Time for incorporation of the Second Amendment

by Kurt Hofmann

The Second Amendment, to the extent it is honored at all, has only been seen as a restraint on the federal government from enacting draconian firearm laws. State and local governments have not needed to so much as pay lip service to the Second Amendment.

That, of course, was the original idea--the Bill of Rights was intended to act as a brake on federal power. With the Reconstruction Era advent of the Fourteenth Amendment, though, much of the rest of the Bill of Rights has been applied to the people's dealings with state and local governments, as well. This incorporation of the Bill of Rights was found necessary to protect the rights of newly emancipated slaves in the post-war South, but has never been applied to the Second Amendment.

That is unfortunate, because many of the most draconian gun laws exist at the state and local levels. It would also seem to be in defiance of the intent of the Fourteenth Amendment. From Stephen Halbrook's That Every Man Be Armed: The Evolution of a Constitutional Right, quoting Representative John A. Bingham (R-OH)--who drafted the 14th Amendment--during debate over anti-KKK legislation enacted in 1871:

Mr. Speaker, that the scope and meaning of the limitations imposed by the first section, fourteenth amendment of the Constitution may be more fully understood, permit me to say that the privileges and immunities of citizens of a State, are chiefly defined in the first eight amendments to the Constitution of the United States. These eight amendments are as follows:

[Reads the first eight amendments of the Bill of Rights]

These eight articles I have shown never were limitation upon the power of the States, until made so by the fourteenth amendment. The words of that amendment, "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States," are an express prohibition upon every State of the Union. . . .

Although actual application of the incorporation doctrine eventually rested on the due process clause of the Fourteenth Amendment, rather than the privileges and immunities clause cited by Representative Bingham, the idea still holds--the Fourteenth Amendment was at the time intended to apply to all of the first eight amendments of the Bill of Rights.

The time may at last be at hand for states to be forced to recognize the Second Amendment. In a lawsuit challenging Chicago's draconian handgun ban, Alan Gura (lead attorney in the Heller case) is systematically laying the foundation for incorporation of the Second Amendment, and I'm cautiously optimistic that the case he's building will be unbeatable.

It's about time. After all, an unalienable right that can be denied by state or local government isn't really . . . unalienable, is it?

Original here