Antonin Scalia

Arming America

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

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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.