Heller And The Incorporation Doctrine

Until now, I haven't written anything on the Heller/2nd Amendment issue for two reasons: I don't really have a strong opinion on the political question of gun control, and more importantly, since I don't care enough about gun control to do serious research, I've remained ignorant about the constitutional issues involved in this case.

But while reading a debate about Living Constitutionalism and Judicial Restraint (here, here, here, here and more), I came across a post about the Second Amendment and fundamental rights. Deborah N. Pearlstein, whose webpage brands her a constitutional law expert, penned a post on the new Slate legal blog, Convictions. She didn't take a position on the 2nd Amendment question, but was bewildered that everyone talks about the right to bear arms as a fundamental right. Pearlstein correctly pointed out that not all rights protected by the Court are fundamental:

"When I was in law school (and even since), there was an obscure but nonetheless real distinction made between constitutional rights that were "fundamental" and those that were, well, not. Some rights were "principles of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental" and "implicit in the concept of ordered liberty." Palko v. Connecticut. Other rights were "new." Teague v. Lane."

This argument struck me as odd and misplaced. The cases Pearlstein alludes to deal with applying the Bill of Rights to the states under the Court's incorporation doctrine. Throughout the last hundred years the Court used the 14th Amendment's Due Process Clause to "incorporate" certain rights in the Bill of Rights into the Due Process Clause, making them applicable to the states (the Bill of Rights originally only applied to the federal government). While the incorporation doctrine has a long and twisted history, the Court incorporated specific rights and deemed them fundamental only when they were "so rooted in the traditions and conscience of our people as to be ranked as fundamental."

So when deciding whether to apply specific rights to the states, the Court used the above test. However, Heller does not involve the doctrine of incorporation. The Constitution clearly grants Congress "exclusive Legislation" over the District in Article I, Section 8, Clause 17. The District of Columbia is a federal entity. The Court has applied specific rights in the Bill of Rights directly to the District without making use of the incorporation doctrine (see Pernell v. Southall Realty applying the 7th Amendment directly).

The District's Brief also made a similar, and very strange, argument in a footnote (Page 38, footnote 9):

"Although this case does not present the question of incorporation, there is no reason to think that a right to possess guns for personal use is a "principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental" and "implicit in the concept of ordered liberty." Palko v. Connecticut, 302 U.S. 319, 325 (1937)."

The District admits that incorporation does not apply in this case, and yet it expects the Court to apply the incorporation test! Why should the Court do that rather than treat the District as a federal entity?

There are a number of pertinent and debatable question in this case. Does the 2nd Amendment contain an individual right? If it does, does that right only apply to people living in states (the 2nd Amendment's preamble starts "A well regulated Militia, being necessary to the security of a free State....") and not those living in the District? If it does, what standard of review should the Court apply to laws infringing on that right?

Reasonable people can disagree on all these questions (and more). But if an individual right exists, then it is no less fundamental than the right to free speech or the right to be protected from double jeopardy. If the Amendment only protects a collective right, then there is no individual right at all. The right is either fundamental or it does not exist. There is no middle ground like there is by the rights created by the incorporation doctrine.