Restoring the Second Amendment

Why state and local governments should respect the right to bear arms

For nearly 10 years, the case of Nordyke v. King has been winding its way through the California courts. At issue is a 1999 Alameda County ordinance banning the possession of firearms on county-owned property, a law enacted primarily to keep gun shows out of the county fairground. To date, the case has been heard by the district court, the California Supreme Court, and the U.S. Court of Appeals for the Ninth Circuit, where gun show promoters Russell and Sallie Nordyke have so far proven unsuccessful in their fight to overturn the law.

But that was before District of Columbia v. Heller (2008), the U.S. Supreme Court's landmark decision holding that the Second Amendment protects an individual right—not a collective one—to keep and bear arms. As Justice Antonin Scalia wrote for the majority, the Second Amendment protects the right "to use arms for the core lawful purpose of self-defense." One question Heller did not answer, however, is whether the Second Amendment applies just to the federal government (which oversees Washington, D.C.) or to state and local governments as well.

Nordyke, it now appears, might help with the answer. Last week, four preeminent legal scholars—Michael Kent Curtis, Richard Aynes, Michael Lawrence, and William W. Van Alstyne—filed a friend of the court brief arguing that the 14th Amendment "and specifically its privileges or immunities clause were designed to forbid states from abridging fundamental rights of citizens, including those rights in the Bill of Rights." The Second Amendment, of course, is right there on that list.

As the four professors demonstrate, the text of the amendment, the historical events leading to its adoption, the goals of its framers, and the statements of purpose made both by its supporters and by those who ratified it, all point in the exact same direction: The 14th Amendment was designed to nationalize the Bill of Rights and other fundamental rights.

The amendment's origins lie in the anti-slavery politics that gave rise to the Republican Party. After the Civil War, as the former Confederate states began passing Black Codes and other restrictions on the political, economic, and civil rights of African Americans and their white allies, the Radical Republicans of the 39th Congress responded with federal civil rights laws and a constitutional amendment to give them force.

One of the leading figures in this movement was Rep. John Bingham of Ohio, the author of the 14th Amendment's crucial first section, which reads in part, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." In a speech before the House, Bingham explained that, "the privileges and immunities...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 purpose 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." As Michael Kent Curtis writes in his book No State Shall Abridge, both Bingham and Howard "clearly said that the amendment would require the states to obey the Bill of Rights. Not a single senator or congressman contradicted them." (Italics in original.)

For its part, Alameda County currently maintains that, "the Second Amendment constrains only Congress," while the amendment's core purpose of "self-preservation...is best advanced through the establishment and exercise of the police power." Which means that while Congress may not legally disarm the American people, state and local governments may.

As evidence, the county offers page after page justifying its interpretation of the Second Amendment. But there's nothing, not a single word, about the history, purpose, or meaning of the 14th Amendment. The county's lawyers might at least have cited former federal appeals court Judge Robert Bork, who has argued that "the intended meaning" of the Privileges or Immunities Clause "remains largely unknown," that "it is quite possible that the words meant very little to those who adopted them." In Bork's view, the federal courts have no business locating rights in such "vague" or "silent" language.

There's actually nothing vague about it, as the professors' brief aptly demonstrates. For instance, the phrase privileges and immunities has long been accepted as a legal term of art, employed by no less an authority than William Blackstone in his 1765 Commentaries on the Laws of England, where he defined it as a combination of civil rights and natural rights. Similarly, James Madison and other Founders used the words privileges and rights interchangeably.

Indeed, the real trouble with Nordyke v. King is that the Alameda County ordinance seems to fall so comfortably within the range of acceptable gun control laws spelled out in Heller, including "laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."

The same can't be said for the gun rights case currently underway in Chicago, however, where that city's ban looks very much like the one struck down in Washington, D.C. In any case, the overwhelming historical evidence submitted here is certain to be a major factor when the courts finally get around to restoring the Second Amendment to its rightful place among the Bill of Rights.

Damon W. Root is an associate editor of
reason.

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  • The Wine Commonsewer||

    Damon W. Root wonders when the courts will finally get around to restoring the Second Amendment to its rightful place among the Bill of Rights.

    Better bring your lunch and your sleeping bag, you're going to be wondering a long got dam time.

  • The Wine Commonsewer||

    Oh, nicely written. Thanks.

  • BakedPenguin||

    Not that the second amendment isn't important, but I'd say it's in better shape than the fourth, which is on life support at this point.

  • AK2008||

    "Damon W. Root wonders when the courts will finally get around to restoring the Second Amendment to its rightful place among the Bill of Rights."

    Not until they finally hear the commander of a well regulated mlitia yell, "Ready. Aim..."

  • Naga Sadow||

    BakedPenguin,

    I would argue that the 4th amendment is more or less at least given lip service. The 10th amendment is practically extinct.

  • BakedPenguin||

    Naga - Interstate Commerce Clause!

  • Naga Sadow||

    *bows in humbleness to BakedPenguin's superior debating skills*

  • Naga Sadow||

    Interesting side note on that. I never knew until recently that marijuana is illegal due to the ICC. I had always assumed it was that damn necessary and proper clause.

  • TallDave||

    Never, if Obama is elected.

    "As a presidential candidate, Barack Obama must demonstrate executive experience, but he remains strangely silent about his eight years (1994-2002) as a director of the Joyce Foundation, a billion dollar tax-exempt organization. He has one obvious reason: during his time as director, Joyce Foundation spent millions creating and supporting anti-gun organizations."

    http://pajamasmedia.com/blog/obama-and-the-attempt-to-destroy-the-second-amendment/

    At the moment, some of the Chicago 'burbs are surrendering on their gun bans. Enjoy it while it lasts.

  • TallDave||

    Interesting side note on that. I never knew until recently that marijuana is illegal due to the ICC.

    One of the most egregiously stupid legal justifications in history. One might reasonably argue the government could outlaw shoes on the same basis.

  • St. V||

    I cannot understand for the life of me how any state or locality can come to the conclusion that they may disarm the public... or the argument that "self-preservation is best left in the hands of the police."

    Malarky!

    Where were the police when I was robbing that elderly couple last night? NO WHERE!

    (the above comments were in jest and should not be construed or misinterpreted as an admittance of guilt)

  • ||

    Actually, I'd say the Interstate Commerce Clause is doing quite well...so well that it's swallowed up the rest of the Constitution like Tetsuo at the end of Akira.

  • St. V||

    The second part... about the robbing... I fully believe (in the question?) of my first paragraph.

  • Naga Sadow||

    Tulpa,

    Now you know my shame! I've never seen "Akira" despite the rave reviews I have gotten.

  • Interstate Commerce Clause||

    FOOLS! MY POWER IS IRRESISTIBLE! YOUR PATHETIC "AMENDMENTS" AND "FREEDOMS" WILL BE CRUSHED BENEATH MY MIGHTY LEGAL FORCE! MWAHAHAHAHAHAHAHA!!

  • Naga Sadow||

    When the revolution comes and I step into my role as warlord, you won't be acting so high and might then ICC!

  • ||

    It was certainly helpful of the SCOTUS to give a road map to circumventing and paying lip service to the "restored" Second Amendment.

    They may as well have hung a neon sign out front saying "Will buy any restriction on gun rights short of an outright prohibition".

  • ||

    Brilliant article, Damon. It's no surprise the ALCU is always MIA whenever the 2nd or 14th is infringed upon. Bastards.

  • ||

    It's no surprise the ALCU is always MIA whenever the 2nd or 14th is infringed upon.



    No, I'd say that the ALCU often defends quite imaginative interpretations of the 14th. Whatever one thinks of the doctrine of incorporation, though, it does seem untenable to claim that it applies to rights with only a vague claim to the next but not the 2nd Amendment. If it applies to penumbras, certainly it applies to the 2nd.

  • ||

    Damon, your URL in the article seems wrong. I assume it's supposed to go to the site calguns.net not calguns.com, which is a cybersquatter, though I didn't find a copy of the document there either.

  • ||

    Thanks all for your comments.

    John: Thanks for noting the broken link. It's now fixed.

  • ||

    Here's what the aclu has to say about their 2nd amendment view after heller

    http://www.aclu.org/crimjustice/gen/35904res20020304.html

    The irony is with their slogan at the top
    "Because Freedom Can't Protect itself"

    Yeah, no shit! Nothing protects freedom like citizens with guns.

  • james_joyce||

    Am I a bad Libertarian if I don't really care about gun rights? I mean, no more than I care about, for example, bubble gum rights?

  • ||

    Am I a bad Libertarian if I don't really care about gun rights? I mean, no more than I care about, for example, bubble gum rights?


    No, of course not. You are not a good libertarian either. In fact, you are not a libertarian.

  • perilisk||

    "Am I a bad Libertarian if I don't really care about gun rights? I mean, no more than I care about, for example, bubble gum rights?"

    Not if you can invent a way for people to use bubblegum to reliably protect their fundamental human right to life. Well, probably still then, but less so.

  • Obama||

    You can have a gun, but it has shoved up your asshole when not in use, at which times you must also refer to it as a "doom cock". I think that's a perfectly reasonable restriction.

  • economist||

    A fun fact about police power: The police are not obligated, constitutionally or legally, to protect people at most times. This has been used repeatedly in cases where people sued over ignored 911 calls or when police saw a crime occurring and did nothing. Something to think about before saying that "self-preservation" will be effected by the police force.

  • perilisk||

    'Something to think about before saying that "self-preservation" will be effected by the police force.'

    I dunno, those rulings seem to effect police force self-preservation pretty well.

  • james_joyce||

    "No, of course not. You are not a good libertarian either. In fact, you are not a libertarian."

    Fair enough. But I didn't mean to say I don't believe in gun rights. I just mean that it doesn't get me all riled up like it does other people. You should be able to buy and own a gun because it's a voluntary exchange of property. I react to gun laws in the same way I react to drug laws or protectionist tariffs.

    But I don't really buy the idea that a gun is going to protect me if the state decides to set up a dictatorship or something. I mean, that probably worked back in the day but now those guys have frickin' tanks. There are other, hopefully effective ways of resisting state violence besides hunting F-16s with a shotgun.

    But maybe I'm just being pessimistic or naive, if it's possible to be both at the same time, or maybe I'm missing the point.

  • The Wine Commonsewer||

    No, of course not. You are not a good libertarian either. In fact, you are not a libertarian.

    Drink

  • The Wine Commonsewer||

    There are other, hopefully effective ways of resisting state violence besides hunting F-16s with a shotgun.

    Thread Winnah!

    Unfortunately, tis true, the government has all the really cool stuff.

  • ||

    The Wine Commonsewer | October 8, 2008, 1:48am | #
    There are other, hopefully effective ways of resisting state violence besides hunting F-16s with a shotgun.

    Thread Winnah!

    Unfortunately, tis true, the government has all the really cool stuff.



    Note the word hopefully in that first sentence...

    And TWC, I watched a documentary on the Liberation of Paris the other day.. guess what... the Nazis had all the really cool stuff, but the resistance guys took a lot of it away...

    I never thought the idea of resisting state violence depended on having "all the really cool stuff" anyway - it was simply having some kind of "stuff to do the "resisting" with - win or lose or draw.

    Is it better to have just "hope" or stuff? I already have a bunch of hope that the state ain't gonna violently fuck with any more liberties. How well's that been workin'?

  • ||

    Then buy a tank or a jet fighter or a cruise missile sub of your own. A simple federal tax stamp and background check are all that's needed. There are even regular social events where you can take your automatic cannon or heavy machine gun and shoot up cars just for fun. http://www.youtube.com/watch?v=4UtosDFNNP8 :) Here are a few examples available now: http://jet4sale.com/ and http://www.armyjeeps.net/armor1.htm http://www.controller.com/listings/detail.aspx?OHID=1084742 included a collection of armored military vehicles, including a missile launcher with Hawk Missile (currently non operational) and at the bottom is a cannon for sale in the U.S. now I am not saying any of this is cheap but if you can afford your own cruise missile sub http://www.saratogamuseum.org/pressreleases/080702pr.html and are inclined to do so, you may with the "blessings" of your federal government. :) Ultimately in any civil war the military itself takes sides but the majority of participants are individuals armed with personal weaponry. The most effective way to hunt an F16 with a shotgun is to shoot the pilot before they can fly. Not that I am advocating that activity but it does sum up the grim reality of civil war.

  • LarryA||

    But I don't really buy the idea that a gun is going to protect me if the state decides to set up a dictatorship or something. I mean, that probably worked back in the day but now those guys have frickin' tanks. There are other, hopefully effective ways of resisting state violence besides hunting F-16s with a shotgun.

    The U.S. military has about half a million warfighters. (The folks who shoot artillery, carry rifles, drive or fly fighting vehicles.) There are about 80 million gun owners in the U.S. and many own more than one firearm, so they can arm neighbors. At the Infantry School they taught us that a successful attack against entrenched enemy takes at least 3:1 superiority. Presume that everyone on each side participates. (Since it is just as likely that many soldiers would refuse to attack their own country as gun owners would refuse to defend it.)

    If the military attacked they would face odds of 1 to 160. Military commanders call that kind of engagement "suicide."

    Meanwhile, we use shotguns, hunting rifles, semiauto military-style rifles, and handguns to take Fort Bliss. The U.S. Air Defense Command has lots of anti-F-16 toys.

    For a live illustration, consider that the U.S. military is currently engaged in Iraq, and straining to keep order. Iraq is slightly larger than California. Picture the same military force spread over 50 states, with no sanctuary area to regroup in or stage operations from. The average-size state would be allotted 10,000 warfighters, not enough to even control major cities.

    The right to keep and bear arms is hardly a hollow threat.

    There are other, hopefully effective ways of resisting state violence

    Absolutely, as long as they work. In Amendments 4-8 there are a couple of dozen rights that we individually use to resist state violence. When they don't work the First Amendment protects peaceful collective action. It's when the First doesn't work that the Second Amendment provides the option to forcibly alter or abolish government and start over.

  • ||

    Let me point out that poorly armed guerilla forces have been squaring off against regular armies for some time and with remarkable success.

    A second point is that the American army is composed of Americans. In general, I would not expect the American army (on the individual soldier level) to be overly keen on killing their fathers and brothers.

    For these reasons, I think IIA is a very potent counter to state tyranny.

  • james_joyce||

    good points all around. I think you have me convinced.

    "For a live illustration, consider that the U.S. military is currently engaged in Iraq, and straining to keep order."
    But then how do military coups ever take power? Have military coups historically had popular support, at least initially? I don't know the history here at all.

  • ||

    If you will notice, military coups, usually take place in countries in which the citizens have been sheep for centuries, simply wishing to be left alone, and bowing down to those in power for the privilege. The citizens in the U.S. may be mainly sheep, but there are still enough sheepdogs to keep the wolves from encroaching on the herd. No wolf likes the sheepdogs teeth!

  • TallDave||

    The U.S. military has about half a million warfighters.

    And they all swear an oath to the Constitution, not to the government.

    That might turn out to be a very very important distinction someday.

    But then how do military coups ever take power? Have military coups historically had popular support, at least initially?

    They usually do. See Thailand or Pakistan. Often, the military steps in claiming to protect the constitution from corrupt politicians, and sometimes this turns out to be mostly true.

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