The Incorporation of the Second Amendment
The Supreme Court has agreed to decide whether the individual right to own a gun for self-defense that it recognized in District of Columbia v. Heller extends to state and local laws. This is basically the encore that everyone has been expecting, as the Court in Heller merely held that this right applies against the federal government. The basis of this distinction surely must confuse many (including me) so I’m going to try to talk my way through it.
One of the basic compromises embedded in the Constitution was a federalist system that gave a huge amount of autonomy to the individual states. The original Constitution is essentially an articulation of very limited powers bestowed upon, and very significant limitations applied against, the federal government. Those powers not articulated were reserved to the states (or the people) by the explicit text of the Tenth Amendment, and those limitations upon the powers of the federal government, encapsulated by the Bill of Rights, were thought to not apply against the states. Since those rights we regard as fundamental today only limited the federal government, states were basically free to do what they pleased.
And do what they pleased they did. But in the aftermath of the Civil War, the states voted to amend the Constitution, ratifying the thirteenth, fourteenth, and fifteenth amendments. These amendments reflected a realization by the country that state governments pose just as big of a threat to individual liberty as the federal government. In addition to abolishing slavery through the Thirteenth Amendment, the Fourteenth Amendment prohibited the states from depriving “any person of life, liberty, or property without due process of law.”
To make a long story short, the Supreme Court began using the due process clause of the Fourteenth Amendment to hold that various rights protected by the Bill of Rights against federal intrusion were now equally protected from state and local intrusion. Nearly all of the provisions of the Bill of Rights have been “incorporated” against the states in this way. The basic inquiry used by the Supreme Court in deciding whether a particular provision should be incorporated against the states is whether or not the right at issue is so fundamental in our system that its violation by the states constitutes a denial of substantive due process (a further distinction the Supreme Court read into the clause). Even rights that are not explicitly addressed in the Bill of Rights have been applied against the states through the same inquiry, including the right to privacy and a woman’s right to choose.
The question that the Court will answer this term is whether the Second Amendment applies against the states. But when the Court decided Heller in 2008, it only addressed whether the Second Amendment protected the right to own a gun in the home for self-defense, not the much broader “right to bear arms” as provided by the explicit text of the amendment. The full scope of what sort of gun control laws would be consistent with the Second Amendment is unclear and will undoubtedly be articulated in future cases. The law at issue in the current case is said to be identical to the D.C. handgun ban in Heller, so the Court will essentially be deciding if possessing a gun at home for self-defense is so fundamental in our system that it can be incorporated against the states through the Due Process Clause of the Fourteenth Amendment.
So what do you think? Is this right to possess a gun for self-defense as fundamental as other rights that have been incorporated against the states, such as the rights to free speech, the free exercise of religion, the assistance of counsel, and a speedy trial? Or is it more akin to those provisions that the Court has held not to be incorporated against the states, such as the right to a grand jury indictment or a right to a jury trial in civil lawsuits?
