Does substantive due process apply to the Second Amendment?

Question

The Fifth Amendment to the United States Constitution states, in part, "No person shall be ... deprived of life, liberty, or property, without due process of law." Since the 1930's, the Supreme Court has paid particular attention to the word "due"; the Fifth Amendment is saying that a liberty cannot be infringed unless a process of law which is "due" or appropriate is undertaken. But then the question arises, what if some liberties are so fundamental that no process of law can ever be fitting to take those liberties away? So the Supreme Court has developed a doctrine called "substantive due process", according to which the Fifth Amendment is not just a procedural guarantee about what processes of law the government applies when depriving you of liberties, but also a substantive guarantee about the government not taking away certain fundamental liberties regardless of what processes of law they use.

I was reminded of this in the context of the bills being debated in Congress right now, about stopping people on the Terrorist Watch List from buying guns. A common objection to such legislation is that this would deprive Americans of Second Amendment rights without due process, since the government can put someone on the list even if they haven't demonstrated evidence to a judge. (Although there are also modified versions of the bill that would provide such due process.)

My question is, is the Second Amendment right to bear arms one of the fundamental liberties covered by the substantive due process doctrine? Are there any court cases that address this?

I'm guessing that the Second Amendment isn't covered by substantive due process; otherwise I think the federal background check laws we have now would probably have been ruled unconstitutional.

Answer 1

I'm guessing that the Second Amendment isn't covered by substantive due process; otherwise I think the federal background check laws we have now would probably have been ruled unconstitutional.

As the other answer already stated, it is a substantive due process right, as per the Supreme Court.

The thing is that a federal background check is due process. It explicitly checks if the potential purchaser is violating the law. In case of violation, the purchase can be refused.

People can be denied substantive due process rights. For example, the right to vote is clearly a substantive due process right. Yet convicted felons can lose the right to vote. Those same felons also lose the right to buy weapons, including firearms. The background check is used to enforce this. Note that this is specific to that person. Due process of law deprived that person of certain rights: voting; weapon purchases; liberty (while imprisoned).

The argument against background checks isn't related to the people who are refused purchases. The question is if it encumbers people who are not refused more than is necessary. Since many people will get instant approval in a background check and others will get approval or rejection within a limited time frame (three days), it is generally considered not to be too much.

There also is generally considered to be a right to an abortion (as per Roe v. Wade). There is not however a right to an abortion by a back-room practitioner. In fact, one of the main arguments in favor of abortion rights is that it allows back-room practitioners to be barred from providing abortions while treating medical professionals differently.

Background checks encumber legitimate purchases. However, it is generally held that they do not do so unduly.

Answer 2

McDonald V City of Chicago. Substantive Due Process and Strict Scrutiny were the mechanism used to incorporate the protections of the Second Amendment to the States.

In the course of US Constitutional Law, and highlighted by the linked opinion, the right took keep and bear arms is a fundamental right (pg 4). Fundamental rights are subject to substantive due process.

Answer 3

Substantive Due Process, as a concept, is something different from the due process established by the Fifth and Fourteenth Amendments' due process clauses.

The Fifth Amendment's clause established the precept that no person may "be deprived of life, liberty, or property, without due process of law." The Fourteenth Amendment's clause established the precept that no "State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law" Litigation under these clauses relates to what process is "due" process.

By contrast, the substantive due process doctrine arose from the efforts of some early jurists to formulate a theory of law encompassing certain "natural rights" and "natural justice" which were not explicitly found in the Constitution. Wikipedia: Substantive Due Process - Doctrinal Development And Use. This was an effort to find a constitutional basis for an unwritten law of natural rights. These are rights considered to be "implicit in the concept of ordered liberty", rights that "can be found deeply rooted in American history and traditions."

In recent history, the Warren Court used this doctrine to find, in Griswold v. Connecticut, a constitutional right of privacy of married couples to be counseled in the use of contraceptives. The Court found this right of privacy under a "penumbra" emitting from the Bill of Rights and the First, Third, Fourth, and Fifth Amendments. Griswold v. Connecticut and the Right to Contraceptives.

The protections of the Second Amendment are explicit in the Constitution, not implicit. The doctrine of substantive due process is not applicable. What is applicable is the Supreme Court's doctrine of judicial scrutiny of laws that impinge fundamental rights under the Constitution. The right of privacy in Griswold is implicit but nonetheless constitutional because of substantive due process. The right to bear arms is explicit in the Second Amendment. Both are protected from governmental infringement by the judicial scrutiny rule.

The rule is not an absolute protection. The more fundamental the right, the more strict the scrutiny but still the infringement may be allowed if it meets the strict scrutiny imposed under the rule.

No right, however fundamental, has been held to be absolute and impervious to governmental regulation, not even the First Amendment's explicit protection of certain enumerated rights which says "Congress shall make no law" abridging those rights. All rights are subject to the judicial scrutiny rule which, under certain circumstances, may allow infringement thereof. The Second Amendment's right to bear arms is no different.