In a current case before the U.S. Supreme Court, New York State Rifle & Pistol Association v. Bruen, gun owners are challenging New York’s “proper cause law” for concealed-carry permits. Whereas the Second Amendment guarantees an individual’s right to “keep and bear arms,” New York prohibits the bearing of firearms without a license, granted on a “may issue” basis at the whims of local officials, arbitrarily determining whether a person has a legitimate need for self-defense.
On its face, this law clearly violates the spirit of the Second Amendment. Conservatives arguing to overturn it, however, find themselves in the awkward position of arguing against long-standing conservative principles like constitutional federalism and state sovereignty. Implicitly, in this case, the argument for gun rights relies on a century of progressive precedent known as the “incorporation doctrine.”
Activist courts have used this legal theory to impose left-wing policies top-down onto the states. Conservatives are right to insist on a consistent standard; if the Constitution means no school prayer in Kansas, then it also means the right to carry a gun in New York City.
In a brief to the court, J. Michael Luttig, a former judge of the 4th U.S. Circuit Court of Appeals, argues against overturning New York’s law by pointing to the founders’ view that states were free to regulate the carrying of firearms within their own jurisdictions. His assessment is historically correct, but the continued insistence on this creates a double standard under the law.
The states ratified the Bill of Rights in 1791 to constrain the power of the federal government, not themselves. The First Amendment, for example, prohibits “Congress” from making any “law respecting an establishment of religion,” but early states set their own policies.
Under Thomas Jefferson’s lead in 1786, Virginia became the first state in America to separate church and state, but Massachusetts maintained Congregationalism as its state religion for a half-century post-ratification before adopting the wisdom of the Old Dominion. Rather than resting on the top-down imposition of a federal court, religious freedom won the slow battle of decentralized policy-making among the “laboratories of democracy.”
In 1833, the Supreme Court upheld this principle of federalism in Barron v. Baltimore, finding that states are constrained by their own state constitutions, not the Bill of Rights. In 1925, however, the court instituted the “incorporation doctrine” in a case over free speech (Gitlow v. New York), interpreting the due process clause of the Fourteenth Amendment (adopted after the Civil War) as incorporating the Bill of Rights into the states. In the century since, this doctrine has been cited by federal courts to override wide-ranging state policies on issues ranging from school prayer to gay marriage.
Kevin Gutzman, a constitutional scholar and professor of history at Western Connecticut State University, argues this doctrine is a subversion of the original intent of the Fourteenth Amendment, which was intended narrowly to guarantee rights for emancipated slaves in the postwar South. Additionally, Gutzman asserts the doctrine has twisted the Bill of Rights from a restriction into a grant of federal power.
Whether or not the incorporation doctrine is a progressive perversion of constitutional law, today it is baked into a century of judicial precedent. Applied to all manner of left-wing causes, until District of Columbia v. Heller in 2008, it had never been applied to gun rights.
In that case, the Supreme Court overturned Washington D.C.’s handgun ban, ruling that states and districts cannot prohibit the individual right to keep arms in the home. Today, with a 6-3 conservative majority, it seems certain the court will extend that thinking to the right to bear arms.
“That’s just not how we do constitutional rights,” said Justice Brett Kavanaugh during oral arguments, referring to New York’s policy of “blanket discretion” for government officials to accept or deny requests for a carry permit. Chief Justice John Roberts went further, calling the entire premise of requiring a license to exercise your right “unusual in the context of the Bill of Rights.” Under the incorporation doctrine, they are both certainly correct.
To apply constitutional precedent consistently, the Supreme Court has three options. First, they can strike down New York’s proper cause law, requiring all states with licensing schemes to establish objective “shall issue” criteria (as currently exists in Florida and Ohio). Second, they can go one step further and strike down licensing requirements in their entirety, establishing Constitutional Carry across the country (as currently exists in 21 states, including Maine and Texas). Finally, they could take the nuclear option: overturning the incorporation doctrine completely, allowing New York to keep its anti-gun law unchanged, and restoring federalism across the board in America.
Anything short of these options would amount to a double-standard of the law.