In preparing for my most recent Supreme Court argument, I realized that I have something in common with the Court’s most conservative members. Like them, I do not believe there should be “second-class” constitutional rights subject to judicial balancing. If something is a right, it must be protected.
Unfortunately, our agreement appears to end there. While conservatives are concerned with protecting the Second Amendment, my concern lies with the right to vote being treated as an afterthought.
For years, it was generally understood that the “well regulated Militia” in the Second Amendment’s text referred to exactly that: a well regulated militia — not an individual’s desire to own a gun. As a result, the federal government as well as many states and local governments regulated gun ownership with that interpretation in mind.
Then came DC v. Heller — the 2008 landmark Supreme Court decision that overturned this understanding and found that the Second Amendment protects an individual’s right to bear arms. So much for our well regulated militia.
While conservatives are concerned with protecting the Second Amendment, my concern lies with the right to vote being treated as an afterthought.
As I prepared for my Supreme Court argument, I also read a later case in which Justice Samuel Alito applied Heller’s ruling to state and local governments through the Fourteenth Amendment, claiming that Chicago’s handgun ban was treating the Second Amendment as a “second-class right.”
While I disagree with the legal theories used in these cases, I realized I could learn something from the conservative lawyers who argued (and won) these cases.
To be clear: I have little hope that the current Court will expand constitutional protections for voting rights. Nonetheless, I am encouraged by this new entry point into a debate I have been engaged in for many years.
Currently, the right to vote is actually being treated as a second-class. To use Justice Alito’s own words on the Second Amendment, the right to vote is “subject to an entirely different body of rules than the other Bill of Rights guarantees.” While most rights are viewed as nearly absolute, restrictions on voting are subject to a test that balances the burden on voters against the benefit to the state.
This is decidedly not how the Court treats the right to own guns. In Heller, Justice Antonin Scalia rejected the notion that courts should have “the power to decide on a case-by-case basis whether the right is really worth insisting upon.”
Yet this is exactly what conservatives insist judges should do with respect to the right to vote. When it comes to the right to bear arms, they recognize that “a constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all.” In the context of voting, however, they demand precisely this assessment from the very judges they claim not to trust to protect gun rights.
This was not always the case. Sixty years ago, the Supreme Court wrote that the “right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights,” and that any alleged infringement on the right to vote “must be carefully and meticulously scrutinized.”
Notwithstanding this history, conservative lawyers claim that the Constitution is explicit about gun rights through the Second Amendment, while it is largely silent on voting rights. They argue that the history and tradition of gun ownership are clearer than those surrounding voting methods.
These arguments are cop-outs.
For most of our nation’s history, the right to bear arms was not understood as an individual right. Rather, it was viewed as qualified by the amendment’s opening clause: “A well regulated Militia, being necessary to the security of a free State.”
While there is no stand-alone right to vote in the Constitution, Article I includes an Elections Clause, and the Fifteenth, Seventeenth, Nineteenth, and Twenty-Sixth Amendments all specifically reference the right to vote. In addition, the Twenty-Fourth Amendment explicitly bans poll taxes, which were used to restrict voting rights.
As for history and tradition, while it is true that voting was historically conducted in person on Election Day, it is equally true that firearms were once heavily regulated. In both cases, technological change has dramatically expanded the ways in which people can exercise their rights.
I have often written about the need for the pro-democracy movement to develop a new jurisprudence — one that is not premised on defending the status quo or existing legal doctrines from conservative attack. Instead, we must commit to advancing ideas now that may not gain widespread acceptance for decades.
Building new pro-democracy theories and institutions will require us to challenge our own assumptions and to find inspiration in unexpected places.
This is precisely what conservatives did with the Second Amendment. It is also what they have done in the campaign finance case I argued last week, which prompted this line of inquiry. The modern campaign finance system was built in the wake of Watergate, and conservatives have been working to dismantle it ever since.
For a long time, they failed. But in recent decades, they have succeeded. It is difficult to identify any major campaign finance case they have lost in the past 20 years. Whether the case I argued will end that winning streak remains to be seen.
As I mentioned, this is on my mind for a reason: I encountered Second Amendment precedent while preparing for my argument. Preparing a case for the Supreme Court is grueling. Reviewing briefs and legal precedent takes days and distilling them into a persuasive presentation is even more difficult.
As I worked to master the Court’s jurisprudence on free speech and the laws governing money in politics, I felt compelled to read recent Supreme Court decisions addressing constitutional rights more broadly.
One benefit of casting such a wide net is exposure to doctrines in a specific area of law that may have relevance elsewhere. It was in that spirit that I sat down to read several of the leading Second Amendment cases.
At first glance, the right to bear arms may seem far removed from Congress’s ability to regulate money in politics or from the right to vote. Yet in some respects, those of us on the left must be willing to see these issues as closer than we might prefer.
I remain unpersuaded by the conclusions of the Court’s Second Amendment jurisprudence, but I recognize the value in some of its reasoning. Building new pro-democracy theories and institutions will require us to challenge our own assumptions and to find inspiration in unexpected places.
And we must be willing to deploy the very tools they use to fight. It just might help us win.
I am better for having read such a breadth of cases in preparation for my argument. I agree there are no “second-class” rights. Moving forward, it is a belief I hope to persuade others to share as well.