Ok, just hear me out on this one. One of the blockbuster cases of last term, McDonald v. City of Chicago is the NRA’s big case against Chicago’s ban on handguns, the follow up to 2008’s District of Columbia v. Heller, where the Court first found an individual right to bear arms in the text of the Second Amendment. To get there, Justice Scalia used a self-defense rationale to buttress his textual reading of the Amendment—which, to be frank, is so grammatically confusing that it’s essentially a Rorschach Test. The controlling opinion, concurring opinions, and dissents in Heller were basically a grammar nerd fight over the syntactical meaning of commas, the difference between operative and prefatory clauses, and whether commas within absolute clauses determine which descriptors govern nominatives. Hell, the Second Amendment signed by Congress is not the one ratified by the states. Nonetheless, Scalia’s controlling opinion held that in federal enclaves, like the District of Columbia, there is an individual right to bear arms. But not an absolute right, meaning that guns can be regulated but not banned.
Notice that Heller only applies to federal enclaves. This is because in an 1833 decision, the Court held the Bill of Rights pertains to the federal government but not state governments—so the Constitution may forbid federal encroachment on the Bill of Rights, but the states were still free to. Then in the 1890s, the Court reversed track and developed the doctrine of incorporation to apply certain amendments to the states. In other words, the Court found that the newly-passed Fourteenth Amendment says the states can’t abridge certain rights found in the Bill of Rights. But not all rights—the rights incorporated against the states are decided on a right-by-right basis.
There are two ways to incorporate rights against the states, both of which are found in the Fourteenth Amendment. One is the Privileges or Immunities Clause, which says, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” In other words, a state can’t take away fundamental rights guaranteed to all U.S. citizens.
The other is the Due Process Clause of the Fourteenth Amendment. The DPC says that a state cannot “deprive any person of life, liberty, or property, without due process of law.” Basically, this means the same thing as the PoI clause—a state can’t take away fundamental rights guaranteed under the Constitution. Since 1873, the Court has incorporated rights through the Due Process of Clause of the 14th Amendment (the famous Slaughter-House cases).
So, what’s the difference, as long as fundamental rights are incorporated against the states? Well, the Privileges or Immunities Clause applies to “citizens,” whereas the Due Process Clause applies to “persons.” Even John “Torture Memo” Yoo agrees that Due Process gives noncitizens many of the same rights as U.S. citizens under the Fourteenth Amendment.
Why is this important to the NRA gun case? Well, in McDonald, a five justice majority agreed that the Second Amendment is incorporated against the states. However, only a four justice minority agreed that the Second Amendment is incorporated through the Due Process Clause. Justice Thomas applied the Privileges or Immunities Clause—which no other justice has done in 137 years! Thus, there’s no controlling majority that says the Right to Bear Arms is guaranteed to persons. There’s only a majority that says the Right to Bear Arms is guaranteed to citizens.
The upshot is this: Had Justice Thomas just applied Due Process like every other justice in the last century and a half, the Court would have likely guaranteed Second Amendment rights to persons—including, based on precedent in other incorporation cases, illegal and legal aliens. (Caveat: there’s some dicta in Justice Alito’s opinion suggesting the Right to Bear Arms is less than a fundamental right, and nobody is exactly sure what’s going on there). So, hypothetically, if, say, Arizona wanted to pass a law that legal aliens can’t have handguns, legal aliens would have a pretty good argument that such a law is unconstitutional.
But it looks like Justice Thomas’ zombiefication of the Privileges or Immunities Clause stopped that. Personally, I like Thomas’ jurisprudence. I don’t agree with very many of his outcomes, and I find his personal story of racial resentment quite disgusting. But, he’s the only truly iconoclastic thinker on the Court. He’s not afraid to stop splitting hairs and completely rethink constitutional interpretations and tests that just aren’t working.
Still, I can’t say I’m onboard with Justice Thomas here, though. I’d like to see the broadest interpretation of the Bill of Rights possible. If the Constitution is a document of inalienable rights that we want other nations to aspire to, then the Constitution is a human rights document as much as a legal document. This means that we should not be afraid to apply the Bill of Rights to all people falling under our laws, not just as “special privileges” for Americans. The Bill of Rights are not some legal technicalities to be exploited by greasy haired defense lawyers; they create a system of fairness that, hopefully, convicts the guilty, frees the innocent, and keeps the police state in check.
So, by my estimation, if Governor Brewer and Sheriff Joe want Arizona police to pull over American citizens and legal aliens for Driving While Brown (excuse me, “reasonable suspicion of being illegal”), then the well-pigmented of Arizona should be able to stand up for their freedom. In fact, if the Minutemen and other “citizen militias” have the right to secure our borders with their God-given constitutional right to bear arms, then it’s only fair and just that brown-skinned people have the right to protect themselves with glocks in their gloveboxes, just like the NRA wants for its membership. As Justice Scalia reasoned, self-protection is what this is about, right? Somebody get Val Kilmer on P90X, because I see a modern-day adaptation of Tombstone in the making.
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