Friday, October 26, 2007

Does Second Amendment Apply to States?

Answer: Yes.

See my article, "Second Amendment Incorporation Through the Fourteenth Amendment Privileges or Immunities and Due Process Clauses" at, just out in hardcopy with the Missouri Law Review.

When I started thinking about this article a few years back, I was prepared to argue that (1) the second amendment does not protect an "individual right," and (2) the second amendment does not apply to individual states, so they should therefore be allowed to outlaw guns.

This was my liberal wishful thinking, anyway, that government should be able to regulate anything as harmful as guns in our society (homicide rate of 4.3 per 100,000, more than 5 times the next highest rate among industrialized nations (Italy)).

But after looking into the history of the debates, etc., it soon became apparent that the overwhelming weight of evidence supports the contrary position, that (1) the second amendment WAS intended to protect an individual right; and (2) the entire bill of rights - including the second amendment - was affirmatively applied to the states in 1868 through the fourteenth amendment privileges or immunities clause (or, alternatively, through the Supreme Court's unnecessarily-tortured "selective incorporation" doctrine premised on the fourteenth amendment due process clause). And as much as I or anyone else might wish it to be otherwise, we can't simply pick and choose from among the constitutional provisions we like and do not like - if we are to maintain fidelity to the notion of constitutional government, we must give effect to the ENTIRE Constitution. (On this point, see also my letter to the New York Times on March, 19, 2007.)

But, as I say in the article (fn. 5), to say that a right like the second amendment is entitled to constitutional protection is NOT to say the right cannot be meaningfully regulated. As Harvard law professor Laurence Tribe notes, "[measures that] by and large do not seek to ban all firearms, but seek only to prohibit a narrow type of weaponry (such as assault rifles) or to regulate gun ownership by means of waiting periods, registration, mandatory safety devices, or the like ... are plainly constitutional.... Even in colonial time the weaponry of the militia was subject to regulation."

Here's the full abstract to the Missouri Law Review article:

"The second amendment, alternately maligned over the years as the black sheep of the constitutional family and praised as a palladium of the liberties of a republic, should be recognized by the United States Supreme Court to apply to the several States through the Fourteenth Amendment privileges or immunities clause or, alternatively, through the due process clause.
This article suggests that the issue of Second Amendment incorporation presents a useful contemporary mechanism for the Court to revive the long-dormant Fourteenth Amendment privileges or immunities clause. Such judicial recognition of the clause is necessary to respect the Framers’ vision, as inspired by the Declaration of Independence and laid out in the amended Constitution, for a government that would serve, instead of rule, the people. Government would exercise its necessary, limited role, and otherwise leave the people alone, with the Constitution standing ever watchful as guardian to assure that government would not overstep its bounds, as governments are apt to do."

Monday, October 1, 2007

Post-Bush America

One of the lasting effects of the George W. Bush presidency is that U.S. credibility is so damaged around the world that it will be difficult for his successor to shape events ranging from addressing global warming, to economic integration, to middle-east politics, and so on and so on.

Perhaps most worrisome is that democracy itself, as a viable political system for the greater good, is damaged by U.S. behavior under Bush's leadership. Why democracy, one might ask, in view of the messes the U.S. is making in Iraq, global warming, Guantanamo Bay, etc., etc.? As Roger Cohen suggests in today's New York Times, "Liberal democracy has taken a battering. A countermodel now exists: the authoritarian-capitalist, or Leninist-capitalist, systems of China and Russia. They have benefited from Iraq's democracy-as-mayhem."

Democracy is the best system yet devised for protecting the Enlightenment-based values of Reason and Individual Liberty. With the bungling of Bush and the Gang that Couldn't Shoot Straight, the next president will have a tall task in restoring faith around the world in the American version of democracy epitomized in the values of pluralism, rule of law, independent media, market economies, tolerance, and basic human decency.