Was the Second Amendment intended to be used by or against the states?

January 9, 2013

Constitution Right to Bear Arms(Editor’s note: After last month’s massacre at Sandy Hook, Washington looks poised to create its first new gun control law in 20 years. Throughout the month of January, we’ll be looking at the history and current landscape of gun control and gun ownership laws.)

Week 1: A right to arms? The real purpose of the Second Amendment

Last week’s post primarily consisted of a discussion about District of Columbia v. Heller in relation to the history of views about the Second Amendment.

Heller, by the way, is the landmark 2008 Supreme Court ruling that held that the Second Amendment guarantees an individual right to gun ownership; according to Heller, the “central component” of this right is “self-defense.”

The ruling, however, did not explicitly bind individual states to respect this right, only the federal government.

Nevertheless, just two years later, the Supreme Court ruled in McDonald v. Chicago, which held the Second Amendment “fully applicable” to the states via the Fourteenth Amendment.

But if the Second Amendment enshrined a fundamental individual right to bear arms, as Heller claims, Fourteenth Amendment jurisprudence from the early 20th century onward would all but dictate that such a right would be incorporated against the states.

The Supreme Court indeed reached this result in McDonald; why, then, did the case overrule the Seventh Circuit, which unanimously held that the City of Chicago’s ban on handguns did not violate the Second Amendment?

The legal discrepancy between the Supreme Court and the Seventh Circuit in McDonald stems from the precedent used by the Seventh Circuit: all of the Second Amendment Supreme Court cases dealing with its application to the states.

I’ve already touched on two of these cases: 1875’s U.S. v. Cruikshank was covered in the first post of this series and 1886’s Presser v. Illinois was covered in a “Today in Legal History” post two days later (Presser coincidentally celebrated its 127th birthday last Friday).

The final of these cases, 1894’s Miller v. Texas, essentially rehashed the core holding of Cruikshank and Presser: that the Second Amendment was intended as a limitation against the federal government, not the individual states.

Both the Supreme Court and the Seventh Circuit in McDonald ruled that these lines of cases were decided in the wake of the Slaughterhouse Cases, and were thus employing a far narrower reading of the Fourteenth Amendment than courts use today.

There is no denying that courts in the late 19th century viewed the Fourteenth Amendment much differently than courts do today; however, it’s not logically sound to connect the causal chain from late 19th century Fourteenth Amendment jurisprudence to the reasoning of Cruikshank, Presser, and Miller in declining to impose any Second Amendment restrictions against the individual states.

The reason for this is simple: the Second Amendment was designed to protect the individual states from the federal government.

Fuller explanations of this can be found in my two earlier mentioned posts, along with the majority opinions from Heller and McDonald, but the short version goes something like this:

The Framers of the Constitution were concerned that “the federal government would disarm the people in order to impose rule through a standing army” (as was what happened in England in the 1600s).

A standing (or professional permanent) army would have been considered by the Framers as “the bane of liberty” (as stated by James Madison’s vice president Elbridge Gerry and later quoted by former Chief Justice Warren Burger).

The Second Amendment thus was intended to democratize the nation’s military power by constituting the nation’s militias of “all men capable of bearing arms” (Richard Henry Lee, 1788) to both prevent the federal need and desire for a standing army.

This notion is only reinforced by Presser, which held that “[i]t is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states.”

Presser also made clear that the right to bear arms found in the Second Amendment was not to be infringed because doing so would “deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government.”

Neither Presser nor any other Supreme Court ruling until Heller ever linked the Second Amendment with a right to individual self-defense; only to the collective self-defense.

Moreover, as you may well know, the United States currently has a standing army, and has had one since the nation’s involvement in World War II.

Does this mean that the Second Amendment is irrelevant in today’s world, at least in connection with how the Framers originally intended it?

Many proponents of the individual right to bear arms conceived by Heller would strongly argue that the Second Amendment is still quite germane in that a well-armed populace is a strong deterrent to the federal government’s imposing “tyranny through a standing army.”

However, it wouldn’t take long for the federal government to label such an armed uprising of citizens as a terrorist organization.

And the U.S. government doesn’t have a problem with militarily targeting U.S. citizens should they be labeled as terrorists.  Just ask Anwar al-Awlaki.

Given that, for a wide variety of reasons, it simply isn’t feasible to dismantle our standing army, the only way to keep the Second Amendment from becoming completely irrelevant was to interpret it as bestowing an individual right to bear arms for the purpose of self-defense.

I wonder what it says about us as a nation, though, that an amendment originally intended to encourage communal defense and increase each citizen’s stake in our democracy is now being read as conferring an individual right to defend against attacks from within one’s own community.