Judicial Theory, Judicial Practice

I have been reading about the recent Supreme Court decision, McDonald vs. City of Chicago, striking down Chicago’s ban on the private possession of handguns. What interests me about this decision is not so much the subject itself as the way it illuminates the lack of a consistent judicial theory among the court majority.

Theoretically, this is a state's rights court. The majority claim to want the minimum of federal interference in the rights of states to chart their own legislative and judicial courses. Agree with it or disagree with it, McDonald is yet another extension of federal jurisdiction. Of course, the court pitched out states rights in favor of political interest with the Bush vs. Gore decision, but this is not an aberration – it’s a trend.

There is another odd contradiction here. The majority opinion in this supposed state’s rights court discussed with approval the so-called “privileges or immunities” clause of the 14^th Amendment.  That clause reads, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;” The clause was written specifically to protect newly freed slaves from racist laws in southern states. Back in 1873 the Supreme Court invalidated this clause in what are known as the Slaughter-House cases, and did so on a strong state’s rights basis. While the present court didn’t actually overturn the 1873 decision, it showed a decided interest in the revival of the privileges or immunities clause.

David Gans, in an article on the Scotusblog, notes that Justice Alito promotes a “robust” interpretation of the due process clause of the 14^th Amendment as an alternative to a revival of the privileges or immunities clause. (“;nor shall any State deprive any person of life, liberty, or property without due process of law;”) Wait a sec. The use of the due process clause has caused much clamor in conservative circles, as progressive judges have used it as just such an end run around Slaughter-House to advance civil liberties cases. Conservatives tend to view this practice as legal gymnastics in the service of judicial activism. Apparently it isn’t judicial activism if the NRA approves of it.

Also, theoretically, this is an originalist court. They claim to be, as Chief Justice Roberts expressed it, umpires calling balls and strikes, looking back to the original intent of the framers of the constitution. Originalists try to decipher the meaning of words to the framers in their time and attempt to determine the mindset of those men at that time. I (and many constitutional scholars) think this position is a crock for a variety of reasons, but it is the majority opinion in this court.

Even so, they are inserting an imaginary "A musket over the fireplace being necessary for farmhouse defense" clause in place of the actual "A well regulated militia being necessary for the security of a free state" clause. The majority opinion in McDonald, as in the Heller decision overturning Washington D.C.’s handgun ban, also cited the popularity of handguns as the self defense weapon of choice for modern Americans. With the handgun popularity issue, these so-called originalists are arguing from a position of modern day utility.

An originalist would recognize the militia clause as explaining the framers' intent. The framers of the constitution still held the romantic notion that yeoman farmers were capable of picking up muskets and defeating a professional army. George Washington knew better and relied on the Continental line troops, but the Jeffersonians had a utopian agrarian vision. (Which cost them the burning of D.C. in the War of 1812) The framers offered citizens a collective right to "bear arms" (a military term at that time) in order to defend the state, not themselves. We do, in fact have a well regulated militia, the National Guard, but this pseudo-originalist court wouldn't recognize that. Contrast this with many state constitutions (such as ours in Vermont) that actually specify personal self defense (Article 16) as a reason for possessing arms.

Whether you agree with the decision or not, it presents a court majority that has functional, though unacknowledged, political theories, but only pays lip service to a consistent judicial theory. It touts states rights when that suits its purposes, and resorts to federal authority when that suits. Originalism works for them when striking down progressive legislation, but takes a back seat when modern conservative opinion disagrees.