From gun rights to religious liberty

Legal theories in recent First and Second Amendment cases shed light on ‘judicial activism’ vs. restraint

By Bruce T. Murray
Author, The First Amendment in Historical and Contemporary Perspective

A recent Supreme Court case involving gun rights raises curious parallels – and incongruities – with several religious liberty cases that touch on the same constitutional issues regarding state’s rights, individual rights and the powers of the federal government.

gun In the case of McDonald v. Chicago, the Supreme Court declared that the Second Amendment protects an individual right to bear arms; and this fundamental right applies in all 50 states and their various municipalities. The Second Amendment previously applied only to the federal government – restricting Congress from passing laws infringing on the right to bear arms. In McDonald, the Court ruled to “incorporate” the Second Amendment, meaning the amendment now applies to all state, municipal and federal jurisdictions. (See more on the decision here.)

The issue of incorporation was also raised in the context of the First Amendment’s Establishment Clause – “Congress shall make no law respecting an establishment of religion.” In Elk Grove Unified School District v. Newdow, Justice Clarence Thomas opined that the First Amendment’s Establishment Clause should not be incorporated; which, in contrast to the conservative justices’ views on gun rights, means that individual states would be free to legislate on certain matters respecting religion, such as the placement of religious symbols in public places, prayers at high school graduations, and the content of school curriculum.

Thomas, taking a “textual” or “originalist” view of the Establishment Clause, interprets its intent as primarily to protect state religious establishments that still existed when the Bill of Rights was drafted. Several New England states, for example, maintained the Congregationalist Church as the official state religion well into the 19th century. Massachusetts did not do away with its Congregational establishment until 1833; Connecticut disestablished in 1818.

Thomas “I accept that the Free Exercise Clause, which clearly protects an individual right, applies against the States through the Fourteenth Amendment. But the Establishment Clause is another matter,” Thomas wrote in Newdow. “The text and history of the Establishment Clause strongly suggest that it is a federalism provision intended to prevent Congress from interfering with state establishments. Thus, unlike the Free Exercise Clause, which does protect an individual right, it makes little sense to incorporate the Establishment Clause.”

Thomas’s view of Establishment Clause backtracks on longstanding Supreme Court precedent. In 1947, the Court incorporated the Establishment Clause in the landmark case, Everson v. Board of Education of the Township of Ewing. Following Thomas’s view, under an unincorporated Establishment Clause, states could theoretically re-establish state churches – or take lesser action respecting that end.

“Congress need not observe strict separation between church and state, or steer clear of the subject of religion. It need only refrain from making laws ‘respecting an establishment of religion’; it must not interfere with a state establishment of religion. For example, Congress presumably could not require a State to establish a religion any more than it could preclude a State from establishing a religion,” Thomas wrote in Cutter v. Wilkinson.

Although Thomas argued against incorporation in these two religious liberty cases, in McDonald v. Chicago, Thomas sided with his fellow conservatives, thus taking the opposite view in regards to incorporation of the Second Amendment. (See details on Thomas's concurring opinion here.)

Thomas is not alone in promulgating theories that seemingly flip-flop from amendment to amendment. On his opposing ideological side, Justice John Paul Stevens upholds the incorporation of the Establishment Clause, but his opinions on the Second Amendment bear a close resemblance to Thomas's words on the First:

“By its terms, the Second Amendment does not apply to the States; read properly, it does not even apply to individuals outside of the militia context. The Second Amendment was adopted to protect the States from federal encroachment,” Stevens wrote in McDonald (emphasis added). (Compare to Thomas: “The text and history of the Establishment Clause strongly suggest that it is a federalism provision intended to prevent Congress from interfering with state establishments.”)

The order of liberty

Although Thomas’s vision of a selectively incorporated First Amendment, with the Religious Liberty Clauses bifurcated, is generally considered extreme, the general concept of selective incorporation is not.

Prior to the Civil War, the Bill of Rights was applied only to the federal government and not the states. After the Civil War, the Fourteenth Amendment was adopted in order to, among other things, prevent Southern states from backsliding on citizenship rights granted to former slaves. Through the Fourteenth Amendment’s Due Process Clause, most, but not all elements of Bill of Rights have since been applied to the states. The landmark Slaughter-House cases (1873) put the brakes on full incorporation and set the precedent for selective incorporation – which, following court precedent, exempts states from certain procedural aspects of the Bill of Rights, such as the Grand Jury Clause of the Fifth Amendment and the Excessive Bail Clause of the Eighth Amendment.

As Justice Sonia Sotomayor summed up in oral arguments in the McDonald case, “our selective incorporation doctrine under the Due Process Clause does suggest that there are some rights that were fundamental enough to be incorporated and some that are fundamental, but not fundamental enough to be incorporated. We have drawn a line.”

The plaintiffs' legal strategy in McDonald sought to overturn the Slaughter-House precedent, thus triggering a wholesale incorporation of the Bill of Rights – not just the Second Amendment. However, the Court declined to overturn Slaughter-House, and instead focused on the theory of “ordered liberty”– whether the Second Amendment right is “fundamental to the American scheme of ordered liberty and deeply rooted in this Nation’s history and traditions.” The Court's answer, by a narrow 5-4 vote, was “Yes.” (See more on the decision here.)

If the Court had taken the route of overturning Slaughter-House, thus incorporating the entire Bill of Rights, Thomas’s idea to selectively unincorporate the Establishment Clause would be moot.

Judicial activism or restraint?

scale Arguments in the McDonald case and Thomas’s opinions in Newdow and Cutter bear some striking similarities. According to Thomas, the primary purpose of the Establishment Clause is to “prevent Congress from interfering with state establishments.” Similar arguments are commonly made regarding the purpose of the Second Amendment: “One function of the Second Amendment is to prevent the national government from interfering with state militias,” Judge Frank H. Easterbrook, chief judge for of the Seventh Circuit Court of Appeals, wrote for Court in NRA v. Chicago (a combined case with McDonald).

But the effects of the two proposals – incorporating the Second Amendment and unincorporating the Establishment Clause – cut in different ideological directions: Incorporation of the Second Amendment prevents state governments from infringing on the right to bear arms – an idea generally promoted by Conservatives; while incorporation of the Establishment Clause has restricted state governments from doing as they wish in matters respecting religion – a more Liberal approach.

Also, whereas the conservative Court now considers gun ownership an individual right – as opposed to the collective right of a state’s militia – by contrast, Thomas’s theory against incorporation of the Establishment Clause is based, in part, on his belief that it does not represent an individual right, as he opined in Newdow.

The situation shows, yet again, that the concepts of judicial activism and judicial restraint are moving targets. While only the most conservative – or perhaps radically conservative – legal theorists would support unincorporation (or partial incorporation) of the Establishment Clause, the conservative members of the Supreme Court are leaning in favor of incorporation of the Second Amendment. Thus, a conservative court can become an activist court in order to achieve its own particular ends, just as earlier liberal courts have done the same.

Thomas’s judicial philosophy and the issue of judicial activism vs. restraint are further discussed in the University of Massachusetts Press book, Religious Liberty in America: The First Amendment in Historical and Contemporary Perspective by Bruce T. Murray.

‘Due process’ vs. ‘privileges or immunities’

The Supreme Court did not give the final word in McDonald v. Chicago; it sent the case back to the Seventh Circuit Court for reconsideration (certiorari and remand). But the High Court justices clearly laid out their philosophies on the issue and spelled out the new parameters for the lower courts. The primary message to the Circuit Court and the city of Chicago: You are bound by Second Amendment restrictions on gun regulation (i.e., the Second Amendment is incorporated).

Although the justices' theories regarding incorporation differed, the result is the same: The Second Amendment must be applied to all states and municipalities, not just the federal government.

alito Justice Sam Alito, writing for the majority in the 5-4 decision, stated that the Second Amendment protects an individual right to bear arms for the purpose of self defense. And this right must be observed not only in federal legislation, but also all acts of the states and their various jurisdictions. The Second Amendment right to bear arms is thus “incorporated” against the states, preventing them from enacting legislation infringing on the right to bear arms.

In his opinion, the Alito sets out incorporation of the Second Amendment through two constitutional mechanisms: the Due Process Clause of the Fourteenth Amendment and also through the concept of “ordered liberty.”

“Due process protects those rights that are the very essence of a scheme of ordered liberty and essential to a fair and enlightened system of justice,” Alito wrote, citing the 1937 case, Palko v. Connecticut. “Under our precedents, if a Bill of Rights guarantee is fundamental from an American perspective, then, unless stare decisis counsels otherwise, that guarantee is fully binding on the States and thus limits (but by no means eliminates) their ability to devise solutions to social problems that suit local needs and values.

“With this framework in mind, we now turn directly to the question whether the Second Amendment right to keep and bear arms is incorporated in the concept of due process. In answering that question, as just explained, we must decide whether the right to keep and bear arms is fundamental to our scheme of ordered liberty, or as we have said in a related context, whether this right is deeply rooted in this Nation’s history and tradition. Our decision in District of Columbia v. Heller points unmistakably to the answer. Self-defense is a basic right, recognized by many legal systems from ancient times to the present day,” Alito concluded.

Justice Thomas, while concurring with the majority, did so on a different basis. Rather than incorporating the Second Amendment through the Due Process Clause, Thomas said the right to bear arms should be incorporated through the Privileges or Immunities Clause of the Fourteenth Amendment.

thomas “I cannot agree that the Second Amendment is enforceable against the States through a clause that speaks only to ‘process’ ... The notion that a constitutional provision that guarantees only ‘process’ before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of words,” Thomas wrote.

In support of his position, Thomas explores the history of the Second and Fourteenth Amendments – from their inception, through the aftermath of the Civil War and to the present. “This history confirms what the text of the Privileges or Immunities Clause most naturally suggests: Consistent with its command that ‘no State shall abridge’ the rights of United States citizens, the Clause establishes a minimum baseline of federal rights, and the constitutional right to keep and bear arms plainly was among them,” he wrote. “In my view, the record makes plain that the Framers of the Privileges or Immunities Clause and the ratifying-era public understood – just as the Framers of the Second Amendment did – that the right to keep and bear arms was essential to the preservation of liberty.“

See dissenting opinions here.

From the oral arguments in McDonald v. Chicago:

During oral arguments in the McDonald case, justices expressed reservations about overturning the longstanding Slaughter-House precedent. In lieu of such a step, justices explored less sweeping alternative means for incorporating the Second Amendment, such as by declaring gun ownership an “unenumerated right,” protected by the Fourteenth Amendment’s Privileges and Immunities Clause; or through the theory of “substantive due process.”

Chief Justice John Roberts:
“I'm trying to get you to take a position on whether or not you want us to not only pick and choose among which amendments are part of our abstract notion of ordered liberty, or if you want us also to take amendments that might be in and refine them and shave them off a little bit and say, well, this part of the amendment is in, and this part isn't.”

James A. Feldman (on behalf of Respondents):
“No, that's not the argument that we’re making.”

See the full transcript here.

Outline

News

Commentary