Analysis
The Supreme Court has a few ways of recognizing — one might say “creating” — new constitutional rights, but it has one that it has not used for 30 years.  When that technique was last used, John Paul Stevens was the junior Justice, he was just days away from his 59th birthday, and he was already, in his fourth year, marking a distinctive path of his own as a member of the Court.  The decision handed down on that April day in 1979 was Burch v. Louisiana.

It is not really one of the great cases (it takes up only a handful of pages in the United States Reports).  But Burch, by scholarly reckoning, marked the last time the Supreme Court told the states that they would have to obey a part of the Bill of Rights, originally added to the Constitution in 1791 to restrain the powers of the national government. (Burch said the states would violate the Sixth Amendment right to a jury, made applicable to the states via the Fourteenth Amendment, if they allowed a jury of no more than six members to decide on a guilty verdict without being unanimous.  The basic right to a jury in a criminal case had been extended to the states 11 years earlier, in the 1968 decision in Duncan v. LouisianaBurch expanded that a little.)

On Wednesday, the Court embarked on what is, for every Justice except Stevens, an entirely new constitutional adventure: deciding whether another part of the Bill of Rights is to be broadened so that it curbs state, county and city laws, and not just those enacted at the federal level.  (Because the Court’s vote to hear a case is secret, there is no way, yet, to know how Stevens — now the senior Associate Justice, and now 89 years old — voted on the question. It took a minimum of four votes to grant review.)

The Second Amendment — the one that guarantees “a right to keep and bear arms” — is one of the few remaining parts of the Bill of Rights that have not yet been extended to the state and local level.  If the Court now opts to “incorporate” it into the Fourteenth Amendment as a restriction on state and local governmental powers, it will truly expand the right, although no one seems eager to predict just what laws will fall if it does so.

The Court had ruled in 1833, in Barron v. Baltimore, that the Bill of Rights was written to apply directly only to the federal government.  The Court has never disturbed that ruling, so no part of the Bill of Rights, by its own terms, applies to states, counties and cities.  But, beginning in 1896, in the case of CB&Q Railroad v. Chicago, the Court began a process of selectively expanding national rights so that they applied to governments closer to the people, too.  In that case, the right at stake was the guarantee that government would not seize private property for a public use without paying for it.

The process of “incorporating” national rights into the Fourteenth Amendment was fairly slow to catch on. But it proceeded apace during the years that Chief Justice Earl Warren led a progressive Court.

By the time the Warren Court, and then the Burger Court, had worked their will in the process of selective “incorporation,” every part of the Bill of Rights governed state and local government, too, except these: the Second Amendment, the Third Amendment forbidding the forced housing of soldiers in private homes, the Fifth Amendment requirement that serious charges be made by a grand jury, the Seventh Amendment right to a jury trial in civil cases, and the Eighth Amendment ban on excessive bails and fines.

Now, the Second Amendment might emerge from that rank of national-only rights.  The Court has three ways it can make that right a guarantee against state and local laws.  First — and the one least likely — is to overrule Barron v. Baltimore, and rule that all of the Bill of Rights operate directly against those levels of government.  Even the most enthusiastic gun rights advocates are not proposing that alternative.

A second way to do it would be to declare that personal rights to a gun are part of the Fourteenth Amendment’s guarantee of “the privileges or immunities of citizens of the United States.”  To do that — and it is, in fact, being urged strongly by some to take that alternative approach — the Court probably would first have to overrule one of its most controversial rulings, the 1873 decision in the Slaughterhouse Cases. (A post discussing this alternative, in the Second Amendment context, can be read here.)  In that case, the Court virtually drained all meaning out of the “privileges or immunities” clause.  It would have to reinvigorate that clause to make it the vehicle for expanding the Second Amendment.

The final option for “incorporation” is to place it under the umbrella of the Fourteenth Amendment’s guarantee that one’s liberty will not be taken away without “due process of law.”  That is the method through which other parts of the Bill of Rights have been applied to the states, and it is a method much criticized by “strict constructionists” of the Constitution.

Which option — if any — will the Court take?  What arguments could be made in favor of each of those options, or against them?  How will the Justices’ individual ideological or philosophical leanings guide them on the question?

Those are the questions that lawyers — and perhaps much of the whole Nation – will be pondering in coming weeks as the time approaches for the Court to address in public hearings whether to “incorporate” — or to refuse to “incorporate” — the Second Amendment into the Fourteenth.  The issue does not break down easily along ideological lines, so the case that is likely to become a major precedent in history — McDonald v. City of Chicago (08-1521) — may be one of the least predictable of the cases on the docket of the Court’s soon-to-open new Term.

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