Dec 20, 2010

Posted in Uncategorized

The Interest of State Attorneys General in McDonald v. Chicago and incorporation of 2nd Amendment

At Concurring Opinions, Joseph Blocher asks why state AGs filed an amicus brief in McDonald v. Chicago, arguing that the 2nd Amendment should be incorporated. Blocher presents several interests the states asserted, and contends that they really do not justify the filing of the brief. I agree that all the rationales Blocher identified are unsatisfying, though I think there is one interest not addressed that may rationalize the brief.

Incorporation of the Second Amendment required the use of the Fourteenth Amendment (I won’t bother here rehashing the debate between due process and privileges or immunities). The Fourteenth Amendment was ratified by conventions in the several states. I think it is fairly uncontroversial to assert that the states, the sovereigns that ratified the Fourteenth Amendment, have an interest in the enforcement and application of it.

The Fourteenth Amendment, perhaps more than any other Amendment ratified changed the relationship between the state and federal governments. The states ceded certain aspects of their sovereignty in order to achieve a new balance of government, and likewise ensure the protection of certain liberties for all. I won’t get into the selective/total incorporation debate, nor will I rehash my view of incorporation through the privileges or immunities clause. Suffice to say, the 14th amendment aimed to protect a base level of liberty and rights for all Americans in all states. The states that ratified this recognized that the protection of rights was no longer purely a matter of state law. For example, the Jim Crow south could not be trusted to protect certain rights, and the northern states had an interest to protect the freed slaves.

Likewise, it seems that states should have an interest when a fellow sovereign–Illonois in this case–permits the deprivation of a constitutional right the 14th amendment secures–the right to keep and bear arms (assume this is right as a matter of constitutional law for purposes of the argument).

Thus, it seems quite proper for Virginia, for example, to object when Illinois is flouting the protections that the Fourteenth Amendment, an Amendment that the states ratified, protects.

I highly doubt this rationale ever dawned on the AGs that signed the brief, but I think it is a plausible and valid reason for state AGs to get involved in these issues.

Update: Stop the presses. I think Orin Kerr may agree with me !?!?? From the comment thread:

Orin Kerr - December 21, 2010 at 12:09 am

Josh makes a nice point, I think.

I’ll hold off on doing a victory dance, in light of the “i think” qualifier.

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