March 1, 2010
Primer on Second Amendment, Incorporation
The National Law Journal ran four articles today that together make an excellent primer on McDonald v. Chicago, the Second Amendment case to be argued tomorrow at the Supreme Court.
Professor Saul Cornell (Fordham, American History) argues that "[g]un-rights advocates have peddled three dubious claims to the Court": the militia purpose disappeared by the time the Fourteenth Amendment was enacted; Republican supporters of the Fourteenth Amendment were "pro-gun zealots who opposed robust gun regulation"; and there was a general consensus on Second Amendment incorporation at the time of ratification of the Fourteenth Amendment. Cornell points to the split among the judges on Second Amendment incorporation in the 1870s case against the lynchers of Captain Jim Williams. He argues that "there is absolutely no evidence to suggest that anyone believed that the Fourteenth Amendment prevented the states from passing neutrally applicable gun regulations designed to promote public safety, and that only those weapons related to militia activity and preservation were constitutionally protected. And he argues that the Court in tomorrow's case should look closely at John Bingham's public speeches defending the Fourteenth Amendment and stating that states would retain control over matters such as "personal security."
Timothy Sandefur (Pacific Legal Foundation) argues for incorporation via the Privileges and Immunities Clause (and for overturning the Slaughter-House Cases). (We posted most recently on incorporation via P and I here.) Sandefur argues that a ruling based on the Privileges and Immunities Clause "would signal a return to the amendment's original purpose" and open up constitutional space for claims protecting "economic freedoms" against "state and local bureaucrats."
Dennis Henigan (Brady Center to Prevent Gun Violence) argues that the right to bear arms is "the most dangerous right" and that the risks should lead the Court to defer to the states in fashioning restrictions. Henigan:
A wealth of empirical evidence shows that the exercise of the right to possess guns increases the risk of harm to individuals exercising the right, to their families and to the community at large. . . .
Even if the Court decides to incorporate the Heller right, it should make explicit what was left implicit in Heller--that the unique risks associated with the exercise of the right to gun possession require that the courts show great deference to the elected representatives of the people in fashioning public policies to reduce those risks.
Finally, Professor Calvin Johnson (University of Texas Law) argues that access to original sources through digital searches helps us to see that "the Second Amendment cannot legitimately be applied against the states." Johnson mentions the Library of Congress web-site, A Century of Lawmaking, and gives this example:
Consider the 79 items from a Congressional Library site search for the word "militia" in Elliot's standard collection of the ratification debates. In those hits, "militia" is a synonym for state army controlled by the governor. Nothing from that list treats "militia" as just a group of able-bodied citizens. The opponents of the Constitution were worried that the federal government had too much power over the state militias. . . . [T]he Second Amendment is Madison's response to the Anti-Federalists' demand to preserve state power by preserving state militias.
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