Incorporating the Second Amendment
In 1833, Chief Justice John Marshall held in Barron v. Baltimore that the bill of rights applies only against the federal government and doesn’t bind state or local governments. Under Barron, individuals mistreated by states and localities had no recourse under the bill of rights, and could only look to state constitutions and laws for protection.
And yet, in Bruen, Justice Thomas purported to apply the original meaning of the Second Amendment to strike down a New York gun law. What gives?
I have previously discussed how the Supreme Court decided that due process includes a substantive element which protects unenumerated rights. As it turns out, the constitution includes two due process clauses: one in the Fifth Amendment (part of the original bill of rights and applicable to the federal government) and one in the Fourteenth Amendment (one of the Reconstruction amendments designed specifically to apply to states).
The court has further ruled that the due process “incorporates” the bill of rights, making them also directly applicable to the states.1 Under this interpretation, the Fourteenth Amendment overturned Barron. Prior to the Fourteenth Amendment, the bill of rights was not applicable to states, afterwards, it is.
But if the bill of rights was made applicable to states by an amendment ratified some 70 plus years after the bills of rights was itself enacted, that raises an interesting interpretive question from an originalist perspective: do we look to the 1790s or the 1860s to understand the meaning of fundamental constitutional rights as they apply to states? Or, in other words, did the bill of rights have the same meaning after the civil war as it did after the revolutionary war? And, does the bill of rights apply to states in the same way that it does to the federal government?
One might take the position that incorporating the bill of rights would necessarily apply them as originally understood. Or that the meaning of the bill of rights did not meaningfully change between the 1790s and the 1860s.
That seems to have been the assumption of the Bruen court with regard to the Second Amendment. Justice Thomas acknowledged the “ongoing scholarly debate” about which time period supplies the relevant understanding, but concluded that the public understanding was “for all relevant purposes, the same with respect to public carry.”
Perhaps so, but there are other aspects of the public understanding that would seem to be obviously different. In particular, the permissible scope of state regulation.
In Heller, Justice Scalia, the supposed OG textualist, waived away Second Amendment’s the militia clause as effectively mere surplussage and relied instead on a common law right not mentioned anywhere in the constitution to arm one’s self for self protection.
But a well regulated militia must be at least relevant to the right to keep and bear arms, or else why mention it? Indeed, the Second Amendment seems to necessarily imply that the reason (or at least the only one worth mentioning) for protecting the right is to ensure the continued existence of the militia.
And as professor Amar explains, militias were creatures of state and local law at the founding. The maintenance of these state militias was thought to be a crucial bulwark against the danger of a standing federal army. And they had the imprimatur of state law. Juries are not just twelve randos who get together to solve crimes. They are organized and legitimized by the law. So too, militias. Contrary to the belief of some today, Second Amendment was not an endorsement of private “militias” of conspiratorial neckbeards playing soldier in the woods.
So one might well conclude that, as a matter of the 1790s understanding, the Second Amendment strictly restricted the federal government’s regulatory authority over guns but contemplated broad state discretion to regulate them to promote the development of well regulated militias. The way that one would apply the Second Amendment to states, under the original understanding, would justify substantial deference to state regulations that would not be afforded to equivalent federal restrictions.
The Reconstruction, however, was another story altogether. State militias had provided a major boon to the late rebellion, whereas the standing federal army had delivered the republic from secession. And state authorities in the unreconstructed South couldn’t be trusted to protect newly freed black people or white Republicans from the vigilante violence of the Klan. The Fourteenth Amendment was intended to protect the right of such people to keep and bear arms in the face of attempts by state governments to disarm them.
So, the 1860s meaning sidesteps the militia problem and actually provides stronger support for an individual right to keep and bear arms against state governments than does the 1790s meaning. But that meaning draws on the legacy of grass roots opposition to white supremacy in the aftermath of slavery, rather than musket toting minutemen facing down redcoats.
It’s been said that Reconstruction was a second founding that remade the constitution, yet the Supreme Court continues to fetishize an original founding generation and constitution that appears increasingly problematic to each successive generation. The court’s gun rights cases pay lip service to Reconstruction history without considering how that history revolutionized the ways that Americans understood their rights or the relationship between the federal and state governments.
If the Reconstruction was indeed an unfinished revolution, the court continues the tradition of an odious redemption by failing to grapple seriously with the changes wrought by our second founding.
If, like me, you prefer the Ninth Amendment as the source of unenumerated rights, you might also argue that Fourteenth Amendment due process also incorporates the Ninth Amendment against states and thereby dispense with the oxymoron of substantive due process.