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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.

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    Wow. A balanced and scholarly question on Second Amendment. I wish I could upvote more than once. – user4012 Jun 24 '16 at 22:03
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    @user4012 Thanks! A lot of my questions on the site are basically designed to expire in a less heated way an argument or factual that's a bone of contention involved in some heated political fight. For instance this question, this question, and this question. – Keshav Srinivasan Jun 25 '16 at 21:06
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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.

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  • If a substantive due process right can be denied through the use of due process, then what is the meaning of substantive due process? I thought the substantive due process doctrine was about rights for which no process of law is considered "due" or fitting. If that's not what it means then what does it mean? And is there another name for the doctrine that in some cases no process can be considered "due"? – Keshav Srinivasan Jun 23 '16 at 19:18
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    @Keshav Substantive due process isn't "this can never be restricted in any way." Restrictions on fundamental rights are generally allowed if they're the least restrictive way to achieve a compelling government purpose. Under your understanding, prisoners would have the right to keep and bear arms. Any rights that you lose while incarcerated can be restricted under some circumstances. – cpast Jun 23 '16 at 20:09
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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.

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  • Well, I think a right might be fundamental for puposes of the incorporation doctrine without being fundamental for puposes of the substantive due process doctrine? Does the opinion explicitly mention substantive due process at all? – Keshav Srinivasan Jun 23 '16 at 5:23
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    @KeshavSrinivasan Incorporation happens through substantive due process. In fact, that's pretty much the only reason substantive due process would ever come up for an enumerated right -- you use it to say "any state law violating this right is no law at all." You don't need substantive due process to say "the feds can't infringe the right to bear arms," because the Second Amendment already says that. – cpast Jun 23 '16 at 7:17
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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.

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    The doctrine of substantive due process was used, through the incorporation clause of the 14th amendment, to firmly apply the restrictions on government power to the City of Chicago's attempts to legislatively revoke the individuals right to exercise their rights as protected by the Second Amendment. This is due in part because many state constitutions haven't enumerated the individual right to keep and bear arms, or preempted localities from restricting the same. – Drunk Cynic Jun 23 '16 at 22:14
  • The doctrine of substantive due process is a device by which courts have held that certain "unenumerated rights" are nonetheless afforded constitutional protection because they are found to be implicit in the Constitution. Such rights are constitutionally protected because they are fundamental rights “implicit in the concept of ordered liberty” or “deeply rooted in our nation’s history and traditions.” Duncan vs. Louisiana, 391 U/S 145 (1968). – alxfyv Jun 24 '16 at 6:18
  • McDonald vs. Chicago, 561 US 742 (2010), held the explicit Second Amendment rights, applicable against the federal government, also applicable against the States under the Fourteenth Amendment. There is no incorporation clause in the Fourteenth Amendment. – alxfyv Jun 24 '16 at 6:36
  • On the 14th: you're correct, but I misspoke. It is via incorporation doctrine that the Bill of Rights were held as a restriction on state authority, through the Due Process Clause. – Drunk Cynic Jun 24 '16 at 13:17

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