Second Amendment Issues Being Reconsidered

By Richard W. Crockett

The Zephyr, Galesburg


On November 24, the United States Supreme Court agreed to hear District of Columbia v. Heller involving a Washington D.C. gun law, passed in 1973 following the city’s being empowered with home rule by congress.  This law restricts ownership of firearms. It has been 68 years since the court has considered the issue of the Second Amendment and its reach in American Constitutional Law.  At that time the court heard United States v. Miller (1939) and held that the Second Amendment does not protect the right to possess a sawed off shotgun, with a barrel of less than eighteen inches in length.  Briefly, the affect of the ruling was that the Second Amendment did not limit the power of the states to regulate firearms, a power which is seemingly challenged by the Fourteenth Amendment   But now the court is about to hear the Heller case which may altar all of that. 


However, there is one issue that is new.  That issue is whether for the purposes of the Fourteenth Amendment, the District of Columbia counts as a state, or is a separate entity, which is not a state, but is a creature of the Federal government, and of Congress, and consequently is restricted in the regulation of firearms by the Second Amendment. But Congress is specifically empowered in the Constitution to create a district “not more than ten miles square” where they exercise “exclusive legislation.” If this be true, how can the District of Columbia escape the authority of the Second Amendment? While this may not become the pivotal issue in this case, it is one that muddies the legal waters. But it also may provide an out for the Court, which allows it at once to cleanly outlaws the DC statute but not interfere with the regulatory powers of the states over firearms. Such a ruling could undermine much existing Federal law on the subject of firearms, including the Brady Law, and other laws creating data bases of prohibited purchasers of firearms   If this is the avenue chosen by the Supreme Court, it will not be necessary to decide the question of whether the Second Amendment is also binding upon the states through its doctrine of “incorporation.” Still, proponents of gun regulation may be fearful that the Supreme Court will use this as an opportunity for a larger review of the Second Amendment’s status. But that statement may require explanation. I wrote of this matter in an earlier issue of the Zephyr, and I am including some of what I wrote at that time.


The second Amendment to the U.S. Constitution provides that, “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.”  As part of the Bill of Rights, the second amendment appears on its face to restrict only the national government from abridging the right to keep and bear arms.  This is recognized as legal fact among scholars, and the authority usually cited for this view is the beginning words of the first amendment.  “Congress shall make no law. . . . ”  This preface is interpreted to apply to all of the following amendments in the Bill of Rights, and the Bill of Rights is binding upon the Congress and the national government. Emphasis is upon the word, “Congress” and by implication with language so specific, it appeared that states could make laws to abridge the right to keep and bear arms, as well as other rights, but Congress could not.


A second issue of interpretation of the Second Amendment in modern times is the question of whether the protected rights under the amendment are “individual” rights or “collective” rights.  The court of appeals, which struck down the D.C. statute, ruled that the rights were individual rights.  Proponents of gun regulation usually argue that the rights in question are collective rights, having to do with the “well regulated militia.” Opponents of gun laws usually argue that these rights are “individual” rights. Chief Justice John G. Roberts said that this issue is a “very open” question, at his confirmation hearing. 


Following the Civil War, the Congress sought to remedy the problem the Bill of Rights not being binding upon the states by adding the Fourteenth Amendment.  In the Fourteenth Amendment, citizenship is defined, “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”  This had not been done before, and citizens’ rights were then stated.  The language of the Fourteenth Amendment continues, “No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”  The states were now bound to honor the Bill of Rights. In this manner they fixed the problem of state infringement upon the Bill of Rights as had happened during slavery.  Or, did they?  The Supreme Court it turns out not only articulates what the law means, but is also interested in management of the Fourteenth Amendment’s implementation.


Incorporation is the name given to the method used by the Supreme Court in allowing the Bill of Rights to become binding upon the states on a case-by-case basis. On the face of the matter to the layman, it should have happened the instant the Fourteenth Amendment was adopted, but not so.  The legal process grinds slowly. And it has been a gradual process.  It is understood that what is “incorporated” are the provisions of the Bill of Rights and it is said that they are incorporated through the due process clauses of the Fifth and Fourteenth Amendments. In other words, these “due process clauses” embrace or include within their meaning the provisions of the Bill of Rights.


Two amendments have not been incorporated.    The Seventh Amendment, which guarantees the right to a jury trial in suits at common law, involving more than twenty dollars has not been incorporated as a restriction against the action of the states. The other un-incorporated amendment is the Second Amendment. The affect of this is that the states may make rules regulating firearms. Since “incorporation” is crucial to restricting the power of the states, an individual state could theoretically even outlaw firearms.  But the national government could not, because the Second Amendment prohibits that.  The Supreme Court has ruled that the Second Amendment “was not intended to limit the powers of the State governments in respect to their own citizens” and “has no other effect than to restrict the powers of the national government.”(1876) The court has permitted states to regulate militias as described in the Second Amendment, but permitted the people to keep and bear arms.(1886)  In United States v. Miller (1939) as mentioned above the Court held that the Second Amendment does not protect the right to possess a sawed off shotgun, with a barrel of less than eighteen inches in length.  It remains that the Second Amendment is not yet binding upon the states.


The greatest irony in all of this is that the failure of the Supreme Court to incorporate the Second Amendment and limit the power of states to regulate firearms is consistent with conservative judicial philosophy, because it leaves the issue to the states to regulate as they see fit. It is also consistent with the largely urban, liberal wish to have gun control. This is of course consistent with states rights doctrine, which in today’s world may be politically obsolete.  “Incorporation” of the Second Amendment is what gun owners should want to see, in order to minimize regulation of firearms. On the other hand, proponents of gun regulation find themselves taking refuge in a conservative judicial philosophy, which empowers the states at the expense of the national government.  They should hope that the Supreme Court does not reconsider whether the Second Amendment binding upon the states. Thirteen states have filed briefs against the D.C. law, which may imply that they have filed a brief against their own interest in regulating firearms if the issue becomes one of whether the Second Amendment is to be “incorporated.”   Four other states are supporting the gun law.  Pediatricians, a group not known for their liberalism in many matters, have filed a brief supporting the law while arms dealers as might be expected have opposed it.   Law as well as politics seems to create strange bedfellows.