Fundamental Rights, Living or Else

[Deborah Pearlstein] Reading Dahlia’s account of yesterday’s oral arguments in the big gun case reminds me why it was my co-clerks and I would read coverage by Linda and Dahlia the morning after arguments at the Court and call it a day (as far as non-work reading went).  They pretty much nailed it every time.  But as much as I’d like to spend more time wallowing in the delight of unpacking Justice Kennedy’s Freudian obsession with Grizzlies (Stephen Colbert - are you listening?), it’s this “fundamental right” to gun ownership that has me more troubled. 

It’s not that I necessarily disagree with the many distinguished progressive scholars ( Jack Balkin , Larry Tribe ) who think there may actually be an individual right lurking in the obscure text of U.S. Const, Amend 2.  There are, as they say, arguments on both sides.  It’s this notion that whatever individual right the amendment protects it must be “fundamental” in nature.  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 .  The interest of parents in their relationship with their children (requiring the waiver of court fees for the indigent to challenge termination of parental rights): fundamental.  The interest of welfare recipients in the rational distribution of benefits (requiring the same fee waiver): not.  (Cf. also the Court’s repeated recognition that the violation of some trial rights in the Bill of Rights is presumptively prejudicial, while the violation of others is harmless error.)  Most important for present purposes, the regulation of fundamental rights got strict scrutiny.  Non-fundamental rights, not so much.

Setting aside for the moment Chief Justice Roberts’ allergy to having his kids’ orthodontia subsidized by further doctrinal debates about the appropriate level of scrutiny to which government regulation of rights should be subject, whence on earth comes this notion that about-to-be-newly-discovered gun rights are fundamental?  Heller’s brief pretty much just asserts that they are.  The District’s brief on the merits concludes that they aren’t largely in footnotes.  And even if CJ Roberts continues along his Clarence Thomas-esque “given-the-chance-I’d-overrule-everything-and-start-over” path, it strikes me as the far greater interpretive leap to find gun ownership “implicit in the concept of ordered liberty,” than to conclude it’s something less than that and let courts have a go at applying some sort of reasonableness/rationality review.  Even living constitutionalists have their standards, no?