The Selective Incorporation Doctrine
An existing constitutional law doctrine, called selective incorporation, applies some rights created under the federal bill of rights to the states, on the theory that they are necessary to protect the 14th Amendment right to due process. But, not all rights protected by the bill of rights apply to the states. For example, the 1st Amendment freedom of speech applies to the states. The rights (other than the Second Amendment) which do not apply to the states are the 5th Amendment right to be indicted by a grand jury, the 6th Amendment requirement that juries have twelve member and be unanimous, the 7th Amendment right to a civil jury trial, and the 8th Amendment protections against excessive bail and excessive fines (although there is some dispute as to this point and over the applicability to states of the 3rd Amendment (quartering soldiers)).
In practice, the 3rd Amendment almost never comes up and would be no great burden (it has been held incorporated one of the U.S. Courts of Appeals), the 6th Amendment unanimity requirement is violated in only two states (Oregon and Louisiana, a stance that the court refused to revisit in an October 2008 death penalty appeal), the 7th Amendment's protections are honored in fact in every state but Louisiana (with some possible narrow exceptions), and state constitutions in every states already protect the 8th Amendment prohibitions against excessive bails and excessive fines (a 2008 U.S. Supreme Court ruling even suggested that they were incorporated).
Existing precedents hold that the Second Amendment (right to bear arms) is not incorporated and applies only to the federal government. But, until the U.S. Supreme Court ruled in the case District of Columbia v. Heller (2008) that the Second Amendment protected an individual right to bear arms for self-defense subject to reasonable regulation, the scope of the federal right that might apply the states was unclear. Prior court rulings had suggested that the Second Amendment protected only a collective right to armed revolution and the federal courts had never applied it to strike down any limitation on the right to bear arms.
Many, but not all, state constitutions have constitutional rights to bear arms, and those protections vary considerably from state to state.
The Certiorari Grant
The U.S. Supreme Court decided to hear McDonald v. Chicago (08-1521), a case brought to it by Alan Gura, the Alexandria, VA., lawyer who won District of Columbia v. Heller.
A second appeal on the Chicago dispute had been filed by the National Rifle Association (NRA v. Chicago, 08-1497). Presumably, the Court will hold onto that case until it decides McDonald; the same is likely for the New York case, Maloney v. Rice (08-1592) — a case in which Justice Sonia Sotomayor had participated when she was a judge on the Second Circuit Court.
What Is At Stake?
Dicta in Heller followed faithfully by the lower courts, suggest that almost every federal gun control restriction other than the handgun ban in the District of Columbia, are reasonable restrictions on the right to bear arms protected by the Second Amendment.
If the U.S. Supreme Court affirms the appellate court ruling that the Second Amendment is not incorporated, Second Amendment litigation essentially begins and ends with Heller, leaving states free to make gun control policy without federal constraint. Heller keeps the federal government from usurping the state prerogative to permit gun ownership where relevant to a reasonably regulated individual right to bear arms for self-defense, but allows states to enact gun control laws if they wish.
In contrast, if the U.S. Supreme Court rules that the Second Amendment right to bear arms is incorporated and applies to the states, then litigation over the validity of almost every gun control law on the books is likely. Most, but not all state and local restrictions would probably be upheld. It is likely that different jurisdictions will resolve questions of first impression about what restrictions on gun ownership rights are reasonable differently, and so the constitutionality of gun control laws will became an important part of the appellate constitutional law docket for years to come until standards regarding what is and is not constitutional emerge.
Counting Noses
The Court's ruling in Heller in 2008 was a 5-4 decision along the usual liberal and conservative fault lines. Since then, Justice Souter has been replaced by Justice Sotomayor, who ruled against applying the Second Amendment to the states in a U.S. Court of Appeals for the Second Circuit ruling that has a certiorari petition pending before the U.S. Surpeme Court on the same issue.
The Heller opinion itself protected only a fairly feeble individual right, and the Justices in the majority have not not objected to a narrow reading of the Second Amendment right in later litigation (e.g. Justices Kennedy and Alito joined an opinion upholding the constitutionality on a gun ban for those who have been convicted of domestic violence misdemeanors).
Justice Thomas is not a strong supporter of the concept of incorporation in any context. For example, in his view, "the Establishment Clause is a federalism provision, which, for this reason, resists incorporation.” Perhaps Justice Thomas might be persauded by the preamble to the Second Amendment, which reads "A well regulated Militia, being necessary to the security of a free State," that the Second Amendment is a federalism provision in the same way that the Establishment Clause is, in his view, a federalism provision. The preamble almost presumes state regulation and its context suggests that its proponents were concerned about the threat that federal gun control regulation could pose to state autonomy.
Justice Thomas (and the other conservative Justices) are no great fans of habeas corpus litigation in the federal courts, and applying the Second Amendment to the states would push this issue into a great many habeas corpus petitions, delaying finality, where all other federal constitutional issues lack merit. Indeed, some originalist scholars have suggested that the framers intended all of the criminal justice provisions of the Bill of Rights as federalism provisions that would curtail federal criminal justice power, rather than protecting criminal defendants generally. See, e.g., George C. Thomas III, When Constitutional Worlds Collide: Resurrecting the Framers' Bill of Rights and Criminal Procedure, 100 Michigan Law Review 145 (2001).
Justice Thomas, just last spring, made a spirited defense of the harm caused by federal second guessing of the policies that local officials adopt to deal with suspected criminal behavior (he would have upheld as constitutional a strip search of an elementary school child to locate asprin based on flimsy evidence). His substantive jurisprudence is colored heavily by federalism concerns. Indeed, the concern that adoption of a total incorporation doctrine might undermine local death penalties and jury rules designed to make criminal convictions easier to secure might lead him to sacrifice the applicability of the Second Amendment to the states.
Thomas is often seen as a lone voice on incorporation and the establishment clause, but Justice Kennedy has likewise expressed discontent with the position that selective incorporation of it puts on the U.S. Supreme Court as "a national theology board." County of Allegheny v. A.C.L.U., 106 L. Ed. 2nd 472, 550 (1989)(concurring and dissenting).
Justice Kennedy is often a swing vote on the U.S. Supreme Court's conservative-liberal divide and might be influenced to follow existing precedent in favor of not applying the Second Amendment to the states by the prudential consideration that considerable litigation would result from a contrary ruling, but wouldn't overturn many state laws. Justice Kennedy might not relish the prospect of becoming the national arbiter of gun control law.
Justice Scalia himself, writing for the majority in Heller, while inviting further litigation of the Second Amendment incorporation issue, was ambivalent about the resolution of that issue, rightfully given that it was not before the Court.
Justice Roberts has not shown any real antipathy to an unprincipled approach to selective incorporation and did vote with the majority in Heller but might be convinced to support a majority rejecting the application of the Second Amendment to the states if the battle were lost anyway with another justice, to build court unity.
Thus, it is entirely possible that one or more of the five Justices in the Heller majority could break ranks on the question of selective incorporation of the Second Amendment.
Will Selective Incorporation Be Revisited?
There is also an outside chance that the court could take this opportunity to cast some opening shots in the huge question of how selective incorporation should work. Adoption of a new framework for the incorporation doctrine could win over reluctant Justices to the concept of applying the Bill of Rights to the states.
There are many liberals and conservatives who argue that the U.S. Supreme Court made a strategic mistake in applying the federal Bill of Rights to the states via the 14th Amendment due process clause, rather than the privileges and immunities clause of the 14th Amendment (a route in foreclosed in the heavily criticized Reconstruction era Slaughter-House Cases (1873)). Justice Hugo Black supported this idea in the 1940s and 1950s, but ending up as the dissent when the U.S. Supreme Court considered this option. As the Cato Institute (a libertarian think tank) notes in an article written by one of the Heller co-counsel who will be handling the current case as well:
Justice Clarence Thomas, for one, has declared that he would be open to reevaluating the meaning of the Privileges or Immunities Clause “in an appropriate case.” McDonald v. Chicago may be that case. Harvard law professor Laurence Tribe, a liberal icon, writes that “the Slaughter-House Cases incorrectly gutted the Privileges or Immunities Clause.” Yale law professor Akhil Amar agrees: “Virtually no serious modern scholar—left, right, and center— thinks that [Slaughter-House] is a plausible reading of the [Fourteenth] Amendment.”
Since the Second Amendment is not a particularly good candidate for selective incorporation (the articulated legal standard is whether a civilized society could afford due process and "ordered liberty" without it, something that England, Japan and Canada have all demonstrably done), one tempting approach for Second Amendment supporters is to argue for total incorporation of the Bill of Rights to the states, perhaps through the privileges and immunities clause.
The main effect of such a ruling might end up being the strengthening of jury trial rights in Oregon and Louisiana in felony cases and in Louisiana in civil cases. Many state laws would survive the kind of lenient scrutiny of gun control laws that the U.S. Supreme Court proposed in Heller.
The only unincorporated right not protected by state law in almost every state is the 6th Amendment right to indictment by a grand jury. Many U.S. states substitute a right to a preliminary hearing for a right to indictment by a grand jury. Grand juries are used only selectively in many states and have not received vigorous defense because their ex parte sessions, which are controlled by prosecutors have indictment rates that are comparable to or higher than those of judges presiding over preliminary hearings.
But, the limitation of the grand jury right to capital and "infamous" cases, and wide variation in how grand juries have been operated over history, is certainly susceptible to an interpretation that would limit its impact, if it were held to apply to the states.
If the grand jury right were applied to the states, a loosening of the substance of the grand jury requirement (for example, by holding that not all non-capital felonies were "infamous") would have no immediate effect at the federal level, because it has already been incorporated into federal statutory criminal procedure and federal criminal procedural rules, although it might invalidate a number of death sentences. In particular, it might provide a hook for U.S. Supreme Court review of dubious grand jury rules in Texas, the nation's leading user of the death penalty.
Even if federal statutes and rules were changed, the impact of a narrower interpretation of the "infamous crime" provision of the Sixth Amendment grand jury right on federal criminal defendants in felony cases would be modest because federal courts have among the highest indictment rates of any of the grand jury systems that currently exist. Also, generally speaking, a criminal defendant who have been convicted beyond a reasonable doubt by a unanimous jury faces an almost insurmountable task to show that it was improper for a majority of the grand jury that indicted the convicted criminal defendant to find that there was probable cause that the criminal defendant had committed a crime, or that any civil damages have resulted when grand jury review, if properly afforded, would have produced a conviction anyway. Even in a civil case by an acquitted criminal defendant, proof that any damages were caused by the denial of this constitutional right would require a showing that there was not even probable cause that a crime was committed.
One way that liberals could be won over to the cause of incorporating the Second Amendment would be to have the Court adopt a privileges and immunities based total incorporation doctrine and overrule the Slaughter-House Cases. For liberals, the harm caused by applying a weak Second Amendment to the states might be overshadowed by the gains in other areas of the law, like the unanimous jury trial right. For conservatives, a Second Amendment protecting an individual right to bear arms applicable to the states has been a holy grail, that might make the practical consequences of total incorporation seem a small price to pay.
Justice Kennedy would be a natural to build a coalition on the issue, because, as illustrated by his opinion invalidating application of the death penalty to juveniles, under a broad reading of the Eighth Amendment, he does not place a high value on the right of states to be outliers from the general constitutional order, or the right of Louisiana, in particular, to be governed by a different constitutional order than the rest of the nation, which has been one of the main effects of selective incorporation.
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