Incorporation and "integrity"

Wed Jul 2 14:25:59 PDT 2008

To sharpen Sandy's point:  As I understand it, Justice Thomas has said that the due process clause deals with procedure, not substantive rights, that the privileges or immunities clause is a non-discrimination provision, that (here I'm less clear on his position, but I don't think my unclarity matters) the equal protection clause deals with the equal administration of laws and does not impose equality requirements on statutes, and, finally, that stare decisis is either particularly weak or entirely irrelevant when we're dealing with really basic questions of constitutional structure.  So:  If that's right, what's the (national constitutional) textual basis for restricting a state's power to regulate guns even to the point of prohibiting handgun ownership in the home?  And, if I'm wrong, which of the four propositions seems inconsistent with Justice Thomas's position?  (Obviously, he could rethink any of these propositions, with the second being the best candidate, I suspect, and the fourth has some wiggle room built into it.)

Mark Tushnet
William Nelson Cromwell Professor of Law
Harvard Law School
Areeda 223
Cambridge, MA  02138

ph:  617-496-4451 (office); 202-374-9571 (mobile)

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu on behalf of Sanford Levinson
Sent: Wed 7/2/2008 4:02 PM
To: lsolum at illinois.edu; Volokh, Eugene
Cc: CONLAWPROF at lists.ucla.edu
Subject: RE: Incorporation and "integrity"

I have no problem with incorporation, though my preferred vehicle would
be the Privileges or Immunities Clause a al Justice Bradley's dissent in
Slaughterhouse.  And even if I really cared what the original intent,
expectation, semantic meaning of the Second Amendment were, I regard it
as irrelevant to interpreting the PorI Clause, since I think it is so
easy to make the argument that a right to bear arms was accepted by both
Taney and Sumner (and many other people) as being a fundamental right of
American citizenship.  Then the only argument would be about what kinds
of limitations could be placed on this right by states, not whether
there is some right that should indeed run against the states.

But is there any reason to believe that Thomas would accept this kind of
"fundamental rights" view of a right to bear arms stripped of some
strong link to the Second Amendment?  And is there any reason to believe
that Thomas recognizes the legitimacy of incorporation per se?  After
all, Edwin Meese did not in his famous Tulane speech?  In any event, I
don't mean to make any gratuitous attack on Justice Thomas's
"integrity."  But of all the justices, he is the one who has appeared
most willing to rethink some fundamentals on the basis of his notion of
original intent (or whatever one wishes to call it).

sandy

________________________________

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Lawrence Solum
Sent: Wednesday, July 02, 2008 11:52 AM
To: Volokh, Eugene
Cc: CONLAWPROF at lists.ucla.edu
Subject: Re: Incorporation and "integrity"

And all of this assumes that Justice Thomas would view incorporation of
the 14th as properly analyzed under the very unoriginalist substantive
due process rubric.  Given the lack of incorporation precedent
concerning the 14th, it seems at least possible that he would view the
question as properly analyzed under the privileges and immunities
clause.  In which case, the question isn't really "incorporation" per se
& Sandy's earlier point about the 9th amendment suggests that the
relevant privilege or immunity would be not directly depend on the text
of the 2nd Amendment.

On Wed, Jul 2, 2008 at 11:25 AM, Volokh, Eugene <VOLOKH at law.ucla.edu>
wrote:

       Let me just note that Sandy's question about "Would [Justice
Thomas] have the integrity to say" doesn't really apply to Justice
Thomas.  Rather, it applies only to a hypothetical Justice Thomas who
accepts the "federalism interpretation of [the Second] Amendment" that
Mark Graber says is "at least hint[ed] at" by the preface.

       As I read the majority opinion, which Justice Thomas fully
endorsed, it does *not* accept the federalist view.  So there's no
reason why "integrity" would require Justice Thomas to conclude "that,
for better or worse, states remain free to do what they wish."

       I recognize Sandy's and Mark's point that incorporation is not a
foregone conclusion, though I think the best argument for incorporation
rests on the selective incorporation precedents (unsound as I think they
are), not on the federalism point.  I just want to point out that
there's no need to question any Justice's integrity as to the issue.

       Eugene

Sandy Levinson writes:

Mark's mention of Thomas raises another interesting possibility:  We
might easily predict that Roberts, Kennedy, Scalia, and Alito would vote
to incorporate the 2nd Amendment.  We might just as easily predict that
the dissenters would find some reason not to, probably by denying that
protection of the right to bear arms is essential to the notion of
"ordered liberty."  So that would make Thomas the key justice.  Would he
have the integrity to say that a) he certainly supports gun rights (in
the same way, after all, that he announced his disdain for the Texas law
that he voted to uphold in Lawrence), but that, for better or worse,
states remain free to do what they wish because his reading of original
intent of the Fourteenth Amendment denies the incorporationist premise?
Stranger things have happened in multi-member decisionmaking
institutions.

Mark Graber writes:

       On the incorporation of the Second Amendment, one might also
interpret the Second Amendment as a federalism provision. guaranteeing
that the federal government would not interfere with state militias
unless explicitly authorized to do so by other constitutional
provisions.  As Justice Thomas and Akhil Amar have noted, the federalism
provisions of the Bill of Rights are not subject to incorporation.

       This, of course, raises an interesting question for a particular
kind of textualist (not all textualists).  The preface to the Second
Amendment at least hints at a federalism interpretation of that
Amendment.  If, as Justice Thomas insists, we ought to read the
establishment clause as a federalism limit, why not the Second
Amendment. (for that matter, is there any good original meaning argument
for interpreting some clauses of the First Amendment as federalism
limits and others and individual rights limits).

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Lawrence Solum
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