Prof. Randy Barnett at the Volokh Conspiracy reports that Doug Kendall, founder of the Constitutional Accountability Center, has passed away from colon cancer at the age of 51. In its own words, the CAC is a legal advocacy group that seeks to “wrest the Constitution from tea partiers’ control and restore our nation’s charter as a document that unifies and inspires all Americans.” His organization also came out swinging in favor of Obamacare when that case was before the Supreme Court a few years back. If you’re a TTAG regular and haven’t yet angrily switched over to a YouTube channel featuring videos of kittens at this point, you’re probably wondering why I’m bringing to your attention a eulogy for this unreconstructed lefty written by Prof. Barnett (a man who leans so far libertarian that he’s up on two wheels) . . .
Very simple: Mr. Kendall helped get the Second Amendment incorporated against the several states. In 2008, he filed a brief with the 7th Circuit arguing that the Second Amendment should be incorporated via the Privileges and Immunities Clause of the Fourteenth Amendment to the U.S. Constitution in the matter of McDonald v. City of Chicago. Later, when that same case was brought before the U.S. Supreme Court, he filed another brief arguing for incorporation, which was joined by Prof. Barnett and an “ideologically diverse” group of legal scholars.
Just so we’re all on the same page, when the Bill of Rights were originally drafted, they were only intended to apply to the federal government. You could not, in 1810 for instance, file a federal case against a state or local government for violation of your First Amendment right to freedom of speech. Your remedy had to come via local or state law.
The ratification of the Fourteenth Amendment after the civil war changed that, intended as it was to make sure that the state and local governments didn’t violate the fundamental rights of their citizens (especially newly-liberated slaves). When the Supreme Court began applying the Fourteenth Amendment in earnest in the 20th Century, however, it rejected the idea that the Fourteenth Amendment automatically applied every enumerated right in the Bill of Rights to the several States. Instead, it began selectively applying–or “incorporating”–the restrictions in the Bill of Rights to the several states.
Kendall’s brief, in which Barnett and others joined, argued that the Privileges or Immunities Clause of the Fourteenth Amendment should be the mechanism by which Constitutional Rights such as the right to keep and bear arms are applied to the several States, instead of the Due Process Clause (which is what has been used in the past.) The McDonald court did not endorse that view, but Justice Thomas gave it a shout-out in his concurrence in that decision. Damon Root, at Reason goes into some of the reason why this question is contentious.
Without incorporation, the Second Amendment would only apply to the federal government. None of the hard-fought follow-on cases (expanding the right to carry to such exotic locales as Chicago) would have happened. It was not an automatic win, either: the Court had previously declined (in a particularly odious case) to incorporate the Second Amendment in the 19th century.
Mr. Kendall was not completely on board with an expansive definition of the right to keep and bear arms — the CAC’s website carefully notes that their brief “spoke only to the incorporation issue: we did not join in the argument made by the NRA and its fellow plaintiffs that the challenged gun regulations are unconstitutional.” Fair enough. But he clearly had the integrity to recognize that a right (however it is defined) is a right, and was willing to put his money where his mouth is in defense of the same. That’s the kind of thing that earns my respect and thanks. Rest in peace, Mr. Kendall.
DISCLAIMER: The above is an opinion piece; it is not legal advice, nor does it create an attorney-client relationship in any sense. If you need legal advice in any matter, you are strongly urged to hire and consult your own counsel. This post is entirely my own, and does not represent the positions, opinions, or strategies of my firm or clients.