Incorporating the Second Amendment:
What is the Real Story?
The primary issue that remains before courts begin to strike down unconstitutional state and local firearms laws is "Incorporation." This is the legal term for applying our rights against the Federal government, including those that are spelled out in the Bill of Rights as well as those that have not been enumerated against the States through the Fourteenth Amendment. With the Supreme Court recently deciding to review McDonald v.
When the Constitution was ratified, there was no real consensus on whether the individual rights in the Constitution and the Bill of Rights actually applied to the laws and actions of states. At the time most assumed that no state would abridge those rights. The Supreme Court then ruled in 1833 that the City of
The next important case historically was Dred Scott v. Sandford, 60
"would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went."
The court went on to invalidate the Missouri Compromise as being in violation of the 5th Amendment as it would otherwise deprive slaveholders of their property interest in slaves. This attempt to end the conflict over slavery between the North and South may have in fact inflamed tensions, but certainly culminated in the 1861 Civil War.
In the aftermath of the Civil War, northern Republicans moved to abolish slavery with the 13th Amendment and then to end the Black Codes and terroristic treatment of freedmen and white abolitionists in the South with the passage of the 14th Amendment. The pertinent section of the Amendment reads:
"All persons born or naturalized in the
As originally intended, the 14th Amendment was meant to make the enumerated rights in the Constitution and the first eight amendments applicable in the states via the "Privileges or Immunities" clause. More controversially, it was also intended to apply certain un-enumerated rights to the states--primarily economic rights that were being routinely denied to former slaves in the South.
Interpreting constitutional amendments is somewhat different than interpreting a statute. Because amendments are popularly ratified, the original public understanding is very important to understanding the intent of an amendment. David Hardy has written a scholarly article entitled "Original Popular Understanding of the 14th Amendment As Reflected in the Print Media of 1866-68" which surveyed the newspapers of the time. An example from Mr. Hardy's paper of the public understanding that even un-enumerated rights were being infringed is a November 29th, 1866 Chicago Tribune article reporting under the headline "Black Codes" that South Carolina statutes forbade black residents to practice trades, own stores, or leave their employer's land without his permission:
"The whites have monopolized all the rights of citizenship, of owning or leasing land, bearing arms for selfdefense, of adjusting rates of wages for labor, of deciding all questions and differences before courts and juries .... "
Representative John Bingham is considered the James Madison of the 14th Amendment as he was the Amendment's chief drafter and proponent in the House of Representatives. The Congressional Globe is replete with his speeches explaining that the individual rights in the Constitution, including the Bill of Rights, were not applicable against states and yet should be. The New York Herald (which was the largest paper by circulation at the time) quoted Bingham on February 27, 1886:
“The proposed amendment imposed no obligation on any State nor on any citizen in a State which was not now enjoined upon them by the very letter of the constitution. ... But it was equally clear that by every construction of the constitution - its contemporaneous and continual construction - the great article contained in the second section of the fourth article, and in a portion of the Fifth Amendment adopted by the First Congress in 1789, that immortal bill of rights had hitherto depended on the action of the several states. The House, the country, and the world knew that all legislative, all executive, all judicial officers in eleven states of the
Senator Jacob Howard carried the 14th Amendment in the Senate and was even more direct about the intent of the 14th Amendment. On May 24, 1866 the New York Times (amongst many other papers) reported Senator Howard's speech in detail:
“I believe to these privileges and immunities may be added the personal right (sic) guaranteed by the first eight amendments of the United States (sic), such as freedom of speech and of the press, the right of the people peaceably to assemble and petition Government for a redress of grievances - a right pertaining to each and all of the people - the right to keep and bear arms - the right to be exempt from the quartering of soldiers in a house without consent of the owner - to be exempt from unreasonable searches and seizures, ... Here is a mass of privileges and immunities and rights ....”
However, the 14th Amendment, ratified in 1868, would be gutted by the Supreme Court in SlaughterHouse Cases, 83 U.S. 36 (1873). Butchers in
The application of the individual rights in the Constitution to the states would cease until the 1920's when the court came up with the Selective Incorporation Doctrine that would allow the Court to Incorporate rights through the Due Process Clause. The concept behind Due Process Incorporation is that certain rights are so important to the scheme of ordered liberty that to deny them is to not give individuals Due Process. This was tenable when Incorporating the process rights like warrant requirements, but was a tortured concept when Incorporating rights like the freedom of speech. However, it remains clear that a modern Due Process Incorporation analysis would Incorporate the 2nd Amendment. This is exactly what a three-judge panel of the Ninth Circuit court of appeals held in April 2009 in the case of Nordyke v. King. However, that opinion has been put on hold by an en banc Ninth Circuit court pending the outcome of McDonald v.
In McDonald, Alan Gura, who was the prevailing lawyer in D.C. v. Heller, is making the argument that the Supreme Court should overturn Slaughter-House Cases and Incorporate the 2nd Amendment via the Privileges or Immunities Clause of the 14th Amendment or in the alternative simply incorporate the 2nd amendment via the Due Process Clause. Court observers believe that this Supreme Court wants a chance to address the dark mark left on Constitutional law by the Slaughter-House Cases. Justice Clarence Thomas stated in his dissent in Saenz v. Roe, 526 U.S. 489 (1999), "[b]ecause I believe that the demise of the Privileges or Immunities Clause has contributed in no small part to the current disarray of our Fourteenth Amendment jurisprudence, I would be open to reevaluating its meaning in an appropriate case." Many believe that McDonald may be the appropriate case.
Some who are motivated by certain political points of view will try to opine that the 14th Amendment doesn't mean what it says and therefore the Privileges or Immunities Clause doesn't limit the states. Often these are individuals who are otherwise sympathetic to gun rights. However, just as we could not let those who were anti-gun misread the original popular understanding of the 2nd Amendment; we should not allow those on our side to be equally hypocritical. As my signature on Calguns.net puts it, "the problem with being a gun rights supporter is that the left hates guns and the right hates rights." The 14th Amendment was meant to bind the states to at least the first eight amendments. We should all hope that the Supreme Court follows the text and original popular understanding that the 2nd Amendment is one of the Privileges or Immunities of the 14th Amendment and thus the 2nd Amendment limits the States.
For more information:
David Hardy, Original Popular Understanding of the 14th Amendment As Reflected in the Print Media of 1866-68:
http://ssrn.com/abstract=1322323
McDonald v.
Slaughter-House Cases: http://en.wikipedia.org/wiki/Slaughter-House_Cases
About the author: Gene Hoffman is the Chairman of the Calguns Foundation, the co-inventor of the Bullet Button, a life member of the NRA, and a CRPA board member. When he's not using his C&R FFL, punching holes in paper, or punching holes in unconstitutional laws, he amuses two darling daughters and can sometimes be found shopping for his next boat.
