How State High Courts Use (or not) U.S. Supreme Court 2nd Amendment Precedents

• In Event: Judicial Decisions and Legal Doctrine

Abstract

As part of a larger research agenda, we examine how state high courts use U.S. Supreme Court precedents in their opinions, with a focus on U.S. Supreme Court precedents that are (at least partially) unclear. Specifically, we argue that while U.S. Supreme Court precedent can theoretically constrain state high courts by compelling them to apply certain rules, in practice state high courts largely have the ability to proceed in an uninhibited way, using an array of legal mechanisms to interpret those rules in a fashion better aligned with their preference or by ignoring those precedents altogether. As a part of the larger project, we argue that ideological differences among state high courts (as institutions), their constituencies, and the U.S. Supreme Court partially explain differences in how these state high courts use Supreme Court precedent. Additionally, we argue that state-specific vitality (Fix, Kingsland, and Montgomery 2017), state-level political factors, and aspects of precedents applied to specific case facts will all condition how state high courts use specific Supreme Court precedents in their opinions.

The largest theoretical contribution of the larger research agenda is to re-conceptualize the way in which the judicial politics field thinks about compliance with precedent. Specifically, we argue that state high courts, at any given time, have four ways in which they can theoretically deal with any potentially relevant U.S. Supreme Court precedent: cite it (without discussing it positively or negatively), discuss it in a positive manner, discuss it in a negative manner, or ignore a precedent altogether (see Schwarz 2006). This expands on how the law and courts literature generally conceptualizes the options available to lower courts faced with a relevant Supreme Court precedent (Corley 2009; Hansford and Spriggs 2006; Hinkle 2015; Kassow Songer and Fix 2012), where usually three options (not including ignored are given). Earlier projects in the research agenda show that as many as 10-20% of all potential treatments by state high courts of U.S. Supreme Court precedents, are in fact, ignored.

For this specific project, we focus on how state high courts have responded to Second Amendment jurisprudence since the Supreme Court released its landmark Scond Amendment decision McDonald v. Chicago (561 U.S. 742, 2010). Of course, in this well known 5-4 opinion, Justice Alito incorporated the Second Amendment to the states, ruling that the Second Amendment is primarily to serve the interests of individuals’ ownership and use of firearms. Yet, the Court failed to articulate any standard of review that lower courts should use when dealing with Second Amendment claims. Thus, determination of the standard of review was left largely to lower federal courts and/or state courts.

Given the nature of the questions posed above and the recent nature of said precedent, we believe that a multiple case study approach is most useful for examining how state high courts have used McDonald v. Chicago over time, and in varying contexts. In fact, in 2011, the Northwestern University Law Review colloquy featured two authors (Lawrence Rosenthal and Joyce Lee Malcolm) who argued that McDonald v. Chicago itself argues for two different levels of scrutiny, suggesting the potential issue of ambiguity in state high courts using this precedent, and allowing state high courts the opportunity to use such a precedent in virtually any way that they see fit.

So, what do we expect to find as a result of this project? We expect to find substantial variation in the degree that state high courts use and rely on McDonald v. Chicago. In particular, we expect to find that conservative courts are less likely to ignore or attack McDonald compared with state high courts that are more liberal. Additionally, we expect to find that in states where McDonald has been treated positively by said state in the past, there will be a greater willingness to rely on McDonald v. Chicago compared with state high courts where this is not the case. Finally, we expect to find that courts in conservative states will be more likely to apply McDonald v. Chicago in a way akin to “strict scrutiny” whereas courts that are in more liberal states will either apply McDonald v. Chicago using an intermediate scrutiny or rational basis like test.

Authors

• Michael P. Fix, Georgia State University

• Benjamin Kassow, University of North Dakota