Saturday, March 10, 2007

The Second Amendment and Incorporation

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.

15 comments:

Michael C. Dorf said...

In this area, incorporation is a sideshow because, as Thomas notes, most states--and certainly the pro-gun states--have state constitutional provisions that protect gun rights, many of them clearly applicable to individuals. What the gun rights lobby fears is a ruling that the 2nd Am doesn't limit federal legislation infringing individual gun ownership or possession, because that would enable Congress to ban guns nationwide. Under the Supremacy Clause, state constitutional provisions protecting gun rights cannot limit federal power.

heathu said...

Does the prefatory clause cut against any argument for incorporation? Even accepting the individual rights view, the prefatory clause indicates that the individual right to bear arms is for the benefit (i.e. security) of a free state. What if a free state decides its security is fine, but now faces an epidemic of gun violence that could be best addressed by banning private ownership of firearms? Incorporation would make the prefatory clause non-existent, at least for the 7 states that do not have state constitutional rights to bear arms.

Michael C. Dorf said...

Part of the debate in the case between majority and dissent is whether "free state" means a state of the Union or a state as in polity. I think the majority, in advancing the latter view, is more persuasive on this point. But certainly yes, if we view the right as a state's right, then it's the state's to waive. Needless to say, the individual rights advocates challenge this reading.

Thomas Healy said...

Mike is right that, to the extent state constitutions already protect an individual right to bear arms, the incorporation issue is less important than in other areas. Exactly how important it is would depend on a) how many state constitutions protect an individual right, and b) how vigorously state courts enforce those rights. I don't know the answers to those questions off the top of my head, so if anyone can point to a useful source, that would be much appreciated.

As to the gun lobby's concern about a federal law banning guns nationwide, isn't that extremely improbable? When even democrats are trying to appeal to gun lovers (see John Kerry), the chances of a nationwide ban seem very low. I suppose democrats might try to distinguish between handguns and hunting weapons, but they would likely still lose support in the red states, which is exactly where they are trying to make gains.

Joe said...

I'm not quite sure about the "sideshow" issue. Most states also have securities that mirror all of the other BOR. It is a matter of how they are applied.

As to "fundamental rights," I think -- see the positions of top '04 candidates -- it is generally accepted that gun ownership in some fashion applies. Or, is it "liberty interest?" See abortion etc.

Brent said...

As for whether the 2nd Amendment enumerates an individual or collective right and whether it applies to just the federal government or to both federal and state government, here are a couple of good articles to refer to.

http://www.guncite.com/journals/senrpt/fgd-guar.html

http://www.davekopel.org/2A/Mags/Our-2nd-Amendment-The-Original-Perspective.htm

William Rawle in "A View on the Constitution" (1829) had this to say in regards to the 2nd Amendment's applicability to the states:

"In the second article, it is declared, that a well regulated militia is necessary to the security of a free state; a proposition from which few will dissent. Although in actual war, the services of regular troops are confessedly more valuable; yet, while peace prevails, and in the commencement of a war before a regular force can be raised, the militia form the palladium of the country. They are ready to repel invasion, to suppress insurrection, and preserve the good order and peace of government....

The corollary, from the first position, is, that the right of the people to keep and bear arms shall not be infringed.

The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretense by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both."

Apparently, William Rawle in 1829 felt that the 2nd Amendment did apply to the states.

In fact in the 1st article cited above, section II. Antebellum judicial construction, it is noted:

"That the Second Amendment secured an individual right to keep and bear arms was not an issue for partisan politics, and the courts fairly consistently so held. The major exception to this rule appeared in the context of slavery. Specifically, to disarm slaves as well as black freemen, certain courts originated the views that the guarantee was limited to citizens rather than to all people and that the Second Amendment did not restrain the states. The exceptions were aberrations to prevent black freedom, as most courts which analyzed the Second Amendment regarded all individuals as having the right and construed it as a restraint on state infringement."

The article goes on to cite several state cases which affirmed the individual rights nature of the 2nd Amendment and it's applicability to the states including Nunn v. State, 1 Ga. 243 (1846) which states the following:

"The language of the second amendment is broad enough to embrace both Federal and state government--nor is there anything in its terms which restricts its meaning.... Is this a right reserved to the States or to themselves? Is it not an unalienable right, which lies at the bottom of every free government? We do not believe that, because the people withheld this arbitrary power of disfranchisement from Congress, they ever intended to confer it on the local legislatures. This right is too dear to be confided to a republican legislature." Id. at 250.

""The right of the people to bear arms shall not be infringed." The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right...." Id. at 251.

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