James W. Pfister
There has been much critical anticipation of the Supreme Court’s new term, particularly its current conservative bent. The recent New York State Rifle & Pistol Association Inc. v. New York State Police Superintendent Bruen (June 23, 2022) tells us a lot about the fundamental division in the Supreme Court today. It seems that very conservative views on fundamental rights have led to weaker democratic control. My thesis is that the interest of the state should control individual rights through means-ends analysis.
In New York State Rifle and Pistol Association Inc., the Court ruled that a 100-year-old law violated the Second Amendment when it required a person to give a reason beyond ordinary self-defense for carrying a concealed weapon. . This reason was known as “just cause”. The Court held that this requirement gave too much discretion to the government; that once the right of self-defence had been acquired, within traditional limits, there should be no second inquiry into the state interest, commonly referred to as a means-ends analysis.
The majority conservative opinion was written by Justice Clarence Thomas, joined by Chief Justice John Roberts and Justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. Liberal Justice Stephen Breyer wrote a dissenting opinion, joined by Justices Sonia Sotomayor and Elena Kagan. The majority opinion was based almost entirely on precedent and long history. The precedents were District of Columbia v. Heller and McDonald v. Chicago, who established that the Second Amendment provided for the use of a firearm for self-defense in the home. The long history spanned 700 years, with particular reference to 1791, the year the Second Amendment was ratified, and 1868, the year the 14th Amendment was ratified. (The Bill of Rights must go through the due process clause of the 14th Amendment to limit states).
More importantly, the majority did not allow a second stage. Thomas writes, “Despite the popularity of this two-step approach, it is one step too many. … But Heller and McDonald do not support the application of a means-end review in the context of the Second Amendment. Instead, a government must prove that its gun regulations are part of the historical tradition that delineates the outer limits of the right to own and bear arms. Thomas believed that things could be uncovered by analogous reasoning.
It seems logical to conclude that if a limitation is not analogous to a historical limitation, the state cannot further limit the right. It then becomes absolute as to any other limitation. Normally the rights are not absolute, but may be limited, for example, by the strict standard of review, i.e. if there is a compelling state interest and it does not there is no less restrictive means of achieving that interest, the right may be limited. In the context of an intermediate control, the right may be limited if there is a substantial relationship between the limitation (here a “legitimate cause”) and an important or compelling interest of the State. This is called the means-ends examination test, which Thomas calls the second stage. The interim review was actually used by the Second Circuit to enforce New York law in this case, which the Supreme Court later overturned.
My thesis is that the conservative majority relies too much on history as a “dead hand” control. There should be democratic control through means analysis and scrutiny. Societies were different in the 18th and 19th centuries in terms of population size, urbanization, culture, diversity, and criminalization. We need an effective policy developed by our democratic representatives to deal with the current reality. As Breyer writes in dissent: “The question posed in this case concerns the extent to which the Second Amendment prevents individual states (and the federal government) from finding solutions to these problems through democratic processes. … I fear that the Court’s interpretation ignores these significant dangers and leaves states without the capacity to deal with them. He concludes: “…it is appropriate…to look beyond history and engage in what the Court calls an examination of means and ends. Courts must be allowed to consider the state’s interest in preventing gun violence, the effectiveness of the impugned law in achieving that interest, the extent to which the law interferes with the Second Amendment right and, if applicable, any less restrictive alternative.
We are a constitutional democracy; both words matter. Am I a closet liberal?
James W. Pfister, JD University of Toledo, Ph.D. University of Michigan (political science), retired after 46 years in the political science department at Eastern Michigan University. He lives in Devils Lake and can be reached atjpfister@emich.edu.