Second-Class Constitutional Rights: Are They Real?

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By Bernie Pazanowski

Nov. 17 — Justice Clarence Thomas has repeatedly suggested that the U.S. Supreme Court treats certain rights as first class and others as second class.

Thomas complained that the court relegated “the Second Amendment to a second-class right,” in his dissent in Voisine v. United States, 84 U.S.L.W. 4525, 2016 BL 205027 (U.S. June 27, 2016), which upheld a restriction on gun ownership for those convicted of a misdemeanor crime of domestic violence.

Thomas also said that the majority would treat an analogous potential violation of the First Amendment differently, suggesting that it “would strike down an absolute ban on publishing by a person previously convicted of misdemeanor libel.”

This prompts the question: Are second-class constitutional rights a real thing or just rhetoric?

Rights Have Limitations

Scholars disagree whether second-class constitutional rights exist.

There are no second-class constitutional rights, Adam Winkler, who teaches constitutional law at UCLA Law School, Los Angeles, told Bloomberg BNA. Classifying a constitutional right as second class is just rhetoric, he said.

But Ilya Somin, who teaches at George Mason University Law School in Arlington, Va., told Bloomberg BNA that second-class constitutional rights do exist.

He said that a second-class right is one for which courts carve out a wide range of exceptions.

A first-class right, on the other hand, is one that has very few exceptions and the government is held to a high level of proof to support a limitation of the right, he said.

Both Winkler and Somin agree, however, that no constitutional right is without limitation.

Second Amendment

A lot of today’s debate over first and second class rights centers on the Second Amendment.

The Second Amendment states, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

An individual’s right to possess a firearm for the lawful purpose of self defense in his home was firmly established in Justice Antonin Scalia’s opinion in Dist. of Columbia v. Heller, 554 U.S. 570 (2008), which was joined by four other conservative-leaning justices.

Before Heller, gun control advocates argued that an individual’s right to be arms was attached to military service.

Heller made clear, however, that the Second Amendment right is an individual right.

Scalia’s opinion also said, “Like most rights, the right secured by the Second Amendment is not unlimited.”

It added that “longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms,” are valid.

These passages from Heller animate the current conversation over what types of restrictions can be placed on the right to bear arms.

Some lower courts are upholding restrictions on the right to bear arms, and the Supreme Court hasn’t decided to review the issue lately.

That led Thomas, joined by Scalia, to definitively state that the court is treating the Second Amendment as second class in a dissent to a denial of certiorari in Friedman v. City of Highland Park, 84 U.S.L.W. 3321, 2015 BL 400279 (U.S. Dec. 7, 2015).

In Friedman, the Seventh Circuit upheld a local ban on semiautomatic firearms.

Somin suggested that Scalia’s majority opinion in Heller, allowing for exceptions to the right to bears arms, created second-class status for the Second Amendment.

But he added that second-class status is better than not being recognized at all.

Comparison With First Amendment

The government limits rights in areas where it has a sufficiently strong or compelling reason to regulate, Winkler said.

He added that the government is on solid ground when it comes to its regulations of guns because of the safety issues involved.

To argue against those regulations, as some gun-rights advocates do, by comparing the Second Amendment to the First Amendment shows a misunderstanding of the context of the two amendments, Winkler said.

The First Amendment is more nuanced than the Second Amendment and the rights protected by the First Amendment don’t always trigger strict scrutiny, as argued by gun advocates, he said.

Most rights protected by the First Amendment trigger intermediate scrutiny, he noted.

Every right is protected in its own way to serve the values of the right, Winkler added.

Exceptions Shouldn’t Swallow Right

Though not as sexy as the Second Amendment, property rights are also treated as second class, Somin said.

The Supreme Court held that a property owner’s claim that a state government took his property without just compensation must be first heard in state, not federal court, in Williamson Cty. Reg'l Planning Comm'n v. Hamilton Bank of Johnson, 473 U.S. 172 (1985).

But the doctrine of res judicata can then be used to bar claims in federal court, limiting the number of cases that get heard in a federal court.

The Ninth Circuit followed the Williamson County holding to dismiss a takings claim against application of a city’s mobile home rent control law to local mobile home park owners in Colony Cove Prop. LLC v. City of Carson, 630 F.3d 948 (9th Cir. 2011) (cert denied, 80 U.S.L.W. 3238 (U.S. Oct. 17, 2011)).

In an amicus brief he filed in Colony Cove on behalf libertarian think tank the Cato Institute and others, Somin argued that the rights protected by the takings clause were relegated to second class status.

“No other constitutional right receives the same shoddy treatment the Takings Clause sustained in Williamson County,” he said.

“Plaintiffs alleging state-government violations of virtually any other constitutional right can assert their claims in federal court without first seeking redress in state court,” he added.

Somin argued that “No other type of federal constitutional right is systematically barred from federal court, forcing litigants to file claims in the courts of the very state government who may have violated their rights to begin with. The result is an indefensible double standard.”

The government shouldn’t be able to decide how to apply a right when that right is designed to protect against government action, Somin told Bloomberg BNA.

In the end, however, Somin said that while every constitutional right has its limitations, courts shouldn’t allow any exceptions to a right to swallow that right.

Enumerated v. Unenumerated Rights

Whether a constitutional right is specifically stated in the U.S. Constitution’s text or is unenumerated isn’t necessarily a deciding factor for its classification as a first or second class right, Somin said.

For example, though the enumerated right protected by the Second Amendment is treated as second class, a woman’s right to an abortion, while unenumerated, is still considered by some to be a first class right, he said.

Thomas lamented the distinction when he said that “The Court has simultaneously transformed judicially created rights like the right to abortion into preferred constitutional rights, while disfavoring many of the rights actually enumerated in the Constitution,” in his dissent in Whole Women's Health v. Hellerstedt, 84 U.S.L.W. 4534, 2016 BL 205262 (U.S. June 27, 2016).

Stephanie Toti, Senior Counsel at the Center for Reproductive Rights, New York, argued for the plaintiffs in Whole Woman’s Health, which held unconstitutional Texas’s restriction on admitting privileges for doctors who perform abortions and its requirements for surgical centers that perform abortions.

She told Bloomberg BNA that calling a constitutional right either first or second class is looking at the Constitution through a cynical lens.

All constitutional rights are first class, she said.

The right to abortion is a fundamental right under the due process clause and, while it may be unenumerated, it’s based on the liberty rights protected by the Constitution, Toti said.

In any event, the status of enumerated rights shouldn’t be independently determined, Somin said.

All enumerated rights should be first class, he said.

Rights Will Evolve

Whether a constitutional right is considered first class or second class—or whether constitutional rights have classes at all—the constant is that it will change.

The perception of a given right may depend on the political process, Somin said.

As judges that reflect the ideals of the political party that appoints them take the bench, the importance of a right will shift based on its importance in that party, he said.

To contact the reporter on this story: Bernie Pazanowski in Washington at bpazanowski@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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