[Deborah Pearlstein] Can’t wait to read the Obama posts, but first thanks to Jack for the interesting post about the nature of constitutional rights, fundamental and otherwise. Nonetheless, I confess it didn’t quite overcome my lingering sense of puzzlement about where the Second Amendment fits in the constitutional hierarchy. To start I’ll need some help understanding the evidentiary weight I should accord Senator Howard’s remarks about the Fourteenth Amendment to our understanding of the meaning of Second. But I’ve always been inclined to support a relatively eclectic methodology of constitutional interpretation (i.e. start with the text and if that doesn’t settle everything, at least consider other sources that might plausibly shed light) so I won’t quibble much in a non-litigation setting.
There’s also, however, the problem that the Supreme Court seems rather early and often to have disagreed with the Senator’s take on what “privileges and immunities” under the Fourteenth Amendment includes. Now I’m hardly a supporter of the Slaughterhouse view of matters, but surely (harking back to our living constitution dilemma) such precedent counts for something, even in a post-Roberts world.
And then there’s the logic puzzle. As I read Howard, he says whatever “privileges and immunities” means, it includes “fundamental rights” (per Corfield ) plus the first 8 amendments of the Constitution (i.e. “to these should be added the personal rights guaranteed…”). While he later suggests it’s all “fundamental” in some sense, his initial cut could at least be read as distinguishing all the good stuff we know about in the Bill of Rights from other rights, deemed fundamental, not necessarily enumerated in the first 8 tries. His views as in support of living constitutionalism I’d buy. But that Howard sheds any light on the jurisprudential distinction between rights “fundamental” and not, I don’t quite see it.
Which brings us back to the original question - how do we know a fundamental right when we see it? Or, how do we know the Second Amendment fits the bill? Inclusion in the Bill of Rights per se, and perhaps strangely enough, hasn’t actually seemed sufficient. Indeed, given the highly contextual availability of those rights (even the great First Amendment), someone new to Supreme Court case law might reasonably conclude that a right is more likely to be found fundamental if it’s only claim to textual fame is the “substantive due process” clause (so to speak). The grand jury is apparently not implicit in the concept of ordered liberty; bodily integrity is. Now it could be that I’ve just been making this more complicated than necessary, and calling a right “fundamental” is just a way of getting it treated like a right we would’ve included in the Bill of Rights but for those pesky word limits. I’d be delighted for clarification. For now, though, I guess count me as unconvinced of the fundamental status of the right as Mr. Heller sees it.