McDonald’s Living Constitutionalism
The Supreme Court’s awaited case in McDonald v. Chicago answered affirmatively the question whether the right announced in District of Columbia v. Heller would apply to the states. In so doing, the opinions raise a number of questions about constitutional method and interpretation. I want to focus on the opinion’s living constitutionalism. Others such as Reva Siegel and Jack Balkin argued that Heller, which announced the existence of a personal right to gun ownership in the home, was itself an opinion employing living constitutional methodology: it canvassed post-enactment state constitutional provisions, post-enactment commentary, post-enactment state court cases, and ignored/distinguished prevailing Supreme Court precedent to the contrary. Hardly the evidence required for a so-called “originalist” interpretation. The right being established, Justice Alito’s task was to say whether it could be “selectively” applied to the states.
Contrast the following two statements from Justice Alito’s opinion in:
(1) “ During the 1788 ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia,” motivated Federalists and Anti-Federalists alike to believe that “the right to bear arms was fundamental to the newly formed system of government.” (slip op. 21).
(2) “By the 1850’s, the perceived threat that had prompted the inclusion of the Second Amendment in the Bill of Rights—the fear that the National Government would disarm the universal militia—had largely faded as a popular concern, but the right to keep and bear arms was highly valued for purposes of self-defense.” (slip op. 22).
How do we move from the first rationale to the second? The answer requires us to examine Justice Alito’s living constitutionalism.
Colonial Americans, lacking a unified continental government, identified first as citizens of a state. They hesitated at the possibility that a federal government may have too much power, and sought to preserve through the Second Amendment the “security of a free State” even while giving up independent claims to state sovereignty. One way of accomplishing this end—the security of a free state—was to preserve the right to keep and bear arms. Translated into the modern idiom of an individual right, this first rationale partakes of the dubious claim that the right to keep and bear arms is a fundamental individual right incident to a personal right to check federal power with violence. Once the role of the State militia drops out of the articulation of the right, the first rationale gets rearticulated as this individual right to potential political violence.
The first rationale is clearly unacceptable to contemporary constitutional practice. How does Alito derive the second rationale? The purpose of “self-defense”—if the “self” is understood as an individual person rather than the state speaking as a “self”—evolves out of the dissipation of the first rationale. Given full voice in Justice Scalia’s opinion in Heller, we find that the core right, far from preserving the security of a free state (something the modern police presumably provide), has evolved into a right to use arms for “self-defense and hunting,” or as Justice Alito paraphrases: “the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home.” (slip op. 33). We are not offered a story of how the move from (1) to (2) gets made, other than the suggestion in Heller that (2) is every bit as important as (1), despite the lack of textual evidence (“security of a free state,” plus “militias” plus a “right of the people” does not readily add up to a right to own guns for personal use in a private home for protection against armed criminals). The purposes within (2) were all already available to the individual who practiced (1). Once (1) “faded as a popular concern,” (2) became a constitutional remainder. The process of the fading away of one purpose and the subsequent foregrounding of another looks like a process of emerging constitutional meaning over time.
To show the form of Justice Alito’s argument, let’s examine a parallel evolution in constitutional meaning. Let us posit that the original purpose of the Eighth Amendment was to protect individuals against particularly cruel forms of punishment involving physical torture and disfigurement. Over time, we recognized that there was no need to fear such abuses, just as we came to recognize that there was no need to fear tyranny where “the federal government would disarm the people in order to impose rule through a standing army.” (slip op. 21). But as the need to protect against such forms of punishment faded as a popular concern—because there was no longer any fear of such punishments—the right against cruel punishment was highly valued for purposes of prohibiting the death penalty (just as the right to bear arms became highly valued for self-defense). This Eighth Amendment story presents a similar evolving rationale to the one identified regarding guns, similarly recognizing that core concerns of the late Eighteenth Century may decline and others take their place, even within the framework of a single constitutional provision. Just as the “security of a free state” dropped entirely out of the modern Second Amendment analysis in favor of the newly prominent right to self-defense (and hunting), the worry over official imposition of punishment by physical torture declined in favor of a new understanding of the cruelty of state imposed death. Put aside the empirical question of whether in fact we have sufficient consensus on the cruelty of the death penalty, because that issue is irrelevant to the form of constitutional analysis (moreover, given the 5-4 Supreme Court alignment concerning guns, there is good reason to think that there is a weak consensus here too). What matters is that the Court explicitly reasons on the basis of an evolved rationale—one maximally responsive to a modern social movement heralding a reconstructed notion of self-defense in the home. One wants to ask: self-protection against what—wild animals, armed attack against hostile native populations, or the modern armed robber against whom the state employees the modern police force (the latter of which did not develop until after the first quarter of the Nineteenth Century)? If the answer is crime (which it has to be), then notice too that the history of gun crime fear is a Twentieth Century development, not an Eighteenth Century concern.
In order to give effect to this living Second Amendment, the Court developed a hybrid incorporation methodology. The question became in part a substantive due process question of whether the right to home ownership of guns is “deeply rooted in this Nation’s history and traditions,” (Glucksberg) and in part an incorporation of question of “whether the right to keep and bear arms is fundamental to our scheme of ordered liberty” (slip op. 19, emphasis in original). Notice that the answer to either of these questions is inter-temporal. We cannot establish a tradition or a history in a moment of ratification. A moment of ratification of the Bill or Rights or the Fourteenth Amendment establishes the possibility of a constitutional tradition and history. This may develop and evolve or it may not. Where, for example, is our robust Third Amendment tradition? Traditions take time to develop, and their substantive content only emerges over time through social practice and participant engagement, always remaining vulnerable to further evolution. Thus, the ownership of guns, in its modern form—divorced from the necessity of killing game for food, or defending against wild animals, or protecting homesteads against hostile populations—may form part of a tradition, but it is one that has developed over time to take root in the Nation’s history. Moreover, the incorporation question of whether bearing arms if fundamental to our scheme of ordered liberty such that states must respect the right is once again a question about how our social practices have developed. These are likewise contingent and subject to change. We cannot say whether something is fundamental without examining our actual social practices, such as the need to protect newly freedmen from being disarmed by former rebels, or the desire to possess handguns in the home to protect against armed robbers. To ask the question in the way that Justice Alito does, means that it was possible that we might discover that gun ownership had not remained all that important to many Americans, and that therefore it was not so fundamental after all. Thus, the two methodological questions merged into a hybrid incorporation methodology both rely on conceptions of tradition and social practice that are intrinsically part of living constitutionalism.
My purpose in this post is not to contest the ultimate basic conclusion in McDonald—that there is an individual right to gun ownership in the home that can be applied to the states. Rather, I contest any pretense that this conclusion is obtained by anything other than a method of living constitutionalism. For the latter, I applaud the Court’s effort.