In a recent article in the Chicago Law Review, The Origins of Substantive Due Process, Ilan Wurman argues against the notion that antebellum courts enforced limits on state or local legislative power through a doctrine of substantive due process. Instead, limits on this legislative power—apart from state constitutional rights guarantees—operated through three principal doctrines: (1) municipal/corporate law, (2) the Dormant Commerce Clause, and (3) the Contracts Clause. Absent these limits, Wurman contends, “there appears to have been no doctrine known to the law by which courts could prevent a state legislature from enacting legislation contrary to natural principles of justice or to fundamental rights but that violated no state constitutional provision.”
What’s the upshot of this finding for modern jurisprudence? Wurman suggests that just as the notion of the state’s police powers was crucial to understanding these three principal limits on legislative power prior to the Fourteenth Amendment, they might still have purchase with respect to incorporated rights afterward. The pre-Fourteenth Amendment cases, Wurman argues, “suggest that, historically, states were limited to good-faith and legitimate exercises of their police powers when state power ran up against potential federal constitutional prohibitions.” With passage of the Fourteenth Amendment, more constitutional prohibitions became applied to the states, and these could be adjudicated the same way. After noting that the Court has not yet established a methodology for deciding Second Amendment questions, Wurman explains that “the police-powers framework could supply the Court with a framework for such cases.”
In that framework, just as states defended against federal constitutional claims under the Commerce and Contract Clauses by invoking their police powers, so too could states defend legislation today against incorporated rights challenges on this theory. In applying the police-powers framework, courts historically judged the reasonableness of the law and the genuineness of the state’s purpose of protecting public health and safety. That test actually looks a lot like the way that state courts were interpreting their own right-to-arms provisions prior to Heller. As Adam Winkler detailed just before Heller came down:
The most prominent feature of the state law in this area is the uniform application of a deferential “reasonable regulation” standard to laws infringing on the arms right. This standard is extremely deferential to state legislative efforts to control weapons and, under this standard, the vast majority of gun control regulations are upheld. The reasonable regulation standard does have its limits; laws (or their application to specific individuals) found to be arbitrary or to amount to a complete denial of the right to bear arms have been invalidated. Such rulings are rare, however, and state courts use their oversight authority over the arms right sparingly. Judicial review in this area is limited to guarding against extreme, unfair, or nonsensical governmental action relating to guns and does not create any significant hurdles to gun control.
As it turns out, federal courts have not taken such a route in Second Amendment cases (or many others). As my colleague Joseph Blocher points out, although state courts have routinely incorporated federal constitutional doctrine into their interpretation of similar state rights, federal courts almost never incorporate state doctrine. Still, though lower courts have not adopted such a methodology, the Supreme Court could. Indeed, if the Court increasingly turns to history to guide its answers to interpretive and methodological questions, Wurman’s article gives one more reason to provide states broad leeway to exercise their police powers to protect public health and safety in the face of gun violence.