This week, 23 state Attorney Generals signed off on a letter (pdf) to Attorney General Eric Holder, in which they advised against any sort of renewal of the 1994 Assault Weapons Ban. Part of the letter reads,
As Attorneys General, we are committed to defending our constituents’ constitutional rights —including their constitutionally-protected right to keep and bear arms. This duty is particuarly important in light of the United States Supreme Court’s recent Heller decision, which held that the Second Amendment “elevated above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” The high court’s landmark decision affirmed that individual Americans have a constitutionally-protected right to keep and bear arms. We, the undersigned Attorneys General, are staunch defenders of that right and believe that it should not be encroached upon without sound justification — and a clear law enforcement purpose. (…) we believe that additional gun control laws are unnecessary. Instead, authorities need to enforce laws that are already in place.
Georgia Attorney General Thurbert Baker, who has had a hit-and-miss record with gun rights, signed the letter.
This follows a similar letter sent by 65 Democratic Congressmen to Holder in March.
Ten years ago, these sorts of initiatives would have been unthinkable. Given the current administration’s well-documented contempt for gun rights, it would seem even more unlikely now. Yet here we are.
We’re winning, folks.
Last year, the Supreme Court addressed the issue of the 2nd Amendment and found that it means what it says. The question of incorporation has been answered in the 9th Circuit by the Nordyke decision, and although it was quashed in the 7th Circuit, both NRA v. Chicago and McDonald v. Chicago (pdf) are being appealed to the Supreme Court.
The Court will likely feel obligated to grant certiorari to at least one of these cases. The implications could have far-reaching results, some unrelated to guns. Gura’s petition in McDonald calls for a complete, critical review of the Slaughterhouse Cases, and a reversal could affect the constitutionality of hundreds of state-specific regulations. A decision either way may very well open up an entirely new debate on the very nature of Federalism.
Unlike Nordyke, the McDonald case relies on the Privileges or Immunities clause rather than due process. Gura argues that reversal on the basis of due process precedent is inevitable in any case (p. 22), but goes on to explain,
The original error of eviscerating the Privileges or Immunities Clause has led to increased reliance on substantive due process, a concept which, whatever its merits, rests on shakier textual and originalist roots and is thus more prone to controversy. (p. 27)
The 7th Circuit (and the 2nd, which rejected Maloney v. Cuomo) fell back on precedents as an excuse to refuse the application of selective incorporation. However, the rules (despite Stevens’ similar claim in his Heller dissent) are a bit different for the Supreme Court, who found in Vasquez v. Hillery:
Our history does not impose any rigid formula to constrain the Court in the disposition of cases. Rather, its lesson is that every successful proponent of overruling precedent has borne the heavy burden of persuading the Court that changes in society or in the law dictate that the values served by stare decisis yield in favor of a greater objective.
Likewise, in Smith v. Allwright, Justice Reed once wrote:
In reaching this conclusion, we are not unmindful of the desirability of continuity of decision in constitutional questions. However, when convinced of former error, this Court has never felt constrained to follow precedent.
As Gura points out, most scholars are in agreement that Slaughterhouse was wrongly decided and more than due for review and reversal. The Supreme Court is unlikely to fall back on precedent as an excuse, especially considering that previous cases restricting the incorporation of other rights have been reversed. Cruikshank’s assertion that the 1st Amendment did not apply to the states was largely reversed in Gitlow v. New York. Though they found in Fox v. Ohio that the protection against double jeopardy provided by the 5th Amendment did not apply to the states, the Court reversed themselves in Benton v. Maryland. (McDonald, p. 14)
In fact, the only major Amendment not incorporated against the States at this point is the 2nd. Heller determined that the right to keep and bear arms was in fact a civil right, and I can’t think of a single argument one could make before the Court that it should not be incorporated in the same manner as the others.
All in all, big year for us.
(Vasquez v. Hillery and Smith v. Allwright were brought to my attention by Akhil Reed Amar’s wonderful article Heller, HLR, and Holistic Legal Reasoning (pdf).)