(If you've ever wondered how my law school writing differs from my blog, this post is a fair mix of the two. Ok, my capitalization is usually at least somewhat more consistent in my formal writing.)
McDonald v. City of Chicago background
(Oh, and "incorporation" means taking something that the constitution says the federal government can't do and making so the states can't do it either. At this point, just about every right in the bill or rights has been incorporated--except the right to bear arms.)
The general idea here is that the Privileges and Immunities clause of the 14th Amendment was intended to include all of the rights of being an American, and one of those rights per the bill of rights is the right to bear arms. I'm not an originalist by nature-- and Due Process incorporation is a method that is far more consistent with precedent given that the court has for decades used the Due Process clause to do what the Privileges and Immunities clause was probably designed to do. That said, the Due Process method doesn't actually make as much sense, so I tend to favor a privileges and immunities clause interpretation that will effectively incorporate the right to bear arms. I tend to think both methods allow for it.
Academics widely agree that the Slaughterhouse cases, which gutted the privileges and immunities clause in the first place, were poorly decided. Further, the vague nature of some of the Due Process clause's language actually makes it a pretty poor choice for handing out rights.* Putting aside my reticence about supplanting 100 years of jurisprudence with a single case, I want to note that reviving the privileges and immunities clause allows for applications of it that a liberal court might find quite palatable, such as the right to education or even the right to health care. If we're going to muck with precedent, there's no sense in not going at it whole hog, after all.
Though I tend to agree with the argument that the original intention of the right to bear arms was militias and thus some restrictions on gun ownership are appropriate, the idea that the states are allowed to experiment on, effectively, just one of the Bill of Rights while pretty much every other one has been incorporated at this point seems inappropriate to me no matter how many scary stories of gun violence are trotted out.** I would no more vote for restrictions on free speech to be a matter for the states.
*What is 'arbitrary' is often decided, well, arbitrarily, and the word “liberty” was twisted in two entirely different directions in Roe v. Wade.
**I would favor removing the right to bear arms from the constitution entirely before I would favor not extending an existing constitutional restriction to state law . I don't favor either at the moment.
I can't see the argument that the original intention of the right to bear arms was militias. Why would you have to amend the Constitution to guarantee a right that was already guaranteed in the body of the Constitution? Article 1, Section 8, "To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;"
Given that my reading of 14th Amendment jurisprudence is that "nor shall any State deprive any person of life, liberty, or property, without due process of law;" is used to functionally mean "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States," the idea of constittional repetitiveness doesn't bother me.
Article I doesn't provide for an individual right; it outlines Congress's powers and limitations. The part you quote says that its Congress's role "To provide for organizing, arming, and disciplining the Militia." In contrast, the 2nd Amendment is in the Bill of Rights, which is focused on individuals' rights.
The other unincorporated right is the 7th Amendment. This is pretty much only important if you care about state-level tort reform that works by capping damages. The highest courts in Texas, Georgia and Illinois (possibly some other states, these are just the ones I know) have found that such caps violate the state-level constitutions' right to trial by jury. Texas overcame that by passing a constitutional amendment empowering the legislature to cap damages. An attempt to nullify the state constitutional amendment by claiming that it violated the federal 7th Amendment died because the 7th Amendment has not been incorporated. If Congress had included damage caps in health care reform, these almost certainly would have been challenged as a violation of the 7th Amendment.
Then again, the 7th Amendment is pretty freakish. I don't know of any other country that gives a right to a jury trial in a civil matter, and the countries closest to our system (Canada, UK) don't allow for it. I shared an office once with a Canadian-trained lawyer who was encountering U.S. product liability law for the first time, and she thought it was crazy for such technical matters to be decided by 12 laypeople.
Also, the 2nd Amendment is exceptional because no one actually wants to treat it like the other rights in the Bill of Rights. That is, we recognize all the other rights as being held by minors, felons and the insane. Being a child, having committed murder or being in a mental institution does not strip you of the rights to speech, privacy, due process, jury trial, etc. Yet even the folks who litigated Heller are not arguing that minors, felons and the insane all have a right to bear arms. (Even if they believe it, it's going to kill the public support in a heartbeat if you say a convicted rapist or a diagnosed paranoid schizophrenic should still be able to "keep and bear arms.")
The best rationalization of this I've heard was when I raised the point with Robert Levy, who said that the right to bear arms is a responsibility of citizenship like the right to vote, which historically has been withheld from children, criminals and crazies. But if it is like the right to vote, then it's perfectly acceptable for the states to regulate it (note the variety of state laws on whether felons can vote).
PG- "Article I doesn't provide for an individual right; it outlines Congress's powers and limitations."
That was actually my point. Some say that the second amendment was to give the state the right to form a militia, not the individual. I was trying to point out that the state didn't need an amendment to do that; the 2nd was specifically for individuals.
As to felons not having the right to carry, that's a fairly recent development. In the 19th century, and a good part of the 20th in some states, you usually got all your rights and property, including guns, back when your sentence was completed. I'm not arguing whether that's good or bad, just noting past precedent.
Oh, I see. I thought you were referring to a different version of the militia interpretation of the 2nd Amendment, i.e. that there is an individual right to keep and bear arms for the purpose of maintaining a "well regulated Militia". This means that, for example, there is no 2nd Amendment right to keep and bear arms specifically for the purpose of hunting or for individual self defense. See U.S. v. Miller: "In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument."
As to felons not having the right to carry, that's a fairly recent development.
From what I understand, under British law people convicted of felonies could be stripped of their arms even after serving their sentence, though the British also sometimes recruited convicted felons into military service, which of course had the effect of re-arming them. (At one time, according to Blackstone's Commentaries, British law also forbade non-Protestants from keeping arms for their own defense, among other civil disabilities, while still drafting non-Protestants into the military.)
The Founders lived under British law in the Colonial period, but one could claim that they were fighting against just such laws. Yet during the Revolutionary period, the Continental Congress encouraged the revolutionary colonial governments to disarm people who refused to swear a loyalty oath to the new U.S. Two colonies passed laws for the disarmament of such people.
Do you have a source indicating that in the 19th century, all states routinely restored civil rights, including the right to bear arms to a felon, simply upon completion of his sentence (as opposed to those who sought such a restoration)? Because states like Tennessee that didn't impose a blanket "civil death" on felons seem to be the exception, not the rule.
According to the 1890 Census, Rhode Island, Pennsylvania and Mississippi made it illegal for a "tramp" to carry arms at all, even if this tramp hadn't committed any crime. Similarly, some states made the right to vote contingent on having a certain amount of property. And of course Southern states, both before and after the Civil War, denied even free blacks both the right to vote and the right to bear arms. The two rights do seem to be related with regard to whether someone is deemed a fully responsible citizen.
PG- no, it wasn't all states; it varied widely. I don't have my sources immediately at hand, (still boxed) to tell you which states did what. And I should have noted that the right did vary by color as well- and not just in southern states, as you were correct to note. "Tramp" was often a code word for black, hispanic, or anyone else you didn't like.
Yes, my point is that there's little historical basis for claiming that the 2nd Amendment be treated like the other rights in the Bill of Rights, instead of being like the right to vote (i.e. contingent on being regarded as a full citizen who is undertaking a responsibility as well as enjoying a right, and largely regulated by the states).
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