Laboratories of Repression
We don't let the states "experiment" on the First Amendment. Should the Second Amendment receive any less respect?
In 1932, progressive Supreme Court Justice Louis Brandeis penned one of the most famous passages in American jurisprudence. "It is one of the happy incidents of the federal system," Brandeis wrote in his dissent in New State Ice Co. v. Liebmann, "that a single courageous State may, if its citizens choose, serve as a laboratory, and try novel social and economic experiments without risk to the rest of the country."
Since then, Brandeis' famous words have been quoted or referenced countless times, appearing everywhere from legal documents to campaign speeches. Most recently, they surfaced in the arguments leading up to the landmark Second Amendment case McDonald v. Chicago, which the Supreme Court is set to hear in early March 2010.
At issue in the case is Chicago's draconian handgun ban, a restriction that largely mirrors the gun control law struck down last year by the Supreme Court in District of Columbia v. Heller. The key difference is that Heller only decided whether the Second Amendment secures an individual right against infringement by the federal government (which oversees Washington, D.C.). McDonald will settle whether the amendment's right to keep and bear arms applies against state and local governments as well.
That's where Brandeis comes in. In Chicago's view, the Second Amendment should have no impact on its vast gun control regime. As the city has argued to the Court, "Firearms regulation is a quintessential issue on which state and local governments can 'serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.'" Thus, Chicago claims it should enjoy "the greatest flexibility to create and enforce firearms policy."
That certainly sounds like a classic case for federalism and the states as laboratories of democratic experimentation. But look a little closer and Brandeis' celebrated words start to lose some of their shine. The issue that confronted the Supreme Court in New State Ice Co. was a 1925 Oklahoma law granting a handful of companies the exclusive authority to manufacture, sell, and distribute ice. Under the law, anyone that wanted to enter the ice business had to first justify their plans by providing "competent testimony and proof showing the necessity for the manufacture, sale or distribution of ice" at all proposed locations. In other words, upstart ice vendors faced the nearly impossible task of securing the state's permission to compete against a state-sanctioned ice monopoly.
That's the "courageous" experiment Brandeis got so misty about. What precisely was so "novel" about a business currying favor with the government in order to suppress competition? That's one of the oldest tricks in the book. Besides, as the great classical liberal Justice George Sutherland declared in his majority opinion striking down the Oklahoma ice monopoly, "in our constitutional system…there are certain essentials of liberty with which the state is not entitled to dispense in the interests of experiments."
Quite so. In fact, Brandeis himself occasionally shared this skeptical view of state power—at least when it came to state "experiments" on the First Amendment. Just one year earlier, in the case of Near v. Minnesota, Brandeis joined the Court in striking down that state's defamation law as a violation of the freedom of the press. So much for allowing a "courageous" state the free rein to experiment.
It was Sutherland's majority opinion in New State Ice Co.—not Brandeis' famous dissent—that got it right. "In [Near v. Minnesota] the theory of experimentation in censorship was not permitted to interfere with the fundamental doctrine of the freedom of the press," Sutherland wrote. "The opportunity to apply one's labor and skill in an ordinary occupation with proper regard for all reasonable regulations is no less entitled to protection."
Which brings us back to the Chicago gun case. The Windy City would like to "serve as a laboratory" with the "flexibility" to ignore the Second Amendment. But there's nothing "novel" about that. It's just another case of the government violating our rights. And since the Supreme Court would never let Chicago ban free speech, establish an official religion, or conduct other "experiments" on the First Amendment, why should the Second Amendment receive any less respect?
It's time for the Supreme Court to give the entire Bill of Rights its due.
Damon W. Root is an associate editor at Reason magazine.
