Far better it is to dare mighty things, to win glorious triumphs, even though checkered by failure, than to take rank with those poor spirits who neither enjoy much nor suffer much, because they live in the gray twilight that knows neither victory nor defeat.

Theodore Roosevelt, The Strenuous Life

The U.S. Supreme Court, through two recent decisions,  Heller v. Washington, D.C. and McDonald v. City of Chicago, articulated our fundamental right to keep and bear arms. Heller established the meaning of the Second Amendment under federal law, which includes regulation in federal enclave jurisdictions such as Washington, D.C. The decision also limits the authority of the federal government to prohibit the private ownership of firearms by all citizens, but Heller did not answer the question of whether the Second Amendment limited the regulatory power of the states. Until the recent decision in McDonald, the states, unless constrained by their own constitutions, were free to regulate guns out of existence. The Second Amendment now almost means what an elementary student would conclude when reading it for the first time without adult guidance; that is, pretty much what the drafters intended.

The newspapers correctly reported that McDonald applies the 2d Amendment to the states, but they did not go further. The Second Amendment now applies to the states through the due process clause of the Fourteenth Amendment. This is not new jurisprudence. Most of the rights articulated in the Bill of Rights have been applied to the states by the Court, decision by decision, in this way over the past 100 years.

The petitioner posited an alternate argument that the Court should apply the Second Amendment to the states through the privileges and immunities clause of the Fourteenth. This is a sensible argument, but the Court essentially refused to do this because of the long history of  incorporation jurisprudence using the due process clause. The only justice who supported incorporation under the privileges and immunities clause was Justice Thomas in a separate, concurring opinion. Thus the five justice majority included four basing their judgment on the due process clause and one using the privileges and immunities clause.  All the majority justices, and especially Justice Thomas, articulated in their decisions the difficult social and legal transition of Blacks moving from slavery to freedom.  This knowledge of history and disdain for what happened to the former slaves is inextricably tied to the majorities’ opinions, and is fundamental to the McDonald decision in fully understanding the intentions behind the drafting and adoption of the Fourteenth Amendment.

Until I read McDonald’s majority opinions, use of the due process clause  for incorporation never made sense to me. A simplistic explanation of due process is that it is the process due to someone. In my mind, as with many lawyers, rights are generally either substantive or procedural. The due process clause is an odd justification for the addition of substantive rights, and firearms rights definitely fall in that category. The legislative history of the Fourteenth Amendment provides additional strong support for the Thomas view. The clincher for the majority, in my opinion, were Court precedents. Using the privileges and immunities clause would overturn too many precedents while making no apparently meaningful change in the rights citizens enjoy.

The Fourteenth Amendment, one of the three Civil War Amendments, changed the relationship between the federal government and the states. Its legislative history shows that one of the ills it sought to remedy was the practice in the south following the war (forgive my general interpretation of history here) of the sheriff disarming the Blacks and then informing the hoodlums in town that the home was ready for them to terrorize through lynchings of men and boys, rape of women and girls, and arson to destroy the property. There is strong historical evidence that an important purpose of  the Fourteenth Amendment was the application of a right to bear arms that could not be limited by states and their arms of government, such as municipalities. The freed slaves would have the much needed right to defend themselves from local government and outlaws. Stopping the abuse of power by government, whether it be local or otherwise, is a key and essential right associated with an armed citizenry.

What are the problems with the Heller and McDonald decisions? The Second Amendment states:

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

(Note that the amendment does not follow current punctuation rules of American English.) We now know that the militia was not the National Guard, it comprised all citizens. The Court got that part right, as well as defining the right to keep long guns and handguns for self defense in the home. These are fundamental rights. The elephants in the room are two. First, the Court’s finding that disallowing the ownership and possession of handguns in the home was a violation of a fundamental right of self-defense was not strongly grounded on empowering citizens in their right to protect themselves from the abuses of government. This is really a minor problem, because the case brought before them did not give the court jurisdiction on this issue anyway.  The second issue is significant. It is the dicta  in both decisions that “reasonable regulation” is allowed. The specific problem not handled well by this “reasonable regulation” stance is the impossibility of reconciling this language with the “shall not be infringed” portion of the Amendment.

The inconsistency between allowing reasonable regulation and the Constitution’s mandate that the right shall not be infringed creates many questions.  When the Bill of Rights was written and became law, not allowing the village idiot (a fair term of the day) or the criminal to have guns was clearly in local control. No one thought that the federal government would need to provide reasonable regulation; the states could do it. Now, through creative jurisprudence, the Court is recognizing that the federal government does have a regulatory role. This is sensible, but it is not what the Second Amendment states. The Court also made no distinction of the right to regulate firearms by the states compared to the federal government in either Heller or McDonald. Is everyone ignoring what is occurring? Several of the justices in the majority have been critical of liberal justices interpreting language in the constitution to suit their ideological needs. It seems the “strict constructionists” are equally guilty. As a gun owner and believer in the Second Amendment, I wish the Court had merely tossed the regulations in question that banned handguns, supported their decisions, and left the dicta on the kinds of regulations they would find reasonable to cases that required those analyses. The Court could have developed two sets of standards, one for the federal government and one for the states, on what constituted reasonable regulation. This approach would serve two purposes. It is the way the Court is supposed to exercise their jurisdiction, that is confining their decision to the case or controversy at hand, and it would induce the states and the federal government to review their regulations to assure they were in compliance with the Amendment, possibly avoiding more litigation by assuring that regulations were as minimally intrusive to our rights as feasible.

Despite the above legal problems, my prediction of what is coming is a case combining the right to petition our federal government, which implies a right to travel from any portion of the country to the seat of government, Washington D.C., with the right to keep and bear arms. If travel through the states is a fundamental right and the right to bear arms is a fundamental right, it seems to me neither the states nor the federal government ought to be able to restrict travel from, say, the State of Washington to Washington, D.C. while a law-abiding citizen bears a firearm for self defense. This would dismantle many federal and state laws if it were successful. But don’t hold your breath on this. It took us 150 years to sort out that the first clause of the Second Amendment did not defeat the right protected, and that the federal right could not be restricted by the states. We should not be too impatient with the work still needed.



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