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05/18/2012

The Intersection of Originalism and Jot-for-Jot Incorporation
Allen Rostron

[For this post we welcome guest blogger Allen Rostron, the William R. Jacques Constitutional Law Scholar and Professor of Law at the University of Missouri–Kansas City School of Law. You can reach him by e-mail at rostrona@umkc.edu.]

Across the nation, judges have been busy producing a steady stream of opinions fleshing out the meaning of the right to keep and bear arms in the aftermath of the Supreme Court’s decisions in District of Columbia v. Heller and McDonald v. City of Chicago. One of those opinions contains a brief passage raising an intriguing question, about the interaction between originalism and the incorporation doctrine, that has largely escaped notice.

After the Supreme Court struck down Chicago’s handgun ban in McDonald, the city responded by revising its ordinances to allow possession of handguns but to impose various requirements for a firearm permit, including completion of at least one hour of training at a firing range. Chicago also prohibited the operation of shooting ranges within the city limits, prompting a lawsuit, Ezell v. City of Chicago, claiming that this violated the right to keep and bear arms by forcing permit applicants to journey outside the city to visit a range for their training.

While the district court saw no significant burden on the right to keep and bear arms, the Seventh Circuit disagreed. It gave Chicago a chance to present evidence justifying the ban on firing ranges, but indicated that the challenged ordinance was probably invalid. Chicago relented and repealed its ban on firing ranges.

Buried in the Seventh Circuit opinion, however, was an important but questionable assertion about originalism and incorporation of the right to keep and bear arms. The opinion, authored by Judge Diane Sykes, observed that Heller requires an originalist approach to interpreting the Second Amendment. In other words, when deciding whether a federal law violates the Second Amendment, judges should be asking what the right to keep and bear arms meant at the time when the Bill of Rights was proposed, debated, and ratified. So far, so good. But Judge Sykes went on to suggest that when considering whether a state or local government action violates the right to keep and bear arms, as incorporated into the Fourteenth Amendment, the analysis must be “carried forward in time” to the period when that Amendment was added to the Constitution.

That sounds perfectly sensible. Justice Scalia’s opinion in Heller obviously endorsed quite strenuously the notion that courts should strive to determine a constitutional provision’s original meaning. If one accepts that premise, then interpretation of the Second Amendment should be based on what the founding generation thought about gun rights, and interpretation of the Fourteenth Amendment’s incorporated right to keep and bear arms should be based on the understandings that prevailed eight decades later. As Judge Sykes put it, we must look “at the relevant historical moment – 1791 or 1868.”

The problem is that this disregards one of the key elements of what the Supreme Court decided about incorporation in McDonald. The Court declared that every incorporated right, including the right to keep and bear arms, must mean exactly the same thing as applied to state and local governments through the Fourteenth Amendment as it means when applied to the federal government through the Bill of Rights. The majority of the Court in older cases like Malloy v. Hogan (1964) and Duncan v. Louisiana (1968) had taken that same “jot-for-jot” or “one-size-fits-all” approach to incorporation. But until McDonald, some uncertainty lingered about whether incorporation always must operate in that way, or whether courts instead have the flexibility to tailor a right so that it is stronger (or weaker) or broader (or narrower) when applied to state and local governments via incorporation. The majority in McDonald eliminated that uncertainty, insisting that the strength and scope of every incorporated right must be exactly the same within the Fourteenth Amendment as within the Bill of Rights.

The Seventh Circuit therefore cannot be correct in advising that judges should look to 1791 when considering a Second Amendment challenge to a federal law but should focus on 1868 in cases concerning state or local laws. The Supreme Court’s decision in McDonald clearly ruled out such a two-track approach. Even if the meaning of the right to keep and bear arms in 1868 remained very close to what it was in 1791, this is a matter on which close is not good enough. McDonald demands that the right, in every contour and dimension, must be exactly the same regardless of whether the Second Amendment applies directly or through incorporation.

The way to achieve that perfect symmetry, while being faithful to the originalist approach, would be to assume that jot-for-jot incorporation of fundamentally important freedoms like the right to keep and bear arms was a part of the Fourteenth Amendment’s original meaning. In other words, an originalist judge could strive to interpret the Fourteenth Amendment according to what it meant to people in 1868, but conclude that those people understood the Amendment as calling for important rights to receive the same degree of protection that such rights enjoyed under the measures ratified as the Bill of Rights in 1791. Voilà! Looking for the original meaning of 1868 leads us straight to the original meaning of 1791, and we wind up with jot-for-jot incorporation happily reconciled with the originalist theory of interpretation. The end result is a unitary right to keep and bear arms, with 1791 as the key historical moment for the analysis regardless of whether a federal, state, or local government action is at issue. Of course, events, pronouncements, or sources from the 1860s or any other era might still be cited to help bolster conclusions about what the right meant in 1791, but 1791 is ultimately the only point in time that really matters.

The Seventh Circuit’s error on this point is quite understandable, for Justice Alito’s and Justice Thomas’s opinions in McDonald dwelled at length on historical evidence about what people thought of the right to keep and bear arms circa 1868, giving the impression that 1868 was the crucial point in time for a case about a local gun law like the Chicago handgun ban. But that is because McDonald needed to resolve the preliminary issue of whether the right to keep and bear arms was fundamentally important enough to deserve incorporation. To determine whether that right was part of what it meant to receive due process of law under the Fourteenth Amendment, the key point in time was 1868. But once the Supreme Court in McDonald made the threshold decision to incorporate the right, the need to focus on 1868 was over, and 1791 became the crucial time for the lower courts to consider in assessing everything else about the right and deciding what gun laws should be upheld or struck down.

I suspect that this flaw in the Seventh Circuit’s reasoning, while interesting in theory, will never actually make a difference for the outcome of any real cases. As I explained in an article recently published in the George Washington Law Review, I think the courts have largely been pretending to follow the Supreme Court’s direction to use historical analysis of original meaning to decide cases about the right to keep and bear arms. Judges instead decide cases principally on public policy grounds. Sometimes they dress their analysis in the garb of historical inquiry, but often they do not even bother to do so. Investigation of original meaning does not truly drive the decisionmaking, simply because the available evidence of original meaning is inadequate to answer clearly the specific questions that arise today concerning gun laws. What would people in 1791 (or 1868, for that matter) have thought about laws that prohibit people from possessing guns while subject to domestic violence restraining orders or after being convicted of misdemeanor crimes of domestic violence? What would they have thought of a law that prevents a person from purchasing a handgun from a licensed gun dealer until the age of 21? No one really knows.

In the end, a judge who is inclined to uphold a particular sort of gun law is going to find justification for doing so regardless of whether she treats 1791 or 1868 as the crucial time frame for the analysis. And likewise, a judge who wants to strike down a law is going to find a basis for doing so no matter what year is the target of her historical inquiry. Fretting about whether 1791 or 1868 is the correct year on which to focus is much ado about nothing if, as I suspect, the investigation of original meaning is largely a pretext that conceals what actually drives judges’ decisions in gun cases.

MICHAEL RAMSEY ADDS:  Professor Rostron seems right to point out "jot-for-jot incorporation" as a bit of a dilemma for originalists.  As he suggests, Justice Alito's opinion in McDonald adopted it purely as a matter of precedent, on the strength of the Malloy case and others.  (See 130 S.Ct., p. 3048).  That's a convenient pragmatic solution but it doesn't solve the problem from the perspective of an originalist who doesn't accept the authority of precedent or who takes a narrow view of precedent (after all, there was no precedent requiring jot-for-jot incorporation of the Second Amendment, only jot-for-jot incorporation of other amendments).