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The Second Amendment and the States

By Randy E. Barnett

This article appeared in The Wall Street Journal on March 2, 2010.




In oral argument yesterday, the Justices seemed afraid of the plain language of the Constitution.

Imagine you are a visitor from another planet reading the U.S. Constitution. You come to the 14th Amendment, where it says: �No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.� Might you not think this must be a pretty important provision?

Now suppose you are told that, for over 135 years, the Supreme Court has, with one exception, entirely ignored that language. Might you question whether Supreme Court justices were bound by the written Constitution? Had you been seated in the Supreme Court yesterday to hear oral arguments in McDonald v. Chicago, your suspicions might well have been confirmed.

McDonald is a constitutional challenge to a ban on handguns in the City of Chicago that resembles the gun ban in the District of Columbia that the Supreme Court struck down two years ago. In D.C. v. Heller, the Court held that banning all handguns violated an individual right to right to keep and bear arms protected by the Second Amendment. Because the Second Amendment only applies directly to the federal government, however, Heller was just the first shoe to drop. The next question was whether the individual right to arms also applies to the states.

Since the 1890s, the Supreme Court has been �selectively incorporating� the Bill of Rights piecemeal into the 14th Amendment via that amendment�s Due Process Clause. So that would be the most obvious way to apply the right to keep and bear arms to the states. But that poses a challenge.

The Due Process Clause reads: �nor shall any state deprive any person of life, liberty, or property, without due process of law.� Using this language to protect substantive rights has long been controversial.

First of all, �due process� sounds procedural not substantive. The Court has also used �substantive due process� to protect unenumerated rights it deems to be fundamental, such as the right to privacy. Just where in the text of the Due Process Clause is this right? For this reason, �due process� has long been criticized by conservatives as a route to unfettered judicial discretion.

But what about the clause protecting the �privileges or immunities of citizens of the United States�? The language was made part of the 14th Amendment (adopted in 1868) to deal with the problem of Southern states egregiously violating the rights of freed black slaves and white unionists � including disarming returning soldiers and any other blacks who sought to protect themselves from the terrorist violence being unleashed against them. Actually, the right to keep and bear arms was among the most frequently mentioned privilege of citizens when the amendment was being considered in Congress.

The evidence is clear that the privileges or immunities of citizens included those rights in the Bill of Rights. As Michigan�s Sen. Jacob Howard explained to the Senate, these privileges or immunities included, among others, �the personal rights guarantied and secured by the first eight amendments of the Constitution; such as � the right to keep and to bear arms.�

In contrast, no one thought the language of the Due Process Clause included a right to arms. On this point there is consensus among constitutional scholars whether left, right or libertarian. Nevertheless, in the 1873 Slaughter-House Cases, the Reconstruction-era Supreme Court essentially eliminated the Privileges or Immunities Clause from the Constitution by holding it only protected purely national rights, like the right to be protected while on the high seas. Since then, other than a case involving a right to interstate travel, the Court has never used the Privileges or Immunities Clause.

Judging by yesterday�s oral argument, the Supreme Court is afraid to revisit that 1873 decision for fear of opening a can of worms. Chief Justice John Roberts began the questioning by invoking the heavy burden on anyone seeking to reverse Slaughter-House. Justice Antonin Scalia referred to the Privileges or Immunities Clause as the �darling of the professoriate,� a reference not intended as a compliment.

Noticeably absent was any question � not one � by any justice challenging the historical evidence that the right to keep and bear arms was among those included in the Privileges or Immunities Clause. For that matter, no justice seemed at all interested in the original meaning of any aspect of the 14th Amendment. (As is his practice, Justice Clarence Thomas, the one justice who has expressed sympathy for reviving the Privileges or Immunities Clause, asked no questions.)

So what did the justices discuss? In a revealing early question, Justice Scalia asked whether it isn�t �easier� just to use the Due Process Clause.

What followed was nearly an hour-long discussion between the Court and lawyers about whether or not a right to arms was �implicit in the concept of ordered liberty� and whether something else should be the test of whether a right is �fundamental.� Should rights spelled out in the Constitution�s text be treated differently from unenumerated ones? How much of the right to keep and bear arms is applicable to the states? The entire colloquy was unmoored from the text and history of the 14th Amendment.

In other words, the justices became lost amid their own formulations, demonstrating by their wandering discussion that using substantive due process as a way of deciding what rights in the Bill of Rights get protection against the states (�incorporated�) is really, really hard. Not only do they have to decide, all on their own, what is in or out, they also have to adopt the criteria by which to make this decision.

In response, Justice Scalia insisted that the right to keep and bear arms is right there in the text, which of course is true. But so too is the Privileges or Immunities Clause, which, unlike the Court�s due process jurisprudence, has a historical meaning that helps define and limit the rights it was meant to protect.

For example, apart from personal liberties in the Bill of Rights, we know that the Civil War-era congressional Republicans were trying to constitutionally protect the rights enumerated in their Civil Rights Bill of 1866. This legislation listed the rights �to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property.� Yet these are now considered �economic� liberties, which the Court has been loath to protect since the New Deal. This may also explain why yesterday it wanted to ignore text and history.

At the McDonald argument, it seemed obvious that five or more justices will vote to apply the Second Amendment to the states. This would be a great victory for gun rights � one that until a few years ago would have been unimaginable. But it was also obvious that most were deeply afraid of following a text whose original meaning might lead them where they do not want to go. When it came to following the written Constitution, a visitor from another planet would not, I suspect, have been very impressed.




Randy E. Barnett is a senior fellow at the Cato Institute, a professor of constitutional law at Georgetown, and the author of Restoring the Lost Constitution: The Presumption of Liberty (Princeton 2005).

What do you mean "you"? I'm a member of the resistance. Public safety in Kalifornia is, a joke, of course. Restrictive gun laws have made it worse. In Kalifornia, gun control laws don't even pretend to be about safety anymore. They are intended solely to marginalize an unpopular majority. Bigotry against gun owners is extremely popular in this state. You can run naked down any San Franciso street and sodomize to your heart's content, but heaven forbid you should own or possess a firearm. That makes you a truly evil SOB in this state.

Ahhh Yes! I forgot resistance

I've never thought for a millisecond that our over-spending was anything other than insane. My belief is its a deliberate effort by Obama and the Dems to foment a crisis justifying further government intrusion into what's left of the private economy. And O-care is a deliberate pre-cursor to a single-payer health care system, which is simply socialized medicine pure and simple. That is exactly where they are heading---with all deliberateness and premeditation.

thank you Rob, I concur with your take on that particular matter



but I'm still left wondering how "shall not be infringed" is so hard for those pointy heads to interpret.

course they're of the same ilk that gave us a Prez who's most famous line is "depends upon what your definition of is, is"

course they elected him after he said he smoked pot but didn't inhale, couldn't have been too hard for him to figure they'd swallow the next line of BS too! (grin)


politicians are the scourge of this country, they don't protect us, they do far more damage than they do good, time for we the people to send them packing

Where do you draw the line.Maybe they shouldnt have matches.Might burn the town down.Cant let them have rope.Might hang someone ect.

Short list...

Your reeevolver holster "shall not have fringe"

That's about it...

So, if I live in-town I can keep and bear arms, I just can't actually fire them?

That's unreasaonable. I have no less a need to ensure a safe discharge in the country than in the city, and a far greater need to defend myself in town.

There may be some on here who have fired a gun in city limits, shooting a squirrel or such. Most places count paint ball, BB's and even potato guns as firearms. The caveat is the projectile leaving your property, in the country there is a longer range. As for infringing, there should be the ability to own anything, and MAYBE be organized (regulated) in having common caliber equipment. A requirement to be a member of any group becomes just another form of government.

There should be a mechanism for "felons" to regain use of firearms. A lot of them were never violent, and many people don't grow a brain until mid 20's so have an incident from youth following them. There are also a lot more things called felonies, even carrying a knife with a long blade into certain areas.

Wait and see the angles at which the Obamantions administration use the new Health Care to come at firearms owners. This is already been talked about on national television. They may might not be able to do away with the Second Amendment as we now know it, but they may deem you mentally ill and unfit to own firearms. Personally, I believe in time this will be implemented. Once it's completely Guv't ran health care, in which, where we are going ultimately. They will dictate what questions Dr's ask and they (Guv't) will come up with their own conclusions to your answers. Obamacare must be defeated.

I'm absolutely in the camp of no infringements and don't take this the wrong way but ...

I like the fact that we live in civilized society and that anybody with enough $$$ can't go to a street vendor, hand over the $$$, and buy a full auto AK 47 and a couple of RPGs.

As put by the OP, this is a tough one�.

Without analyzing it too much I'd say no restrictions. The bad and crazy eggs will get weeded out by an accelerated process of natural selection.

I am not at all sure that our civilized society keeps someone who knows the ropes from acquiring MG's, RPG's, and grenades. Just look at how gang bangers keep getting armed, or Mexican drug cartels getting anthing they want despite the strong laws there. On the other hand we more normal people don't know where to go for illicit things, being it guns drugs, or sex.
I am sure any of our "enemies" could ship anything they want into the country the same as it is into Mexico and other places.

Even assuming a law could be written to provide halfway objective criteria, who gets to decide whether an individual should be allowed to have a gun?

A medical doctor who may have his or her own biases, and may have served a psych. rotation in med school and had a seminar or two in diagnosing and treating mental illness? Just use the DSM as a mental illness checklist, with its 200-some categories, most of which have nothing to do with violent behavior? Once visited your employer's EAP? No gun for you.

Or local law enforcement? In the Iowa city and county where I used to live, the police chief and sheriff were against concealed carry, and until it became a shall issue state, the sheriff seldom issued a permit, and didn't have to give a reason for denying it. When the law was changed a few years ago it was over much wailing and gnashing of teeth by law enforcement officials, and opposition by the chiefs and sheriffs associations.

And you can bet the attorneys will get to weigh in, and most who advise govt. officials are risk aversive, so will advise against doing something if there is any chance it will go south. Birth control? Don't have sex. Next question.

Principles aside, the details matter - a lot.

Paul

Discharge within city limits ordinances are very common. They normally have carve-outs for self defense, shooting ranges, etc.

NO restrictions. If you give an inch they take a miles. Issue a six gun and 1000 rounds of ammo to each person. In six months most problems will be gone.

This is false. Restrictions on conduct have been intentionally misconscrued as firearms restrictions.

Zero, don't [bleep] with the Second Amendment , Period

This is what's gone wrong in America. We give everyone an ear, whether they're credible or not. I think if we ACTUALLY did what ingwe says, our problems would be solved.
We have lost the process of natural selection and now we are "forced" to embrace everything. Bullshit, not everything is worth tolerating and in fact is harmful to society. We're seeing the fruit of tolerance in our society right now.
When you raise a kid, do you let him do whatever he wants? Do you embrace every wildass idea that runs thru his head? Or do you help him weed out the junk ideas and stick to what works?
Same thing for America, we need to stop tolerating nonsense like GAYS. Pretty biologically clear there's a wire crossed in the brain on that one.
When we tell, in no uncertain terms, the miscreants and misfits that until they get their own house in order they have no business dictating to the rest of the country how to live, we will get our society back.

What we need is some good old intolerance.

Embrace diversity.

Taste the rainbow.

Homophobia is gay.






That's what the Poobah said.