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Heller and incorporation of the Second Amendment:
Along with many others, I noted yesterday that the Supreme Court expressly left open the question whether the individual right to keep and bear arms in the Second Amendment should be incorporated into the Fourteenth Amendment to apply against the states. Here is the relevant passage reserving the issue:
With respect to [the nineteenth-century case of U.S. v.] Cruikshank's continuing validity on incorporation, a question not presented by this case, we note 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. Our later decisions in Presser v. Illinois (1886) and Miller v. Texas (1894) reaffirmed that the Second Amendment applies only to the Federal Government.
Op. at 48 n. 23.
The footnote is a whipsaw; it reads like one person originally wrote the first line and, seeing it, another came along and insisted on adding the second. The first sentence suggests that just as Cruikshank was wrong (and under-theorized) on First Amendment incorporation it was also wrong (and under-theorized) on Second Amendment incorporation. But the second sentence notes two post-Cruikshank opinions confirming that the Second Amendment limits only federal power. There's been some speculation that Justice Scalia may not have had five votes for a more unequivocal pro-incorporation statement. The generally more cautious, incrementalist, and minimalist tendencies of Chief Justice Roberts may have prevailed here, as did minimalism on other important questions the Court avoided (noted in a post yesterday by Orin).
Nevertheless, on re-reading the decision, I noticed a passage that seems relevant to future litigation on the incorporation question. In the middle of his review of post-Civil War enactments, Justice Scalia highlights the importance to the newly freed slaves of the right to keep and bear arms in the home. He also reviews how federal authorities took steps to prevent vengeful and racist southern legislators from infringing this right. Mike O'Shea at Concurring Opinions also points to this discussion as significant on the incorporation issue. It is, as he notes, exactly the kind of evidence that scholars have relied upon to support incorporation.
Especially significant are these sentences from Heller discussing congressional understanding of the Civil Rights Act of 1871 and the Fourteenth Amendment:
Similar discussion attended the passage of the Civil
Rights Act of 1871 and the Fourteenth Amendment. For
example, Representative Butler said of the Act: "Section
eight is intended to enforce the well-known constitutional
provision guaranteeing the right of the citizen to 'keep and
bear arms,' and provides that whoever shall take away, by
force or violence, or by threats and intimidation, the arms
and weapons which any person may have for his defense,
shall be deemed guilty of larceny of the same." H. R. Rep.
No. 37, 41st Cong., 3d Sess., pp. 7--8 (1871). With respect
to the proposed Amendment, Senator Pomeroy described
as one of the three "indispensable" "safeguards of liberty
. . . under the Constitution" a man's "right to bear arms for
the defense of himself and family and his homestead." Cong. Globe, 39th Cong., 1st Sess., 1182 (1866). Representative
Nye thought the Fourteenth Amendment unnecessary
because "[a]s citizens of the United States [blacks]
have equal right to protection, and to keep and bear arms
for self-defense." Id., at 1073 (1866). It was plainly the understanding in the post-Civil War Congress that the Second Amendment protected an individual
right to use arms for self-defense.
Op. at 43-44.
Interestingly, the quote from Rep. Nye supports incorporation through the Citizenship Clause, rather than through due process, though Nye himself believed blacks already enjoyed the right in common with all citizens. The right to keep and bear arms for self-defense could be considered an implicit and indispensable aspect of "citizenship" protected by the first sentence of the Amendment. Others might argue that the right is a privilege or immunity protected against state intrusion.
Add to all of this the fact that the Court repeatedly compares the incorporated First Amendment to the unincorporated Second Amendment as a guarantee of important individual rights. A court that believes the Second Amendment is comparable to the hallowed First Amendment is unlikely to leave protection of the right to the mercy of legislative majorities in states and cities.
Whichever specific route the lower courts now choose — the Citizenship Clause, the Privileges and Immunities Clause, the Due Process Clause — it seems the Supreme Court is providing a road map and is strongly suggesting that the ultimate destination is incorporation. Related Posts (on one page): - Supreme Court Cites Lysander Spooner!:
- Heller and incorporation of the Second Amendment:
Supreme Court Cites Lysander Spooner!:
In editing Heller for the supplement to my new casebook, Constitutional Law: Cases in Context (Aspen 2008), I noticed a reference to the great Lysander Spooner in Justice Scalia's opinion that I had previously overlooked. The following passage is worth reading in its entirety due to its relevance to the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment:
Antislavery advocates routinely invoked the right to bear arms for self-defense. Joel Tiffany, for example, citing Blackstone's description of the right, wrote that "the right to keep and bear arms, also implies the right to use them if necessary in self defence; without this right to use the guaranty would have hardly been worth the paper it consumed." A Treatise on the Unconstitutionality of American Slavery 117--118 (1849); see also L. Spooner, The Unconstitutionality of Slavery 116 (1845) (right enables "personal defence"). In his famous Senate speech about the 1856 "Bleeding Kansas" conflict, Charles Sumner proclaimed:
"The rifle has ever been the companion of the pioneer and, under God, his tutelary protector against the red man and the beast of the forest. Never was this efficient weapon more needed in just self-defence, than now in Kansas, and at least one article in our National Constitution must be blotted out, before the complete right to it can in any way be impeached. And yet such is the madness of the hour, that, in defiance of the solemn guarantee, embodied in the Amendments to the Constitution, that 'the right of the people to keep and bear arms shall not be infringed,' the people of Kansas have been arraigned for keeping and bearing them, and the Senator from South Carolina has had the face to say openly, on this floor, that they should be disarmed—of course, that the fanatics of Slavery, his allies and constituents, may meet no impediment." The Crime Against Kansas, May 19--20, 1856, in American Speeches: Political Oratory from the Revolution to the Civil War 553, 606--607 (2006). Perhaps some commentator can do a Westlaw or Lexis search to confirm that this is the first time Spooner has been cited by the Supreme Court.
While I am on the subject of the Fourteenth Amendment—the next likely judicial battleground over the right to arms—here is Justice Scalia's discussion of Post-Civil War Legislation (which Dale excerpted on Friday): In the aftermath of the Civil War, there was an outpouring of discussion of the Second Amendment in Congress and in public discourse, as people debated whether and how to secure constitutional rights for newly free slaves. See generally S. Halbrook, Freedmen, the Fourteenth Amendment, and the Right to Bear Arms, 1866--1876 (1998); Brief for Institute for Justice as Amicus Curiae. Since those discussions took place 75 years after the ratification of the Second Amendment, they do not provide as much insight into its original meaning as earlier sources. Yet those born and educated in the early 19th century faced a widespread effort to limit arms ownership by a large number of citizens; their understanding of the origins and continuing significance of the Amendment is instructive.
Blacks were routinely disarmed by Southern States after the Civil War. Those who opposed these injustices frequently stated that they infringed blacks' constitutional right to keep and bear arms. Needless to say, the claim was not that blacks were being prohibited from carrying arms in an organized state militia. A Report of the Commission of the Freedmen's Bureau in 1866 stated plainly: "[T]he civil law [of Kentucky] prohibits the colored man from bearing arms. . . . Their arms are taken from them by the civil authorities… . Thus, the right of the people to keep and bear arms as provided in the Constitution is infringed." A joint congressional Report decried:"in some parts of [South Carolina], armed parties are, without proper authority, engaged in seizing all fire-arms found in the hands of the freemen. Such conduct is in clear and direct violation of their personal rights as guaranteed by the Constitution of the United States, which declares that 'the right of the people to keep and bear arms shall not be infringed.' The freedmen of South Carolina have shown by their peaceful and orderly conduct that they can safely be trusted with fire-arms, and they need them to kill game for subsistence, and to protect their crops from destruction by birds and animals." Joint Comm. on Reconstruction, H. R. Rep. No. 30, 39th Cong., 1st Sess., pt. 2, p. 229 (1866) (Proposed Circular of Brigadier General R. Saxton). The view expressed in these statements was widely reported and was apparently widely held. For example, an editorial in The Loyal Georgian (Augusta) on February 3, 1866, assured blacks that "[a]ll men, without distinction of color, have the right to keep and bear arms to defend their homes, families or themselves." Halbrook 19.
Congress enacted the Freedmen's Bureau Act on July 16, 1866. Section 14 stated:"[T]he right … to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens … without respect to race or color, or previous condition of slavery… . " 14 Stat. 176--177. The understanding that the Second Amendment gave freed blacks the right to keep and bear arms was reflected in congressional discussion of the bill, with even an opponent of it saying that the founding generation "were for every man bearing his arms about him and keeping them in his house, his castle, for his own defense." Cong. Globe, 39th Cong., 1st Sess., 362, 371 (1866) (Sen. Davis).
Similar discussion attended the passage of the Civil Rights Act of 1871 and the Fourteenth Amendment . For example, Representative Butler said of the Act: "Section eight is intended to enforce the well-known constitutional provision guaranteeing the right of the citizen to 'keep and bear arms,' and provides that whoever shall take away, by force or violence, or by threats and intimidation, the arms and weapons which any person may have for his defense, shall be deemed guilty of larceny of the same." H. R. Rep. No. 37, 41st Cong., 3d Sess., pp. 7--8 (1871). With respect to the proposed Amendment, Senator Pomeroy described as one of the three "indispensable" "safeguards of liberty … under the Constitution" a man's "right to bear arms for the defense of himself and family and his homestead." Cong. Globe, 39th Cong., 1st Sess., 1182 (1866). Representative Nye thought the Fourteenth Amendment unnecessary because "[a]s citizens of the United States [blacks] have equal right to protection, and to keep and bear arms for self-defense." Id., at 1073 (1866).
It was plainly the understanding in the post-Civil War Congress that the Second Amendment protected an individual right to use arms for self-defense.
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