D.C. v. Heller and "Liberal Originalism"

In last summer’s issue, I predicted that the seemingly momentous gun-control case of D.C. v. Heller might turn out to be not such a big deal. I was mainly referring to the politics of the decision; it seemed likely to me that Heller would take gun-control off the table, so to speak, and lessen the danger that the issue poses to liberal Democrats. But I also hinted that the constitutional ramifications of the decision might likewise be miniscule, and now the New York Times‘ Adam Liptak says that, indeed, there have been “few ripples” from Heller.

Perhaps the most interesting development is how some liberals are trying to use the post-Heller gun-control scuffles to advance an argument that would retroactively vindicate major liberal judicial decisions (like Roe and Lawrence) and possibly point towards future ones. You will have to bear with me as I ramble through constitutional history…

Gun-rights supporters naturally want to “incorporate” Heller, or apply its protections against the states, not just the federal government. Traditionally, the Due Process Clause of the 14th Amendment has been the main vehicle for incorporation; the protections of the Bill of Rights, one-by-one, have been applied against the states by saying, in so many words, that they are fundamental to due process. This has always been a tough sell. For one thing, “due process” seems to guarantee fair procedures, not substantive rights like freedom of speech or religion or gun ownership. And there is little evidence that the Reconstruction amenders envisioned the Due Process Clause serving this function.

But there is a strong case to make that the Privileges and Immunities Clause of the 14th Amendment was supposed to serve the purpose of incorporating the Bill of Rights. Hugo Black’s early statement of the incorporation doctrine in 1947’s Adamson v. California discussed the 14th Amendment as a whole, not just the Due Process Clause. But the Privileges and Immunities Clause has long been lifeless, nearly dead on arrival. It was neutered by the Court’s 1873 decision in The Slaughterhouse Cases, where a bare majority basically abdicated the expanded judicial role that the framers of the amendment may well have envisioned. When a later Court decided to take up an expanded role (in reviewing state economic regulations, not protecting freed slaves), it did so using the Due Process Clause.

Some liberals want to go back and resurrect the Privileges and Immunities Clause, restore it to its rightful place as the mechanism of incorporation, and, while they’re at it, argue that the “privileges and immunities” of United States citizens could not possibly be limited to the protections of the Bill of Rights, but may well include other rights that the Court is entitled to protect. After all, if the Privileges and Immunities Clause had been meant just to incorporate the Bill of Rights, it would have done so much more clearly than it did. The framers instead gave us a vague command to protect important liberties, with the Court, of course, to decide which liberties are most important. Thus, we have “liberal originalism,” an apparent oxymoron that seems so convenient, too convenient, but which has a good deal of intellectual plausibility.

And so, some liberals are on board with the incorporation of Heller not because they want to overturn state gun-control regulations, but because they see it as an opportunity to lay the precedential and theoretical groundwork for a constitutional revolution: a justification of judicial activism based on the original intent of the framers.

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