The Supreme Court Takes on Guns, Again

Heller lawyer Alan Gura revived the Second Amendment. Can he do the same for the 14th?


It has been only a year and a season since the Supreme Court shook the world of Second Amendment jurisprudence with the historical D.C. v. Heller decision. In that case, the court declared for the first time that the Second Amendment protects an individual right to bear arms against infringement by the federal government—at least commonly used arms, for self-defense in the home.

Heller opened the gates for a flood of new lawsuits by gun-rights friendly attorneys and organizations, most prominently the National Rifle Association and the Second Amendment Foundation. One of those cases, McDonald v. Chicago, challenging a gun ban in Chicago that's similar in most respects to the D.C. gun laws overturned in Heller, has just been taken up by the Supreme Court.

The counsel who will be arguing McDonald before the court in early 2010 is the same man who won Heller, Alan Gura. Although McDonald's challenge to Chicago's laws has so far lost at both the district court level and at the 7th Circuit Court of Appeals, Gura is confident he'll win.

The Chicago laws at issue are as significant a violation of a citizen's right to bear arms as were D.C.'s. Chicago residents can't have a gun without registration, can't register handguns, can't register a gun that's already in their possession, and if they miss a yearly deadline to re-register, that weapon becomes forever unregisterable. Gura and the Second Amendment Foundation (with the Illinois State Rifle Association) have pulled together a set of plaintiffs with personal tales of having their quality of life lessened by the gun ban.

Lead plaintiff Otis McDonald has a habit of calling the cops when he sees gang activity in his neighborhood; this has led some neighborhood kids to threaten and intimidate him. Another plaintiff, Colleen Lawson, recently had three men break into her home. Both McDonald and Lawson insist that having a handgun in their home would increase both their safety and peace of mind.

Following Heller, it might seem clearcut that Chicago's gun control laws should meet the same fate as those in Washington, D.C. So why hasn't it worked out that way? The reason is that the Second Amendment, rare among the fundamental rights laid out in the Bill of Rights, has never been held to apply to actions of any government entity other than a federal one. (Of course, it wasn't even considered to do that until Heller.) In the legal lingo, the Second Amendment has not been "incorporated" against states and localities via the 14th Amendment. By contrast, the First Amendment (Gitlow v. New York), Fourth Amendment (Mapp v. Ohio), and others have been (but not, yet, the Third or Seventh). Furthermore, there is currently some disagreement on this question among different districts of the federal appeals court system.

The 7th Circuit has said no in various challenges to Chicago area gun laws, as has the 2nd Circuit, in the Maloney case. The 9th Circuit, however, earlier this year in the Nordyke case said that the Second Amendment does indeed bind states and localities—though the 9th Circuit recently heard another round of arguments in that case and has decided to postpone its decision until after the Supreme Court decides McDonald.

Yet as Gura has demonstrated at length in his McDonald filings—as have numerous gun-rights scholars, particularly Stephen Halbrook—the top concerns of the drafters and ratifiers of the 14th Amendment in 1868 were the ways the rights of African-American citizens were being violated with impunity in the post-Civil War South, often with the eager cooperation of local and state officials.

Among the fundamental rights noted by the amendment's boosters was the right to bear arms. The 14th Amendment's Senate sponsor, Jacob Howard, referred to the need to protect "'the personal rights guaranteed and secured by the first eight amendments of the Constitution; such as freedom of speech and of the press;…the right to keep and bear arms….' Howard averred: 'The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees.'"

The 14th Amendment contains two phrases that could be used to protect individual rights against state and local government encroachment. The one that seems most clearly designed to do so is what Sen. Howard referred to above as "the first section," the Privileges or Immunities Clause, which says "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."

However, that clause has been a dead letter in American jurisprudence since the Supreme Court's 1873 decision in The Slaughterhouse Cases, an incredibly convoluted set of challenges to a legal slaughterhouse monopoly in New Orleans.

As Gura summed up the dire result of that case to the Privileges or Immunities Clause in a July interview with me, it "declared pretty much that the only privileges and immunities protected by the 14th Amendment are those of national citizenship, rights that accrue out of the existence of the federal government, like the right to a passport or right to travel the waterways of the U.S. or to petition Congress." This made it forever useless as a tool to vindicate the sort of rights that the 14th Amendment's drafters intended.

As libertarian-leaning constitutional scholars Kimberly C. Shankman and Roger Pilon argued in a 1998 paper for the Cato Institute that examined, and attacked, the courts' long history of suppressing and ignoring the Privileges or Immunities Clause, the clause's purpose was to "mak[e] explicit the implicit connection between natural rights and constitutional government." And as Damon Root has written for Reason, "the 14th Amendment was specifically designed and ratified to protect a sweepingly libertarian idea of self-ownership. That idea includes the right to acquire property, run a business, and buy and sell labor without unnecessary or improper interference by the government."

That's exactly why so many jurists of all persuasions have been hesitant about reviving it as an active part of contemporary jurisprudence, although nearly all legal scholars agree that the Slaughterhouse interpretation of the clause was dead wrong. One encouraging sign that the Supreme Court might be ready to rethink it is Justice Clarence Thomas's declaration in his Saenz dissent in 1999 that he "would be open to reevaluating [the Privileges or Immunities Clause's] meaning in an appropriate case." Gura may have given him the case he's been waiting for.

Gura, who hopes to raise the clause from the grave with his McDonald arguments, thinks possible misuse of the doctrine is no reason not to embrace it where it's appropriate. "If the Privileges or Immunities Clause guarantees certain unenumerated rights and those rights are violated, then great, have those rights vindicated! But if people file unmeritorious litigation [using Privileges or Immunities Clause arguments] that that litigation will not succeed, the courts will do their job, and that wave of misguided litigation will subside," he says. "A fear that people will try incorrect things [inspired by a revived Privileges or Immunities Clause] is not a reason to keep interpreting it the wrong way today."

Gura may be shooting for the moon in asking the Supreme Court to finally knock down Slaughterhouse after all these years. Fortunately, victory for him and the citizens of Chicago does not depend on this risky strategy. He's leaving room in his arguments for the court to decide in his favor through the means they've used to selectively incorporate the Bill of Rights since the premature death of the Privileges or Immunities Clause—the Due Process Clause of the 14th Amendment, which has come to mean not merely the procedures used by government but "substantive" due process as well.

As Gura writes in the McDonald petition, following the general ruling standard on selective incorporation from the 1968 Duncan case, the Second Amendment should definitely pass muster: "The modern incorporation test asks whether a right is 'fundamental to the American scheme of justice,'…or 'necessary to an Anglo-American regime of ordered liberty,'….Duncan's analysis suggests looking to the right's historical acceptance in our nation, its recognition by the states (including any trend regarding state recognition), and the nature of the interest secured by the right."

By all of those standards, as the 9th Circuit agreed in Nordyke, the Second Amendment should bind Chicago. The Supreme Court even suggested in its Heller decision that it is time to move beyond the apparent dominant precedent, 1876's Cruikshank decision, for denying Second Amendment incorporation, noting that "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."

The Supreme Court had three different cases petitioned to them this session dealing with Second Amendment incorporation. While the Court didn't explain why it chose McDonald, it also hasn't officially rejected the other petitions on gun rights cases. Second Amendment scholar and activist Dave Kopel notes that "When the Court takes a case, it's common for the Court to hold related cases in reserve. The certiorari grant in McDonald v. Chicago leaves NRA v. Chicago & Oak Park in reserve, in case some unexpected procedural problem arises with the McDonald case. In the unlikely event that the Chicago city council comes to its senses and repeals the handgun ban, the residual case of NRA v. Oak Park remains available to the Court. In the very unlikely event that the governments of Chicago and Oak Park both wise up, the Supreme Court has also retained Maloney v. Cuomo (about a N.Y. State ban on nunchaku) in reserve." The Court likely went for one of the Illinois cases over Maloney because, unlike with Maloney, the Illinois cases don't have the added complication of requiring the Court to decide whether nunchaku count as constitutional arms.

Gura's official brief will be filed with the Supreme Court in mid-November; Chicago will then have a month to file a response. Hearings and a decision will follow in 2010. Gura is especially pleased by an amicus brief already filed in the case signed by 33 state attorneys general arguing that, yes, the Second Amendment should restrict them and their state governments. Gura finds it "gratifying to see state attorneys general who will come out and say, 'we understand it's better if our states are bound by this right.' You don't see that very often; it's rare to see a government official claiming they should be bound by some constitutional limitation."      

The state attorneys general were also bold enough to bring up a classic gun rights argument that's often mocked by liberal intelligentsia—the idea that weapon rights aren't just about self-defense against crime, but are also about defense against tyranny: The brief states that "the right to bear arms provides the foundational bulwark against the deprivation of all our other rights and privileges as Americans—including rights that have already been incorporated against the States by this Court."

If Gura's brave gambit on the Privileges or Immunities Clause succeeds, the entire structure of American jurisprudence could shift in very interesting ways. We will undoubtedly see a wave of critics attacking "judicial activism" as citizens use this revived tool to defend their rights, as well as complaints from across the ideological spectrum as rights both personal and economic are brought before the courts. But more importantly, courts will once again hold a weapon they should never have laid down in the first place, one that allows them to defend from majoritarian tyranny the many rights of American citizens not explicitly and specifically laid out in the Bill of Rights.

Senior Editor Brian Doherty is author of This is Burning Man (BenBella), Radicals for Capitalism (PublicAffairs) and Gun Control on Trial (Cato Institute).

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34 responses to “The Supreme Court Takes on Guns, Again

  1. (but not, yet, the Third or Seventh)

    Not nationally, but Third was incorporated just in the states of the Second Circuit by Engblom v. Carey in 1982. It’s just that quartering soldiers doesn’t come up much.

  2. So, how long after the Court decides the 2nd is incorporated can I as a New York resident buy a handgun without a permit and carry it around wherever I go? How long?

  3. I don’t understand how the First Amendment could be interpreted as applying to the states or that the Second Amendment could somehow not apply to the states. The First Amendment says:

    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.”

    It seems clear that it is referring only to the United States Congress, and not state legislatures (none of which are called a “Congress”, but either “Legislature”, “Assembly”, or “General Court”), and therefore applies those restrictions only to the federal government.

    On the other hand, the Second Amendment clearly applies to everyone and restricts government at all levels. It says in part:

    … [T]he right of the people to keep and bear Arms, shall not be infringed.

    That is not to say that the First Amendment shouldn’t be applied to the states. But it seems to me that that would require an amendment of the language to explicitly state that it applies to government at all levels, and not just Congress.

  4. Could somebody please remind me when the First and other Amendments were first applied to the States?

    Was it due to the 13th and 14th Amendments?

      1. This still doesn’t make sense to me with respect to the First Amendment. It has very specific diction, which seems to limit only Congress, not state legislatures. The Second, Third, Fourth, Fifth, etc. are worded generically, as in: “…[S]hall not be infringed”, “No Soldier shall…”, “…[S]hall not be violated”, “No person shall be held…”, and so on. Those terms can be applied universally and those amendments make no references to specific legislative or governmental bodies, which the First does.

        The relevant part of the 14th Amendment says:

        “…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…”

        And 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.”

        So, that seems to indicate (to me) that the First Amendment only protects from the federal government establishing a religion, suppressing speech, assembly, and so forth. Since those are powers prohibited of the federal government, not delegated to the federal government (or prohibited of the states) by the First, they are reserved by the states by the Tenth Amendment. Unless one argues that the rights described in the First Amendment fall under the generic title of “liberty” as mentioned in the 14th Amendment, but that seems pretty tenuous to me.

        I think the First Amendment restriction applying to the federal government, but not the states, had something to do with the different religious backgrounds of some of the early colonies (e.g. Congregationalism in New England, Catholicism in Maryland). There were established religions in some states even into the 19th century. Of course, this doesn’t explain why the states would be permitted to restrict speech or assembly…

        In United States vs. Cruikshank in 1875 — an attempt at Incorporation of the Bill of Rights to the states after the 14th Amendment was passed — the Supreme Court found that neither the First Amendment nor the Second Amendment applied to the states. To me, it seems they are correct on the former and wrong on the latter. Of course, in the District of Columbia vs. Heller, the Supreme Court said that both applied to the states. Half wrong again, in my estimate.

        1. The problem is that you’re looking at the first only and ignoring the 14th. The reasoning is that if Congress cannot infringe upon the rights, then the 14th, which denies the same infringement, must protect those same rights from infringement by the states.

          It’s not actually about the wording concerning Congress, but rather the wording of the rights. That’s why the Slaugherhouse and Cruikshank cases are actually in error, because the Court in those cases actually ignored the obvious founding principles of the nation and instead focused on pure wording.

          The fundamental point is that since the government power exists only by consent of the governed, meaning the People, then the right of the People to make that consent, to revoke it, or to abolish or alter the consent, as Jefferson referred to in the D of I, is superior to and predates the governmental power, and so the governmental power has no authority to infringe the rights of the People–which is exactly what the 14th really says.

          1. Tannin,

            I am not ignoring the 14th Amendment (I quoted it above), although I admittedly may not be reading it correctly. The 14th says that the states may not abrogate the “privileges and immunities” of the people, but the only immunities granted by the First Amendment are against the federal government, which makes the 14th moot with respect to the First. For example, why would a state government make a law granting the federal government power to restrict the press?

            But I have to fundamentally disagree with your view, and I certainly think that Jefferson would have disagreed with you as well. You say that the intention is superior to the actual words and their actual meaning, which I find highly objectionable. To Ignore the words and rely on intent is to value subjective individual opinion and creative interpretation more highly than the laws’ plain meaning. You happen to interpret those words through the scope of individual liberty, but most people do not, especially those in government office. I do not believe for a moment that the highest law should be open at all to any ‘interpretation’, in your sense of the word.

            Alexander Hamilton justified the (un)constitutionality of the first central bank, the Bank of the United States by telling Thomas Jefferson that the powers were “implied” in the Constitution, you just have to “read between the lines”. Jefferson replied that he had done that and “found only blank space”. Jefferson said a central bank was not constitutional, and an amendment would have to be added to make it so.

  5. Watch, now you’ll start to see libs actually bringing up the 10th Amendment (of course in the wrong context). I, as a citizen of Illinois (downstate) hope that this case ends up similar to Heller. Maybe once the bans in Chi-town get lifted, state-wide laws will soften and we will finally get concealed carry.

    J. has a really good point. That little bit never occurred to me.

  6. i dream of the day when i can carry open or concealed in NJ. if Gura wins this one, i’ll totally put down some cash for a statue of him.

  7. Bulbie – You might be looking for Everson V. Board of Education, the Supreme Court case which resulted in application of the establishment clause to the states via the due process clause.

  8. Doh, here’s a complete list of rights applied to the states through the incorporation doctrine.

  9. RE 2nd & 14th Amendments:

    Nothing is more likely to (justly) infuriate a liberal than an assertion of the specious theory, which in recent years has gained support among conservatives (e.g., recently defeated Senator Rick Santorum of Pennsylvania), that the “original intent” of the First Amendment’s no-establishment clause was to preserve the right of the state governments to establish their own churches. “Congress shall make no law respecting an establishment of religion” — so that the state legislatures can. Along those lines, we may conclude that the “intent” of the free-exercise clause was to prevent federal interference in the state burning of heretics. The purpose of the Eighth Amendment? No doubt to safeguard the right of the state governments to erect their own torture chambers. And of course, the purpose of the Second Amendment is to allow those governments to form their own armies and even disarm the people if they so decide — a point where our liberal finds himself in perverse agreement with a hated premise.

    Let there be no doubt: The Bill of Rights is not a charter of the rights of state churches, state armies, and state torture chambers — and none of its ratification proponents ever championed it as such. It is a charter of the rights of American citizens — against the power of the federal government. The weak reed of this “states’ rights” theory is the fact that the Constitution did not secure these rights for citizens against the power of the state governments, a defect that Madison recognized and tried to remedy with an amendment (which he thought the “most valuable”) affirming “No state shall violate the equal rights of conscience” and other liberties. Sadly, it was never adopted, and incorporation — the application of the Bill of Rights to the state governments — was not achieved until the Fourteenth Amendment, whose “privileges or immunities” clause was stated by its author, Congressman John Bingham of Ohio, to effect precisely that end. (See Michael Kent Curtis’ No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights.)

    The question now: Who are the greater knaves of our time — liberals who embrace incorporation except for the Second Amendment or conservatives who reject incorporation, except for the Second Amendment?

    From here.

    1. Barry,

      “Specious theory”? Did you read my two posts above? The First Amendment is the only part of the Bill of Rights that specifies its restrictions as applying only to Congress, i.e. the federal government. All of the others are written generically (e.g. “shall not…”/”shall…”).

      One example you give, the Eighth Amendment, says:

      Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

      That is worded broadly as applying to everyone and restricting all governments at all levels. So your “state torture chambers” as constitutional under that interpretation assertion is preposterous on its face.

      The problem with that line of reasoning is that states did establish their own official churches, and that continued all the way up until 1833 when the Congregationalist Church lost its status as the official church in Connecticut. The fact that Madison’s more generic wording was rejected only confirms the intent of the First Amendment as applying only to the federal government and not the states.

      I think the First Amendment should apply to the states, but its wording in no way justifies that interpretation. Just because you don’t like it does not make it not so. Incorporation should be scrapped altogether as unconstitutional and contradictory to the written words of the Bill of Rights, and the First Amendment should be reworded generically to say that those rights “shall not” be restricted.

      1. Something important that everyone seems to be missing here: there is a critical distinction between the terms “privileges” and “rights”. Rights are inalienable and bestowed upon us by our creator; privileges, on the other hand, are granted and/or taken away, by the laws of man.

        The fact is, the plain language of the 14th amendment has nothing to say about rights– only “privileges”.

  10. The Third Amendment HAS been held to apply against the states. See Engblom v. Carey, a federal appeals court decision by the Second Circuit.

    But you are right that the Seventh Amendment has NOT been held to apply to the States.

  11. Hmmm, 33 Attorneys-General support the incorporation. Let’s see: Article 5: “…or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States or by Conventions in three fourths thereof,…”
    so the supportive states are sufficient in number to call a Constitutional Convention. And it only need 5 more States to concur to reach the 3/4’s ratification level.
    Veeerrrrrrryyyyy innnnterrrrrressstingggg!

  12. The whole notion of “selective incorporation” of the Bill of Rights, i.e. that some apply to the states and some do not, is ludicrous. What is the purpose of having a right – a protection from government action – when that right can be violated by one of the two governments under which we all live?

    I do not accept the idea that the Bill of Rights was intended to only apply to Congress (i.e. the federal government but not the states). And it shouldn’t require a weasely tweaking of the 14th Amendment to get (some of) the Bill of Rights to apply to the states, either.

    In my opinion, which I believe is what the framers intended (despite sloppy drafting), it was implicit that if Congress could not do something then the states – inferior entities – could not do it either. I’d say the Supremacy Clause is as good of a rationale as any.

  13. I have always been uncomfortable with the “incorporation doctrine.” J, above, makes a good point, which is in accord with my own view: The US Constitution is supreme over State Constitutions. Any flat pronouncements (e.g., that warrants are necessary for search and seizure) apply to the US and all inferior governments, including the States and localities. On the other hand, specific restrictions on Congress or either of the other two branches of the federal government apply only to them (at least, in the absence of any incorporation “magic” from the 14th amendment).

    The 2nd Amendment doesn’t need to be “incorporated” any more than the 5th. But, I suppose, the 1st does. Or does it? Last I checked, most, if not all State Constitutions provided for freedom of speech, religion, etc. Is it not reasonable to leave to the States the replication of specific federal protections through their own constitutions? It’s a moot question, I guess, since the 14th exists.

  14. in Chicago “if they miss a yearly deadline to re-register, that weapon becomes forever unregisterable” unless you are a Chi-town alderman, in which case a special law gets passed to allow you to re-register your guns, because, after all, those anti-gun laws are for the “little people” not the ruling elite….

    I submit that Gura is a genius of a lawyer and his stepwise pursuit of 2nd Amendment revitalization will be completely successful, especially when fighting against the corrupt and unethical Chicago government.

  15. If a constitutionally unenumerated right to privacy is sufficient to justify self protection through contraception and prophylactic use (Griswold v. Connecticut) for persons engaging in consensual sex acts, how can a Constitutionally enumerated right to bear arms for self protection against non-consensual violent acts be disallowed?

    Gura has another slam-dunk win of a case here.

  16. Slowley getting rights back, I sure hope so.

    Now if they would only get right on the WoD

  17. I have said this before. The 14th Amendment is a double-edged sword. It is both a limitation on State power and an affirmative source of legislative power for the federal government. Section 5 empowers Congress to enforce the terms of the Amendment through Legislation, and several federal courts have held that this authority extends beyond simply outlawing violations of the Amendment. The broader the 14th Amendment is read, the broader the authority of Congress to enact legislation that purports to serve the “values” of that Amendment, e.g, antidiscrimination legislation.

    1. Excellent point, Wicks. I think that liberals are very eager to swap expanded gun rights for the opportunity to legislate from the bench via the 14th Amendment. If the Slaughterhouse precedent is overturned, the 14th Amendment will be transformed from a goat path into an 8-lane superhighway for judicial activism.

      Very worrisome.

      1. I’ve never been able to wrap my head around the whole ‘legislating from the bench’ argument. It certainly seems to be overblown and overused. The examples I’ve heard discussed seemed to me to be less ‘activism’ and more interpretation of law in a way that person didn’t like or agree with. Perhaps it’s because I haven’t heard any solid examples to put it in context.

        I’d be glad to consider it if you have some to share.

  18. 92 I had a misdemeanor d be for the 96 gun law now i will be forced to sell my bussines after 35 years auto salvage yard to abide the law .Because of shells and guns in alot of them in my possesion Clean Record Since.

  19. My only point is that if you take the Bible straight, as I’m sure many of Reasons readers do, you will see a lot of the Old Testament stuff as absolutely insane. Even some cursory knowledge of Hebrew and doing some mathematics and logic will tell you that you really won’t get the full deal by just doing regular skill english reading for those books. In other words, there’s more to the books of the Bible than most will ever grasp. I’m not concerned that Mr. Crumb will go to hell or anything crazy like that! It’s just that he, like many types of religionists, seems to take it literally, take it straight…the Bible’s books were not written by straight laced divinity students in 3 piece suits who white wash religious beliefs as if God made them with clothes on…the Bible’s books were written by people with very different mindsets…in order to really get the Books of the Bible, you have to cultivate such a mindset, it’s literally a labyrinth, that’s no joke

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