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?

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

By its text, it is unclear whether the Sixth Amendment is a promise not to interfere with somebody’s right to counsel or a promise to ensure that every defendant in a criminal prosecution is in fact represented.  But in Johnson v. Zerbst, the Supreme Court adopted the latter approach, holding that the federal government cannot convict a defendant who is not represented by counsel unless that defendant waives this constitutional right.  In subsequent decisions, the Supreme Court not only applied this requirement to the states, but also required the states to appoint counsel for those defendants that cannot afford one.

In the face of this, my buddy makes the following interesting point:

The Second Amendment has been acknowledged by the Court as guaranteeing an individual’s right to bear arms.  Surely, however, the Second Amendment does not require that government purchase a handgun for everyone who cannot afford one.  Further, the right to a free press does not mean that government needs to buy a newspaper company for anyone who would like to start one.  That cannot have been the original understanding.  Yet once the Court decides that government is required to pay for the right to counsel, why wouldn’t the Constitution require government to pay for other rights the Constitution guarantees?  Yes, there are very good reasons (and Gideon lists many of them) to provide counsel for the indigent (but not a gun or a newspaper company).  But, an originalist might ask, is this a Constitutional question?  Or might it be a policy question?

Here’s my response:

I think this is a pretty convincing post.  The only issue I have with your reasoning is that the three amendments that you cite (First, Second, Sixth) do not use the same language in protecting their respective rights.  Here’s how I read each right you discuss:

First: “Congress shall make no law . . . abridging the freedom . . . of the press.”
Second: “[T]he right of the people to keep and bear Arms, shall not be infringed.”
Sixth: “In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.”

I suppose originalism places more emphasis on the intentions of the Framers rather than on the text.  But, as a textual matter, I think it’s possible to read the sixth amendment as mandating appointment of counsel to those who cannot afford it while not reading the first or second amendments as mandating government subsidized newspaper companies or guns.  The first and second amendments are restrictions on government action – they say what the government can’t do.  The sixth amendment seems to say what the government must do.

To be sure, I still think it’s a strong argument to say that mandating appointment of counsel to the indigent should be a matter for the legislatures since the Constitution’s text is not that clear on the matter.  But, at the same time, it seems that someone who does think it’s a matter of constitutional law can distinguish the nature of such a right from others protected in the Bill of Rights.

I’m really not sure how convincing my response is.  But my point here is to highlight the importance of the precise words that the Constitution uses.  I agree that the Sixth Amendment, by its terms, does not necessarily guarantee appointment of counsel to the indigent.  But using other protected rights to draw parallels is risky if the language doesn’t protect the right in the same way.