A recent Supreme Court case involving gun rights raises curious parallels—and incongruities—with several religious liberty cases that touch on the same constitutional issues regarding state’s rights, individual rights, and the powers of the federal government.

In the case of McDonald v. Chicago, the Supreme Court declared that the Second Amendment protects an individual right to bear arms, and that this fundamental right applies in all 50 states and their various municipalities. The Second Amendment previously applied only to the federal government—restricting only Congress from passing laws infringing on the right to bear arms. In McDonald, the Court ruled to “incorporate” the Second Amendment, meaning the amendment now applies to all state, municipal, and federal jurisdictions.

Bruce T. Murray

The issue of incorporation was also raised in the context of the First Amendment’s Establishment Clause—“Congress shall make no law respecting an establishment of religion.” In Elk Grove Unified School District v. Newdow, Justice Clarence Thomas opined that the First Amendment’s Establishment Clause should not be incorporated. This, in contrast to the conservative justices’ views on gun rights, means that individual states would be free to make their own laws on certain matters respecting religion, such as the placement of religious symbols in public places, prayers at high school graduations, and the content of school curriculum.

Thomas, taking a “textual” or ��originalist” view of the Establishment Clause, interprets its intent as primarily to protect state religious establishments that still existed when the Bill of Rights was drafted. Several New England states, for example, maintained the Congregationalist Church as the official state religion well into the 19th century. Massachusetts did not do away with its Congregational establishment until 1833; Connecticut disestablished in 1818.

“I accept that the Free Exercise Clause, which clearly protects an individual right, applies against the States through the Fourteenth Amendment. But the [First Amendment’s] Establishment Clause is another matter,” Thomas wrote in Newdow. “The text and history of the Establishment Clause strongly suggest that it is a federalism provision intended to prevent Congress from interfering with state establishments. Thus, unlike the Free Exercise Clause, which does protect an individual right, it makes little sense to incorporate the Establishment Clause.”

Thomas’s view of Establishment Clause backtracks on longstanding Supreme Court precedent. In 1947, the Court incorporated the Establishment Clause in the landmark case Everson v. Board of Education of the Township of Ewing. Following Thomas’s view, under an unincorporated Establishment Clause, states could theoretically re-establish state churches—or take lesser action respecting that end.

“Congress need not observe strict separation between church and state, or steer clear of the subject of religion. It need only refrain from making laws ‘respecting an establishment of religion’; it must not interfere with a state establishment of religion,” Thomas wrote in Cutter v. Wilkinson. “For example, Congress presumably could not require a State to establish a religion any more than it could preclude a State from establishing a religion.”

Although Thomas argued against incorporation in these two religious liberty cases, in McDonald v. Chicago Thomas sided with his fellow conservatives—thus taking the opposite view in regards to incorporation of the Second Amendment.

Thomas is not alone in promulgating theories that seemingly flip-flop from amendment to amendment. On his opposing ideological side, Justice John Paul Stevens upholds the incorporation of the Establishment Clause, but his opinions on the Second Amendment bear a close resemblance to Thomas’s words on the First Amendment. “By its terms, the Second Amendment does not apply to the States; read properly, it does not even apply to individuals outside of the militia context,” Stevens wrote in McDonald. “The Second Amendment was adopted to protect the States from federal encroachment.” (Compare to Thomas on the First Amendment: “The text and history of the Establishment Clause strongly suggest that it is a federalism provision intended to prevent Congress from interfering with state establishments.”)

Although Thomas’s vision of a selectively incorporated First Amendment is generally considered extreme, the general concept of selective incorporation is not.

Prior to the Civil War, the Bill of Rights was applied only to the federal government and not the states. After the Civil War, the Fourteenth Amendment was adopted in order to, among other things, prevent Southern states from backsliding on citizenship rights granted to former slaves. Through the Fourteenth Amendment’s Due Process Clause, most—but not all—elements of the Bill of Rights have since been applied to the states.

The landmark Slaughter-House cases (1873) put the brakes on full incorporation and set the precedent for selective incorporation. Selective incorporation, following court precedent, exempts states from certain procedural aspects of the Bill of Rights, such as the Grand Jury Clause of the Fifth Amendment and the Excessive Bail Clause of the Eighth Amendment.

As Justice Sonia Sotomayor summed up in oral arguments in the McDonald case, “our selective incorporation doctrine under the Due Process Clause does suggest that there are some rights that were fundamental enough to be incorporated and some that are fundamental, but not fundamental enough to be incorporated. We have drawn a line.”

The plaintiffs’ legal strategy in McDonald sought to overturn the Slaughter-House precedent, thus triggering a wholesale incorporation of the Bill of Rights—not just the Second Amendment. However, the Court declined to overturn Slaughter-House, and instead focused on the theory of “ordered liberty”—whether the Second Amendment right is “fundamental to the American scheme of ordered liberty and deeply rooted in this Nation’s history and traditions.” The Court’s answer, by a narrow 5-4 vote, was “Yes.”

If the Court had taken the route of overturning Slaughter-House, thus incorporating the entire Bill of Rights, Thomas’s idea to selectively unincorporate the Establishment Clause would be moot.

Arguments in the McDonald case, and Thomas’s opinions in Newdow and Cutter, bear some striking similarities. According to Thomas, the primary purpose of the Establishment Clause is to “prevent Congress from interfering with state establishments.” Similar arguments are commonly made regarding the purpose of the Second Amendment: “One function of the Second Amendment is to prevent the national government from interfering with state militias,” Judge Frank H. Easterbrook, chief judge for of the Seventh Circuit Court of Appeals, wrote for Court in NRA v. Chicago (a combined case with McDonald).

But incorporation of the Second Amendment and incorporation of the First Amendment’s Establishment Clause cut in different ideological directions: Incorporation of the Second Amendment (an idea generally promoted by conservatives) prevents state governments from infringing on the right to bear arms. Incorporation of the Establishment Clause (a liberal approach) restricts state governments from doing as they wish in matters respecting religion.

The conservative Court now considers gun ownership an individual right—as opposed to the collective right of a state’s militia. By contrast, Thomas’s theory against incorporation of the Establishment Clause is based, in part, on his belief that it does not represent an individual right, as he opined in Newdow.

The situation shows, yet again, that the concepts of judicial activism and judicial restraint are moving targets. While only the most conservative—or perhaps radically conservative—legal theorists would support unincorporation (or partial incorporation) of the Establishment Clause, the conservative members of the Supreme Court are leaning in favor of incorporation of the Second Amendment. Thus, a conservative court can become an activist court in order to achieve its own particular ends, just as earlier liberal courts have done.

Bruce T. Murray is the author of Religious Liberty in America: The First Amendment in Historical and Contemporary Perspective, published by the University of Massachussetts Press. He is a veteran daily journalist (most recently at the Los Angeles Times) who began as a contributing writer to the Santa Barbara Independent after graduating from UCSB. He is currently president of Web Sage Publishing, and a student at the California Western School of Law in San Diego.


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