does not agree that the Second Amendment guarantees a fundamental right and who does not respect our God-given right of self-defense should not serve on any court, much less the highest court in the land. Therefore, the National Rifle Association of America opposes the confirmation of Judge Sonia Sotomayor to the position of Associate Justice of the United States Supreme Court.

The full statement is here.

Although he just used his questioning time this morning to charge her with engaging in “identity politics” and making speeches that he finds “disturbing,” he also noted that her judicial decisions were not outside the mainstream; complimented her for her success in the legal profession and for winning the support of even the conservative former independent counsel Kenneth Starr; and suggested that maybe she’d even be open-minded enough to support finding a fundamental right to possess firearms under the Constitution, should the issue come before her.

“You may be able to embrace a right that you may not want for yourself,” he said. “I think and believe based on what I know about you that you’re broad-minded enough to understand that America is bigger than the Bronx” and “bigger than South Carolina.”

This may have been just wishful thinking on Graham’s part. In fact, earlier this year in the case of Maloney v. Cuomo, Sotomayor and her colleagues on the Second Circuit specifically rejected the argument that the Second Amendment provides a fundamental right to bear arms that applies to the states.

That issue is very likely to come before the Supreme Court in the not-too-distant future — and as Graham well knows, Sotomayor is likely to be there to rule on it.

Update: Here’s the video of some of Graham’s kind words to Sotomayor:

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Since the high court struck down a Washington, D.C., handgun control law and found a fundamental right to bear arms, Republicans have been hopeful that the Court will take the next step and say that right applies to the states as well, and would therefore serve to severely restrict states’ rights to restrict gun possession and ownership. But it’s never answered that question — at least, not yet.

Here’s how Republican Sen. Tom Coburn (R-Okla.), an avid believer in his fundamental right to gun possession, tried to get Sotomayor to answer the question, and in the process revealing that much of this questioning is aimed at the senators’ constituents, not at any real fact-finding:

“Do I have a right to personal self defense?” asked Coburn.

Sotomayor struggled to think of whether the Supreme Court has addressed the question in that way in any case. “I can’t think of one. The issue of self defense is usually defined in criminal statutes by the states’ laws.”

“But do I personally have an individual right to self defense?” Coburn persisted, knowing full well that any right of self-defense depends on the circumstances and how you try to exercise that right.

“That’s an abstract question and not a particular legal question,” said Sotomayor, always careful to respond with legalistic precision.

“Well, that ‘s what the American people want to hear,” Coburn said. “Is it okay to defend yourself in your home when you’re under attack. The general theory is, do I have that right? I understand if you don’t want to answer,” he said, letting Sotomayor off the hook, implicitly acknowledging he didn’t really expect her to answer it. “That’s a fine answer with me.  But that’s what people want to know. Do we have that right?”

Sotomayor proceeded to answer that it really does depend on the specific situation. For example, she said, if Coburn were to threaten to kill her right then and there, and she ran home and got a gun and came back and shot him, she probably would not have the right to do that.