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 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=723501, 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."

Huge News - Supreme Court Grants Certiorari in McDonald v. Chicago re: Privileges or Immunities

Word just in that the U.S. Supreme Court has granted certiorari in (i.e., decided to hear) the McDonald v. Chicago case discussed here previously - and, most importantly, did not appear to have limited the arguments to due process, as Chicago had suggested.

Specifically, here's how the issue is framed in today's order (scroll down to Docket No. 08-1521): "Whether the Second Amendment is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home."

Please forgive the momentary gloat, but this is precisely the question raised (which my thesis answers in the affirmative) in my 2007 Missouri Law Review article, entitled (in language virtually identical to the Court's stated issue): "Second Amendment Incorporation Through the Fourteenth Amendment Privileges or Immunities and Due Process Clauses."

So, the Privileges or Immunities argument we've been pushing, for so long, is ON in the Supreme Court. This is huge.

Jefferson & Hamilton - slavery

One of the most disappointing things about America's Founders and Framers is that they were so... well, imperfect. We want our heroes to be the stuff of myth, dispensing their Zeusian wisdom on high from Mt. Olympus, so it's hard to get past the fact that Jefferson - he of "inalienable rights" and "all men are created equal" - Madison, and others of their peers and colleagues, were slaveowners.

I lurk on a listserv for constitutional law and political science profs, and recently there've been some illuminating exchanges on this point; in particular, comparing Thomas Jefferson and Alexander Hamilton.

A number are highly critical of Jefferson for his hypocricy on the slavery question. Professor Sean Wilson from Penn State comments, for example, "I think [Jefferson's] opposition to the Missouri Compromise later in life (wanting slavery to expand everywhere), his non-opposition to voluntary emancipation in Virginia, and his opposition to the slave trade can be further understood in terms of his racism. Virginia had an excess supply of slaves, so all of these efforts would encourage fewer Americans of African descent to live in Virginia. He talked about the need to have "diffusion" before slavery might be outlawed (which is code for not having too many people around you)...."

Professor Paul Finkelman of Albany Law School says that when he began his extensive work on Jefferson, he "expected to take [a favorable] position.... I had read books about Jefferson and assumed he was a moderately antislavery man, caught up in his world. I then read almost everything Jefferson has ever written on slavery and came to a very different conclusion. I have looked very carefully at his life and his treatment of his slaves. It is not a very pretty picture. His statements are very dishonest."

"[For example,] in Notes on the State of Virignia he makes it clear that they are not his 'moral equal.' He argues that they do not love like white people, they have not skill, they are in effect genetically inferior to whites. He compares them to Roman slaves, noting the many successes of Roman Slaves, and then goes on to note that Roman slaves were "white." In the Notes, written in 1783, he seems pretty certain that blacks are naturally inferior to whites in all ways. Other southerners argue the same thing. They also are already arguing that the Bible supports slavery in general and black slavery in particular.... Indeed, Jefferson's Declaration forces Jefferson and others to assert and develop a "scientific" racism to support slavery since otherwise the logic of the Declaration would be emancipation. Jefferson opposed emancipation his whole life, even telling friends not to free their slaves (they were "pests" "on society" he argued)."

Hamilton, by contrast, comes off much more favorably. Professor Matthew Holden from Virginia comments, "Hamilton supported the proposal of Laurens of South Carolina to free African slaves and arm them to fight the British, [stating,] 'The contempt we have been taught to entertain for the blacks makes us fancy many things that are founded neither in reason nor experience, and unwillingness to part with property of so valuable a kind will furnish a thousand arguments to show the impracticability or pernicious tendency of a scheme which requires such a sacrifice.'"

Professor Wilson adds, "(a) Hamilton saw the evils of slavery in St. Croy [sic] and the west indies fairly early in life; (b) Hamilton knew that a single-cash crop economy was an inferior economic model that was actually, in the long term, retarding the South's development into an industrial and manufacturing economy; (c) Hamilton appears to have been against both slavery and discrimination; (d) Hamilton never favored "repatriation;" and (e) both he and his wife were committed abolitionists throughout their own lives."

In comparing the two men, Finkelman concludes, "there is a huge difference between someone who "condemns" slavery -- that is says it might be wrong in the abstract, or that it is bad policy, or that it harms white people (that are Jefferson's points) and someone who actually does something about it in either is professional, public, or personal life. A number of men of the revolutionary era freed their own slaves either in their lifetime or at their death. Others, like Judge St. George Tucker, proposed ways of ending slavery. Jefferson did none of this."

All of that said, Professor Michael Curtis from Wake Forest suggests we should acknowledge the individual failings but look also at the larger contributions: "The 'poetic exaggeration' of the Declaration was a force for good--whatever the failings of the man who wrote it and the others who endorsed it. It helped to expand suffrage to the poor, to support freedom for the slave, to expand suffrage to women, to support civil rights for blacks and others, and to further equal rights for women. You can see its influence, I think, in section 1 of the 14th Amendment. Not a bad list of contributions for a 'poetic exaggeration.' It was, as Lincoln saw, an ideal--never fully attained but something to strive for. So Lincoln denied that the ideals of the Declaration could or should be degraded by the fact many of the framers did not live up to its ideals or to the practices they engaged in in 1776."

DC v Heller Decision - Second Amendment Protects Individual Right

As predicted in my earlier blogs on this case, the Supreme Court today held 5-4 in DC v. Heller that the Second Amendment protects an individual right.

As stated in the syllabus, Justice Scalia's majority opinion announces that "The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home."

Regarding the linguistic interpretation of the Second Amendment, which confoundingly reads, "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," the Court said that the "prefatory clause" (i.e., the language up to and including "... free State"), while it announces a purpose, does not limit the purposes for which the right identified in the "operative clause" (ie, "the right of the people to keep and bear Arms, shall not be infringed") may be used - including the right to keep arms for self-defense.

Interestingly, on the narrow technical question of whether the Second Amendment protects an individual right, it would appear that all nine Justices agree. As the first lines in Justice Stevens' dissent comments, "The question presented by this case is not whether the Second Amendment protects a 'collective right' or an 'individual right.' Surely it protects a right that can be enforced by individuals."

Where the dissent differs, however, is in how far that individual right goes. As Stevens continues, "But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right."

On this point, all nine of the Justices also agree that some measure of regulation of the right to bear arms is acceptable. The majority allows, for example, that the following sorts of restrictions would not necessarily violate the Second Amendment:

• concealed weapons prohibitions;
• longstanding prohibitions on the possession of firearms by felons and the mentally ill;
• laws forbidding the carrying of firearms in sensitive places such as schools and government buildings;
• laws imposing conditions and qualifications on the commercial sale of arms;
• historical prohibitions on the carrying of dangerous and unusual weapons (weapons protected are only those “in common use at the time” of the Second Amendment's drafting (ie, 1789).

So, in a way, the majority and dissent are largely in agreement: there is an individual right, and certain regulations are acceptable. Where they disagree is in how restrictive those regulations may be. Whereas the dissent believes a total ban on guns (as in the DC ordinance at issue in the case) would be okay, the majority says that in no event may the regulate impose an outright prohibition.

So what will this mean? It means there will be a lot of litigation to determine whether certain federal restrictions on guns are constitutional. It will also mean that State and Local laws will be challenged, and the next BIG question for the Court will be whether the Second Amendment even applies to the States.

The Bill of Rights, by its terms, only applies to the federal government; however, within the last eighty years or so the Supreme Court has held that almost every other one of the twenty-five or so protections contained within the Bill of Rights (such as the First Amendment freedom of speech and religion; the Fourth Amendment right to be free of unreasonable search and seizure, and the Eighth Amendment's right to be free of cruel and unusual punishment) applies also to the states - but it has simply never addressed within that time the issue of whether the Second Amendment applies to the States.

Assuming the Court holds that the Second Amendment applies to the States, as I argue it should in my 2007 piece in the Missouri Law Review entitled, "Second Amendment Incorporation Through the Fourteenth Amendment Privileges or Immunities and Due Process Clauses," there will then be a lot of litigation on whether state and local restrictions survive the Second Amendment.

So is this a good decision? Yes. As I've argued previously, it's always a good thing when the Court recognizes a constitutional protection of an individual liberty interest. A faithful reading of the Constitution does not allow us to pick and choose from among rights we like or dislike, and we bolster all of our rights, both enumerated and unenumerated (e.g., right to privacy, right to be free of government interference in actions which do no harm to others), when we adopt an expansive view of individual liberty.

Nordyke - Incorporation of the Second Amendment to Apply to the States

Most, but not all, of the Bill of Rights have been held by the U.S. Supreme Court to apply to the states through the doctrine of "selective incorporation" under the 14th amendment due process clause. As I've argued here previously, it is improper that not ALL of the Bill of Rights have been applied to the states through the 14th amendment privileges or immunities clause ever since the amendment's 1868 ratification, since that was in fact the clearly-stated intent of the framers of the 14th amendment.

Yesterday, in Nordyke v. King, the Ninth Circuit Court of Appeals correctly held that the Second Amendment is incorporated to apply to the states - but it did so using the same "selective incorporation" process instead of the privileges or immunities clause. (Professors Michael Kent Curtis, Richard Aynes, William Van Alstyne and I argued in an amicus (friend of the court) brief in the case in favor of the privileges or immunities clause approach.) Actually the court's use of selective incorporation is not surprising; it will take a decision from the U.S. Supreme Court to re-invigorate the privileges or immunities clause - which has lain dormant since the egregious 1873 Slaughter-House Cases opinion which buried it alive. On another positive note, however, the Ninth Circuit did acknowledge our argument in footnote 5 (citing to my Missouri Law Review article):

"We are aware that judges and academics have criticized Slaughter-House’s reading of the Privileges or Immunities Clause. See, e.g., Saenz v. Roe, 526 U.S. 489, 527-28 (1999) (Thomas, J., dissenting) (“Because I believe that the demise of the Privileges or Immunities Clause has contributed in no small part to the current disarray of [the Supreme Court’s] Fourteenth Amendment jurisprudence, I would be open to reevaluating its meaning in an appropriate case.”); id. at 522 n.1 (collecting academic sources); Michael Anthony Lawrence, Second Amendment Incorporation Through the Fourteenth Amendment Privileges or Immunities and Due Process Clauses, 72 Mo. L. Rev. 1, 12-35 (2007); see also Akhil Reed Amar, The Bill of Rights 163-230 (1998) (arguing that the Privileges or Immunities Clause applies against the states all “personal privileges” of individual citizens, whether enumerated in the Bill of Rights or not, but not the rights of the states or the general public)...."

For its part, the Seventh Circuit Court of Appeals in McDonald v. Chicago will soon decide whether the second amendment is incorporated to apply to the states. We have also filed an amicus brief in McDonald, arguing again for incorporation through the privileges or immunities clause. In all likelihood, the Seventh Circuit also will play it safe and find the second amendment is "selectively" incorporated through the due process clause.

Both of these cases are sure to be appealed to the U.S. Supreme Court - and that will be where our privileges or immunities clause arguments will be truly considered (we HOPE). As I claim in my earlier works, a judicial reinvigoration of the privileges or immunities clause can have profound effects on how we view individual liberty vis-a-vis government in America.

Stay tuned!

McDonald v. Chicago - Petitioner's Brief

The Petitioner's Brief in the McDonald v. Chicago case, involving whether the 2d Amendment applies to the states, has been filed in the Supreme Court. See it here.

The brief spends 66 of its 73 pages arguing that the proper constitutional mechanism for incorporating the 2d amendment is the fourteenth amendment privileges or immunities clause (a provision that was improperly buried by the Supreme Court 136 years ago, in The Slaughter-House Cases - as I've discussed in these pages previously); then makes the conventional due process argument in the remaining pages.

Alan Gura, the attorney for the petitioners, recognizes the rare opportunity this case provides to right a monumental wrong that was perpetrated by a Southern-sympathetic Court after the Civil War, and he's done a terrific job making the arguments in this brief.

(My two articles on this topic - "Second Amendment Incorporation Through the Fourteenth Amendment Privileges or Immunities and Due Process Clauses" (in the 2007 Missouri Law Review); and "Rescuing the Privileges or Immunities Clause: How 'Attrition of Parliamentary Processes' Begat Accidental Ambiguity; How Ambiguity Begat Slaughter-House" (in the forthcoming 2009 William & Mary Bill of Rights Journal) - are cited in this petitioner's brief at pages 29 and 52, respectively.)

Second Amendment Oral Arguments in Supreme Court

I had the privilege today of hearing personally the oral arguments in the U.S. Supreme Court of the major Second Amendment case, DC v. Heller.

From the questioning, it sounds like the U.S. Supreme Court will find the Second Amendment protects an individual right - a welcome development, as I discuss in an OpEd published in today's Detroit Free Press.

Interestingly, the sides were really not that far apart - both correctly note that reasonable regulation of guns is acceptable. Where they differ is whether a "reasonable" regulation includes an outright ban on guns, as DC argues; or whether an outright ban is "unreasonable," as Heller argues (and agreed with by the lower court in this case).

Here's the text of the Free Press OpEd:

The U.S. Supreme Court will hear arguments today about whether individuals have the right to own a gun -- one of the most important constitutional law cases of the past 100 years.

The reason this case, D.C. v. Heller, is so important is that it involves an individual right guaranteed in the Bill of Rights that most lower courts throughout American history have held simply does not exist. The U.S. Supreme Court, by contrast, has never addressed the question of whether the Second Amendment protects an individual right, and in fact has heard only one Second Amendment case in well over a hundred years (1939).

The Supreme Court in D.C. v. Heller has a chance finally to do the right thing and settle the question that the Second Amendment protects an individual right. This would be a positive step, because a faithful reading of the Constitution does not allow us to pick and choose from among rights we like or dislike, and we bolster all of our rights, both enumerated and unenumerated (e.g., right to privacy), when we adopt an expansive view of individual liberty.

As for what this case means to the average person, let's say average-Joanne wants to keep a gun under her pillow at night for security; while average-Joe, for the common good of society, wants Congress to prohibit her and everyone else from doing so. Who wins?

Joanne wins, and can keep her gun, if the Supreme Court upholds the lower court decision that the Second Amendment protects an individual right. Joe wins, and the government can ban guns (as the District of Columbia did in this case), if the court holds that the amendment instead protects a "states' right" to arm the people collectively.

But the fact is both Joanne and Joe also win under the individual right position. To say the Second Amendment protects an individual right simply means that the government cannot prohibit firearms, but nothing prevents their reasonable regulation. Other individual rights, such as First Amendment freedom of speech, are properly subject to government regulation, though never prohibition.

An increasing number of courts now conclude that the Second Amendment was intended to protect an individual right.

The reason the amendment has been misinterpreted for so long is that its language is unclear. By stating, "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," the amendment opens itself up to argument on whether it is intended to protect only a collective states' right as opposed to an individual right. Virtually every federal or state court considering the question over the past century has adopted the former perspective -- until now.

By recognizing that the Second Amendment protects an individual right subject to reasonable regulation, the court will protect both average-Joanne's individual right to own a gun and average-Joe's common-good interest in regulating them.


MICHAEL ANTHONY LAWRENCE, a professor at Michigan State University College of Law, is the author of "Second Amendment Incorporation through the Fourteenth Amendment Privileges or Immunities and Due Process Clauses" in the Missouri Law Review (Winter 2007). He blogs at http://www.progressiveliberty.blogspot.com/.

Just another note beyond the OpEd - the sorts of acceptable regulations, even when the Second Amendment is interpreted to protect an individual right, would include those offered recently by the New York Times editorial page :

“Requiring background checks for every gun purchase. That means closing the egregious loophole that permits unlicensed dealers to sell firearms at gun shows without conducting any background check.

“Limiting purchases to one gun a month in order to defeat traffickers who use straw purchasers to buy weapons in bulk and then resell them on the street.

“Once again banning the sale of military-style assault weapons and high-capacity ammunition magazines like those used by the Virginia Tech and Northern Illinois University killers.”

Second Amendment Decision

Yesterday’s decision by the DC Circuit Court of Appeals interpreting the Second Amendment as protecting an individual right to bear arms is cause for celebration for all freedom-loving Americans, even those deeply concerned about gun violence in the United States.

First, nothing in the court’s interpretation prevents government from imposing meaningful regulations on the possession of firearms. Others of our most fundamental rights are properly subject to government regulation (though never outright prohibition), such as the First Amendment’s protection for freedom of speech, which is subject to “reasonable time, place, and manner” governmental restrictions.

Second, we bolster our claim on all of the rest of our constitutionally-protected rights – both enumerated and unenumerated (the right to privacy, for example) – when we adopt the sort of expansive view of liberty recognized in yesterday’s decision. A faithful reading of the Constitution simply does not allow us to pick and choose from among those constitutional rights with which we may agree or disagree; and the fact is that the great weight of serious historical research by many scholars over the past couple decades demonstrates that the Second Amendment (click here to see my forthcoming article in the Missouri Law Review discussing much of this research) was intended to protect an individual right to keep and bear arms – like it or not.

If the individual right to keep and bear arms no longer meets with our vision of what we wish America to be, the only acceptable way to remove the right is to amend the Constitution, not through sleight-of-hand by continued adherence to a discredited interpretation of the Second Amendment.

By: Michael Anthony Lawrence