Arming America

The Second Amendment now applies in the nation's capital. What about the states?

Damon W. Root | June 27, 2008

For the past 32 years, law-abiding residents of Washington, D.C. have been at the mercy of one of America's most unforgiving gun control laws: a total ban on the possession of handguns in the home, as well as strict trigger lock and disassembly requirements for rifles and shotguns. Taken together, these restrictions have left Washingtonians unable to mount any sort of meaningful defense of themselves, their families, and their homes from armed intruders.

But things changed on Thursday. In a landmark 5-4 decision in the case of District of Columbia v. Heller, the Supreme Court held that D.C.'s gun ban was unconstitutional under the Second Amendment since it deprived individuals of their right "to use arms for the core lawful purpose of self-defense." In a forceful, tightly argued opinion, Justice Antonin Scalia declared that the amendment protects an essential individual right, one that is "unconnected with service in a militia."

One major thing the decision didn't do, however, was directly address a crucial question going forward: whether the constitutional right to keep and bear arms is applicable against the states as well as the federal government (which administers Washington, D.C.). Under what's known as the incorporation doctrine, the Supreme Court has gradually ruled that the Fourteenth Amendment applies many of the protections contained in the Bill of Rights against infringement by state and local governments. The Second Amendment, however, has been glaringly absent from this process. Did Heller change that, too?

Technically no. But since the Court wasn't asked to settle that matter, the fact that it didn't do so is no cause for alarm. In fact, the decision offers cause for some real hope. Justice Scalia's extensive reliance on historical sources and scholarship sends a very promising signal to those who'd like to see the Second Amendment enforced against the states. If history matters, and Heller certainly says that it does, then strong evidence for incorporation is likely to carry real weight in future litigation.

So let's consider the origins of the Fourteenth Amendment, which states in part, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." As legal historian Michael Kent Curtis makes clear in his definitive book, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights, the radical Republicans who drafted and then spearheaded the 1868 ratification of the amendment clearly intended and understood it to apply the entire Bill of Rights to the states.

In short, these legislators, most of whom had been active in the anti-slavery and abolitionist movements, wanted to secure the life, liberty, and property of the recently freed slaves and their white allies in the former Confederate states. This quite obviously and quite necessarily included the right to keep and bear arms for purposes of self-defense. Ohio Rep. John Bingham, for instance, the author of the Fourteenth Amendment's crucial first section, which was quoted above, declared that "the privileges and immunities" it refers to "are chiefly defined in the first eight amendments to the Constitution." Similarly, Sen. Jacob Howard of Michigan, who presented the amendment to the Senate, described its object as "to restrain the power of the States and compel them at all times to respect these great fundamental guarantees," including "the right to keep and to bear arms." For a state or federal judge following the methodology laid out in Heller, such information could prove very persuasive.

In modern-day Chicago, meanwhile, gun rights activists have already seized the initiative. Within hours of Heller's announcement, the Second Amendment Foundation and the Illinois State Rifle Association filed a lawsuit in federal court challenging the city's draconian handgun ban, a law that has deprived Chicagoans of the right to self-defense for the past quarter of a century. Benna Solomon, deputy corporation council for the city, responded by telling the Chicago Tribune that "the 2nd Amendment does not apply to state and local government," adding: "We are prepared to aggressively litigate this issue and defend this ordinance."

Alan Gura, the attorney who successfully argued Heller before the Court, and who is now representing the plaintiffs in the Chicago case, is more than ready. As he told reason this week, "The next step is obviously 14th Amendment incorporation. I'm looking forward to leading that fight."

Damon W. Root is an associate editor of reason.

Comments

TallDave|6.27.08 @ 6:09PM|#

Mayor Daley has said ordinary Chicagoans will be allowed to have guns when they pry the gun laws out of his cold, dead hands.

His armed guards had no comment as of press time.

Pilobious|6.27.08 @ 7:33PM|#

I find it interesting that simple fireworks are banned in some states yet no one has challenged such on 2nd Amendment grounds.

I would pay to see the SCOTUS arguments in such a case.

|6.27.08 @ 7:58PM|#

His armed guards had no comment as of press time.

Wonder if that squad is familiar with the later years of the Praetorian guard? Daley might not stand in front of them so easily.

Michael Ejercito|6.27.08 @ 9:15PM|#

Benna Solomon, deputy corporation council for the city, responded by telling the Chicago Tribune that "the 2nd Amendment does not apply to state and local government," adding: "We are prepared to aggressively litigate this issue and defend this ordinance."

It should be noted that the city of Chicagom does not think the 4th Amendment applies to state and local governments; recall their attempt at warrantless searches of public housing projects.

EUcitizen|6.27.08 @ 9:16PM|#

Are you Americans still fighting over gun laws while for example more and more municipalities are introducing laws about what someone should and should not wear?

|6.28.08 @ 1:03AM|#

uhh, shouldn't that be capital, not "capitol".

I assume we are still not allowed to bring guns into the Capitol building itself.

|6.28.08 @ 1:08AM|#

@EUcitizen: can you give an example of these laws?

bob|6.28.08 @ 9:54AM|#

kevin, google "baggy pants laws" and you will get enough stories about this national idiocy to ruin your weekend.

Episiarch|6.28.08 @ 10:40AM|#

Are you Americans still fighting over gun laws while for example more and more municipalities are introducing laws about what someone should and should not wear?

People who have laws governing the proper curvature of bananas really shouldn't call us out for dumb laws.

|6.28.08 @ 10:57AM|#

Rights predate government. A Right, akin to breathing, requires neither acceptance nor affirmation to exist. It exists, and is often most evident, while being violated.
The Heller ruling establishes the right enumerated in the 2nd Amendment to be a fundamental right (i.e. predating government). Thus, the states (and/or municapalities) cannot long escape the enforcement of such fundamental right. One might just as easily ask: could the states or municapalities exempt themselves from 1st, 4th, or 5th Amendment guarantees of individual freedom? The obvious answer is no. Such tomfoolery wouldn't be tolerated should they attempt to exempt themselves from child labor laws and/or civil rights laws, neither of which gain the status of fundamental rights.

|6.28.08 @ 11:07AM|#

Epi, Lew McGee-

I heard Atty. Gura on NPR yesterday and he opined that the sweep of Heller would not reach a person against whom a restraining order had been issued-i.e,. such person would have to turn in his guns. Best of all, the guy believes that one does not have a right to keep and bear arms after a restraining order has been issued. This coming from one of the lawyers who argued in behalf of Heller.

Episiarch|6.28.08 @ 11:15AM|#

mike, he's being "reasonable", in terms of the general public. This is a good tactic. While you or I may feel that the government has zero right to restrict people's possession of weapons, most people do not agree.

They guy has already kicked some pretty serious ass. I think he'll do more. Hear that, Daley?

|6.28.08 @ 11:27AM|#

Epi-

No doubt the guy has kicked some serious ass. It was his first case in front of the supremes and he makes histroy.

Listen, the point you make is a good one. Its just a little tougher for the over the top types like me to accept.

Guy Montag|6.28.08 @ 11:38AM|#

It should be noted that the city of Chicagom does not think the 4th Amendment applies to state and local governments; recall their attempt at warrantless searches of public housing projects.

Those evil Republicans are everywhere!

ed|6.28.08 @ 12:01PM|#

I'd bet that unregistered guns far outnumber registered guns in the U.S., regardless of whether the owner lives in a semi-police state like New York or a fairly liberal concealed-carry state like Florida. Civil disobedience is alive and well. These "scofflaws" don't make the news 'cause they're not criminals. And contrary to all the dire predictions past and present, blood is not running in the streets. Lots of motorists flipping each other off, but that's another story.

|6.28.08 @ 12:46PM|#

And contrary to all the dire predictions past and present, blood is not running in the streets. Lots of motorists flipping each other off, but that's another story.

People shooting each other over parking spaces didn't happen, proving that the CCW opponents overstated their case. The CCW proponents often made the claim "An armed society is a polite society". That was an overstatement as well. The U.S. will never be a polite society.

|6.28.08 @ 1:13PM|#

His armed guards had no comment as of press time.

I do look forward to the day when the likes of Daley and Feinstein face a jury on a charge of aggravated hypocrisy.

-jcr

|6.28.08 @ 1:22PM|#

Missing from this argument is a major point: the holdings did NOT fix the underlying problem of what "shall not be infringed" means.

In fact it did the opposite: It did a Kelo on it!

See http://muddythoughts.blogspot.com/2008/06/its-heller-va-ruling-and-its-not-what.html for the explanation.

|6.28.08 @ 1:24PM|#

The U.S. will never be a polite society.

Well, it might be if Jamie Kelly dies without reproducing. I keeed!

|6.28.08 @ 1:25PM|#

"I heard Atty. Gura on NPR yesterday and he opined that the sweep of Heller would not reach a person against whom a restraining order had been issued-i.e,. such person would have to turn in his guns. Best of all, the guy believes that one does not have a right to keep and bear arms after a restraining order has been issued. This coming from one of the lawyers who argued in behalf of Heller."

liberty mike, that's already the case. See the 6th Circuit's ruling on Emerson from a few years back (which has a tremendous RKBA dicta in it as well!).

|6.28.08 @ 1:31PM|#

I do look forward to the day when the likes of Daley and Feinstein face a jury on a charge of aggravated hypocrisy.

This is an unfortunate case of jury nullification - done every election cycle.

|6.28.08 @ 1:35PM|#

Michael, you miss the point - SCotUS has finally said it IS an individual right. Yes, yes, that was self-evident to many of us, but not to the legal establishment/academy from say the mid 30s thru the early 90s. With that established, we will now argue over the extent of that right. But you can't do the latter without the former - which is why gun law challenges were DOA within the 9th Circuit. [And it was the 5th C that handled Emerson btw.]

Guy Montag|6.28.08 @ 3:14PM|#

I'd bet that unregistered guns far outnumber registered guns in the U.S., regardless of whether the owner lives in a semi-police state like New York or a fairly liberal concealed-carry state like Florida.

Safe bet, since much of the country does not require registration of non-FFL required firearms. VA and TN being two of those places.

economist|6.28.08 @ 4:37PM|#

"warrantless searches of public housing projects"
I tend to suspend my civil libertarianism when dealing with people who choose to live off the government. If you're going to live off my dime, I don't care if the government gives you a cavity search every day. You can have your liberty back when you stop being a goddamn sponge.

|6.28.08 @ 6:37PM|#

Economist-

Why? Like you, I don't fancy sponges/parasites. But, if given the choice of:

(1) a state of affairs where the gvt. can tax us, redistribute the crumbs to welfare recipients while taking the cream for the best connected rent seekers along with funding the bureaucracy to administer the welfare programs but where the gvt. does not do the body searches or harass the sponges or

(2) the same facts as (1) but with the difference that the government could conduct the random cavity searches and harass the sponges,

What would you prefer? Let us agree that the governmetn has to hire more police and more bureaucrats under scenario 2-as not to would be an admission of profound ignorance.

|6.28.08 @ 6:47PM|#

Michael Seedbeck-

Yes. I obviously liked the distrcit court judge's opinion bettern than that of the COurt of Appeals in Emerson.

What prompted my post was that atty Gura was offering his opinion and not setting forth decisional authority as the question posed by the NPR moderator was do you think that Heller should apply to the restraining order situation.

|6.28.08 @ 7:08PM|#

While you or I may feel that the government has zero right to restrict people's possession of weapons, most people do not agree.

Following due process, any of your rights can be restricted. Otherwise, you could be sentenced to life in prison, but allowed to pack a piece while you were inside.

|6.28.08 @ 8:58PM|#

Fireworks,
I was just outside, someone is setting off some pre-Independence Day fireworks. Oddly enough I pondered the same question. Guns are okay, but fireworks, despite being praised by one of the founding fathers (I forget which one) as the proper way to commemorate the event, are outlawed here in the cradle of liberty. I would take that case.

LarryA|6.28.08 @ 9:34PM|#

I assume we are still not allowed to bring guns into the Capitol building itself.

Under present law, probably not.

However, when I visit the Texas Capitol I show my concealed handgun license at the security gate, and carry inside. Several other states have the same law. YMMV.

SCotUS has finally said it IS an individual right. Yes, yes, that was self-evident to many of us, but not to the legal establishment/academy from say the mid 30s thru the early 90s.

Actually I remember the first collective right arguments. (I've been following gun rights since the Gun Control Act of 1968.) "Collective right" was invented in the late 1970s, not the 1930s. That's why the handgun bans in both Chicago and D.C. and the National Firearms Act restricting full-auto, etc. had to be disguised as registration/tax laws.

Guy Montag|6.28.08 @ 9:44PM|#

economist,

Here in VA, since 2004ish anyway, it has been against the law for landlords to prevent tennants from lawfully posessing firearms in rented property and in the common areas.

Not sure if that extends to Socialized property or not.

new yawk|6.28.08 @ 9:59PM|#

please challenge the law here in nyc

|6.28.08 @ 10:49PM|#

LarryA sez "Collective right" was invented in the late 1970s, not the 1930s.

Actually, if you track down the SG's brief to SCotUS in Miller, the govt argued essentially the "collective right" line (without directly calling it that). Had McReynolds & co. found that persuasive, they would've over-ruled on lack of standing - which has been the Achilles heel of the collective right interpretation ever since (i.e. Miller does not support it - the most hysterical misreading of Miller is from of course the 9th Cir. in Hickman v. Block).

|6.29.08 @ 9:21AM|#

LOL, Rights? What rights? The US has become a POlice State under Dictator Bush and rights are a thing of the past! Sorry!

JT
http://www.FireMe.to/udi

|6.29.08 @ 9:41AM|#

Who are you, and why do you keep posting your retarded keylogger links here at H&$?

|6.29.08 @ 9:41AM|#

erm, H&R.

Guy Montag|6.29.08 @ 9:51AM|#

When the expected injunction comes down from the appeals court in the next 20ish days, I truly hope that they specify to DC that handguns include semi-autos as definded by federal law, effectively wiping out their "machine gun" definition too.

I know, it may be inappropriate and it may be "overreaching", but I can always dream, can't I?

Guy Montag|6.29.08 @ 10:02AM|#

OT: South Korean "health" freaks are getting tuned up during their overly violent protests against US beef imports.

|6.29.08 @ 10:48AM|#

Here in VA, since 2004ish anyway, it has been against the law for landlords to prevent tennants from lawfully posessing firearms in rented property and in the common areas.

Interesting. Libertarians no doubt oppose such restrictions on the rights of property ownders; has this come up on Hit & Run previously?

|6.29.08 @ 1:48PM|#

Parse-

The question is: Upon what property right does this law impinge or infringe?

Extreme analogy: Say a slumlord has a policy of no possession or consumption of alcohol in or about his 24 unit shithole. What about that?

Another analogy: A landlord requires that all his tenants must pledge their support to AIPAC and Israel. Further, all of his leases contain a provision that a tenant will be deemed in default of his lease if he subsequently denounces AIPAC and/or Israel.

If I were the tenant, I would take out a big ad in the local newspaper denouncing Israel as a genocidal socialist cess pool and dare the landlord to do something about it.

|6.29.08 @ 8:10PM|#

liberty mike, I would say the law impinges of the landlord's right to determine the terms for which he contracts use of his property.

In both your examples, I would assume the property rights of the landlord would permit him to evict tenants that violated either terms of the contract in either instance.

Guy Montag|6.30.08 @ 9:01AM|#

Interesting. Libertarians no doubt oppose such restrictions on the rights of property ownders; has this come up on Hit & Run previously?

I don't recall it coming up before, but I certainly have not read every thread and was not reading regularly then.

Personally, I am heavily on the side of the property owner. He is not providing rental property in a vacume. If he has a bunch of stupid covenants in his lease, then it will impact the value of his rentals.

Example: In Reston, VA, before the mentioned law was passed, I was renting from Archstone/Charles E. Smith. They had specific wording to the effect that no firearm may be displayed in a manner viewable from the common areas. So, cleaning shotguns was done in the kitchen rather than balcony.

After the law was passed, the wording for their VA properties to no firearm could be displayed in a threatening manner. Shortly after that I moved to another of their properties, near Reagan National Airport, and was cleaning shotguns on the balcony when needed.

Also, at the first property, we were all told to remove flags from the balcony. Many people in the complex had US, college, State and foreign flags displayed, including the model unit. In my case, it was USA and Israel. This happened a few weeks after my flags went up, but they were enforcing a rule about no cloth on the balcony, a rule to prevent people from leaving laundry and other clutter out there.

I could have moved both flags to windows with no issue.

Not seeing where a political belief could be used as a valid covenant in a contract, but I could see where making payment to some group could be valid, with the landlord scratching his head why he can't get optimum occupancy because the word got out that not only do you pay rent to him but you are required to donate to the DNC too.

If it were my property, there would be reminders in the lease/agreement that no illegal activity would be allowed on the property, general outside appearance, etc. What you do inside is your business as long as you do not compromise safety, security, etc. and a damage deposit required, of course, and no subletting. That is about it.

Benb|6.30.08 @ 1:52PM|#

In a forceful, tightly argued opinion, Justice Antonin Scalia declared that the amendment protects an essential individual right, one that is "unconnected with service in a militia."

Scalia misinterprets the constitution here. The reference in the 2nd isn't to being "in a militia", it is a reference to the fact that all able bodied males *were* the militia.

It only takes a few minutes of research to get the facts straight. I suppose that's too much work for the nation's highest court.

Actually, looking at the outright lunacy proposed by the dissenting four members, I *know* it is.