Michael C. Dorf: Does the Second Amendment Bind the States?
[Michael C. Dorf, a FindLaw columnist is the Robert S. Stevens Professor of Law at Cornell University. He is the author of No Litmus Test: Law Versus Politics in the Twenty-First Century and he blogs at michaeldorf.org.]
In 2008, in District of Columbia v. Heller, the Supreme Court invalidated a Washington, D.C. handgun ban as applied to home possession by a law-abiding citizen. The 5-4 majority said that the Second Amendment protects an individual right to possess firearms for self-defense. Although recognizing the government's ability to regulate firearms possession, Justice Scalia's opinion for the Court found that a complete ban on handguns went too far.
Heller involved the District of Columbia, an arm of the federal government. Accordingly, the case did not provide an opportunity for the Court to rule on whether the Second Amendment limits state and local gun control laws. Three Nineteenth Century precedents say that the Second Amendment does not limit state (or by implication, local) gun control laws. However, as the Heller Court observed in a footnote, those cases pre-date Twentieth Century cases setting forth the modern approach to determining which provisions of the Bill of Rights apply to the states. The Court thereby invited gun right advocates to challenge state and local laws. They readily accepted the invitation.
Last week, the Court announced that it would hear a case, McDonald v. Chicago, posing the question whether the Second Amendment applies to the states and their sub-divisions. In lawyer's jargon, McDonald requires the Court to say whether the Fourteenth Amendment "incorporates" the Second Amendment against the states. As I shall explain in this column, the case poses an intellectual challenge for the Justices who were in the Heller majority. To see why, we will need to begin by reviewing the story of how other constitutional rights came to be incorporated against the states.
The Original Bill of Rights Limited the Federal Government, But Not the States
Two provisions of the Bill of Rights--the First Amendment, which specifically refers to "Congress," and the second clause of the Seventh Amendment, which refers to federal courts--make clear by their language that they are only limits on federal action. The balance of the Bill of Rights, however, sets out rights of the People that, taken at face value, could be said to bar infringements by the states and their sub-divisions as well as by the federal government.
Yet that was not how the Bill of Rights was originally understood. In the first Congress, James Madison proposed an amendment that would bar states from violating "the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases." The proposal was defeated, largely because Madison's fellow representatives saw the Bill of Rights as a check on the federal government alone. State constitutions, they thought, already provided whatever rights were needed against state (and local) violations.
The Supreme Court confirmed that the original Bill of Rights only limited the federal government in the 1833 case of Barron v. City of Baltimore.
Incorporation Against the States Via the Privileges or Immunities Clause?
There matters stood until 1868, when the Fourteenth Amendment was adopted. It states, in relevant part: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law."
The Privileges or Immunities Clause appears to be a quite natural way of saying that the Bill of Rights, formerly only a limit on the federal government, is now a limit on the states as well. Under this straightforward reading, the "privileges or immunities of citizens of the United States"--that is, the rights set forth in the Bill of Rights--are protected against each "State."
And in fact, there is pretty good evidence that the Privileges or Immunities Clause was expected to incorporate the Bill of Rights against the states. Article IV of the original Constitution protects against interstate discrimination with regard to "all Privileges and Immunities of Citizens in the several States." That Privileges and Immunities Clause was famously interpreted by Justice Bushrod Washington (a nephew of the first President) in the case of Corfield v. Coryell as encompassing those fundamental rights enjoyed by "citizens of all free governments." The framers and ratifiers of the Fourteenth Amendment were well aware of Corfield, and by choosing to parallel the Article IV language, they can be understood to have intended to adopt its approach.
Nonetheless, the Supreme Court rejected that broad reading of the Privileges or Immunities Clause shortly after its adoption. In the 1872 Slaughterhouse Cases, the Court read the Clause very narrowly, essentially as protection for rights that were already protected by the language and structure of the pre-Fourteenth Amendment Constitution. From that moment forward, the Privileges or Immunities Clause has been treated as nearly a dead letter...
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In 2008, in District of Columbia v. Heller, the Supreme Court invalidated a Washington, D.C. handgun ban as applied to home possession by a law-abiding citizen. The 5-4 majority said that the Second Amendment protects an individual right to possess firearms for self-defense. Although recognizing the government's ability to regulate firearms possession, Justice Scalia's opinion for the Court found that a complete ban on handguns went too far.
Heller involved the District of Columbia, an arm of the federal government. Accordingly, the case did not provide an opportunity for the Court to rule on whether the Second Amendment limits state and local gun control laws. Three Nineteenth Century precedents say that the Second Amendment does not limit state (or by implication, local) gun control laws. However, as the Heller Court observed in a footnote, those cases pre-date Twentieth Century cases setting forth the modern approach to determining which provisions of the Bill of Rights apply to the states. The Court thereby invited gun right advocates to challenge state and local laws. They readily accepted the invitation.
Last week, the Court announced that it would hear a case, McDonald v. Chicago, posing the question whether the Second Amendment applies to the states and their sub-divisions. In lawyer's jargon, McDonald requires the Court to say whether the Fourteenth Amendment "incorporates" the Second Amendment against the states. As I shall explain in this column, the case poses an intellectual challenge for the Justices who were in the Heller majority. To see why, we will need to begin by reviewing the story of how other constitutional rights came to be incorporated against the states.
The Original Bill of Rights Limited the Federal Government, But Not the States
Two provisions of the Bill of Rights--the First Amendment, which specifically refers to "Congress," and the second clause of the Seventh Amendment, which refers to federal courts--make clear by their language that they are only limits on federal action. The balance of the Bill of Rights, however, sets out rights of the People that, taken at face value, could be said to bar infringements by the states and their sub-divisions as well as by the federal government.
Yet that was not how the Bill of Rights was originally understood. In the first Congress, James Madison proposed an amendment that would bar states from violating "the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases." The proposal was defeated, largely because Madison's fellow representatives saw the Bill of Rights as a check on the federal government alone. State constitutions, they thought, already provided whatever rights were needed against state (and local) violations.
The Supreme Court confirmed that the original Bill of Rights only limited the federal government in the 1833 case of Barron v. City of Baltimore.
Incorporation Against the States Via the Privileges or Immunities Clause?
There matters stood until 1868, when the Fourteenth Amendment was adopted. It states, in relevant part: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law."
The Privileges or Immunities Clause appears to be a quite natural way of saying that the Bill of Rights, formerly only a limit on the federal government, is now a limit on the states as well. Under this straightforward reading, the "privileges or immunities of citizens of the United States"--that is, the rights set forth in the Bill of Rights--are protected against each "State."
And in fact, there is pretty good evidence that the Privileges or Immunities Clause was expected to incorporate the Bill of Rights against the states. Article IV of the original Constitution protects against interstate discrimination with regard to "all Privileges and Immunities of Citizens in the several States." That Privileges and Immunities Clause was famously interpreted by Justice Bushrod Washington (a nephew of the first President) in the case of Corfield v. Coryell as encompassing those fundamental rights enjoyed by "citizens of all free governments." The framers and ratifiers of the Fourteenth Amendment were well aware of Corfield, and by choosing to parallel the Article IV language, they can be understood to have intended to adopt its approach.
Nonetheless, the Supreme Court rejected that broad reading of the Privileges or Immunities Clause shortly after its adoption. In the 1872 Slaughterhouse Cases, the Court read the Clause very narrowly, essentially as protection for rights that were already protected by the language and structure of the pre-Fourteenth Amendment Constitution. From that moment forward, the Privileges or Immunities Clause has been treated as nearly a dead letter...