McDonald v. Chicago – The 2nd Amendment Does Not Have a Geography Clause

June 28th, 2010

I have argued in numerous posts that the Constitution does not have a Geography Clause. That is, how can a right in the Constitution mean one thing in one place, and mean a different thing in a different place. The Supreme Court has attached a geography clause in the context of First Amendment obscenity and Fourth Amendment reasonableness.

In today’s opinion, Justice Breyer would seek to place a geography clause on the 2nd amendment:

Third, the ability of States to reflect local preferencesand conditions—both key virtues of federalism—here hasparticular importance. The incidence of gun ownershipvaries substantially as between crowded cities and uncon-gested rural communities, as well as among the differentgeographic regions of the country. Thus, approximately 60% of adults who live in the relatively sparsely populated Western States of Alaska, Montana, and Wyoming report that their household keeps a gun, while fewer than 15% of adults in the densely populated Eastern States of RhodeIsland, New Jersey, and Massachusetts say the same.
The nature of gun violence also varies as between ruralcommunities and cities. Urban centers face significantlygreater levels of firearm crime and homicide, while rural communities have proportionately greater problems with nonhomicide gun deaths, such as suicides and accidents. And idiosyncratic local factors can lead to two cities find-ing themselves in dramatically different circumstances:For example, in 2008, the murder rate was 40 timeshigher in New Orleans than it was in Lincoln, Nebraska.
It is thus unsurprising that States and local communi-ties have historically differed about the need for gun regu-lation as well as about its proper level. Nor is it surpris-ing that “primarily, and historically,” the law has treatedthe exercise of police powers, including gun control, as“matter[s] of local concern.” Medtronic, 518 U. S., at 475 (internal quotation marks omitted).
In other words, depending on the idiosyncrasies of the locality, the right means different things.

This was similar to an argument that the City of Chicago made in their respondent brief.

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.”).

The geography clause argument perverts Justice Brandeis’ argument that the states can function as laboratories.

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.

Because the dissenters lost the battle in Heller and McDonald, if they cannot overturn these precedents, I expect future opinions to start putting limitations on this right based on the exigencies of the locality. The analogies from Second Amendment to First Amendment doctrine are quite strong. I intend to write on this much more in the future.