Constitutional Law Blog Essay

The Second Amendment and Second-Class Rights

Advocates for gun rights feel oppressed.  It has been a decade since the Supreme Court found in District of Columbia v. Heller that the Second Amendment protects a right to keep and bear arms for personal purposes like self-defense, and in that time Second Amendment champions have gone from euphoric to disgruntled.

With some notable exceptions, lower courts have generally upheld firearm regulations.  The basic regulatory environment for weapons remains essentially unchanged.  The National Rifle Association has used this inertia to remind its members that they are a demonized minority, surrounded by hostile elites who neither understand nor respect them.  Their sense of grievance has gradually seeped into legal briefs.  In filing after filing, case after case, the refrain is the same:  Judges treat the Second Amendment as a second-class right.  Lower courts have waged “massive resistance” against Heller.

A signal voice in this chorus has been Justice Clarence Thomas.  His recent dissent in Silvester v. Becerra is the latest instance of the Justice expressing his dismay.  Silvester concerned a California law that required gun purchasers to wait ten days before taking possession of the firearm.  The purpose of this law is to allot time for a background check and to impose a “cooling off” period.  Plaintiffs challenged the law as applied to buyers who already possess a gun.  The district court struck down the law, but the Ninth Circuit reversed and the Supreme Court denied certiorari.  Justice Thomas issued a stinging dissent from the denial, the latest in a series of dissents in which he detects lower court “defiance,” gun rights relegated to an inferior status, and the Supreme Court leaving the Second Amendment a “constitutional orphan.”

These are serious charges.  To accuse already-beleaguered judges of “defiance” and “double standard[s]” and to imply that his fellow Justices are delinquent to the point of complicity is strong stuff.  What should we make of the claim that the Second Amendment is being treated as second class?

The Rhetorical Interpretation

It’s possible that this fierce language is rhetorical — an effort to shame the other Justices and to recognize the grievances of gun rights advocates – and there’s nothing more to it.   Such rhetoric is not new.  Over a decade before the March on Washington, Justice Robert Jackson lobbed the “second-class” language in a dissent in a Fourth Amendment case.  Justice Samuel Alito used it in his plurality opinion in McDonald v. City of Chicago, which applied the Second Amendment to the states.  Still, that the only sitting African-American Justice applies rhetoric most associated with the Civil Rights Era to a movement comprised largely of white males undoubtedly gives the latter political cover.

There’s nothing necessarily wrong with rhetorical appeals.  “Pathetic argument” – in the original sense of an “appeal to pathos, or emotion” –  is common in other areas of constitutional adjudication.   Moreover, it reaffirms the place of Martin Luther King, Jr. and other martyrs for civil rights among the American Pantheon.  That everyone – from gun rights advocates, to gay rights litigants, to economic libertarians – wants to claim the mantle and moral legitimacy of the civil rights movement shows just how central it is to the American ethos.

The Descriptive Interpretation

Perhaps the “second-class” charge is more than rhetorical, however.   It could be a descriptive assertion, that judicial treatment of the Second Amendment is anomalous because neither our constitutional culture nor judicial practice engages in the ranking of rights.

But that’s demonstrably false.  It is indisputable that the American public regard some rights as more important than others.   In 1973, the same year the Supreme Court decided Roe v. Wade, the Court held in Colgrove v. Battin that there’s no Seventh Amendment right to a twelve-member jury in civil cases — six jurors will do just fine.  I have yet to see cable news pundits lament the demise of the twelve-member jury, or read of a Twitter war raging over the meaning of “in suits at common law . . . the right of trial by jury shall be preserved” or learn of grass-roots mobilization to restore the original understanding of the Seventh Amendment.  Free speech, the right to keep and bear arms, equal protection, due process, privacy—these are the sexy rights.   Everything else is B-list.

The Justices aren’t above ranking rights either.  The entire notion of “selective incorporation” relies on some prioritization of rights deemed sufficiently fundamental to enforce against the states.   Most rights in the Bill of Rights satisfy this criterion, but not all of them.  The Third Amendment, the Fifth Amendment’s grand jury requirement, the Sixth Amendment’s unanimous verdict requirement, the Seventh Amendment jury trial, the Eighth Amendment’s excessive fines clause have each failed to make the cut.  They were important enough to include in the Bill of Rights, but not important enough to apply to the states.

The Justices also trim the wings of even those highly favored rights that are both fundamental and politically salient.  The entire tiers-of-scrutiny approach to rights (strict, intermediate, rational basis) presume something like a hierarchy, with some kinds of free speech or equal protection claims, for example, receiving more vigorous protection than others.  The First Amendment right of a political candidate shouting into a bullhorn on a residential street is less protective than the First Amendment right of the same candidate handing out leaflets in a public park.

But perhaps this observation is too facile.  Justice Thomas’s dissent is most cutting when he shows that the intermediate scrutiny that lower courts purport to apply in Second Amendment cases looks nothing like the intermediate scrutiny they apply to other kinds of rights, such as  the First Amendment right to dance nude.  In isolation, this is a damning indictment, and the evidence Justice Thomas has marshaled is persuasive.

The problem with Justice Thomas’s critique, though, is that the tiers of scrutiny are crumbling for every right.  The Second Amendment may be getting intermediate scrutiny that looks like rational basis; but the First Amendment is getting strict scrutiny that looks something like intermediate.  And who knows what’s going on with substantive due process and equal protection, especially after Obergefell v. Hodges.  As Jamal Greene has written, it looks like we’re entering a world where “[e]ach particular fundamental right . . . bears its own bespoke doctrinal formula.”  No right can be an outlier if every right is in a class by itself.

The Normative Interpretation

Fundamentally, I suspect Justice Thomas’s critique is a normative one.  He, like many gun rights advocates, thinks the Second Amendment is not enforced enough, and he wants the Court to get involved.  Of course, one must have a metric that distinguishes between an under-enforced, an over-enforced, and a perfectly enforced constitutional right.  If pressed, I suspect Justice Thomas would concede that his metric is not the enforcement of other rights, but something like the text, history, or tradition of the Second Amendment itself.  But that’s not the only metric.

John Hart Ely also had one; it was the political process.  In his book Democracy and Distrust, Ely argued that judicial enforcement of rights is most warranted when there’s a systematic failure of the political process to the detriment of minorities.  For all its flaws — and there are many — the political process theory of judicial review addresses the normative question of how to calibrate enforcement of rights by the judicial branch.  If the political process is failing, then that’s when judges need to swing into action.

If that’s the right metric, it is difficult to see how gun rights supporters are victims of a political process failure.  Just days before Justice Thomas dissented in Silvester, seventeen people were killed with a legally purchased AR-15 in yet another school shooting.  Despite the mobilization of the survivors of that tragedy, and despite overwhelming polling that something, something needs to be done about gun violence; early indications are that — like every time before — no meaningful regulation will materialize.  Indeed, the right to keep and bear arms may expand as a result.

If that’s how a right is treated in second class, I can’t imagine how it’s treated in first.