Tuesday, April 21, 2009

Nordyke v. King: Right holding, wrong reasoning

A unanimous Ninth Circuit panel of judges recently held that the Second Amendment was incorporated (or applied) against state and local governments in the case Nordyke v. King. I haven't read the whole opinion yet, but it looks like I agree with the outcome of the case, if not the methods the court used to reach the conclusion.

(I should mention at the outset that I don't see Second Amendment issues as having a particular "Mormon" component. Firearms are not permitted in Mormon houses of worship, but the LDS Church has never taken a position on the appropriateness of gun control laws. My anecdotal experience with other Mormons has shown that there is a wide range of opinions on this subject within the Church. For my part, my interest in the Second Amendment is almost purely legal -- I don't own a firearm and I have never had any interest in hunting.)

The Second Amendment has a strange history with respect to state and local governments. The Supreme Court has chosen to incorporate constitutional amendments selectively against the states, usually under the Due Process Clause. Under this approach, constitutional provisions are incorporated when they involve "fundamental liberties." In Nordyke, the Ninth Circuit panel held that the Second Amendment right to bear arms "ranks as fundamental, meaning 'necessary to an Anglo-American regime of ordered liberty.'" In its decision the court specifically references District of Columbia v. Heller , the D.C. handgun ban case.

I agree with the court in Nordyke. I think the Second Amendment clearly should be incorporated against state and local governments to prevent unconstitutional restrictions on a constitutional right. But I, along with many legal scholars, disagree with the approach the Supreme Court has taken since the first incorporation case, Duncan v. Louisiana (1968). Justice White's opinion for the Court in Duncan held that the defendant in that case was wrongfully convicted without a jury trial, and incorporated the Sixth Amendment jury protections against the states. However, Justice White's opinion held that only fundamental rights within the system of Anglo-American jurisprudence could be incorporated. This produced a series of Supreme Court cases that have one-by-one incorporated almost all of the Bill of Rights against the states. The most notable exception is the Second Amendment, but there are others, including the quartering of troops, and a right to a jury in civil trials.

My thinking follows that of Justice Black, whose strident dissent in Duncan is just as valid today as it was in 1968. Justice Black asked, if only "fundamental" rights are incorporated, what determines whether a right is "fundamental"? This inevitably leads to reliance on extra-constitutional sources (such as history, cultural norms, etc.) which Justice Black thought were unreliable, easily manipulated, and unpredictable. I think this is exactly right, and I think this has opened the door for reading new and unintended rights into the U.S. Constitution, such as the ill-defined "right to privacy". I agree with Justice Black that a better approach would be to incorporate the Bill of Rights in its entirety against state and local governments using the Privileges and Immunities Clause. The selective incorporation approach has reached similar results to that advocated by Justice Black, since almost all the Bill of Rights is now incorporated. But the Second Amendment is an obvious example of how this approach is inconsistent, so I disagree with the court's reasoning in Nordyke.

To be clear, my quarrel really isn't with the Ninth Circuit panel. The judges there followed the selective incorporation doctrine because they were thus bound by precedent. But as an armchair quarterback watching these cases without the burden of stare decisis, I think selective incorporation is hopelessly flawed. The good news is that the recent spat of gun control challenges is likely to result in a Supreme Court case that could overturn selective incorporation.

Photo credit:  Kevitivity.