Jason Mazzone has a fascinating piece at Balkinzation focusing on Justice Stevens’s argument that the provisions of the Bill of Rights need not apply in the same way everywhere.
Here is a snippet:
Justice Stevens’s dissenting opinion in McDonald v. Chicago is remarkable for many reasons. This post focuses on Stevens’s argument that provisions of the Bill of Rights need not apply in the same way everywhere. The Justices in the majority did not fully come to terms with Stevens’s claim. Understanding Stevens’s argument and assessing its implications require reading McDonaldthrough the lens of some earlier cases in which Stevens also wrote about Bill of Rights uniformity.
The argument boils down to this. Justice Stevens wrote in Kansas v. Marsh that “state courts should be free to apply provisions of the Bill of Rights that protect criminal defendants more stringently against state government than Supreme Court case law requires . . . Extending Stevens’s approach in Marsh to the Second Amendment therefore raises the possibility that a state court would invalidate a state law that a federal court has held constitutional.”
Should state courts interpret the federal constitution differently than a federal court interprets the constitution?
Stevens made no mention of Marsh in McDonald. But both cases rest on similar ideas: Provisions of the Bill of Rights need not apply in the same way everywhere. So long as states do not drop below a national floor, they can pursue different approaches. Variation can be a good thing because it produces the federalism benefit of experimentation.
Provisions of the Bill of Rights need not apply in the same way everywhere SO LONG AS states do not drop below a national floor. States can pursue different approaches as long as they provide more, and not less protections than the federal right requires.
I would agree with in theory, though I think this comment somewhat obfuscates the issue in McDonald. The issue was not what an Illinois Court would have done with the Chicago handgun ban. The issue was whether the City of Chicago could pass an ordinance that would be unconstitutional were it enacted by the Federal Government, but constitutional were it enacted by the states. This is the “two-tiered” scheme that Stevens seeks to adopt–a theory that no other Justice joined.
I have no problem with Stevens’s opinion in Kansas v. Marsh because it expands liberty/limits government power. The liberty ratchet only goes one way. I do have a problem with a Citizen of Chicago having a weaker right to keep and bear arms than a citizen of the District of Columbia.
I am not familiar with any other Stevens opinion (I may be wrong) where he advocates that a state provide less individual liberty than the federal government. Stevens does not view the individual right to keep and bear arms a form of liberty. Rather, the “liberty interest” protected by the Second Amendment is “dissimilar from those we have recognized in its capacity to undermine the security of others,” and “firearms have a fundamentally ambivalent relationship to liberty.” Because Stevens does not see the 2nd amendment as promoting liberty, the liberty ratchet really doesn’t apply.
This concept stems from an article I have been developing called the equality of rights. Simply put, why are some rights different from other rights?