Standards and Fundamental Freedoms

On February 12, 2013 Lyle Denniston wrote for the Constitution Center about the constitutional standard that the Court would apply to challenges to gun control laws in the wake of Heller (2009) and MacDonald (2010).[1]  Given the Court’s reluctance to take any more 2nd Amendment cases, Lyle is most likely right—we do not yet know what constitutional standard the Court will apply.  Thus far, the Court has dealt with two of the most restrictive gun control laws in the country, so the standard for deciding less clear-cut has yet to be enunciated clearly.  However, as those of us who teach constitutional law we know what standard MacDonald implies is appropriate.  It is the lesson of Palko v. Connecticut (1937) and Duncan v. Louisiana (1968), and this lesson comes very early in any course focusing on civil rights or civil liberties.  By incorporating the 2nd Amendment, the Court has already made a determination.


In Heller, the Court determined that the 2nd Amendment right to bear arms is an individual right, and Scalia’s opinion suggests that this right is a limited one—the right to self-defense in the home.  In MacDonald, the Court incorporated this right to the states via the due process clause of the 14th Amendment.  In doing so, the Court added this individual right to the ‘honor roll of rights’ that are “fundamental principles of liberty and justice which lie at the base of al our civil and political institutions[.]”[2]  In essence, the act of incorporation demands that the highest constitutional standard be applied to government attempts to constrain that right.  This is the lesson of Palko and why some parts of the Bill of Rights have yet to be incorporated.


Certainly, the Court can then make distinctions within the case law that provides more discretion for governmental action (valid time, place, or manner restrictions or the O’brien test come to mind), but these are deviations from the standard demanded by incorporation—strict scrutiny.  If a law is content based, if a law is directed toward the suppression of expression, free exercise of religion, or association, as an incorporated honor roll right, the 1st Amendment gets strict scrutiny.  In US v. Jones (2012), the Court reminded us that, “the physical penetration standard and the reasonable expectation of privacy approach exist together,”[3] combining to provide a strong protection against intrusion of the incorporated 4th Amendment.  It does not matter that the Court has also created exceptions to this standard (plain view, incident to arrest, hot pursuit); the standard for an incorporated right rests strongly on the side of the individual.


I expect, as Denniston notes, that the Court will provide some, if not a great deal of, wiggle room for the federal and state governments when dealing with the newly incorporated 2nd Amendment.  However, the initial standard is already understood.




[2] Palko v. Connecticut, page 77, second column CLCA: Rights, Liberties and Justice, 8th edition.

[3] US v. Jones, page 475, second column CLCA: Rights, Liberties and Justice, 8th edition.

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Filed under Incorporation of the Bill of Rights, The Right to Keep and Bear Arms

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