The Second Amendment and the States

Why the Supreme Court should strike down Chicago's handgun ban

Damon W. Root | June 11, 2009

Last year's landmark Supreme Court decision in District of Columbia v. Heller definitively settled the fact that the Second Amendment guarantees an individual right—as opposed to a collective one—to keep and bear arms. Yet that ruling applied only to the federal government (which oversees Washington, D.C.). Does the Second Amendment apply against state and local governments as well?

Although Heller never answered that question, Justice Antonin Scalia's majority opinion did provide a very potent hint. In footnote 23, Scalia observed that while the Court's earlier ruling in U.S. v. Cruikshank (1876) stated that the Second Amendment did not apply against the states, "Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases."

To appreciate Scalia's meaning, consider that the Supreme Court has been protecting First Amendment rights from state and local abuse since 1925's Gitlow v. New York. The Court has done so under the so-called incorporation doctrine, whereby most of the Bill of Rights and certain other fundamental rights have been incorporated against the states via the Due Process Clause of the 14th Amendment, which reads, "nor shall any state deprive any person of life, liberty, or property, without due process of law." Cruikshank is therefore a dead letter when it comes to free speech. So why should it still matter for gun rights? As the footnote basically points out, Cruikshank was decided before incorporation had even been invented. So it's the modern incorporation doctrine that matters now, not the long-dead reasoning behind Cruikshank.

This controversy lies at the center of last week's unfortunate decision in National Rifle Association v. Chicago (formerly McDonald v. Chicago), where the federal 7th Circuit Court of Appeals held that the Second Amendment offers zero protection against the draconian gun control laws currently in place in Chicago and Oak Park, Illinois.

It's a mistaken and also strangely misguided decision, as plaintiff's attorney Alan Gura (who previously argued and won Heller) demonstrates in the appeal he quickly filed with the Supreme Court. As Gura notes, not only did the 7th Circuit decline "to perform the required incorporation analysis," the court "erred in failing to heed Heller's cautionary statement that the pre-incorporation relics [including Cruikshank] lack ‘the sort of Fourteenth Amendment inquiry required by our later cases.'"

Moreover, the 7th Circuit even suggested that federalism would best be served by letting the states disregard the Second Amendment entirely. "Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon," Chief Judge Frank Easterbrook wrote for the three-judge panel.

Yet as Gura rightfully responds in his petition, "To claim that of all rights, the Second Amendment must yield to local majoritarian impulses is especially wrong considering that the rampant violation of the right to keep and bear arms was understood to be among the chief evils vitiated by adoption of the Fourteenth Amendment." Indeed, the 14th Amendment was specifically written and ratified by the Radical Republicans after the Civil War to protect the recently freed slaves and their white allies from the depredations of the former Confederate states, including the infamous Black Codes, which curtailed property rights, liberty of contract, free speech, and the right to keep and bear arms.

The Second Amendment deserves the exact same respect as the rest of the Bill of Rights, nearly all of which have now been incorporated, something Gura is careful to explain. Which is precisely what the 7th Circuit should have said. Moreover, Gura persuasively argues that now is the right time for the Supreme Court to correct one of its most glaring historical errors by overturning the controversial Slaughterhouse Cases (1873), which essentially gutted the 14th Amendment's Privileges or Immunities Clause, which reads, "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." As numerous legal historians have now documented, the text, original meaning, and history of that clause all point in one direction: It was designed to nationalize the Bill of Rights and other substantive rights.

The 7th Circuit essentially breezed past this argument, though it's perhaps worth noting that Judge Easterbrook did so while repeatedly referring to the "Privileges and Immunities Clause," which is actually located in Article IV of the Constitution, when he quite clearly meant to write (and refer to) the 14th Amendment's "Privileges or Immunities Clause." It's a small error, to be sure, though it's still one that the federal circuit ought not to make.

So what does all this mean for the future of the Second Amendment and gun rights? Last January, the 2nd Circuit, including Supreme Court nominee Judge Sonia Sotomayor, reached the same erroneous conclusion about incorporation as the Seventh did last week. Yet in April, the 9th Circuit got it right, holding in Nordyke v. King that, "the right to keep and bear arms is 'deeply rooted in this Nation's history and tradition'... [and] is necessary to the Anglo-American conception of ordered liberty." This split among the circuits means the Supreme Court will almost certainly take up the issue.

Given that Gura's provocative and sharply reasoned appeal is now in the Court's hands, and given that Chicago's contested handgun ban so closely resembles the D.C. ban nullified last year in Heller, this case offers the perfect opportunity for the Court to fully restore the Second Amendment to its rightful place in our constitutional system.

Damon W. Root is an associate editor at Reason.

Bonus video: Reason.tv talked with Alan Gura last June about "The High Stakes of the DC Gun Ban Case" just before the Supreme Court released its decision in the Heller case. Click below to watch and go here for downloadable versions and related materials.

script src="http://reason.tv/embed/video.php?id=437" type= "text/javascript"> /script>

Comments

Barry Loberfeld|6.11.09 @ 5:04PM|#

How to explain the 2nd Amendment to liberals AND conservatives.

ellipsis|6.11.09 @ 5:10PM|#

Given the Heller ruling, I think it's likely the 7th Circuit will be overruled. But these things are a bit of a crap shoot.

ellipsis|6.11.09 @ 5:25PM|#

Oh, and judges suddenly find federalism appealing only when confronted by the "specter" of gun rights? WTF. %|

Jordan|6.11.09 @ 5:57PM|#

Who's in the picture?

|6.11.09 @ 5:59PM|#

Even if the decision goes in favor the the 2nd amendment, It's only a temporary victory. Obama will have his judges soon enough, and then you can kiss all of our rights goodbye.

|6.11.09 @ 6:20PM|#

Don't be such a pedant about the names of the 2 clauses. "Or and "and" are commonly used interchangeably in this context. Even Justice Stevens, in Saenz v. Roe, referred to that clause in the 14th Amendment as both P&A and PorA.

Quote:
The 7th Circuit essentially breezed past this argument, though it's perhaps worth noting that Judge Easterbrook did so while repeatedly referring to the "Privileges and Immunities Clause," which is actually located in Article IV of the Constitution, when he quite clearly meant to write (and refer to) the 14th Amendment's "Privileges or Immunities Clause." It's a small error, to be sure, though it's still one that the federal circuit ought not to make.
End Quote

Aibeceedee|6.11.09 @ 7:20PM|#

The Second Amendment deserves the exact same respect as the rest of the Bill of Rights

Translation:
We need guns to oppress brown people,women and gays.

ellipsis|6.11.09 @ 11:05PM|#

quote:

Translation:
We need guns to oppress brown people,women and gays.

Right, because Bill Clinton and John Kerry, admitted gun owners, take every chance they can to beat down the minorities, women and gays.

%| %| %| %| %| out of %| %| %| %| %|

Don't rub your two neurons together, you might start a fire.

</|6.11.09 @ 11:11PM|#

Bill Clinton and John Kerry, admitted gun owners

LOL !!!

compensating for something aren't they?

LarryA|6.11.09 @ 11:36PM|#

I guess the 2nd and 7th Circuit judges have empathy.

JB|6.12.09 @ 2:08AM|#

The 2nd Amendment is a fundamental right. Anyone who says otherwise should leave this country and move somewhere else.

|6.12.09 @ 2:28AM|#

Aibeceedee wrote- "The Second Amendment deserves the exact same respect as the rest of the Bill of Rights"

Translation:
We need guns to oppress brown people,women and gays.}

-----------------------------------------------
Stupidity such as the statement above really baffles me. I just don't understand how someone could be so illogical. Is "Aibeceedee" the product of the American educational systems indoctrination of statism? Or is this person a result of mass media propaganda? Or both? Or maybe for some people statements like that come naturally.

The Bearded Hobbit|6.12.09 @ 2:51AM|#

Translation:
We need guns to oppress brown people,women and gays.

Actually, brown people, women and gays need guns to stop oppression.

... Hobbit

Your Majesty|6.12.09 @ 8:56AM|#

Reminds me of the old joke: How does the ACLU count to 10?

1, 3, 4, 5, ...

|6.12.09 @ 9:01AM|#

Aibeceedee
Translation:
We need guns to oppress brown people,women and gays

Or another:
We need gun control or brown people, women and gays will be able to have guns and stand up for themselves.

|6.12.09 @ 9:12AM|#

Tyranny is also an older and more deeply rooted tradition than is a right to carry any particular kind of weapon.

Xanthippas|6.12.09 @ 9:32AM|#

It's a mistaken and also strangely misguided decision, as plaintiff's attorney Alan Gura (who previously argued and won Heller) demonstrates in the appeal he quickly filed with the Supreme Court. As Gura notes, not only did the 7th Circuit decline "to perform the required incorporation analysis," the court "erred in failing to heed Heller's cautionary statement that the pre-incorporation relics [including Cruikshank] lack 'the sort of Fourteenth Amendment inquiry required by our later cases.'"

May I point out that, were this not a 2nd amendment case, a Court of Appeals ignoring direct precedent on a matter to find a politically convenient outcome would be considered (gasp!) judicial activism?

Even if the decision goes in favor the the 2nd amendment, It's only a temporary victory. Obama will have his judges soon enough, and then you can kiss all of our rights goodbye.

ALL of our rights? Like, EVERY SINGLE one of them? Just seeking clarification.

|6.12.09 @ 10:21AM|#

"ALL of our rights? Like, EVERY SINGLE one of them? Just seeking clarification."

Yes. If the 2ed can be gutted and pushed aside, what in the world protects the others???

If they can do it to one they can do it to all.

What is so hard to understand about this?

|6.12.09 @ 10:50AM|#

If Cruickshank and "federalism" prevail, then Brown v. Board Of Education, and Baker v. Carr, Roe v. Wade, etc are also invalidated. If the 14th amendment does not apply to the 2d amendment, it does not apply to any of the rest of the Bill Of Rights.

Michael Ejercito|6.12.09 @ 11:04AM|#

We need guns to oppress brown people,women and gays.

Certainly the police and the FBI used guns in this manner.

Peter|6.12.09 @ 12:00PM|#

Certainly the police and the FBI used guns in this manner.

Why'd you put that in the past tense?

|6.12.09 @ 1:42PM|#

""The 2nd Amendment is a fundamental right."""

Does that mean we have to subsidize guns for the poor who don't have one? ;-)

I've never understood how if the feds give you a right, the state has a right to usurp it. If the state can take it away, the feds didn't really give it to you. They teased you with it.

|6.12.09 @ 3:00PM|#

TrickyVic, the feds and the states don't "give" you rights at all. What we refer as "rights" are things they aren't suppose to interfere with.

Unless you are a soft-headed liberal, in which case rights are what the state is supposed to pay for.

|6.12.09 @ 7:25PM|#

It is my understanding the three judge panel at the 7th were all Republican appointees. Maybe this was a tee up for the Supremes. A split from the 9th and lets get it done.

|6.12.09 @ 7:38PM|#

So, basically, I have my right to say whatever I want. That is not necessarily protected by the 1st Amendment at the state level, but by the 14th Amendment. However, I am not guaranteed the right to defend myself if someone were wanting to do harm to me because of my statements. So, the 1st is implemented at the state level because of the 14th, but for some reason, the 2nd can't join the party with the other 9. Call me dense or overly simplistic, but that does not make any sense to me. Politicians are just selectively picking and choosing what they want us to follow.



That is one thing I hate about living in Illinois. What would otherwise be a moderate-conservative (maybe even libertarian at times) state is ruined by one metro. Maybe Chicagoland should separate itself from the rest of Illinois. After all, they don't seem to care that they are part of the state as it is.

wayne|6.12.09 @ 10:27PM|#

the whole idea of "incorporation" is an invention of the supreme court that allows them to decide what rights are "fundamental", another arbitrary and capricious invention.

Let's face it, the US is not a nation governed by laws, but is instead a nation governed by the whims of those in power.

Alex|10.6.09 @ 7:43PM|#

Let's face it, the US is not a nation governed by laws, but is instead a nation governed by the whims of those in power.

Quite right, but that's the case always and everywhere.

Rich|6.12.09 @ 11:39PM|#

If you don't like guns, then don't own one. If you don't want to speak freely, then don't ... Hmm, wait a minute. This "rights" stuff is *complicated*!

|6.13.09 @ 9:46AM|#

I have no problem with the right to bear arms...to defend yourself, your family, and your property...or to form a local militia in the face of tyranny, not that it would help you much if Al Qaeda drove an airplane into your home or office or set off explosives...

But along with rights, we must also have responsibilities. I do have a problem with gun owners thinking that it's ok to kill people you don't like, or to hunt and kill animals for sport...to enjoy the power of destroying another life.

Patrick Henry|6.13.09 @ 12:26PM|#

Anyone that argues The Bill of Rights or the Second Amendment from the position of the Fourteenth Amendment is a fool. Simply put, these "subjects to the Jurisdiction of the Federal Government" were not a PARTY TO THE CONTRACT (The Constitution of the United States of America 1787).

DC v Heller dealt almost exclusively with "Natural Rights" (specifically the Natural Right of Self Defense) which pertains to the Original American Citizen or collectively known as WE THE PEOPLE (Citizens of a State, Article 4, Section 2 The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.). The Court could only site one case as precedent for the right of Self Defense as the instant matter applied to Federal citizens (Amendment 14.. subjects of the Fed).

|6.13.09 @ 5:30PM|#

Patrick Henry...You are right on. The 14th Amendment dealt with the new U.S. Citizens created as a result of the abolition of slavery, and residents of DC and the territories. We are best refered to as citizens of a state rather than U.S. Citizens. I have heard about a lot of hocus-pocus in the 14th Amendment meant to deprive "We The People" of our rights.

Rocky Frisco|6.13.09 @ 6:28PM|#

The First Amendment:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

Note that it says, "Congress shall make no law." it does not mention states or cities.

The Second Amendment:

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

Please note that it does NOT mention Congress, states or cities. It says "shall not be infringed." In other words, "by anybody."

It would appear more logical to say that the First Amendment doesn't apply to states than to say the Second doesn't.

The Courts are full of traitors, pirates and bastards. Obama is fixing to put another one of those on the SCOTUS.

Jon|6.13.09 @ 8:58PM|#

Wow! A lot of wrong recitations of the law and angry people! Xanthippas is right. The 7th Circuit's opinion--contrary to what Reason has to say--really is the following: "we cannot deviate from Supreme Court precedent, even if the previous case was poorly decided. Only the Supreme Court can do that. Affirmed." The rest is basically immaterial.

And contrary to people's doomsday worries about Obama taking away guns: relax. Heller decided that the Feds cannot do that, remember? Unless you have your law backwards, you will know that Obama cannot commandeer the states. If you don't want draconian gun laws, move to a state that doesn't have them. That's the point of federalism. Many state constitutions protect the right to possess firearms to a greater degree than the US Constitution.

|6.14.09 @ 1:05PM|#

"Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon," Chief Judge Frank Easterbrook wrote for the three-judge panel.

Someone needs to point out to Easterbrook that the right to own and carry weapons predates the American Revolution.

|6.14.09 @ 1:13PM|#

... I do have a problem with gun owners thinking that it's ok to kill people you don't like ...

Dear Diane,
I, too, have a problem with gun owners thinking its [sic] ok to kill people you [sic] don't like. I also have a problem with people who don't own guns thinking it's ok to kill people just because they don't like them or even because they do like them. I suspect that most people agree with you and me and that's why there are laws against murder.

Hope this helped.

|6.14.09 @ 1:16PM|#

"Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon"

I'm curious. Does "a deeply rooted tradition" always trump "a right" in legal arguments?

wayne|6.17.09 @ 9:14PM|#

Diane, honey, recess is over now. We will be fingerpainting for a while, then it's milk and cookies before a nice nap.

|6.19.09 @ 3:12PM|#

Once this is settled law and it is confirmed the Non-criminal citizens of the United States can own guns, Comrade Obama will try to put a 500% tax on ammo. Sure, you can have your gun, you just won't be able to get ammo. Our Dear Leader will make all the decisions about your life. BTW, Rocky F.-- Great Post! Hey Comrade Obama, How's that reaching out to the unclenched fist working for ya ? (Iran, North Korea)