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.