substantive due process A judicially created concept whereby the due process clauses of the Fifth and Fourteenth Amendments can be used to strike down laws that are deemed to be arbitrary or unfair.
The most recently incorporated provisions of the Bill of Rights are the Second Amendment right to “keep and bear arms” (2010) and the Eighth Amendment protection against “excessive fines” (2019). The decision to incorporate the Second Amendment, which came in a 5–4 ruling in McDonald v. Chicago,27 marked a departure from long-established precedent. Prior to McDonald, the Supreme Court had held that the right to keep and bear arms was limited by the introductory clause of the Second Amendment, which indicated that the right was “necessary to the security of a free State” and related to a “well-regulated Militia.” Thus, in rulings dating back to 1876, the Supreme Court maintained that the Second Amendment only limited the national government, not states, and that the limit on the national government only prevented it from abolishing state militias.28 In other words, the amendment did not create an individual right of gun ownership.
By the late twentieth century, however, federal gun control legislation had become a controversial political issue. Polls showed that a solid majority believed that the Second Amendment protected private gun ownership (see Figure 4.1), and the National Rifle Association lobbied vigorously against gun control legislation, arguing that it violated the Second Amendment. Then, in 2008, the Supreme Court agreed, striking down a District of Columbia law that banned the ownership of handguns and regulated other firearms in the District.29 Having recognized for the first time that the right to keep and bear arms is an individual right, the next step was incorporation—which came in the McDonald case. Nonetheless, the Court pointed out that gun ownership is not an absolute right. Like speech, it can still be regulated under certain circumstances.
Figure 4.1 The Right to Bear Arms
Survey respondents were asked in 2008 whether they believe the Second Amendment guarantees the rights of individual Americans to own guns, or whether they believe it only guarantees members of state militias such as National Guard units the rights to own guns. How did public opinion square with the Supreme Court’s interpretation of the Second Amendment prior to 2008? Did the Court do the right thing when it incorporated the Second Amendment?
Source: USA Today/Gallup, Feb. 8-10, 2008 https://news.gallup.com/poll/105721/public-believes-americans-right-own-guns.aspx
This discussion illustrates how, as new issues become salient over time, Americans may expect the Supreme Court to reevaluate the incorporation of specific rights (see Tables 4.1 and 4.2). Whether the Court chooses to do so depends largely on an interchange between evolving American values and societal norms, past precedents set by the Supreme Court, and individual judgment of the Supreme Court justices currently sitting on the bench.
The First Amendment Freedoms of Speech, Press, and Assembly
Could a democratic system survive without the free exchange of ideas? The ability to report on the actions of government, to express support for or opposition to governmental policies, to engage in meaningful debate, and to be knowledgeable enough about current issues to cast an informed vote would seem to be central to the existence of democracy. All of these things presuppose freedom of speech and of the press. Americans rightly count these as some of their most precious freedoms. But how much freedom does the First Amendment really allow? How much should it?
The phrase “Congress shall make no law” sounds categorical, yet Congress has passed quite a few laws that restrict freedom of speech and of the press in one way or another, and the Court has upheld many of them. Indeed, the Supreme Court has consistently ruled that neither freedom of speech nor of the press is absolute. Nonetheless, the protection of free speech and the press is greater in the United States than most other liberal democracies. Hate speech, for example, is banned in Germany (where it is a crime to deny the Holocaust) and some other European nations (as well as Canada) but is protected in the United States under the first amendment.
Freedom of the Press and Prior Restraint
In the common law tradition inherited from England, the principle of freedom of the press had a rather narrow meaning: no prior restraint on publication. Prior restraint means censorship before publication. Such censorship emerged very quickly after the invention of the printing press. England required prepublication licensing as early as 1534. To publish something, an author first had to submit the material to the government for approval. This meant that the government could squelch political criticism and control the content of what people read. Prior restraint provoked great opposition, and England abolished the practice in 1695. Thereafter, the principle of no prior restraint became a part of English common law.
prior restraint Censorship before publication (such as government prohibition against future publication).
The principle of no prior restraint may have been what the framers had in mind when they wrote the First Amendment, but it was not until 1931 that the Supreme Court, by a narrow 5–4 vote, held prior restraint to be unconstitutional in Near v. Minnesota. In that case, Minnesota had imposed an injunction against a newspaper, The Saturday Press, on the grounds that it created a “public nuisance” because of its “malicious, scandalous, and defamatory” content.30 There is no doubt that the newspaper was anti-Semitic, but the Court majority ruled that the injunction—which prohibited future publication—violated the First Amendment. Despite its ruling, the majority held that in “exceptional cases,” the government could still prohibit publication in advance. For example, the Court suggested that the government could use prior restraint to prohibit a publication detailing troop movements in times of war. The Court also suggested that obscene material was subject to prior restraint. And, despite the general presumption against prior restraint, the majority still held that certain types of punishment after publication were constitutional.
Forty years later, the Nixon administration tried to use Near v. Minnesota to justify imposing a prior restraint on The New York Times to prevent it from publishing a series of articles based on classified government documents related to Vietnam known as the “Pentagon Papers.” The government argued that publication of the documents would harm national security. However, the Supreme Court ruled against the government in New York Times v. United States (1971).31
After a court battle, the Supreme Court ruled in favor of The New York Times and allowed the paper to resume publishing classified documents related to the Vietnam war.
AP Photo / Jim Wells
In addition to national security sometimes justifying prior restraint, some argue that the Sixth Amendment guarantee of a fair trial may sometimes justify prior restraint. “Gag orders” to prevent prejudicial publicity are commonplace in some countries. For example, the French Civil Code protects the presumption of innocence by restricting the media from depicting suspects in handcuffs or describing them as guilty prior to conviction.32 There are no such constraints on the U.S. media, where courts protect even sensationalistic pre-trial coverage under the guise of freedom of the press.
A recent controversy related to prior restraint involves the nondisclosure agreements that President Donald Trump required White House employees to sign. The president and his legal team tried to use those agreements to prevent publication of books by former White House aides, such as Cliff Sims’s Team of Vipers. Trump did not succeed in blocking publication of that or other critical books, but his lawyers filed an arbitration claim against Sims for violating