Unlike Mike, I have not thought seriously about whether the Second Amendment protects an individual or collective right, so I won’t enter that debate. But I do want to raise an issue that could be equally important if the Supreme Court agrees to review the D.C. Circuit’s decision in Parker: Even if the Second Amendment protects an individual right to bear arms, does that right apply against the states or only against the federal government?
In two late 19th Century decisions, the Supreme Court held that the Second Amendment only restricts the federal government. These decisions were consistent with the Court’s broader position – announced in Barron v. Baltimore – that the Bill of Rights did not apply to the states, and they were reaffirmed by two early 20th Century decisions. Of course, the Court soon afterward began the process of incorporation that resulted in the application of nearly all the Bill of Rights against the states. But it has still not incorporated the Second Amendment through the due process clause of the 14th Amendment. This is irrelevant in Parker because the regulation in that case was passed by the District of Columbia, and the Court has held that the Bill of Rights applies directly to the District. However, if the Court affirms Parker, its decision will not have any effect on state or local gun regulation unless the Court decides that the Second Amendment is also incorporated.
What are the chances that will happen? I’m not sure. Under the Court’s modern incorporation doctrine, a provision of the Bill of Rights will be incorporated only if it is essential to “fundamental fairness.” However, the modern incorporation cases deal with issues of criminal procedure, so the fundamental fairness standard may be inapt. As an alternative, the Court might fall back on an earlier formulation of the incorporation test, which asked whether the right at issue is “among those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.” I think it’s a stretch to conclude that gun ownership is a fundamental aspect of liberty akin to the right of free speech or free exercise. But gun advocates will surely point out that the right to bear arms is guaranteed in 43 of 50 state constitutions. They will also likely note – as Justice Thomas did recently in a concurring opinion – that Justice Story once referred to the right to bear arms as "the palladium of the liberties of a republic.”
There is another, intriguing alternative. A few scholars have argued that the Second Amendment is actually incorporated through the privileges and immunities clause, not the due process clause. According to these scholars, the privileges and immunities clause was designed, in part, to ensure that freedmen had access to arms so they could not be re-enslaved by the southern states. The obvious weakness in this argument is that the privileges and immunities clause has been moribund since the Slaughter-House Cases were decided more than 130 years ago. But it is not unthinkable that the Court could breathe new life into that provision. Its decision in Saenz v. Roe might be viewed as an initial step in that direction. And Justice Thomas has indicated his willingness to revisit the Slaughter-House Cases. Thus, a decision affirming Parker might revive not only the Second Amendment, but the privileges and immunities clause, too.