After Obergefell: Dignity for the Second Amendment
35 Mississippi College L. Rev. 1 (2016)
21 Pages Posted: 30 Aug 2015 Last revised: 25 Jun 2016
Date Written: August 28, 2015
On June 26, 2015, a sharply divided United States Supreme Court issued its ruling in Obergefell v. Hodges, commonly known as the “same sex marriage” cases. Justice Anthony Kennedy, writing the majority opinion, introduced the rationale for striking down state laws that did not recognize a right to same sex marriage: a theretofore unrecognized and unenumerated “dignity” right that took legal precedence over longstanding principles of federalism and the bedrock American legal tradition of allowing states to experiment with solutions to a wide range of social issues.
Justice Kennedy didn’t explicitly consign federalism to the ash heap of history, but to put the Court’s ruling into effect (that is, to force each of the 50 states to recognize a right to same sex marriage), the basic premise of federalism - that each state has the right to make its own laws, other than to the extent there is federal preemption for a limited universe of topics - has to be disemboweled. This description of the fate of federalism is particularly true in light of the fact that prior to Obergefell, there was no question that the regulation of marriage was a matter strictly consigned to state control.
What does Obergefell mean for other state and local laws that purport to regulate other matters that have been found to be protected by the Constitution? In particular, can any state laws that regulate the right to keep and bear arms, a right protected by the Second Amendment, survive in a post-Obergefell world?
This paper examines the Obergefell opinion (and the dissenting opinions) to argue that Justice Kennedy's opinion results in the effective preemption of all state and local laws that affect fundamental rights, including the individual right to keep and bear arms.
(Note: This paper is an expansion of the amicus brief the author submitted in the Obergefell v. Hodges Supreme Court case, available at http://ssrn.com/abstract=2589220. The amicus brief has been downloaded from SSRN approximately 290 times as of September 2015.)
Keywords: Heller, McDonald, Obergefell, Kennedy, Second Amendment, 14th Amendment, Due Process, Equal Protection, Same Sex Marriage, Constitution
JEL Classification: K00, K10, K19
Suggested Citation: Suggested Citation