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July 2nd, 2010

Are Abortion, Gay Sex, & Gun Rights the Same?

By Nathan Tucker

On Monday, the U.S. Supreme Court held in McDonald v. Chicago (2010) that the individual right to own a gun for self-defense, protected by the 2nd Amendment, does in fact apply to state and local governments.  In doing so, however, four of the Court’s five originalist justices engaged in the same sort of judicial activism that have led other majorities at other times to find a right to privacy, abortion, and homosexual behavior.

In its ruling on Monday, the Court did not directly touch on the 2nd Amendment at all, an amendment it had expounded on in D.C. v. Heller (2008) when it held that individuals had a right to possess firearms.  Rather, the Court wrestled with whether or not that right applied to state and local governments through the 14th Amendment, and, in doing so, it used the very same reasoning it has employed to discover rights to abortion and gay sex.

By its terms, the 2nd Amendment and the other Bill of Rights do not apply to the states but only to Congress.  The first ten amendments were only intended to restrict the power of the federal government over the individual, and in fact begin with the words, “Congress shall make no law…”  The Supreme Court affirmed this original understanding of the scope of the Bill of Rights in Barron v. Baltimore (1833).

But all that changed when, in the aftermath of the Civil War, the 14th Amendment ensured that the newly freed bondsmen were U.S. citizens and that no state could “make or enforce any law which shall abridge [their] privileges or immunities [as U.S.] citizens.”

While the phrase “privileges and immunities” may mean nothing to modern readers, those at the time of the ratification of the 14th Amendment understood it to simply refer those rights and liberties expressly enumerated in the U.S. Constitution, particularly in the Bill of Rights.

That seems straightforward enough—the entire Bill of Rights now applies to the states as well as to Congress through what is now called the Privileges and Immunities Clause.  Unfortunately, the Supreme Court has flatly refused to do so because it would cramp their activism.  Instead, beginning in 1897, the Court has used another provision to selectively chose which provision in the Bill of Rights it believes should be binding on the states, and therein lies the problem.

Right after the Privileges and Immunities Clause, the 14th Amendment goes on to prohibit states from denying life, liberty, and property without the due process of the law.  The Court, seizing on the word “liberty,” has opted to make rights in the first ten amendments binding on the states if they deem those rights to be fundamental to ordered liberty.

The problem with this theory, called substantive due process, is two-fold.  First, as Justice Thomas noted in his concurring opinion, is that “[a]ll of this is a legal fiction. The notion that a constitutional provision that guarantees only ‘process’ before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of words.”

In other words, what is now called the Due Process Clause only guarantees process, such as notice of a new law or regulation or the opportunity to be heard before a judge.  In fact, it allows for “life, liberty, or property” to be taken from someone, so long as adequate procedures are in place.

Rather than giving this clause its plain meaning, the Court has taken upon itself to define the term “liberty” and to hold that a person can never be deprived of that liberty, even if adequate procedural safeguards are in place.

As Justice Thomas noted, this license the Court has given itself to define the term “liberty” is “a particularly dangerous [fiction]. The one theme that links the Court’s substantive due process precedents together is their lack of a guiding principle to distinguish ‘fundamental’ rights that warrant protection from non-fundamental rights that do not.”

The Court has used substantive due process to not only cherry pick which Bill of Rights it thinks are important enough to apply to state and local governments, but it has also used the opportunity provided in defining the term “liberty” to find such rights as the right to privacy, abortion, and homosexual marriage that are no where to be found in the text of the Constitution.

Unfortunately, four justices of the five-member majority in McDonald used substantive due process to determine that the 2nd Amendment right to own a gun was fundamental enough to be included in the term “liberty” in the 14th amendment.  By doing so, they not only continued to give validity to a dangerous theory that allows judges to find new non-textual rights, but it leaves open the possibility that a future majority may decide that gun rights might not be that fundamental of a right after all.

While a Court could have easily put a stop to this fount of judicial activism by ruling that the entire Bill of Rights was protected by the Privileges and Immunities Clause rather than leave future courts the ability to define the extent of the term “liberty,” a majority of the originalist justices on the Court failed to failed to take this opportunity to do so.

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About the Author

Nathan W. Tucker
Nathan W. Tucker is a Davenport attorney and author of We The People: The Only Cure to Judicial Activism. He can be contacted at nathanwt@juno.com.




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