Constitutional Law
Will Second Amendment Be Incorporated Through Citizenship Clause?
Posted Jun 17, 2009 5:49 AM CST
By Debra Cassens Weiss
Federal appeals courts hearing gun rights cases after the U.S. Supreme Court’s Second Amendment ruling last year in District of Columbia v. Heller are confronting an old issue: whether the amendment applies to restrict state and local laws under the incorporation doctrine.
Heller found that the Second Amendment protected an individual right to own a gun in the District of Columbia, a federal enclave. New suits challenging state and local laws have resulted in a split. Two federal appeals courts refused to apply the Second Amendment to local laws without express Supreme Court authorization. A third disagreed.
University of Texas law professor Sanford Levinson told the New York Times that the case could present a dilemma for some conservative justices who scoffed at incorporation arguments in the past. Because of the touchy issues, he says he would be surprised if the Supreme Court agrees to hear new cases on the issue.
Yale law professor Akhil Reed Amar told the Times that incorporation fell out of favor after the 1960s, but it’s being resurrected by liberal scholars. Most of the Bill of Rights have been applied to the states under liberal Warren Court rulings that found the 14th Amendment required incorporation. One exception is the Seventh Amendment right to a jury trial, which has not been applied to the states.
“The precedents are now supportive of incorporation of nearly every provision of the Bill of Rights,” Amar told the Times. “Now what’s odd is that the Second Amendment doesn’t apply to the states.”
He believes the justices will support incorporation. A post at the Volokh Conspiracy after the Heller ruling cited evidence that Justice Antonin Scalia may be on board.
Scalia’s Heller opinion highlights the importance to the newly freed slaves of the right to keep and bear arms in the home—the kind of evidence used to support incorporation. One Scalia passage hints that he believes the amendment could be incorporated through the 14th Amendment’s citizenship clause, rather than due process safeguards, says the Volokh Conspiracy writer, University of Minnesota law professor Dale Carpenter.
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Comments
Jose
Jun 17, 2009 7:01 AM CST
If they take away our right to bear arms, is it time to start a new revolution?
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Liss
Jun 17, 2009 7:09 AM CST
Incorporating the Second Amendment to apply to the states would do the opposite. It would mean the protection of the right to bear arms would apply to state and local governments.
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Mike
Jun 17, 2009 10:06 AM CST
Liss is correct, but this would do nothing to protect against other legislation to restrict ammunition and the like. This may be one of the biggest issues right now. I don’t think the intention of the law was to restrict gun ownership. Most of the arguments involved with the second amendment are a positivist argument, whereas the second amendment does not fall under natural law as the right to protect yourself. As I understand it, we do have the natural right to protect ourselves be it from the hooligan or the government; This being the reason for the second amendment.
Of course a gun czar could always be appointed to just mandate gun control.
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associate
Jun 17, 2009 10:09 AM CST
How in the world did you guys make it sound like Scalia is wrong in wanting to incorporate the 2nd amendment to apply to the states? That is some seriously twisted writing.
If all of the other amendments apply to the states, then why wouldn’t the second? If the second doesn’t apply to the states, then why would the others?
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Dave
Jun 17, 2009 10:31 AM CST
It seems to me that the framers of the 14th amendment might have thought there were too many guns during a Civil War.
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Carl in Chicago
Jun 17, 2009 10:32 AM CST
RE: comment by Jose:
Do you recall what sparked the first American revolution?
RE: the article in general:
The question is not whether the 2A will be incorporated against the states and municipal governments. The question is whether it will be incorporated via the Due Process clause, or via the Privileges or Immunities clause.
The skepticism by Sandy Levinson regarding whether SCOTUS will grant cert. is astonishing, given his stature in law and knowledge of these issues and their history.
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K.G.
Jun 17, 2009 12:47 PM CST
Jose, after they’ve taken away the right to bear arms what instrumentality will you use to conduct your revolution? Perhaps you can lead a music revolution.
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DR
Jun 17, 2009 2:39 PM CST
To K.G. @ No. 7: No, it will be a Dance Dance Revolution!
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P. Bryson
Jun 17, 2009 3:27 PM CST
We can be sure that if Paris Hilton, Spencer & Heidi, or John & Kate (+8) are doing anything that week then the revolution will not be televised. There will be more important stories.
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Christopher J Hoffman
Jun 17, 2009 8:42 PM CST
USSC Justice Scalia, writing for the majority in Heller vs DC:
“We start therefore with a strong presumption that the
Second Amendment right is exercised individually and
belongs to all Americans.”
I think it’s a very safe bet that the SCOTUS will consider the second amendment to be a right fundamental enough to warrant incorporation via the 14th amendment. Indeed, a primary intent of the 14th was to prevent infringement of 2nd Amendment right of newly freed slaves. This is one of the most under-told, dirty little secrets of the racist underbelly of gun control in this country.
It’s only through bad, old, racist case law the the entire bill of rights wasn’t applied to the states after ratification of the 14th. The Supreme Court appears to be waiting with baited breath to undo Slaughterhouse, Presser vs Illinois, and one or two other historical embarrassments. And good riddance. There will be wonderful irony when the restoration of the 2nd amendment to it’s rightful place results in the most sweeping expansion of civil rights since the civil war, the application of the entire bill of rights against the states, the way that the 14th amendment originally intended it.
In a related case:
6_17_09 DC folded today on the gun roster scheme they attempted to inherit from California. the court was notified of emergency legislation being put in place to move toward compliance with Heller vs DC
Alan Gura, lead counsel for Dick Heller:
“It’s impossible to list every single gun protected by the Second Amendment,” Gura stated. “We won’t stop until this list is scrapped.”
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B. McLeod
Jun 17, 2009 11:54 PM CST
Well, they should stop snacking on lutkefisk during the recesses.
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K Martin
Jun 18, 2009 8:00 AM CST
What about the 10th Amendment? “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States repectively, or to the people.” The key part in this discussion is “nor prohibited by it to the States” which means the States can’t override the Constitution. The Second Amendment is still part of the Constitution.
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Pedro
Jun 18, 2009 8:36 AM CST
You don’t need a gun. Obama will bring peace to the world. Look at Iran - Obama has orchastrated the beginning of a new government there. Obama and his speech in Cairo will bring peace to the middle east and the end of Israel. Obama is finally taking away control of these neocon companies and letting the people own them by and through the government. Obama is the messiah the world has always needed.
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Dido
Jun 18, 2009 9:19 AM CST
Are you kidding me Pedro? BO…the messaiah? C’mon, get a grip on reality. Obama is slowly but surely making this a socilatist country. He has no regard for the Constitution or of the founding principles and ideals that made this country so great in the first place. People and the bias media are too blind to see it.
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JR
Jun 18, 2009 9:20 AM CST
The courts are refusing to incorporate the 2nd via judicial activism? Wouldn’t incorporation restrict the Sovereignty of the States to legislate what they wish? Why are waiting for the Supreme Court to authorize it—waiting for a few old judges?
I suppose it isn’t “judicial activism” when a judge interprets the Constitution to enable gun ownership.
I shoot guns, and I like guns. I also see more pointless injuries than valiant heroics with guns. In N.C., at times I’d see guns waved out the windows of cars when others thought I wasn’t driving fast enough.
Why even pretend it is a question of Constitutional interpretation? Let’s admit it: our lovely Constitution is old, and the words have been stretched to match interests instead of Immutable Principles. The more mushy we make Constitutional interpretation, the more we undermine the legitimacy of the Courts. Interpretation becomes “politics by other means.” And THAT—not the ability to own a gun without registering—would be a reason for revolution.
JR
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Derek
Jun 18, 2009 9:21 AM CST
Most of the Bill of Rights have already been incorporated to the states via the 14th Amend. The individual right to keep & bear arms for self-defense is older than the Constitution & originated in English common law. At the time the Bill of Rights were adopted, every state permitted individuals to keep & bear arms. However, over time, many states like NJ, NY, MA, & CA have greatly restricted that right preventing ordinary citizens from bearing arms for their own defense or banning certain guns b/c of their appearance. It’s high time the 2nd Amend. was specifically incorporated to the states & that all states & the Feds respect the 2nd Amend.
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Derek
Jun 18, 2009 9:26 AM CST
Dave surmises the framers of the 14th Amend. thought there were too many guns in private hands. Actually, the drafters of the 14th specifically cited Southern laws preventing Blacks from owing & carrying firearms as one of the reasons to amend the Constitution. Southern states were still oppressing Blacks after the Civil War & denying Afriican-Americans their right to bear arms was one of those heinous laws.
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J.D.
Jun 18, 2009 9:34 AM CST
The policies of which Derek speaks were supported by Democrats.
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Stuart S.Strickler, US Army, Retired
Jun 18, 2009 10:11 AM CST
The Second Amendment applies to every citizen of these United States. Argue all you want, that won’t change the true meaning.
Don’t even think that you can prevent me from owning or carrying firearms. You can’t!
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B. McLeod
Jun 18, 2009 10:59 AM CST
It is an interesting path that the Court has turned down. Eventually, the courts will have to hear many more cases to decide the permissible limits. Given that “keep and bear arms” does not specify any limited variant of “arms,” shouldn’t we all be able to insist on having a tripod-mounted .50 belt feed and some RPGs in the living room, if that is what we need to feel secure? Logically, “and bear” should extend the right at least to any weapon a single infantryman could carry, including mortars, recoiless rifles, shoulder-fired antitank and antiaircraft weapons, and the whole range of mines and grenades.
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K Martin
Jun 18, 2009 11:06 AM CST
B. McLeod- Yes, all of the above. Do you not realize our military is made up of individuals with access to those arms?
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BD
Jun 18, 2009 11:14 AM CST
Incorporation is a concept designed to cherry pick rights. There is nothing in the constitution to support Incorporation - there is no authoritiy to require it.
The 2nd Amendment is, per the Founders, a “natural right”. Patrick Henry was VERY clear on this. This “natural right” cannot be given away, nor can any government on earth deprive you of it.
If the 2nd Amendment is not fully recognized, it would certainly be just cause for a 2nd Revolution. If we remember, it was precisely the right to keep and bear arms that Gen. Gage was trying to infringe upon on 19 Apr. 1775 (the night of Paul Revere’s ride) and was the catalyst to revolution.
The Founders were very specific, every word in the 2nd amendment was chosen for a purpose. The militia part was expressly to refute the keeping of a standing army, and “Shall not be infringed” was expressly to prevent ANY direct or IN-direct attempts on the right. The Gunpowder embargo by Gen. Gage would, per the Founders, have been illegal under the 2nd amendment and was specifically why the term “infringed” was used, rather than “prohibited”.
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BD
Jun 18, 2009 11:38 AM CST
And B. McLeod,
YES. We can, if we wish, have belt fed machine guns, RPGs, Tanks, etc. The 2nd Amendment was envisioned to prevent the citizenry from being unable to defend themselves from military oppression.
The 2nd Amendment does NOT, however, give anybody any right to go -shooting- off the gun down the street, or firing on aircraft, or for use in robbery. Hence, those crimes should be crimes, and with more strict punishment.
Additionally, the constitution (not just the 10th Amendment) specifically states that it (the constituion) is superior to and takes priority over state constitutions, even if they came first. The point being, that nothing in the constitution is significant enough to deny states rights on the vast majority of issues, only on the fundamentals.
I often wonder, is an “implied right to privacy” “incorporated”?? Shouldn’t southern states have simply ignored the bill of rights (and not be considered oppressive) if they didn’t apply to the state level? You can’t have it both ways and shouldn’t.
I would recommend Stephen Halbrooks “Founders’ 2nd Amendment” if you want a deep and comprehensive look at the founders’ intent (not only on the 2nd amendment, but constitutional issues in general).
I’m not a lawyer, but I’m certain that I understand the constitution clearly. That was the intent, so that lay-people didn’t require a lawyer to decipher the rules of government.
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B. McLeod
Jun 18, 2009 12:24 PM CST
I don’t think tanks would be included. Show me someone who can “bear” a tank, and I’ll show you someone who doesn’t need a weapon.
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K Martin
Jun 18, 2009 12:35 PM CST
B. McLeod - LOL. The Second Amendment doesn’t just say “bear” it also says “keep”.
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Keep and Bear
Jun 18, 2009 3:22 PM CST
Agree with B McLeod, it says “keep and bear.” So in order to keep it, you must be able to bear it (this is strict textual interpretation as Scalia would have it). Otherwise, the text should be “keep OR bear.”
And if it is “keep OR bear,” we can keep a lot more things than tank, F-22, aircraft carrier, heck, nuclear warhead will fit nicely in anyone’s backyard.
Also, if I can KEEP all of the above items, don’t I have the implied right to sell or trade them. Maybe I can give my nuclear warhead to a third world country for free as a gift… Too much to ask…
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Keep and Bear
Jun 18, 2009 3:25 PM CST
Or maybe it’s not too much to ask, and I can get somthing in return for my donation…
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Mark Wisniewski
Jun 18, 2009 4:36 PM CST
Local Gun Control is today’s Jim Crow. The Confederacy was the ultimate expression of “States Rights”.
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john luvaro
Jun 18, 2009 7:18 PM CST
Jose asks: “…If they take away our right to bear arms, is it time to start a new revolution…?
============ ==== =============
Why do your think millions of Americans are now stockpiling guns and ammo?
Hint: It’s not because we’re expecting an abundant Deer season
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D. Jones
Jun 19, 2009 12:08 AM CST
As to the theory that to “keep and bear arms” means you can own an 81 mm mortar or suitcase nuke if you wish, I would put forth that since the 2nd Amendment is found to protect the right of the individual, the USSC may choose to qualify whether an ‘arm’ is capable of defending both an individual as well as the collective to be qualified as arms able to be ‘kept and borne’.
Take the current NFA (National Firearms Act) statutes that allow you to own that belt fed .50 cal. as long as you register it with the FBI and your local sheriff (in states that follow the NFA. You’re out of luck in NJ, NY, MA and CA). You can’t however own artillery pieces like that 81mm mortar or much else over a diameter of 15 mm. The NFA arms, while dangerous, can theoretically be used to defend an individual as well as the collective citizenry.
You’d be hard pressed to defend an individual with that 81mm or nuke. They are strickly for collective defence and can only be used responsibly so. Even the founding fathers seemed to recognize that the 2nd Amendment didn’t cover artillery pieces. It will be interesting to see how the USSC reasons through that particular nuance as well as whether or not the 2nd Amendment applies to NFA weapons at all. Remember, the smoothbore flintlock musket was the M-16 of its day.
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Jared
Jun 19, 2009 5:13 AM CST
The title says “citizen clause.” But the article does not discuss it. What does this idea mean? i.e. What is incorporation through the citizenship clause?
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James Pollock
Jun 19, 2009 6:18 AM CST
If you go with an originalism argument, wouldn’t “arms” be limited to those arms known to the founders? It’s kind of hard to imagine that the founders (or even the authors of the 14A) meant to include a right to high-capacity machine guns (or RPG’s or chemical weapons or nuclear devices or ...) since none of those things had been invented yet. Maybe they would have taken the absolutist road, or maybe they would have permitted some “reasonable” limitations. After all, the first amendment says that “Congress shall make no law” abridging freedom of speech, but we still have slander, inciting to riot, obscenity, time-place-manner restrictions, and many others.
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Ron
Jun 19, 2009 7:10 AM CST
The paragraphs below are from a 1994 Duke Law Journal titled,The Second Amendment and the Personal Right to Arms by William Van Alstyne.As you will see the intent was that the states would have to honor the Second Amendment
So, in reporting the Fourteenth Amendment to the Senate on behalf of the Joint Committee on Reconstruction in 1866, Senator Jacob Meritt Howard of Michigan began by detailing the “first section” of that amendment, i.e., the section that “relates to the privileges and immunities of citizens.”[50] He explained that the first clause of the amendment (the “first section”), once approved and ratified, would “restrain the power of the States”[51] even as Congress was already restrained (by the Bill of Rights) from abridging
the personal rights guarantied and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining to each and all the people; the right to keep and to bear arms; the right to be exempted from the quartering of soldiers in a house without the consent of the owner; the right to be exempt from unreasonable searches and seizures[; etc., through the Eighth Amendment].[52]
In the end, Senator Howard concluded his remarks as follows: “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.”[53] There was no dissent from this description of the clause.
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paul k
Jun 19, 2009 7:12 AM CST
#32- “Arms” would not be limited to those “known” by the founders per a specific model. Instead, you should consider that the founders allowed muskets, etc., knowing that these types of arms were the most advanced weapons of the their time. The founders did not say knives, swords, or clubs- the said arms - meanining highly advanced weapons, such as rifles. So a strict interpretation means individuals can still have the most advanced weapons of thier time, such as that sexy .50 cal belt fed tripod machine gun :) Of course, that doesn’t mean some reasonable restrictions such as the 1A example of not yelling “fire” in a theatre. Basically, .50 cal yes. nukes no.
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AndytheLawyer
Jun 19, 2009 7:13 AM CST
Odd that the anti-Obama freaks can’t actually point to anything Obama’s ever said about wanting to eliminate or restrict gun ownership.
As for the presumption that the apocalypse is a-comin’ and it’s time to retreat to the backyard fallout shelter with crates of ammo and dried food, I’m reminded of Mahatma Gandhi’s response when asked what he thought of western civilization: “It would be a good idea. They should try it.”
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Student
Jun 19, 2009 7:21 AM CST
If I understood con law properly incoporation of a Constitional amendment is a misnomer. Where the argument lies is whether the right protected by the amendment is so fundemental the protection of liberty provided by the 14th mandates the state to observe the protections of the amendment. The recent case law from the noted circuit spilt, specifically the King case out of the 9th uses the ground work laid by Scalia and the path to incorporation found in Duncan v. La. to make a very supported arguement for the fundemental nature of gun rights. Needless to say it is not an absolute right, and regulation will still be forthcoming regardless.
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B. McLeod
Jun 19, 2009 7:28 AM CST
From the perspective of weaponry that was extant at or prior to the framing of the constitution, rockets, grenades, mortars, and many types of large and small cannons, mines and bombs were known. Civilizations as distant as the classical Greeks had developed flamethrowers, and there were several variants of crank or lever-operated, rapid-fire missile weapons (although the concept had not yet been applied to firearms).
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Dan
Jun 19, 2009 7:31 AM CST
#32, you start by saying “strict interpretation means individuals can have the most advanced weapons of their time” and within the same breath say “reasonable restrictions”. How are those two statements consistent? A nuke is certainly much more advanced than a .50 caliber rifle. Heck, howitzers aren’t terribly advanced - large bore cannon have existed for centuries - does that mean we can have those?
Additionally, for the other people in this thread talking about revolution - #1, #19, etc. - the second amendment, even in the loosest reading, does not protect a right to rebel, or commit mass murder or treason. These acts would of course be illegal and unconstitutional. Mind you, such acts can be morally justified even if not legally justified - see 1776, for example. The second amendment protects the citizen’s inherent ability to rebel against a tyrannical government, but it doesn’t give a right to do so. Rather, if one exists, it is inherent and inalienable. So, the second amendment shouldn’t be read to be talking about hunting or self-defense, but should be read as preventing the government from rounding up all weapons preemptively to prevent rebellion, as England was attempting to do before the revolution. Accordingly, reasonable time, place, and manner restrictions - such as banning weapons from parks - should not be considered an infringement.
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JME
Jun 19, 2009 7:36 AM CST
Please recall that when the Brits marched that night, it was not just the gunpowder that was stored in the churches they were after, it was also the cannons (also kept at the churches). Why were these at the churches? Because the rally location in any town was generally the church, as well as that being the largest single structure in a town, thus capable of storing said munitions. So, these semi-organized militias, composed of all the men and boys of the town, possessing the most modern firearms of their day, would gather at the church, praise God and pass the ammunition. Should we also own the most modern weapons of our day? Probably, yes. Should there be registration? Ask those in other countries in the early 20th century, as Hitler and Stalin and others used registration to confiscate. As ther is allegedly a separation of church and state, there should be a separation of weapons ownership and the state. The state simply should not be involved. We have a right to revolution if such a cause should again be required.
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Garp
Jun 19, 2009 7:36 AM CST
#32, Amen.
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Dan
Jun 19, 2009 7:54 AM CST
#39, there’s no constitutional right to revolution. By definition, you’re rebelling against the constitutional government, engaging in treason and criminal acts.
That said, why not registration? You start by saying that we should have an unlimited right to possess firearms, for the purpose of engaging in treason and criminal acts, if justified, and then say “but we can’t register, because they might then ask for the guns.” If you’re considering revolution and active rebellion, why would you be so concerned about not wanting to break a law requiring you to turn over your weapons? That’d be like marching on Washington in armed rebellion, but making sure not to jaywalk or litter on the way.
Registration would merely aid in preventing other non-rebellion acts: domestic violence, stolen weapons used in commission of a crime, etc.
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sue
Jun 19, 2009 8:12 AM CST
For those of you who apparently have never actually read the 2nd amendment, here is the text:
“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.”
Considering the phrase “well regulated” is in the amendment, I’m not sure how people can argue that gun regulation violates the Constitution.
And the purpose for gun rights was for militias, which was the norm back then as many Americans distrusted standing armies. Contrary to what Scalia says, the right is a collective right of the “people.” The writers of the Bill of Rights used the term “person” when referring to individual rights. For someone who claims to take the Constitution’s words literally, he sure bends them to fit his agenda.
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Allthewayto11
Jun 19, 2009 8:21 AM CST
I do not want to necessarily delve into all of the “arms” vs. indiscriminate weapons (e.g., explosives, nuclear, biological) discussion, or the set type/Internet to muskets/M4s parallels between the 1A and 2A, but I did want to raise a point on whether ammunition can be viewed in a vacuum separate and apart from “arms.” In my estimation, it cannot.
Ammunition is an essential component of any functioning firearm. Without ammunition you do not have “arms,” you have unwieldy clubs. Excessive taxation or regulation of ammunition, in my mind, would be no different than excessive taxation or regulation of other essential firearms components. How would a 1000% tax on barrels or recievers fly? “Oh, were not infringing on the 2A, we’re just imposing reasonable regulations.” I would argue otherwise—the axiom “you cannot do indirectly that which you could not do directly” comes to mind.
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Allthewayto11
Jun 19, 2009 8:31 AM CST
Sue (#42), please do some research as to what the term “well-regulated” meant back in the late 1700s. It did not mean subject to government-imposed restrictions; it meant properly functioning—like a “well-regulated clock.” Additionaly, I suspect Scalia and his clerks did a good piece of research on the collective vs. individual rights issue before any conclusions were reached.
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Dan
Jun 19, 2009 8:33 AM CST
Not that I disagree with Heller, #44, but please… we’re talking about Scalia. He had his conclusion long before any research was done.
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pluxor
Jun 19, 2009 8:45 AM CST
@42: Really, they used the term “person” for individual rights? How about the 4th amendment? Is that a collective right as well?
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AndytheL:awyer
Jun 19, 2009 9:41 AM CST
Funny how Scalia and his other strict constructionist buddies never noticed that the second amendment is the only amendment in the Bill of rights that expressly states its purpose (well-regulated militia.” You can’t “strictly construe” ths amendment by ignoring those words.
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Dan
Jun 19, 2009 9:45 AM CST
I think it was a bit of hedging, #47. They didn’t really want to come out and say “The ability of a people to revolt in case of tyranny being necessary to the liberty of a free state, the right of the people to keep and bear arms shall not be infringed.”
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K Martin
Jun 19, 2009 9:51 AM CST
Hey #45 Andythelawyer, Obama’s Attorney General Eric Holder is saying that the president will seek to reinstate the ban on semi-automatic firearms. You sound like the lockstep Obama supporters criticising the USofA first.
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Hadley V. Baxendale
Jun 19, 2009 9:53 AM CST
Originalism/strict construction question: Since the Constitution autrhorizes Congress to establish armies and navies, but not the air force, is the USAF unconstitutional?
BTW this discussion is how these forums should operate, not a bunch of whing about law school and jobs!
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