Professor Rick Hill wrote an interesting post on McDonald (H/T Adam U), called “Grutter-izing the Second Amendment.” Hills finds that arguments in McDonald were a modest disappointment for federalism fan.
Hill makes the argument that the contours of the Second Amendment should be defined in the laboratory of the states, and be based on the principles of federalism.
We need a theory of federalism and rights, not a theory about the proper linguistic etiquette for writing a brief. That is, we need some way to determine which governmental actor ought to regulate firearms. We have three candidates on the table — (1) federal courts using some policy-laden “balancing” test while pretending that they are interpreting the 14th Amendment; (2) Congress, using mostly the commerce clause; and (3) the States, using their reserved powers. If we focused on sensible federalism policy, then is it not obvious that the right answer, as a matter of sound federalism-and-rights policy, is (3)? And if our jurisprudence really requires us to ignore such sensible policy in favor of fly-specking of 19th century cases about oyster beds and speeches in the 39th Congress, then is our republic not truly ridiculous?
Since SCOTUS does not like making ridiculous policy, I suspect that they will Grutter-ize the Second Amendment – i.e., declare gun ownership to be a fundamental right that states cannot infringe without a really good reason but then allow states to regulate it all the same just so long as they are not too candid about it and undergo some ritual hazing by a federal judge to determine if their grounds for regulation are the least intrusive means for a blah, blah, blah. In short, we will get sensible decentralization but in a low, furtive, dishonest way. But perhaps you disagree with me about the policy merits of federalism for resolving our disagreements about guns. Consider, then, the following (after the jump):
The genius of our federal system ordinarily leaves this type of social problem to be worked out by state and local governments, without a nationally imposed solution excluding one choice or the other. See United States v. Morrison, 529 U.S. 598, 618 (2000) (“[W]e can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims.”).
I blogged about this issue here in some detail, but here is a snippet of my response:
A state cannot act as a laboratory by infringing a person’s freedom from unreasonable search and seizure because the person is dangerous. No more should a state be able to deny a person’s right to self-defense because it could be “dangerous.” The Federalism argument just seems rather weak.
Underlying Hill’s assumption is that the Second Amendment is an inferior right. While other criminal procedure protections should be held to a uniform federal standard, the right to keep and bear arms should not. I suppose Hill, like the City of Chicago, would argue that the Second Amendment is the only Amendment that results in people dying (i.e., guns kill people). I won’t contest with the empirics. I find that to be a futile process.
But how many violent criminals are released every year due to violations of Miranda and other criminal procedure violations?
During arguments in McDonald, Justice Scalia raised this point in response to Justice Breyer’s question about “balancing” the second amendment right (yes, the Justices frequently answer one another’s questions, especially Nino).
JUSTICE BREYER: To be specific, suppose Chicago says, look, by banning handguns not in the hills, not hunting, nothing like that, nothing outside the city, in the city, we save several hundred human lives every year. And the other side says, we don’t think it is several hundred and, moreover, that doesn’t matter. How do you decide the case?MR. GURA: We decide that by looking, not to which side has the better statistics, but rather to what
JUSTICE BREYER: To be specific, suppose Chicago says, look, by banning handguns not in the hills, not hunting, nothing like that, nothing outside the city, in the city, we save several hundred human lives every year. And the other side says, we don’t think it is several hundred and, moreover, that doesn’t matter. How do you decide the case?MR. GURA: We decide that by looking, not to which side has the better statistics, but rather to what the framers said in the Constitution, because that policy choice was made for us in the Constitution.
JUSTICE BREYER: You are saying they can have — no matter what, that the city just can’t have guns even if they are saving hundreds of lives, they cannot ban them?
MR. GURA: The city cannot ban guns that are within the common use as protected by the right to arms.
JUSTICE SCALIA: There is a lot of statistical disagreement on whether the Miranda rule saves lives or not, whether it results in the release of dangerous people who have confessed to their crime but the confession can’t be used. We don’t — we don’t resolve questions like that on the basis of statistics, do we?
MR. GURA: That’s correct, Justice Scalia, and as your opinion -JUSTICE
SCALIA: Well, why would this one be resolved on the basis of statistics? If there is a constitutional right, we find what the minimum constitutional right is and everything above that is up to the States. If you want to have, you know — I think we mentioned in Heller concealed carry laws. I mean, those are — those are matter that we didn’t decide in Heller. And you may have a great deal of divergence
from State to State, and on that I suppose you would do statistics, wouldn’t you? Or the legislature would.
MR. GURA: Well, Your Honor, we do agree that statistics are not important to determine whether or not a right -JUSTICE
SCALIA: For the judges. For the judges.
MR. GURA: That’s right.
JUSTICE SCALIA: But they would be for the legislatures.
MR. GURA: A legislature should respect the fact that there is a constitutional right at issue, and this Court in footnote 27 in Heller explained that under the Carolene Products paradigm, footnote 4, the rights enumerated in the Constitution are entitled to a greater measure of respect.
I like federalism. And I don’t like Judges defining contours of rights when they lack the skill. In fact, I am rather certain the Court will err on the side of over-regulation of guns. But I am conflicted when the Constitution sets a floor. To allow states to depart below that floor, whatever is, strikes me not only as bad policy, but unconstitutional. I reject the notion that the Constitution has a geography clause. Especially the 14th amendment, which meant to provide federal protection to the states. And yes, I realize this stands in tension with the Miller v. California standard.