Are States and Cities Bound by the Second Amendment?

Plans for post-Heller challenges to gun control laws throughout the country will come to naught unless the Second Amendment applies to state and local governments, a question the Supreme Court did not address in yesterday's decision. Three 19th-century Supreme Court decisions say it doesn't.

In U.S. v. Cruikshank (1875), Klansmen who had used arson to intimidate and disarm freed blacks in Louisiana were charged with violating a federal statute that criminalized conspiracies to deprive people of their constitutional rights. The Court ruled that the Second Amendment "means no more than that [the right to keep and bear arms] shall not be infringed by Congress." It added, "This is one of the amendments that has no other effect than to restrict the powers of the national government."

Likewise, in Presser v. State of Illinois (1886), which dealt with an Illinois law prohibiting private military exercises, the Court said the Second Amendment "is a limitation only upon the power of congress and the national government, and not upon that of the state." And in Miller v. Texas (1894), a murder case in which the defendant argued that a Texas law prohibiting the carrying of weapons violated the Second and Fourth amendments, the Court said "it is well settled that the restrictions of these amendments operate only upon the federal power, and have no reference whatever to proceedings in state courts."

As that last example suggests, these cases were all decided before the Supreme Court began to apply parts of the Bill of Rights to the states via the 14th Amendment (ultimately settling on the Due Process Clause as the main rationale, although the Privileges or Immunities Clause might have been a better fit). Miller v. Texas actually anticipated that development, saying "if the fourteenth amendment limited the power of the states as to such rights, as pertaining to citizens of the United States, we think it was fatal to this claim that it was not set up in the trial court."

The question for federal courts hearing challenges to state or local gun control laws, then, is whether the right to keep and bear arms, like freedom of speech or the guarantee against unreasonable searches and seizures, is an aspect of the liberty protected from state encroachment by the 14th Amendment. After reading Heller, which emphasizes that the right to arms grows out of the basic right of self-preservation that preceded the Founding and was merely recognized, not created, by the Constitution, it is hard to imagine how the Court could say it should not be added to the list of civil liberties that states and municipalities must respect.

One Supreme Court case that neither the majority nor the dissenters in Heller cited is particularly illuminating on this point. In Dred Scott v. Sandford, the notorious 1856 decision in which the Supreme Court rejected a slave's petition for freedom, declaring that a black man had "no rights which the white man was bound to respect," Chief Justice Roger Taney said (emphasis added):

It cannot be supposed that [the states] intended to secure to [blacks] rights and privileges and rank, in the new political body throughout the Union which every one of them denied within the limits of its own dominion. More especially, it cannot be believed that the large slaveholding States regarded them as included in the word citizens, or would have consented to a Constitution which might compel them to receive them in that character from another State. For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognised 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 decision is no longer binding, obviously, but it provides strong evidence that the right to keep and bear arms was considered part of the "privileges or immunities of citizens" that the 14th Amendment was aimed at securing.

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  • lunchstealer||

    Wow. I'd forgotten how loathsome Dred Scott was. This post was worth it for that reminder alone.

  • lunchstealer||

    The decision, not the person, btw.

  • You Heard It Here First||

    http://www.reason.com/blog/show/124995.html#914773

  • Barack No Middle Name Obama||

    Folks, we don't need more guns, we need more Hope and Change and sweetheart real estate deals from fundraising felons.

    I'm asking for your votes and your guns. If you won't give them to me, I'll be forced to pry them both from your cold, dead hands.

  • KipEquire||

    the right to keep and bear arms was considered part of the "privileges or immunities of citizens" that the 14th Amendment was aimed at securing"


    But of course the 14th Amendment Privileges or Immunities Clause was rendered a nullity by the Slaughterhouse Cases.

    So if the Second Amendment is to be incorporated, it will have to be via the Due Process Clause as with other provisions of the Bill of Rights. Either that, or Slaughterhouse would have to be overturned.

    The former is far more likely than the latter.

  • David McElroy||

    It's funny how people want to pick and choose how clauses of the Constitution apply -- depending on the result they want to achieve at the moment. It's pretty clear from the text and from events around the adoption of the Constitution that these were restrictions on the power of the federal government, not restrictions on the state. But they've been extended in various ways over the years (both by fiat and by amendment). And at this point, courts seem to randomly choose which applies to everybody and which is more narrow. I could live with either interpretation. I just wish they'd be consistent, so we'd know whether to go by what the words of the Constitution SAY or by what somebody has made up. The current interpretations change depending on the politics of the Supreme Court justices.

  • Paul||

    No more binding than the first amendment, the fourth amendment, the fifth, and so on.

  • Paul||

    It's funny how people want to pick and choose how clauses of the Constitution apply -- depending on the result they want to achieve at the moment. It's pretty clear from the text and from events around the adoption of the Constitution that these were restrictions on the power of the federal government, not restrictions on the state. But they've been extended in various ways over the years (both by fiat and by amendment).

    Right. So the feds can't search my house without a warrant and probable cause, but Barney Fife can.

    The right of habeus corpus extends to me if I'm held in a federal facility, but not if I'm in the county lockup.

  • Paul||

    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

  • Other Matt||

    it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety.

    Gun control...it's for your own safety. Eerie how the tone is so similar to the Brady Campaign propeganda.

    It would tend to indicate that they view the US populace in general in a similar manner that "the Negro" was viewed at that time.

  • ||

    I'm not a scholar on the Incorporation Doctrine but doesn't the incorporation test turn--at least in large part--on whether the right is deemed "fundamental?" (Which, by the way, has its own technical meaning). One reason why this question has never been seriously addressed is that the prevailing view in the majority of jurisdictions was that the Second Amendment was a right held by the states (i.e. it was a collective right). Now, unlike before, there is a right to be incorporated to guard against state action because the right to bear arms does not belong exlcusively to the states.

  • ||

    Regardless of what the Constitution says, I think we can rely on Justice Scalia to figure out a way to apply his ruling to the states. After all, this decision was nothing but hot air. The follow-up is unlikely to be any better.

    Signed,

    A non-gun owner in DC who doesn't think the ruling will have any real effect either way.

  • Paul||

    One reason why this question has never been seriously addressed is that the prevailing view in the majority of jurisdictions was that the Second Amendment was a right held by the states (i.e. it was a collective right).

    Prevailing view by whom? Any casual reading of the Founder's statements makes it pretty clear that it was an individual right. For that matter, any in-depth reading of English Common Law, the starting point for the Constitution, allowed arms in the home for "defens of same"

    Only one aspect of these duties was service in the militia. Common law, as practiced in both Britain and America, appreciated the need for men and women to be able to defend themselves and permitted them to do so.
    There was also, of course, a long philosophical tradition that a free man was a man who was armed. All this seems unusual today, not because there is no longer a need for self-defense, but because most governments, including the British government, have not trusted their people to be armed and have, instead, insisted on a monopoly over the use of force.



    http://www.abanet.org/publiced/focus/spring_03.pdf

  • ||

    It would be interesting to see how the various state constitutions address the right to keep and bear arms. It's pretty clear in the Maine Constitution.

    Article 1. Declaration of Rights.

    Section 16. To keep and bear arms. Every citizen has a right to keep and bear arms and this right shall never be questioned.

  • Paul||

    *sigh*

    Ok, let's try this.

    The States inherit their properties from object Federal_Government. Bill_Of_Rights is a private member of Federal_Government.

  • ||

    I don't understand how any of the rights-defining B.O.R. amendments can NOT be incorporated. If the 14th amendment means that the B.O.R. restrictions on the government's powers apply to other levels of government, then how can it only "incorporate" some of those amendments and not others?

    Has this reasoning been rejected, or has there just never been a relevant case heard since the modern reading of the alive-n-kickin 14th's meaning penumbranated?

    As a side note, it's interesting to consider that the language in the Dred Scott decision was meant to be the "more Americans will certainly DIE DIE DIE!!!" language of its day. Oh my goodness, they can soujourn as long as they like, subject only to the laws that apply to white people? Run away! Run away!

  • Nigel Watt||

    Every citizen has a right to keep and bear arms and this right shall never be questioned.

    Damn. That's nice and straightforward.

  • Dave W.||

    I don't understand how any of the rights-defining B.O.R. amendments can NOT be incorporated.

    Partisan people have messed up this area of the law, joey bee.

  • Paul||

    I guess it's amazing how badly things can get screwed up when you have a supreme court that can muster five votes.

  • ||

    Jacob, I'm pretty sure there's several more recent dicta indicating that 2A should be incorporated. I want to say that Dave Kopel's article on the 2A from several years ago gathers these, but I can't find a copy of it this instant. As I recall, Justice Douglas wrote one decision including the 2A in the incorporated amendments.

  • Episiarch||

    The States inherit their properties from object Federal_Government. Bill_Of_Rights is a private member of Federal_Government

    Are the state constitutions polymorphism, with their bills of rights acting as overrides of the Federal one?

    If Bill_Of_Rights is a private member of Federal_Government, then all derived classes will have the exact same Bill_Of_Rights, which they do not.

    I don't think we can apply OOP here.

  • Russ 2000||

    It's pretty clear from the text and from events around the adoption of the Constitution that these were restrictions on the power of the federal government, not restrictions on the state.

    The original Constitution is a restriction on the power of the federal government, not the state. The AMENDMENTS are an assertion of the rights of individuals that the union (the fed and the member states) cannot legislate away from individuals.

  • ||

    Is Dred like the word Crap in which before this case (or before Crapper made his Crapper) it had no other meaning aside from being someones name?

  • Elemenope||

    If Bill_Of_Rights is a private member of Federal_Government, then all derived classes will have the exact same Bill_Of_Rights, which they do not.

    I don't think we can apply OOP here.


    We finally, at long last, have become a retarded fun-house mirror image of Slashdot.

    It was a long journey, but we got there!

  • ||

    Miller v. Texas actually anticipated that development, saying "if the fourteenth amendment limited the power of the states as to such rights, as pertaining to citizens of the United States, we think it was fatal to this claim that it was not set up in the trial court."

    That's something that pisses me off. Joe touched on it. If the fourteenth amendment does that, it shouldn't need to be brought up at the trial level, the justices should recognize and apply it. I didn't realize it was incumbent upon the lawyers to teach the meaning of the Constitution to the Supremes.

  • Ken Hagler||

    Joe asks:

    "I don't understand how any of the rights-defining B.O.R. amendments can NOT be incorporated. If the 14th amendment means that the B.O.R. restrictions on the government's powers apply to other levels of government, then how can it only "incorporate" some of those amendments and not others?

    Has this reasoning been rejected, or has there just never been a relevant case heard since the modern reading of the alive-n-kickin 14th's meaning penumbranated?"

    The whole "incorporation" bit always struck me as a rather transparent way for the government (both state and federal) to avoid having to give even lip service to the Bill of Rights as much as possible.

    On the whole "it doesn't apply to states" notion, that's obvious nonsense. I point out that only one of the ten amendments in the Bill of Rights actually _says_ it's limited to Congress. Half the amendments are legal-related issues, which would be an awful lot of ink to devote to the three federal crimes that existed back then.

    And of course the Tenth Amendment says, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." Like, for example, the powers the authors had just finished prohibiting...

  • ||

    I've never understood the theory that the BoR applied only to the national government. I find it rather difficult to believe that the founders were actually saying "sure, we can't arrest you without a warrant, have you beaten into a confession, tried before a secret tribunal and executed in some horribly unpleasant fashion... but if your local tin-pot sheriff wants to, then you're shit out of luck, pal." That would seem to make the BoR a rather pointless exercise...

  • ||

    Does anyone wish that they hadn't included the Bill of Rights? Sometimes I think it adds more confusion and ignorance (AKA retards who say shit like "The First Amendment gives us TEH FREE SPEECH!") than if they had just left it out.

  • Nephilium||

    Elemenope:

    It can't be /. here. If we were /., then the analogy would have had a car in it.

    Something along the lines of this:

    If we see the Federal Government as a car carrying-truck, with a Bill of Rights being the handbrake on the truck, then the states are all the cars on the truck. Each of them will have their own handbrake, it will look a little different, but have a similar function.



    Nephilium... runs back over to his tabs with /. open...

  • MattXIV||

    AR,

    Given that the commerce clause grew to give the Federal government control over everything that there isn't an amendment prohibiting, I'd say it was a good move to put it in. The constant pressure to expand the scope of enumerated powers has made enumerated limits essential - if anything they should have added more explicit statements of rights that were implied.

  • Paul||

    If Bill_Of_Rights is a private member of Federal_Government, then all derived classes will have the exact same Bill_Of_Rights, which they do not.

    I don't think we can apply OOP here.


    We can, and they do. The states can add their own members and even give us more freedoms (see Ninth Amendment), but they cannot modify or reduce the BOR.

  • ||

    peachy,

    At the time the Bill of Rights was adopted, and for some time thereafter, several American states had official state religions, and the First Amendment was read to prevent the feds from messing with that policy.

    Dave W.,

    Yes, Dave, every other position is just so much simian jabbering, without any explicable logic or principle whatsoever, that a literate person would be hard-pressed to even recognize as a language spoken by humans. Of course, how silly of me to ask.

  • ||

    "...the right to arms grows out of the basic right of self-preservation that preceded the Founding and was merely recognized, not created, by the Constitution,..."

    It was my understanding that MOST, if not all of the enumerated rights in the Constitution preceded the founding and were merely recognized, not created, by the Constitution. Is there any credible list of those rights that WERE created by the Constitution?

  • ||

    joshua,
    If you mean 'dread', then no

  • ||

    Ken Hagler beat me to the punch with regard to the following key points:

    1. Many of the Bill of Rights are related to law and law enforcement, and make little if no sense, if seen as applicable to federal cases only.

    2. Only one of the Bill of Rights specifically mentions "Congress." The "incorporation" doctrine is only needed to get around that little fine-point.

    I would add that any provisions of the Constitution that do not specifically mention a particular arm or level of government, or a particular agency, must be seen as applying not only to the Federal government but also to all governments that are inferior to it. Otherwise, we get into the situation that has been mentioned above: George Bush cannot violate your fourth amendment rights, for example, but Arnold Schwarzenegger can. That's just silly, and clearly not what the Founders intended.

    When the Founders used broad language, such as "he right of the people ... shall not be infringed," "In all criminal prosecutions, the accused shall enjoy...," and "No person shall be held to answer...," for example, it is clear that they meant to establish general parameters for all government throughout the United States, and that these points were seen as key ingredients in the "republican form of government" that the Constitution commands the States to provide to their citizens. There was never any need for a separate amendment to establish an "incorporation" function in those cases. I think that the Second Amendment qualifies as a member of that class of general parameters, and I long for a court case that would establish the point.

  • ||

    James anderson Merritt-

    You are making several of the points I made yesterday on another thread. The critics of this point of view argue that everybody knows that the framers gathered to draft a constitution that defined the purpose of the general gvt and set forth its powers and limitations and that the bill of rights were clearly adopted to apply only against the feds.

    I pointed out that there is no statement declaring that the bill of rights were only to be applied to the feds and that there was no statement that the bill of rights were not to be applied against the states.

    I agree with you that just because the framers mentioned COngress in the First amendment, it does not logically follow that the prohibitions contained in the first amendment do not apply to the states. I also agree that just becuase the framers mentioned COngress in the first amendment does not mean that the entirety of the Bill of Rights do not apply to the states.

  • ||

    James Anderson Merritt-

    Last night I also made the point about Article Iv, Section 4-the guarantee of a republican form of government. Some folks here are of the opinion that the framers regarded republican form of government as nothing more than the people electing representatives.

    That is, of course, baloney. The overwhelming majority of the framers thought of republican government as the best vessel to accomodate their belief that the protection of private property was the raison d'etre of government. They distrusted democracy-thus, they viewed elections as a check on those who get too cozy with their public office. They did not look at elections as a means by which succeeding majorities could impose their ever changing ends upon the rest of us. Elections were designed to change the faces of those serving the framers' mission of acting only to protect private property.

    Just because anti-sodomy laws existed at the time of the founding does not mean that said laws were constituional or in keeping with both the letter and the spirit of the founding documents. The same result obtains for fire-arms safety regulations extant at the time of the founding.

  • ||

    joe sez I don't understand how any of the rights-defining B.O.R. amendments can NOT be incorporated.

    You have company in Hugo Black, who in dissenting on Adamson argued that incorporation was an all or nothing proposition. He was in favor of the 'all' side. Unfortunately, the 'selective' side prevailed and has yet to be over-ruled.

    ayn_randian sez Does anyone wish that they hadn't included the Bill of Rights?

    Hamilton argued very well against the BoR in his Federalist writings. I used to be rather sympathetic to the viewpoint, but ultimately decided that for the trouble the BoR causes (the 9th in particular), Hamilton was wrong that all these things were beyond the reach of Congress in the first place. Considering how things have gone in Britain, I shudder to think what it would be like here without the BoR.

  • Episiarch||

    We finally, at long last, have become a retarded fun-house mirror image of Slashdot.

    It was a long journey, but we got there!


    Is your real name Buzz Killington?

  • Guy Montag||

    Nephilium,

    The internet is not like a truck, it is like tubes.

  • ||

    Liberty Mike wrote (in response to me): "I agree with you that just because the framers mentioned COngress in the First amendment, it does not logically follow that the prohibitions contained in the first amendment do not apply to the states."

    Actually, you have it backward about what I said. Since Congress is specifically mentioned, I think that the concept of "incorporation" and the amendment to enable it, are necessary to extend First Amendment protections in contravention of State laws; I wonder why the amendment was so qualified, given that so many of the Founders seemed to lump first amendment guarantees among the parameters of a proper society. But to assume that "Congress" is a proxy for all government is too much of a leap, in my opinion. On the other hand, anywhere the Constitution doesn't mention a specific level, arm, or agency of government, I think that the indicated parameter must apply "all the way down."

  • ||

    A hidden bonus in the Heller decision is the courts opinion on what the "Miller" decision really meant. This is that military utility also confers legality to "arms", separate from the individual "right of the people", which Heller affirms. They practically invite another case on this basis.

    Also, courts cannot give judicial relief beyond that requested. All Heller asked is that DC accept his registration to keep a handgun in his house. So this is all they granted.

  • ||

    U.S. Constitution - Article 6:
    "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

  • JMB||

    If those writers of our deceleration of independence had surrendered to their own misgivings, that to announce these grievances, it would be counterproductive to those other rights, those that had not therefor been abrogated by this King, would these rights now be a more dangerous thing to declare reserved from our own supreme bench of imperial kings. If it is within the power of these courts, to change our Constitutions, what difference will it make to our people whether this king wears the crown of his fathers, or those robes of a judge, when these words they speak are made to be as if they are final. Why call the People sovereign when the powers of sovereignty are exercised by those beyond their control? And even if these Judges, or these Kings, which ever description of them you may prefer, were to be elected, where might I ask, can these voting rights of the people impose any reasonable restrictions upon those behavior prerogatives that can be found within this deities attentive use of Suppositions and inferences as to what can not be properly claimed intolerable within their own thrones of justice.

    Where will our American Citizens find, in this new form of divine government any room left for a representative republic, and how prattle can any Constitution long maintain it, if itself is allowed to be reconstructed by this exclusive right of court.

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