Federalism and the SAGs’ Brief in McDonald

A few weeks ago, before I got caught up with finishing the semester and creating an exam, I wrote up a post exploring the role of State Attorneys General (SAGs) as agents of popular constitutionalism. In it, I asked whether that role is complicated by whatever obligations SAGs have to represent the interests of the states qua states, as opposed to the interests of “the people.” I used the SAGs’ McDonald v. City of Chicago amicus brief as an example, since it argued for incorporation of the Second Amendment and therefore seemingly against the interests of the states, while advocating a right that three-quarters of the American people support. Since I’m presently trying to avoid grading the aforementioned exam, now seems like a perfect time to revisit the first of those premises — namely, that the argument for incorporation in McDonald cannot be justified on the basis of state interests. The SAGs themselves argued that it could, though I have a hard time seeing how.

The SAGs argued that “amici States are particularly concerned when the Court engages in constitutional or statutory interpretation that implicates federalism issues. The incorporation of the Second Amendment presents no such concerns.” Holding aside the merits of the SAGs’ argument on originalist or other grounds — I’m focused on the role of the SAGs here, not the meaning of the Second Amendment directly — how can it be that incorporation presents no federalism issues? And how can arguing for incorporation be in the interests of the states qua states?

First, the SAGs suggested that the states needed federal judges’ help to protect their citizens from local governments: “Unless the ruling of the court of appeals below is reversed, millions of Americans will be deprived of their Second Amendment right to keep and bear arms as a result of actions by local governments, such as the ordinances challenged in this case.” This sounds dramatic, but I don’t see why states should need to call on federal courts to protect them and their citizens from their own cities, since the states can simply preempt local gun control if they wish. In fact, Illinois filed an amicus brief supporting Chicago in McDonald, noting that the state had chosen to leaven firearms laws open to local solution and reasonable experimentation to meet local needs. Conversely, all of the thirty eight states arguing in favor of incorporation (plus seven more) have preempted some or all local gun regulation.

Second, the SAGs argued that “[e]nforcement of the Second Amendment right to keep and bear arms against state and local governments is especially important in an era of robust interstate travel and commerce,” invoking Saenz v. Roe and the constitutional right to travel. But harm to robust interstate travel and commerce isn’t a standalone argument for incorporation, is it? Were it otherwise, Saenz — which struck down a California law conditioning welfare benefits on a person’s length of residence in the state — would stand for a constitutional right to welfare benefits, rather than a right to travel.

Third, the SAGs claimed to have “an interest in the proper interpretation of the Second Amendment in order to facilitate the development of similar protections under state law. Interpretive guidance from this Court, and from other federal courts, would help the States as they construe and enforce their own, analogous state-law protections — including the 44 state constitutions that guarantee a right to keep and bear arms.” I have a hard time with this argument, too. If for whatever reason the state courts want “interpretive guidance” from federal courts, they can borrow it whether or not the Second Amendment is incorporated. If they ultimately choose not to do so in the specific context of the “individual” right to keep and bear arms, it would probably only be because the states have a far better developed jurisprudence on the subject that the federal courts do. As a practical matter, it seems more likely that incorporation will not “facilitate the development” of state constitutional law, but rather displace it.

Am I missing something else? If not to present the constitutional interests of “the people” directly, why was this brief ever filed?

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4 Responses

  1. Jim Maloney says:

    How about this? States as states once had a greater role in the process of judicial confirmation of Supreme Court justices than they do now, and thus had a greater influence on the shaping of federal law. Before the 17th Amendment provided for popular election of Senators, states as states each sent their pair to Washington, and each such pair had a greater-than-2% (<50 states then) share in the process of advice and consent in judicial appointments. No more. Indeed, now, nearly a century after that change occurred, and with the advent of techno-gladiator-style broadcasting of Supreme Court confirmation hearings, the role of states as states in shaping the composition of the Supreme Court is virtually nil in comparison to the various other influences. So the SAGs' amicus participation may be seen as remedial, or perhaps more properly as a vestigial exercise of a once-greater-but-more-indirect state power in shaping federal law. I recognize that this proffered explanation of a states-qua-states component to the SAGs' amicus participation overlaps conceptually with the SAGs' undeniable role in “present[ing] the constitutional interests of 'the people' directly,” but then again, if popular sovereignty is to be given more than mere lip service, those roles/concepts overlap almost by definition. What is perhaps more thought-provoking is that the context (incorporation of a Bill of Rights provision, a very rare event in modern times) in which this arises gives the phenomenon almost a “founding” character in that it means that the participating states want to bind themselves, by the shaping of federal constitutional law’s applicability to states, in a manner that would prevent future generations from changing the new status quo being sought. Ulysses meets Calhoun…

  2. Do you think that the states that ratified the Fourteenth Amendment (including incorporation) have an interest in seeing that it is properly enforced?

    I blogged about it here.

  3. Orin Kerr says:

    Josh makes a nice point, I think.

  4. JKM says:

    Excellent post. Thanks.