Volume 39
Issue 2
Spring
Spring 2009
Citizen Gun Rights: Incorporating the Second Amendment through Citizen Gun Rights: Incorporating the Second Amendment through
the Privileges or Immunities Clause the Privileges or Immunities Clause
Kenneth A. Klukowski
Recommended Citation Recommended Citation
Kenneth A. Klukowski,
Citizen Gun Rights: Incorporating the Second Amendment through the Privileges or
Immunities Clause
, 39 N.M. L. Rev. 195 (2009).
Available at: https://digitalrepository.unm.edu/nmlr/vol39/iss2/3
This Article is brought to you for free and open access by The University of New Mexico School of Law. For more
information, please visit the
New Mexico Law Review
website: www.lawschool.unm.edu/nmlr
CITIZEN GUN RIGHTS: INCORPORATING THE
SECOND AMENDMENT THROUGH THE PRIVILEGES
OR IMMUNITIES CLAUSE
KENNETH A. KLUKOWSKI
*
INTRODUCTION
The Supreme Court’s 2008 holding in District of Columbia v. Heller that the
Second Amendment guarantees an individual right to keep and bear arms will
launch an avalanche of lawsuits. With thousands of laws at the state and federal
levels regulating millions of firearms owned by millions of people in the United
States, there are virtually unlimited fact patterns for cases. Perhaps no such question
will be more consequential than whether the Second Amendment is incorporated
against the states through the Fourteenth Amendment. This Article argues that the
answer to the incorporation question is yes, but not for the reason some might
believe. Those arguing that the Second Amendment should be incorporated through
the Due Process Clause of the Fourteenth Amendment overlook the fact—explained
in this Article—that there are two rights in the Second Amendment: one of political
accountability and the other of self-defense. The Supreme Court should hold that
the Second Amendment to the Constitution is incorporated through the Privileges
or Immunities Clause of the Fourteenth Amendment, not the Due Process Clause.
1
The Court can so hold without overturning precedent because the Court has never
adopted a theory governing incorporation, and in so doing effectuate the purposes
of both the Founding Fathers who adopted the Second Amendment and also the
Framers of the Fourteenth Amendment.
On June 26, 2008, the U.S. Supreme Court held in District of Columbia v. Heller
that the Second Amendment secures an individual right to keep and bear arms.
2
But
as some predicted (including this author),
3
the Court’s holding was narrow, merely
addressing whether there is any actionable right under the Amendment. Heller left
consequent legal questions to future cases.
4
Since studies estimate that perhaps 90
million people in this country currently possess almost 200 million firearms,
5
it is
* The author is a policy consultant and legal analyst in the Washington, D.C., area, and is also a fellow
and senior legal analyst with the American Civil Rights Union. B.B.A. 1998, University of Notre Dame; J.D. 2008,
George Mason University. The author wishes to thank Nelson Lund for his extensive feedback and advice. The
author also wishes to thank David E. Bernstein, Jesse M. Coleman, Rebecca E. Dupuis, Allison R. Hayward,
Amanda J. Klukowski, Daniel Sullivan, and Rebecca E. Zietlow. Any insights are doubtless the result of their input.
Any errors should be considered the author’s alone. This Article is dedicated to Chase Everett Klukowski, who was
born as it was being written. Welcome to our world, my son.
1. It must be noted at the outset that the term “incorporated” is used loosely here. Generally speaking, to
“incorporate” through the Fourteenth Amendment means that the substantive federal right in question, derived from
the Bill of Rights, has been substantively “incorporated” into the Due Process Clause, specifically. That being so,
it is in a sense a misnomer to refer to “incorporating” through the Privileges or Immunities Clause, or for that matter
any clause aside from the Due Process Clause. But this Article uses the term “incorporation” because that has
become the general legal term of art when referring to provisions of the Bill of Rights being applied to state
governments.
2. District of Columbia v. Heller, 128 S. Ct. 2783, 2799, 2821–22 (2008).
3. See Kenneth A. Klukowski, Armed By Right: The Emerging Jurisprudence Of The Second Amendment,
18 G
EO. MASON U. CIV. RTS. L.J. 167, 178–82, 185–90 (2008).
4. See Heller, 128 S. Ct. at 2816–17.
5. B
ROOKINGS INSTITUTION, EVALUATING GUN POLICY: EFFECTS ON CRIME AND VIOLENCE 3 (Jens Ludwig
ed., 2003) (estimating that 200 million firearms are privately owned in the United States); John Lott, Jr., Guns
196 NEW MEXICO LAW REVIEW [Vol. 39
a safe assumption that the judiciary will face many cases, posing competing theories
on the reach, breadth, and contours of the right to keep and bear arms. Second
Amendment jurisprudence has rightly been described as “radically underdeveloped”
or even “utterly undeveloped,”
6
to the point of being a “continuing
embarrassment,”
7
inspiring the title of one early work.
8
Twelve years ago a leading
Second Amendment scholar predicted, “The Supreme Court has developed no
meaningful jurisprudence of the Second Amendment, but will almost certainly have
to do so eventually.”
9
After Heller, it may be safe to drop the “almost” from that
quote.
No question will have a greater impact than whether the Second Amendment has
been incorporated against the states through the Fourteenth Amendment,
constraining state and local governments as it does the federal government in how,
and to what extent, governments can burden Second Amendment rights.
10
The
incorporation question will be thrust upon the Court soon enough, since most
regulatory issues remain with the states, even after the mushrooming of the federal
government in the 1930s.
11
The Second Amendment is the only provision of the Bill of Rights for which the
Court has had the opportunity to answer the incorporation question, yet not fully
resolved the issue.
12
This refusal to take up Second Amendment incorporation
seems perfectly reasonable pre-Heller, because there was no recognized right at
issue. Post-Heller, the Court cannot long avoid the question.
Don’t Kill Kids, Irresponsible Adults With Guns Do, FOXNEWS.COM, Oct. 10, 2007, available at
http://www.foxnews.com/story/0,2933,301040,00.html (referencing 90 million American firearm owners).
6. 1 L
AURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 903 (3d ed. 2000) (referring to Second
Amendment jurisprudence as “radically underdeveloped”); William Van Alstyne, The Second Amendment and the
Personal Right to Arms, 43 D
UKE L.J. 1236, 1239 (1994) (referring to the case law as “utterly undeveloped”).
7. Nelson Lund, The Ends of Second Amendment Jurisprudence: Firearms Disabilities and Domestic
Violence Restraining Orders, 4 T
EX. REV. L. & POL. 157, 191 (1999).
8. See Sanford Levinson, The Embarrassing Second Amendment, 99 Y
ALE L.J. 637 (1989).
9. Nelson Lund, The Past and Future of the Individual’s Right to Arms, 31 G
A. L. REV. 1, 2 (1996).
10. See Klukowski, supra note 3, at 189–90.
11. Lund, Past and Future, supra note 9, at 47. In fact, as this Article was being edited, a panel of the Ninth
Circuit held that the Second Amendment is incorporated through the Due Process Clause. Nordyke v. King, 563
F.3d 439, 457 (9th Cir. 2009). This decision effectively overrules a Ninth Circuit precedent to the contrary. See
Fresno Rifle & Pistol Club, Inc. v. Van de Kamp, 965 F.2d 723 (9th Cir. 1992). The Nordyke panel offers a
reasonable explanation distinguishing its case from Fresno Rifle, see Nordyke, 563 F.3d at 447–48, but at the time
of this writing it remains to be seen if the full Ninth Circuit will review the matter.
If not vacated by the full Ninth Circuit for en banc rehearing, the Nordyke decision creates a post-Heller
circuit split with the Second Circuit. See Maloney v. Cuomo, 554 F.3d 56, 58–59 (2d Cir. 2009) (citing Presser
v. Illinois, 116 U.S. 252, 265 (1886); Bach v. Pataki, 408 F.3d 75, 84, 86 (2d Cir. 2005) (holding that the Second
Amendment does not apply to the states)). If so, this court split would make the issue more likely to be granted
certiorari for Supreme Court review. See S
UP. CT. R. 10(a).
Additionally, as this Article was being edited, the Seventh Circuit denied incorporation of the Second
Amendment for the reasons argued in this Article in footnotes 521–24 and the accompanying text, and the National
Rifle Association petitioned for certiorari. See NRA of Am., Inc. v. City of Chi., 567 F.3d 856, 857–58, 860 (7th
Cir. Jun. 2, 2009), petition for cert. filed, 77 U.S.L.W. 3679 (U.S. June 3, 2009) (No. 08-1497). This case is
sufficiently similar to the D.C. gun ban at issue in Heller that the incorporation question would likely prove
dispositive before the Supreme Court, as it did with the circuit court. At the time of this writing, NRA v. Chicago
certainly has the potential to be an ideal case for the Supreme Court to consider the question of whether the Second
Amendment is incorporated.
12. Lund, Past and Future, supra note 9, at 49 & n.111 (citing cases where the Court was offered Second
Amendment cases challenging state laws but did not grant certiorari). A case that could be added to update Lund’s
list is Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002), cert. denied, 540 U.S. 1046 (2003).
Spring 2009] INCORPORATING THE SECOND AMENDMENT 197
Thus far the Court has only incorporated provisions of the Bill of Rights through
the Due Process Clause.
13
However, Due Process is only one route through which
the Second Amendment can be incorporated, and it creates problems that could
make the Supreme Court think twice before invoking due process to incorporate the
Second Amendment. First, current due process jurisprudence is inconsistent and
partially incoherent, which could lead to unpredictable results in cases concerning
firearms. Furthermore, current incorporation doctrine also suggests that if the Court
incorporates through the Due Process Clause, then the general test for firearm laws
would be strict scrutiny,
14
a test that many would be reluctant to apply to guns.
Additionally, current Supreme Court case law strongly suggests that incorporating
the Second Amendment through the Due Process Clause would also grant aliens,
possibly including illegal aliens, a constitutional right to demand firearms in the
United States.
15
This has obvious implications for federal immigration policy. All
of these problems are unavoidable if the Court incorporates through Due Process.
Nevertheless, the Second Amendment should apply to the states. The danger that
the Second Amendment is designed to counter is as real from state and local
governments as from the federal government.
16
Accordingly, the people require the
same form of protection from each level of government. The Framers of the Second
Amendment explicitly said as much when adopting the Bill of Rights.
17
There is a
better way to incorporate the Second Amendment than through the Due Process
Clause.
The alternative route for incorporating the Second Amendment is through the
Privileges or Immunities Clause of the Fourteenth Amendment. Contrary to what
many believe, the Privileges or Immunities Clause can be used as an effective
vehicle for incorporating many rights, including Second Amendment rights. The
Second Amendment can be incorporated through the Privileges or Immunities
Clause because it is a right inhering in federal citizenship, as the Clause requires.
18
The Supreme Court should therefore incorporate the Second Amendment through
the Privileges or Immunities Clause, virtually unconstrained by precedent. Justice
Thomas wrote, “Because I believe that the demise of the Privileges or Immunities
Clause has contributed in no small part to the current disarray of our Fourteenth
Amendment jurisprudence, I would be open to reevaluating its meaning in an
appropriate case.”
19
The Court should do so to incorporate the Second Amendment,
obviating all the problems arising from conventional due process incorporation.
This Article’s core premise is that the jurisprudential and scholarly groundwork
has already been laid for incorporating the Second Amendment through the
Privileges or Immunities Clause. There is no need to reinvent the incorporation
wheel. The Privileges or Immunities Clause has recently been resuscitated,
20
so
invoking it here would not be a departure from its current status. This Article also
13. See infra Part III.
14. See infra Part V.A.1.
15. See infra Part V.A.2.
16. See infra Part V.B.
17. See infra Part V.C.2.a.
18. See infra Part IV.C.2.
19. Saenz v. Roe, 526 U.S. 489, 528–29 (1999) (Thomas, J., joined by Rehnquist, C.J., dissenting).
20. See id. at 499–500, 503 (majority opinion).
198 NEW MEXICO LAW REVIEW [Vol. 39
shows how incorporation can be done in a manner consistent with the Slaughter-
House Cases,
21
so that precedent, too, can be preserved. And by incorporating
through Privileges or Immunities, the Court can obviate all the baggage that comes
with due process jurisprudence and incorporation doctrine. Finally, with Heller
placing a newly cognizable right before the judiciary, the incorporation question is
one the Court has not faced in the modern incorporation era.
22
The Court ought to
take the cleaner, simpler approach of incorporating through the Privileges or
Immunities Clause when the incorporation question comes before it.
Part I of this Article briefly explains the debate over the Second Amendment, and
what the Supreme Court decided—and left undecided—in District of Columbia v.
Heller. Part II explores the judicially-created chaos that currently surrounds the Due
Process Clause, including substantive due process, and Part III shows the resulting
confusion attending modern incorporation doctrine. Part IV then explains how
incorporating through the Privileges or Immunities Clause is still possible after the
Slaughter-House Cases, that this was the intent of Privileges or Immunities, and that
incorporating through that clause is consistent with recent Supreme Court decisions.
Part V then demonstrates why incorporating the Second Amendment through
Privileges or Immunities is especially important, both to achieve the core purpose
of the Second Amendment and also to avoid various problems that could arise from
incorporating the Amendment through the Due Process Clause. Part V also
examines additional arguments for and against incorporating the Second
Amendment. Finally, Part VI concludes with observations about the future of
Second Amendment rights in the new legal regime.
I.
WHERE DISTRICT OF COLUMBIA V. HELLER LEAVES
THE SECOND AMENDMENT
In District of Columbia v. Heller,
23
the Court resolved the threshold question at
the epicenter of the American debate on firearms: Whether the Second Amendment
secures an individual right to private citizens to own and possess firearms. The
Court held that it does.
24
This holding resolved the core question of a longstanding
debate, but leaves many questions unanswered for future cases.
A. The Long Road to Heller
The Second Amendment reads: “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.”
25
The very wording speaks of “the right of the people,” but prefaces that
21. 83 U.S. (16 Wall.) 36 (1873).
22. As explained below in Part V.C.1.a, there are three nineteenth-century cases holding that the Second
Amendment is not incorporated, but the leading case of the three (that served as the precedent for the other two)
also states that the First Amendment is not incorporated either. These cases came down in the 1800s before the first
incorporation case, and therefore their anti-incorporation conclusions were jettisoned by the Court a century ago
and at most they raise only a minor obstacle to incorporating the Second Amendment.
23. 128 S. Ct. 2783 (2008).
24. Id. at 2821–22.
25. U.S. C
ONST. amend. II.
Spring 2009] INCORPORATING THE SECOND AMENDMENT 199
statement by referencing a militia. The debate on the meaning of this constitutional
provision turns on the relationship of those two clauses.
There are three competing interpretations of the Second Amendment. The view
adopted by the Heller Court is the individual-right view,
26
holding that the Second
Amendment secures a private right to individual citizens, who are peaceable and
law-abiding, to keep and bear arms for lawful purposes without any connotation of
public service.
27
The opposing view is the collective-right theory, arguing that the
Amendment only confers a “right” of the people acting collectively to bear arms
when serving in an organized state militia, such as the National Guard.
28
The third
is a nuanced version of the second, called the sophisticated collective-right view,
arguing that the right to arms is possessed by individuals only in the context of
equipping them to render state militia service.
29
The very existence of the sophisticated collective-right view is a testament to
recent scholarship. The idea of a collective right was so widely accepted, even
twenty years ago, that retired Chief Justice Warren Burger called the idea of an
individual right “one of the greatest pieces of fraud…that I have ever seen in my
lifetime.”
30
By the time of Heller, the voluminous research that had been published
on the Second Amendment so thoroughly demolished the collective-right model
that, of the Justices on the Heller Court, five found an individual right,
31
four argued
for a sophisticated collective right,
32
and not one supported a purely collective right.
Heller thus enshrined Warren Burger’s “fraud” as the law of the land.
The only case before Heller in which the Court meaningfully dealt with the
Second Amendment was United States v. Miller.
33
In Miller, the defendants
transported a “sawed-off” (short barrel) shotgun across state lines,
34
violating the
National Firearms Act.
35
Miller held that whether the weapon at issue was related
to militia service was not a matter of judicial notice,
36
and remanded the case to
develop the evidentiary record.
37
But the defendant, Mr. Miller, was killed in the
interim,
38
and the case became moot.
The appellate circuits only gave nominal consideration to the Second
Amendment for sixty-two years after Miller. None of the circuits examined the
history surrounding the Amendment’s adoption, instead basing their cursory
analysis simply on Miller. Of the nine courts examining the issue, four adopted the
26. See Heller, 128 S. Ct. at 2788–99.
27. Klukowski, supra note 3, at 175.
28. Id.
29. Id. at 175–76.
30. The MacNeil/Lehrer NewsHour (PBS television broadcast Dec. 16, 1991).
31. See Heller, 128 S. Ct. at 2788–99 (opinion of Scalia, J., joined by Roberts, C.J., and Kennedy, Thomas,
and Alito, JJ.).
32. See id. at 2822 (Stevens, J., joined by Souter, Ginsburg, and Breyer, JJ., dissenting).
33. 307 U.S. 174 (1939).
34. Id. at 175.
35. Pub. L. No. 73-474, 48 Stat. 1236-40 (1934) (codified as amended in scattered sections of 26 U.S.C.).
36. Miller, 307 U.S. at 178.
37. Id. at 183.
38. Sandra S. Froman & Kenneth A. Klukowski, A Round in the Chamber: District of Columbia v. Heller
and the Future of the Second Amendment, 9 E
NGAGE, Winter 2008, at 17 & n.38 (citing Stephan B. Tahmassebi,
The Second Amendment & the U.S. Supreme Court, A
MERICAN RIFLEMAN, May 2000, available at
http://www.nraila.org/Issues/Articles/Read.aspx?ID=7).
200 NEW MEXICO LAW REVIEW [Vol. 39
collective-right model,
39
and the other five adopted the sophisticated collective-right
model.
40
Serious scholarship on the Second Amendment began to lay the groundwork for
an eventual Supreme Court case on the issue. Several publications in the 1980s
began to stir scholarly interest in carefully examining the Amendment.
41
The
evidence quickly became so overwhelming that constitutional scholars began
publishing works saying that despite their personal aversion, they were compelled
to accept the individual-right view.
42
These developments led Justice Thomas to
comment on the growing body of scholarship supporting an individual right.
43
In 2001, the Fifth Circuit became the first federal appellate court to embrace the
individual-right interpretation,
44
after a lengthy and detailed analysis.
45
Largely in
rebuttal, the Ninth Circuit did a lengthy analysis of its own to reaffirm its support
for a collective right in a 2002 opinion.
46
Both cases were denied certiorari.
47
The D.C. Circuit then addressed the Second Amendment in a challenge to
Washington, D.C.’s handgun ban. Six plaintiffs sued in Parker v. District of
Columbia, where the district court dismissed the case.
48
The D.C. Circuit reversed,
49
holding that D.C.’s ban violated the Second Amendment.
50
With only one plaintiff
found to have standing,
51
the Court granted certiorari under the name District of
Columbia v. Heller.
52
39. Gillespie v. City of Indianapolis, 185 F.3d 693, 710 (7th Cir. 1999); Hickman v. Block, 81 F.3d 98, 102
(9th Cir. 1996); Love v. Pepersack, 47 F.3d 120, 124 (4th Cir. 1995); United States v. Warin, 530 F.2d 103, 106
(6th Cir. 1976).
40. United States v. Wright, 117 F.3d 1265, 1273–74 (11th Cir. 1997); United States v. Rybar, 103 F.3d
273, 286 (3d Cir. 1996); United States v. Hale, 978 F.2d 1016, 1020 (8th Cir. 1992); United States v. Oakes, 564
F.2d 384, 387 (10th Cir. 1977); Cases v. United States, 131 F.2d 916, 923 (1st Cir. 1942).
41. See, e.g., S
TEPHEN P. HALBROOK, THAT EVERY MAN BE ARMED: THE EVOLUTION OF A
CONSTITUTIONAL RIGHT (1984); Robert Dowlut, The Right to Arms: Does the Constitution or the Predilection of
Judges Reign?, 36 O
KLA. L. REV. 65 (1983); David T. Hardy, Armed Citizens, Citizen Armies: Toward a
Jurisprudence of the Second Amendment, 9 H
ARV. J.L. & PUB. POL’Y 559 (1986); Don B. Kates, Jr., Handgun
Prohibition and the Original Meaning of the Second Amendment, 82 M
ICH. L. REV. 204 (1983); Nelson Lund, The
Second Amendment, Political Liberty, and the Right to Self-Preservation, 39 A
LA. L. REV. 103 (1987).
42. See Klukowski, supra note 3, at 177 & nn.73–80. One scholar even acknowledged that his shift in
position was partially due to one of these individual-right pioneers. See Levinson, supra note 8, at 1 n.*
(referencing Lund, Political Liberty, supra note 41).
43. Printz v. United States, 521 U.S. 898, 938 n.2 (1997) (Thomas, J., concurring).
44. United States v. Emerson, 270 F.3d 203, 264–65 (5th Cir. 2001).
45. See id. at 218–60.
46. See Silveira v. Lockyer, 312 F.3d 1052, 1092 (9th Cir. 2002). Several judges disagreed with the panel.
Silveira, 328 F.3d 567, 569–70 (9th Cir. 2003) (Kozinski, J., dissenting from the denial of rehearing en banc); id.
at 583–85 (Kleinfeld, J., joined by Kozinski, O’Scannlain, and T.G. Nelson, JJ., dissenting from the denial of
rehearing en banc).
47. Silveira, 312 F.3d 1052 (9th Cir. 2002), cert. denied, 540 U.S. 1046 (2003); Emerson, 270 F.3d 203
(5th Cir. 2001), cert. denied, 536 U.S. 907 (2002).
48. 311 F. Supp. 2d 103, 109 (D.D.C. 2004).
49. 478 F.3d 370, 401 (D.C. Cir. 2007).
50. Id. at 395.
51. Id. at 378.
52. 128 S. Ct. 645 (2007).
Spring 2009] INCORPORATING THE SECOND AMENDMENT 201
B. What Heller Held, and What It Did Not
The Supreme Court affirmed the D.C. Circuit in Heller.
53
Justice Scalia’s opinion
for the Court examined sources contemporaneous with the Second Amendment’s
adoption,
54
and the original meaning of its terms as found in dictionaries and other
authorities.
55
Heller held that the prefatory clause of the Second Amendment
(referencing the militia) does nothing to limit the scope of the operative clause
(referencing the right to bear arms),
56
stating that the prefatory clause’s purpose is
to resolve any ambiguities in the operative clause in a way that does not modify the
Amendment’s operative force.
57
Heller resolves the threshold question of whether the Second Amendment
secures an individual right. The right secured by the Second Amendment belongs
to all American citizens,
58
so long as the citizen is law-abiding and responsible.
59
The Second Amendment secures a pre-existing right, rather than conferring one
created by government.
60
Heller also found that Miller stands only for the
proposition that the Second Amendment extends only to certain types of firearms,
61
opining that Miller held that the Second Amendment extends to almost all firearms
that can be carried.
62
But Heller’s holding is nonetheless narrow. The D.C. law struck down by the
Court categorically banned all handguns,
63
and required long guns (shotguns and
rifles) to be unloaded and disabled by being disassembled or bound by a trigger
lock.
64
Finding an individual right, the Court held these provisions invalid.
65
But this
categorical ban on readily usable firearms was the most restrictive in the nation,
66
and it was set in the context of a home. The plaintiff claimed that he desired
53. District of Columbia v. Heller, 128 S. Ct. 2783, 2822 (2008).
54. Id. at 2795–2801.
55. Id. at 2788–91, 2795.
56. Id. at 2789–90.
57. Id. at 2789 (citing, inter alia, Eugene Volokh, The Commonplace Second Amendment, 73 N.Y.U. L.
R
EV. 793, 814–21 (1998)).
58. Id. at 2791.
59. Id. at 2821. The term “responsible” is unusual, and potentially problematic. If someone is convicted of
breaking the law, they could be determined not to be “law-abiding” in a manner consistent with due process. For
example, the Court specifically stated that “nothing in our opinion should be taken to cast doubt on longstanding
prohibitions on the possession of firearms by felons….” Id. at 2816–17 (dictum). This dictum has already been
relied upon by at least one federal appellate court while this Article was being edited. See United States v.
Anderson, 559 F.3d 348, 352 & n.6 (5th Cir. 2009), cert. denied, 77 U.S.L.W. 3679 (U.S. June 15, 2009) (No. 08-
10391). Other circuits appear to agree, though at this point without exploring the issue in depth. See, e.g., United
States v. Jackson, 555 F.3d 635, 636 (7th Cir. 2009).
But what is “responsible?” If it means peaceable or otherwise non-threatening, then it is understandable
from a standpoint of legal application. But “responsible” could mean does not get tickets for driving over the speed
limit, or does not have excessive credit card debt, or has never fallen behind in child support. While it seems
unlikely that a court would move in any of these directions, this term should nonetheless be clarified in a future
case to foreclose the possibility of “responsible” being used as a catch-all that could unjustly deny Second
Amendment rights to certain citizens.
60. Heller, 128 S. Ct. at 2800.
61. Id. at 2814.
62. Id. at 2791–92. This language must be qualified in light of the previous sentence and cite.
63. See D.C. C
ODE §§ 7-2501.01(12), 7-2502.01(a), 7-2502.02(a)(4) (2001).
64. Id. § 7-2507.02.
65. Heller, 128 S. Ct. at 2817–22.
66. Cf. Nelson Lund, D.C.’s Handgun Ban and the Constitutional Right to Arms: One Hard Question?,
18 G
EO. MASON U. CIV. RTS. L.J. 229, 229 (2008) (referring to the D.C. ban as “extraordinarily restrictive”).
202 NEW MEXICO LAW REVIEW [Vol. 39
firearms for self-defense,
67
and the Court held that private citizens such as the
plaintiff have such a right to self-defense.
68
The firearm at issue was a handgun,
which is a common firearm that is ideally-suited to self-defense.
69
Therefore all this
holding amounted to is a per se rule against absolute federal bans on common
firearms within the home.
Many questions were left unanswered by Heller. For example, the question of
who has standing to bring Second Amendment claims cannot be taken for granted.
70
The Court could have addressed standing in Heller, but chose to defer the issue,
71
leaving open what sort of injury suffices to bring a Second Amendment case.
72
Another issue arises from Dick Heller’s decision not to challenge D.C.’s licensing
and registration requirements,
73
leaving open the question of what sorts of licensing
or registration scheme would pass constitutional muster.
Those aside, what is the standard of review? The Court said only that the
rational-basis test would not be applied in Heller,
74
but might a different rule apply
outside of the home? Further, Heller says, in dictum, that firearms can be prohibited
in sensitive locations, such as schools and government buildings.
75
What are these
buildings, and can government bar all firearms from them? Although the Court
holds that the Second Amendment protects all bearable arms,
76
it also says (in
dictum) that disallowing the carrying of “dangerous or unusual” firearms is
permissible.
77
These are guns; they are all intrinsically dangerous. Which weapons
qualify as “dangerous or unusual?” And are they completely unprotected
67. Heller, 128 S. Ct. at 2788.
68. Id. at 2817.
69. Id. at 2817–18.
70. Heller is called Heller instead of Parker because, of the six plaintiffs in the original lawsuit, only Dick
Heller was found to have standing, to the exclusion of the other five, including the originally named Shelly Parker.
See Parker v. District of Columbia, 478 F.3d 370, 378 (D.C. Cir. 2007). Even then the panel was divided on the
issue of Mr. Heller’s standing. See id. at 402 n.2 (Henderson, J., dissenting). Moreover, an earlier case challenging
the same statute was dismissed 2–1 for lack of standing. See Seegars v. Gonzales, 396 F.3d 1248, 1255–56 (D.C.
Cir. 2005); id. at 1256–57 (Sentelle, J., dissenting).
71. The plaintiffs denied standing by the Parker panel filed a cross-petition for certiorari, which was denied.
Parker, 478 F.3d 370, cert. denied, 128 S. Ct. 2994 (2008).
72. “To qualify for standing, a claimant must present an injury that is concrete, particularized, and actual
or imminent; fairly traceable to the defendant’s challenged behavior; and likely to be redressed by a favorable
ruling.” Davis v. Fed. Election Comm’n, 128 S. Ct. 2759, 2768 (2008) (citing Lujan v. Defenders of Wildlife, 504
U.S. 555, 560–61 (1992)). Standing is part of the Article III case-or-controversy requirement, id., must be
established by the party asserting the court’s jurisdiction, DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342
(2006), and must be satisfied before a court addresses the merits. Id. at 341.
Thus far, only the complete deprivation of any Second Amendment rights, as seen in the categorical ban
imposed by D.C., has been found sufficient to confer standing, and even then several judges on the D.C. Circuit
voted against standing in the two appellate cases challenging the ban. See Parker, 478 F.3d 370 at 402 n.2
(Henderson, J., dissenting); Seegars, 396 F.3d at 1255–56. Others suggested that standing might be possible in
such a case, but only if the plaintiff had more fully exhausted possible administrative remedies. See Seegars v.
Gonzales, 413 F.3d 1, 1 (D.C. Cir. 2005) (Ginsburg, C.J., concurring in the denial of rehearing en banc). It is
unclear at this point what sort of firearm regulations short of a complete ban, or what sort of burden short of a
complete deprivation, would be found sufficient to give rise to a justiciable case.
73. D.C. separately requires licensing and registration of firearms. Heller, 128 S. Ct. at 2853–54. Dick
Heller chose not to challenge this regulatory scheme, so the Court assumed without deciding that such a program
is valid. Id. at 2819.
74. Id. at 2817 n.27.
75. Id. at 2817.
76. Id. at 2791–92.
77. Id. at 2817. This dictum adds that such restrictions are presumptively valid. Id. at 2817 n.26.
Spring 2009] INCORPORATING THE SECOND AMENDMENT 203
(contradicting the statement regarding all bearable arms) or are they subject to a
lower level of constitutional protection? If so, then what is that level?
Of all these questions, none could have a greater impact on gun rights than
whether the Second Amendment is incorporated against the states by the Fourteenth
Amendment. Does the Second Amendment constrain only the federal government,
or does it also limit the actions of state and local government? Therefore it is to that
question that this Article now turns.
II.
THE JUDICIALLY-CREATED CHAOS SURROUNDING THE DUE
PROCESS
CLAUSE
Many of the problems related to incorporating federal rights against the states are
due to the chaos that the judiciary has created with the Due Process Clause of the
Fourteenth Amendment.
78
Not often does something that by its own diction would
appear to have such a clear yet narrow meaning become so much more. Ironically,
the Court’s due process jurisprudence has also harmed the Fourteenth Amendment,
leaving the Privileges or Immunities Clause in a dormant state because the function
that would otherwise be served by that clause has instead been shunted to the Due
Process Clause.
Most of the Bill of Rights has been incorporated against the states, always
through the Due Process Clause.
79
The vast majority of those cases were decided by
the Warren Court.
80
The Warren Court presided over the heyday of substantive due
process, as the Court discovered new rights not mentioned in the constitutional
text
81
and laid the foundation for more rights,
82
while dissenting Justices argued for
still more rights.
83
78. U.S. CONST. amend. XIV, § 1, cl. 3.
79. See Benton v. Maryland, 395 U.S. 784, 794 (1969) (Fifth Amendment Double Jeopardy Clause);
Duncan v. Louisiana, 391 U.S. 145, 149 (1968) (Sixth Amendment right to a jury trial); Washington v. Texas, 388
U.S. 14, 17–19 (1967) (Sixth Amendment right to compel witnesses); Klopfer v. North Carolina, 386 U.S. 213
(1967) (Sixth Amendment right to a speedy trial); Pointer v. Texas, 380 U.S. 400 (1965) (Sixth Amendment
Confrontation Clause); Malloy v. Hogan, 378 U.S. 1 (1964) (Fifth Amendment right against self-incrimination);
Gideon v. Wainwright, 372 U.S. 335 (1963) (Sixth Amendment right to counsel); Robinson v. California, 370 U.S.
660 (1962) (Eighth Amendment right against cruel and unusual punishment); Mapp v. Ohio, 367 U.S. 643 (1961)
(the exclusionary rule under the Fourth Amendment); Everson v. Bd. of Educ., 330 U.S. 1 (1947) (First
Amendment Establishment Clause); Cantwell v. Connecticut, 310 U.S. 296 (1940) (First Amendment Free Exercise
Clause); De Jonge v. Oregon, 299 U.S. 353, 364 (1937) (First Amendment right to assembly); Near v. Minnesota
ex rel. Olsen, 283 U.S. 697 (1931) (First Amendment Free Press Clause); Gitlow v. New York, 268 U.S. 652 (1925)
(First Amendment Free Speech Clause); Chicago, Burlington & Quincy R.R. Co. v. Chicago, 166 U.S. 226 (1897)
(Fifth Amendment Takings Clause).
80. Of the fifteen cases spanning seventy-two years cited in note 79, nine of them were Warren Court
decisions from only an eight-year period in the 1960s.
81. E.g., Griswold v. Connecticut, 381 U.S. 479, 484 (1965) (finding a right to privacy from penumbras
in the Bill of Rights). It must be noted that in cases like Griswold, the Court found the locus of these new rights
to be outside of the Fourteenth Amendment Due Process Clause. See id. at 481–86. But the reasoning in cases like
Griswold laid the intellectual predicate for subsequent cases, and also incorporated these rights against actions of
the states.
82. E.g., Lawrence v. Texas, 539 U.S. 558, 578 (2003); Roe v. Wade, 410 U.S. 113, 129 (1973).
83. E.g., Bd. of Regents v. Roth, 408 U.S. 564, 588–89 (1972) (Marshall, J., dissenting) (arguing that if
a person applies for a job with the government, the applicant is presumptively entitled to the job and therefore the
government is required either to hire the applicant or to offer a valid reason for not hiring). Cf. T
RIBE, supra note
6, at 1330 & n.41 (citing, inter alia, Erwin Chemerinsky, Making the Right Case for a Constitutional Right to
Minimal Entitlements, 44 M
ERCER L. REV. 525, 538 (1993)).
204 NEW MEXICO LAW REVIEW [Vol. 39
The Due Process Clause declares that no person shall be deprived “of life,
liberty, or property, without due process of law.”
84
The plain meaning of its text
includes only process.
85
That procedural purpose has been the understanding of Due
Process since its adoption.
86
As shown in Part IV.A.2, the debates surrounding its
adoption provide no support for the proposition that it entails substantive rights,
speaking instead of every person having procedural protections that must be
satisfied before being deprived of life, liberty, or property.
87
Due Process was meant
to secure nothing more.
88
Nevertheless, the Court went beyond the process aspect of due process to find
substantive rights implicit in the non-substantive term “due process.” The judiciary
has indeed gone beyond simply finding substantive rights to develop substantive
due process doctrine into one of the most powerful forces in American law. The
substantive aspect of the Due Process Clause rivals—if not overshadows—its
procedural aspect.
89
The ascendance of substantive due process is the story of the rise and fall of
Lochner v. New York,
90
where a 5–4 Court struck down a law limiting weekly work
hours in bakeries to sixty hours.
91
Although acknowledging that states can codify
public health policy in labor laws,
92
the Court found in the Due Process Clause an
implied right to make employment contracts.
93
The Court found that this right
overcame New York’s police power,
94
inaugurating a new era in which rights not
expressly found in the Constitution could be used to invalidate state laws. This era
was supposedly short-lived.
95
In reality, the reasoning of Lochner subsequently resurfaced—although the Court
has attempted to curb Lochner’s impact by saying that if an express constitutional
provision can be the locus of a liberty interest, then courts must look to that
provision, instead of substantive due process.
96
Lochner’s proposition of substantive
due process can be found throughout the twentieth century. Most laypersons would
84. U.S. CONST. amend. XIV, § 1, cl. 3.
85. See
TRIBE, supra note 6, at 1318; Antonin Scalia, Common-Law Courts in a Civil-Law System: The
Role of United States Federal Courts in Interpreting the Constitution and Laws, in A
NTONIN SCALIA, A MATTER
OF
INTERPRETATION: FEDERAL COURTS AND THE LAW 3, 24 (1998).
86. See generally H
ORACE E. FLACK, THE ADOPTION OF THE FOURTEENTH AMENDMENT 55–97 (1908).
87. See id. at 96.
88. But see generally Rob ert E. Riggs, Substantive Due Process in 1791, 1990 W
IS. L. REV. 941, 999–1005
(1990) (arguing that the original meaning of “due process” implicitly carried a substantive element).
89. Some believe that the power manifest in substantive due process has had deleterious effects on
procedural due process as judges, finding their substantive due process power “pretty scary,” have concurrently
narrowed procedural protections under the Due Process Clause. J
OHN HART ELY, DEMOCRACY AND DISTRUST 20
(1980); see also T
RIBE, supra note 6, at 1318–19 & n.35.
90. 198 U.S. 45 (1905), overruled in part by Day-Brite Lightning, Inc. v. Missouri, 342 U.S. 421 (1952),
and Ferguson v. Scrupa, 372 U.S. 726 (1963).
91. Id. at 52, 64.
92. Id. at 53.
93. Id.
94. Id. at 57–58.
95. The Court abrogated Lochner in West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) (upholding a
minimum wage law), and expressly abandoned it in Ferguson v. Skrupa, 372 U.S. 726, 730–31 (1963) (upholding
a Kansas statute regulating debt adjusting).
96. Albright v. Oliver, 510 U.S. 266, 273 (1994).
Spring 2009] INCORPORATING THE SECOND AMENDMENT 205
tell you that the idea of a constitutional right to abortion comes from Roe v. Wade.
97
A lawyer trying to explain that Roe is derived from Griswold v. Connecticut
98
may
get a blank stare. A scholar going further by saying that Roe’s roots should be traced
to footnote four in Carolene Products,
99
or Lochner,
100
will (unfortunately) receive
a blank stare from some lawyers.
101
But the true roots of modern activist decisions such as Roe or Lawrence v.
Texas
102
predate Lochner. Without going as far back as Dred Scott,
103
as Robert
Bork and Antonin Scalia do,
104
the origin of these controversial opinions may be the
Slaughter-House Cases.
105
If the Privileges or Immunities Clause had not been
seemingly emasculated by Slaughter-House,
106
then the Court would never have had
to use another provision of the Fourteenth Amendment to apply federal rights of
action to the states.
107
However, the Court continued the Lochner legacy of substantive due process,
developing a multi-tier framework to govern suits involving state burdens on
protected rights. At the lower end of this framework is rational-basis review,
108
under which a law triggering the test is presumptively constitutional,
109
and is
upheld so long as the law is rationally related to advancing any legitimate state
interest.
110
At the higher end of the framework is strict scrutiny,
111
which often
97. 410 U.S. 113 (1973) (invalidating a Texas abortion restriction as violating a federal right).
98. 381 U.S. 479 (1965) (finding an implied fundamental right to privacy in the Bill of Rights).
99. United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938) (stating that burdens on
constitutional rights might be subject to heightened scrutiny).
100. Lochner v. New York, 198 U.S. 45 (1905).
101. See John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Y
ALE L.J. 920, 939
(1973) (describing Roe as a resurgence of Lochner’s flawed methodology).
102. 539 U.S. 558 (2003) (finding an implied right to homosexual activity).
103. Scott v. Sandford (Dred Scott), 60 U.S. (19 How.) 393 (1857), (holding that the Constitution does
not recognize African-Americans as citizens) superseded by constitutional amendment, U.S.
CONST. amend.
XIV.
104. See
ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW 31
(paperback ed.
1997); SCALIA, supra note 85, at 24 & n.31.
105. 83 U.S. 36 (1873).
106. As explained below, many argue that Slaughter-House rendered Privileges or Immunities impotent. See
infra Part IV.C.
107. Cf. TRIBE, supra note 6, at 1319.
108. The rational-basis test finds its roots in United States v. Carolene Products Co., 304 U.S. 144, 152
(1938).
109. Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 488 (1955); see also Carolene Prods., 304 U.S.
at 152.
110. See W. & S. Life Ins. Co. v. State Bd. of Equalization, 451 U.S. 648, 656–57 (1981). This is also the
test applied under the Equal Protection Clause if the question presented does not entail a suspect or quasi-suspect
class. Dep’t of Agric. v. Moreno, 413 U.S. 528, 533 (1973). The rational-basis test is deferential, see Lyng v. UAW,
485 U.S. 360, 370 (1988) (referring to rational-basis review as “quite deferential”), where the state need not prove
that its action will further the asserted interest, only that the legislature “rationally could have believed” that the
action would do so. W. & S. Life Ins., 451 U.S. at 672.
111. Heightened scrutiny, suggested in footnote four of Carolene Products, was acted upon in Korematsu
v. United States, 323 U.S. 214 (1944), conviction set aside by writ of coram nobis, 584 F. Supp. 1406, 1420 (N.D.
Cal. 1984). In Korematsu, the Court ruled that laws restricting the rights of a single racial group are subject to “the
most rigid scrutiny” and that wartime restrictions on such rights could only be upheld if “commensurate with the
threatened danger.” Id. at 216, 220. The Court used this standard in upholding the internment of Japanese-
Americans during World War II. Id. at 223–24. Although Korematsu does not cite Carolene Products, apparently
it is the first post-Carolene Products Supreme Court case where heightened scrutiny was applied. At least some
Justices subsequently marked this as the beginning of strict scrutiny. E.g., Grutter v. Bollinger, 539 U.S. 306, 351
206 NEW MEXICO LAW REVIEW [Vol. 39
applies to fundamental rights,
112
under which a state action is presumptively
unconstitutional,
113
and will only be upheld if narrowly tailored to achieve a
compelling state interest.
114
The Court has subsequently developed a middle tier of
intermediate scrutiny,
115
the test for which varies according to the type of legal
challenge.
116
This three-tier system is not as complete or reliable as one might hope. Some
rights are subject to multiple levels of scrutiny depending on the type of burden
imposed.
117
For others, the test varies based on the severity of the burden
imposed.
118
Other rights do not fit into any of the three levels, having their own
unique tests that appear ad hoc.
119
Moreover, occasionally when a given test is
(2003) (Thomas, J., joined by Scalia, J., concurring in part and dissenting in part). However, the Court first used
the term “strict scrutiny” in Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942) (holding that strict
scrutiny is necessary under the Equal Protection Clause to avoid invidious discrimination).
112. See Kadrmas v. Dickinson Pub. Sch., 487 U.S. 450, 458 (1988) (noting that government interference
with fundamental rights triggers strict scrutiny).
113. See United States v. Am. Library Ass’n, 539 U.S. 194, 235 (2003) (stating that a government action
burdening the Free Speech Clause is “presumptively invalid owing to strict scrutiny”); cf. Davenport v. Wash.
Educ. Ass’n, 127 S. Ct. 2372, 2381 (2007) (citing R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992)).
114. Gratz v. Bollinger, 539 U.S. 244, 270 (2003) (applying strict scrutiny to a racial-preference program).
115. Although intermediate scrutiny is often invoked in certain equal-protection matters, see Clark v. Jeter,
486 U.S. 456, 461 (1988) (“Between these extremes of rational basis review and strict scrutiny lies a level of
intermediate scrutiny, which generally has been applied to discriminatory classifications based on sex or
illegitimacy.”), it also applies to certain due process claims. E.g., Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622,
642 (1994) (applying intermediate scrutiny to content-neutral regulations on speech).
116. Intermediate scrutiny involving the Equal Protection Clause requires the challenged action to be
substantially related to advancing important government interests. Craig v. Boren, 429 U.S. 190, 197 (1976).
However, intermediate scrutiny is a higher hurdle when involved in free speech issues, where the challenged
government action must be narrowly tailored (as opposed to merely being “substantially related”) to achieving a
significant government interest. Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989).
It is unclear whether laws triggering intermediate scrutiny are presumptively valid or invalid. At least
two cases seem to say that laws under this test are presumptively unconstitutional, because the burden is shifted
to the party seeking to uphold the law (which presumably would be the government). Heckler v. Mathews, 465 U.S.
728, 744 (1984) (“[T]he party seeking to uphold a statute that classifies individuals on the basis of their gender
must carry the burden of showing…that the classification serves important governmental objectives and that the
discriminatory means employed are substantially related to the achievement of those objectives.”) (quoting Miss.
Univ. for Women v. Hogan, 458 U.S. 718, 724–25 (1982) (internal quotation marks omitted)).
117. For example, free speech is subject to at least five levels of scrutiny. Restrictions on speech that
discriminate against a particular viewpoint are per se invalid. Members of the City Council of L.A. v. Taxpayers
for Vincent, 466 U.S. 789, 804 (1984). Regulations on content are subject to strict scrutiny. See Perry Educ. Ass’n
v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983). Content-neutral regulations are subject to intermediate
scrutiny. See United States v. O’Brien, 391 U.S. 367, 377 (1968). Speech in a limited public forum can be further
restricted to conform to the forum’s intended purpose. Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S.
819, 829–30 (1995). Finally, in a nonpublic forum, any restriction on speech is acceptable so long as it is
reasonable. Int’l Soc’y for Krishna Consciousness v. Lee, 505 U.S. 672, 679 (1992).
118. For example, voting is a fundamental right. See Burdick v. Takushi, 504 U.S. 428, 433–34 (1992).
Severe burdens on voting are subject to strict scrutiny. Id. Burdens that are neither severe nor discriminatory need
only be reasonable so long as the interest advanced is important. Crawford v. Marion County Election Bd., 128 S.
Ct. 1610, 1612 (2008) (citing Burdick, 504 U.S. at 433–34).
119. The clearest example of this is abortion. Roe v. Wade established its trimester framework for abortion
that was sui generis in constitutional law. See 410 U.S. 113, 163–65 (1973). Roe suggested this trimester
framework was a form of strict scrutiny, see id. at 155, 163, and some Justices subsequently equated the Roe test
with strict scrutiny. E.g., Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 934 (1992) (Blackmun, J.,
concurring in part, concurring in judgment in part, and dissenting in part). But in Casey, a fractured Court seemed
to downgrade abortion to some form of lesser right, see id. at 925 & nn.1–2 (noting that the statutes upheld in
Casey would not survive strict scrutiny); id. at 951–53, 966 (Rehnquist, C.J., joined by White, Scalia, and Thomas,
JJ., concurring in judgment in part and dissenting in part) (denying there is any right to abortion but, if there were,
Spring 2009] INCORPORATING THE SECOND AMENDMENT 207
invoked, the results are so plainly irreconcilable with existing case law using that
test, that the case appears to be a results-driven expedient.
120
The end result is that
due process is attended by an exceptionally complex framework that is rife with
internal tensions and inconsistencies.
III.
CONFUSION AND INCONSISTENCIES IN CURRENT
INCORPORATION
DOCTRINE
Yet this flawed due process jurisprudence is central to incorporation doctrine.
Heretofore the Due Process Clause has been the sole vehicle for incorporating
provisions of the Bill of Rights against state and local governments. This is a form
of substantive due process, as the Court finds that certain liberty interests in the Bill
of Rights are also substantive elements of the Due Process Clause.
121
Perhaps no constitutional doctrine is more consequential in the lives of ordinary
Americans than incorporation.
122
People speak their minds, practice their faith, and
expect to be secure in their homes and persons with a full range of procedural
safeguards to protect them if they find themselves in an unfortunate situation. While
many federal rights have state analogs that might render them redundant, modern
Americans derive comfort from going about their daily affairs under a panoply of
federal protections.
Incorporation is the key to these protections. It concerns “the very nature of our
Constitution,”
123
having “profound effects for all of us.”
124
The first time the Court
was confronted with whether the Bill of Rights could be asserted against the states,
in Barron v. Mayor of Baltimore, Chief Justice John Marshall labeled the question
an issue “of great importance.”
125
And yet as Professor Akhil Amar notes,
126
the
Barron Court’s decision to not apply the Bill of Rights against the states was
perfectly defensible, especially in light of the fact that the Constitution already
specified certain prohibitions on state action such as bills of attainder and ex post
facto laws.
127
Indeed, Chief Justice Marshall had previously referred to Article I,
it would be subject to rational-basis review), and jettisoned Roe’s trimester framework in favor of an “undue
burden” test. Id. at 878–79 (plurality opinion).
120. For example, the Court found a Nebraska partial-birth abortion ban to be unconstitutional as an undue
burden on abortion, see Stenberg v. Carhart, 530 U.S. 914, 929–30 (2000), but subsequently upheld a virtually
identical federal partial-birth abortion ban, see Gonzales v. Carhart, 127 S. Ct. 1610, 1627 (2007).
121. Tracing the development of substantive due process is beyond the scope of this Article. The gradual
evolution of this doctrine, from its beginnings in the mid-1800s to its full development in the 1900s, resulted from
the case law development of the various clauses of Section 1 of the Fourteenth Amendment. See T
RIBE, supra note
6, at 1332–43. By 1927, substantive due process had become sufficiently developed that Justice Brandeis noted
that “it is settled that the due process clause of the Fourteenth Amendment applies to matters of substantive law
as well as to matters of procedure.” Whitney v. California, 274 U.S. 357, 373 (1927) (Brandeis, J., concurring).
122. William Van Alstyne, Forward to M
ICHAEL KENT CURTIS, NO STATE SHALL ABRIDGE: THE
FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS ix (1986) (opining that “it is difficult to imagine a more
consequential subject”).
123. Henry J. Friendly, The Bill of Rights as a Code of Criminal Procedure, 53 C
AL. L. REV. 929, 934
(1965).
124. Id.
125. 32 U.S. (7 Pet.) 243, 247 (1833).
126. Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 Y
ALE L.J. 1193, 1199 (1992).
127. U.S. C
ONST. art. I, § 10.
208 NEW MEXICO LAW REVIEW [Vol. 39
Section 10, as a “bill of rights” against the states.
128
From the structure of Sections
9 and 10 of Article I, Marshall distills, as a rule of construction, that constitutional
provisions specifically prohibiting “Congress” or “the United States” are solely
federal,
129
while those beginning with words such as “no State shall” are applicable
against the states,
130
and provisions that do not specify a level of government
presumptively constrain only the federal government.
131
Regardless of whether this
theory is correct, it shows that various theories concerning which federal rights are
operable against the states were discussed early in American law.
Few dispute that some form of incorporation is necessary to America’s federal
system.
132
Justice Holmes went so far as to say that he believed the constitutional
system could survive without judicial review of federal action, but not without
review of state action.
133
Years later, Justice Brennan wrote that he considered the
Warren Court’s incorporation of various criminal procedure issues to be more
important than its other landmark decisions,
134
which is quite a statement when one
considers the impact of that Court on desegregation
135
and reapportionment.
136
Erwin Griswold went further, comparing the significance of the incorporation cases
to Marbury v. Madison itself.
137
The scope of the Bill of Rights had been long-settled before the Fourteenth
Amendment altered the federalist framework. As mentioned above, the first time the
Court considered whether the Bill of Rights applied to state or local government
was Barron v. Baltimore, where the Court held that the Bill of Rights constrains
only federal action, not state or local action,
138
a holding reaffirmed later that same
year in Livingston v. Moore.
139
Having settled the basic demarcation of the Bill of
Rights’ reach, the question becomes to what extent the Fourteenth Amendment
redrew those lines. Part of that debate is what test the Court can employ to decide
which rights are incorporated by the Fourteenth Amendment.
Most provisions of the Bill of Rights have been incorporated under varying
tests,
140
with unpredictable results. Several provisions have not been incorporated.
128. Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 138–39 (1810).
129. E.g., U.S. C
ONST. art. I, § 9, cl. 8 (“No title of nobility shall be granted by the United States.…”).
130. E.g., U.S. C
ONST. art. I, § 10, cl. 1 (“No state shall enter into any treaty, alliance, or confederation…pass
any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility.”).
131. See Amar, Fourteenth Amendment, supra note 114, at 1198–99 & nn.23–28 (citing Barron v. Mayor
of Baltimore, 32 U.S. (7 Pet.) 243, 248, 250 (1833)); T
HE FEDERALIST No. 83, at 503 (Alexander Hamilton)
(Clinton Rossiter ed., 1961).
132. See Akhil Reed Amar, The Bill of Rights as a Constitution, 100
YALE L.J. 1131, 1134 (1991).
133. O
LIVER WENDELL HOLMES, COLLECTED LEGAL PAPERS 295–96 (1920). While this does not directly
speak to incorporation, it raises the principle of federal power constraining the actions of the states, which is the
principal element of incorporation.
134. See William J. Brennan, Jr., The Bill of Rights and the States: The Revival of State Constitutions as
Guardians of Individual Rights, 61
N.Y.U. L. REV. 535, 536 (1986); William J. Brennan, Jr., State Constitutions
and the Protection of Individual Rights, 90
HARV. L. REV. 489, 492–93 (1977).
135. E.g., Brown v. Bd. of Educ., 347 U.S. 483 (1954).
136. E.g., Reynolds v. Sims, 377 U.S. 533 (1964); Baker v. Carr, 369 U.S. 186 (1962).
137. Erwin N. Griswold, Due Process Problems Today in the United States, in T
HE FOURTEENTH
AMENDMENT 161, 164 (Bernard Schwartz ed., 1970).
138. 32 U.S. (7 Pet.) 243 (1833).
139. 32 U.S. (7 Pet.) 469, 552 (1833) (“[I]t is now settled that those amendments [in the Bill of Rights] do
not extend to the states.…”).
140. See sources cited supra note 79.
Spring 2009] INCORPORATING THE SECOND AMENDMENT 209
The Court has held that the Fifth Amendment right to only be tried for a felony after
being indicted by a grand jury is not incorporated,
141
nor is the Seventh
Amendment.
142
The Court has not held whether two Eighth Amendment provisions
are incorporated: the Excessive Bail Clause
143
and the Excessive Fine Clause.
Likewise, the Court has never held whether the Third Amendment is
incorporated.
144
Part III will explore current incorporation doctrine—such as it is—that the
Supreme Court employs. Part III.A explains the two different theories on which
rights are incorporated, and Part III.B explains the potentially conflicting tests for
incorporation.
A. General Incorporation Through the Due Process Clause
To this day, all of the provisions in the Bill of Rights that have been applied
against the states have been incorporated through the Due Process Clause.
145
Whether the entire Bill of Rights has been incorporated, or only parts of it, or
whether there are implied constitutional rights that are incorporated, is, in some
ways, an ongoing debate. Though a series of cases addresses this debate,
146
the issue
is far from settled.
147
The Supreme Court had incorporated five provisions of the Bill of Rights by
1947,
148
but never articulated a test for which constitutional provisions constrained
state action until that year. There are two competing theories of incorporation, both
articulated in Adamson v. California.
149
The first is the theory of total incorporation,
where Justice Hugo Black argued, in an extraordinarily long dissent, that the
Fourteenth Amendment was intended to incorporate the entire Bill of Rights against
the states.
150
Justice Felix Frankfurter had an entirely different approach, select
141. Alexander v. Louisiana, 405 U.S. 625, 633 (1972); Hurtado v. California, 110 U.S. 516, 538 (1884).
142. Minneapolis & St. Louis R. Co. v. Bombolis, 241 U.S. 211, 217 (1916).
143. See Browning-Ferris Indus. of Vt. v. Kelco Disposal, Inc., 492 U.S. 257, 276 n.22 (1989). A plurality
of the Court has suggested that this right might be incorporated. See Baze v. Rees, 128 S. Ct. 1520, 1529 (2008)
(plurality opinion of Roberts, C.J.).
144. The Third Amendment has been held incorporated by the Fourteenth Amendment by one federal
appellate court. See Engblom v. Carey, 677 F.2d 957, 961 (2d Cir. 1982). But the Supreme Court has never taken
up the question.
145. The right under the Privileges or Immunities Clause to immediately receive full benefits of state
citizenship upon taking up residence in a state, see Saenz v. Roe, 526 U.S. 489, 499–500, 503 (1999), is not an
enumerated provision in the Bill of Rights. Therefore, although it involves applying a federal right to the states,
Saenz is not an incorporation case.
146. See, e.g., Duncan v. Louisiana, 391 U.S. 145, 162–71 (1968) (Black, J., concurring).
147. The issue is certainly settled in the sense that the long line of incorporation cases show that the concept
of incorporating federal rights is settled precedent. However, applying the Bill of Rights to the states remains
unsettled in the sense that, as shown throughout Part III: (1) the Court has shifted between various tests on
incorporation, (2) the Court has never adopted a coherent theory governing incorporation, (3) the Court has never
definitively repudiated the reasoning underlying the concept of incorporating the Bill of Rights in toto, and (4) as
shown in Part IV, the Court has not closed the door on using the Privileges or Immunities Clause to apply the Bill
of Rights to the states.
148. See supra note 79. Four of these clauses were First Amendment provisions, and another was the Takings
Clause.
149. 332 U.S. 46 (1947).
150. Id. at 68–123 (Black, J., dissenting); see also H
UGO LAFAYETTE BLACK, A CONSTITUTIONAL FAITH
34–42 (1968). The total-incorporation theory continues to find support today. See generally, e.g., Bryan H.
Wildenthal, The Lost Compromise: Reassessing the Early Understanding in Court and Congress on Incorporation
210 NEW MEXICO LAW REVIEW [Vol. 39
incorporation, under which the Fourteenth Amendment was intended to incorporate
certain rights against the states, which may include some found in the Bill of Rights
but is not necessarily limited to those enumerated rights.
151
Justice Brennan later
refined this approach to argue that the Fourteenth Amendment incorporated only
fundamental rights, and that each Bill of Rights provision must be scrutinized for
fundamentality.
152
Although never repudiating Black, in each incorporation case the
Court followed an approach similar to Frankfurter’s—that the Fourteenth Amend-
ment addresses matters that are “fundamental to the pursuit of justice”
153
and
“essential to ‘a fair and enlightened system of justice.’”
154
B. The Conflicting and Uncertain Tests for Incorporation
The greatest problem with incorporation doctrine is that, strictly speaking, there
is no doctrine. Incorporation jurisprudence is a collection of disjointed cases, not
a cogent narrative. The Court has never adopted a unifying theory that governs
incorporation.
155
Rather, incorporation gives every appearance of ad hoc decision
making.
For over two decades the Court used no test in incorporating rights. Early cases
used verbiage such as referring to the right in question as “among the fundamental
of the Bill of Rights in the Fourteenth Amendment, 61 OHIO ST. L.J. 1051 (2000).
151. Adamson, 332 U.S. at 59–68 (Frankfurter, J., concurring); see also Felix Frankfurter, Memorandum on
“Incorporation” of the Bill of Rights Into the Due Process Clause of the Fourteenth Amendment, 78 H
ARV. L.
R
EV. 746 (1965).
152. See Cohen v. Hurley, 366 U.S. 117, 154–60 (1961) (Brennan, J., dissenting). While some label this a
third position splitting the difference between Black and Frankfurter, see, e.g., Amar, Fourteenth Amendment,
supra note 126, at 1196, it is instead a refined version of Frankfurter’s selective-incorporation model.
153. Adamson, 332 U.S. at 62 (Frankfurter, J., concurring).
154. Id. (quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937)). It should be noted that the Establishment
Clause is an anomaly to this incorporation approach, which is not surprising because the Court’s opinion
incorporating that clause, Everson v. Board of Education, 330 U.S. 1, 16 (1947), was written by the apologist for
total incorporation, Justice Black, and was handed down the same year as Adamson.
This anomaly should be noted because it has ramifications for incorporating the Second Amendment.
The strongest argument against incorporating the Second Amendment would be that it is a federalism provision,
an argument that Justice Scalia has suggested he might find persuasive. See Antonin Scalia, Response, in S
CALIA,
supra note 85, at 137 n.13.
The Establishment Clause was intended as such a federalism provision. Everson gives no historical or
legal rationale for incorporating that clause. Justice Black only cites one case in support. 330 U.S. at 8 (citing
Murdock v. Pennsylvania, 319 U.S. 105 (1943)). However, Murdock was a case involving the Free Exercise Clause,
not the Establishment Clause. 319 U.S. at 108–09, 114. Murdock was therefore overbroad in its statement that the
First Amendment is incorporated, see id. at 108, as it was not true to that date vis-à-vis the Establishment Clause.
Such a general statement is hardly a compelling rationale for incorporating the Establishment Clause. The evidence
against incorporating the Establishment Clause has been noted both by members of the Court and also by scholars.
See, e.g., Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 49–50 (2004) (Thomas, J., concurring in
judgment); Lee v. Weisman, 505 U.S. 577, 641 (1992) (Scalia, J., joined by Rehnquist, C.J., and White and
Thomas, JJ., dissenting); 3 J
OSEPH STORY, COMMENTARIES ON THE CONSTITUTION § 1873 (1833); Kenneth A.
Klukowski, In Whose Name We Pray: Fixing the Establishment Clause Train Wreck Involving Legislative Prayer,
6 G
EO. J.L. & PUB. POL’Y 219, 258 (2008); Michael W. McConnell, The Origins and Historical Understanding
of Free Exercise of Religion, 103 H
ARV. L. REV. 1409, 1436–37 (1990).
This Establishment Clause anomaly should not impede incorporating the Second Amendment. There
is ample support for incorporating the Second Amendment, as shown in the remainder of this Article. As the
Framers of the Fourteenth Amendment contemplated the right to bear arms but did not so contemplate the
Establishment Clause, the evidence that the Establishment Clause was intended as a federalism provision does not
provide a rationale for refusing to incorporate the Second Amendment.
155. Nelson Lund, Outsider Voices on Guns and the Constitution, 17 C
ONST. COMM. 701, 716 (2000).
Spring 2009] INCORPORATING THE SECOND AMENDMENT 211
personal rights and ‘liberties’ protected by the due process clause of the Fourteenth
Amendment from impairment by the States,”
156
or “essential to the nature of a free
state.”
157
Thus the post-Adamson incorporation period began with no clear test for
incorporation.
When the Court has used a test, it has meandered between at least three. Each is
a test for fundamentality, as the Court has only incorporated fundamental rights.
The first test often invoked, from Palko v. Connecticut, is whether the right in
question is “implicit in the concept of ordered liberty.”
158
Another, from Moore v.
East Cleveland, is whether the right in question is deeply rooted in the history and
traditions of the American people.
159
Both of these were invoked together as a two-
part test in Washington v. Glucksberg.
160
But in one of the most recent cases, Duncan v. Louisiana,
161
the test shifted. The
Court in Duncan first used the test of whether the right in question is “fundamental
to the American scheme of justice,”
162
restated in a footnote as whether a criminal
procedure in question “is necessary to an Anglo-American regime of ordered
liberty.”
163
Because the issue in Duncan was a criminal procedural question and the
footnoted test specifically mentioned procedures, it is possible that the Duncan test
for incorporation could be limited to criminal procedure. The law is unclear. In the
only post-Duncan case where the Court has incorporated a Bill of Rights
provision,
164
the Court invoked Duncan as the rule.
165
But that case was also a
criminal procedure case,
166
so the question remains as to whether criminal
procedural matters are subject to a different test, or whether Duncan has replaced
the Palko test. If it did, however, then why did the 1997 Glucksberg case invoke the
earlier Palko test from 1937, conjoined with the Moore test from 1977, instead of
the Duncan test from 1968?
167
If Duncan supplanted Palko, then Glucksberg should
156. Gitlow v. New York, 268 U.S. 652, 666 (1925) (incorporating the Free Speech Clause while upholding
a statute criminalizing advocacy of overthrowing the government). It can be argued that this part of Gitlow is
dictum, in which case free speech was incorporated in Stromberg v. California, 283 U.S. 359, 368 (1931).
157. Near v. Minnesota, 283 U.S. 697, 713 (1931) (quoting 4 W
ILLIAM BLACKSTONE, COMMENTARIES ON
THE
LAWS OF ENGLAND *151 (1765)) (incorporating the Free Press Clause to invalidate a Minnesota nuisance
statute as applied to newspaper allegations of politicians associating with gangsters).
158. 302 U.S. 319, 325–26 (1937).
159. 431 U.S. 494, 503 (1977) (plurality opinion).
160. 521 U.S. 702, 721 (1997) (holding that there is no right to assisted suicide). It should be noted that
Glucksberg was a case involving implied fundamental rights, not incorporation. However, the Court has to this
point only incorporated fundamental rights, so the question remains the same.
161. 391 U.S. 145, 149 (1968) (incorporating the Sixth Amendment right to a jury trial).
162. Id.
163. Id. at 149 n.14.
164. Benton v. Maryland, 395 U.S. 784 (1969) (incorporating the Double Jeopardy Clause).
165. Id. at 794.
166. Id.
167. Two items of note: first, Benton holds that “Insofar as it is inconsistent with this holding, Palko v.
Connecticut is overruled.” Id. But the only necessary inconsistency is with Palko’s holding that the Double
Jeopardy Clause is not incorporated. Palko v. Connecticut, 302 U.S. 319, 322 (1937). But could it be that the Court
also intended to replace the Palko test, finding that test inconsistent? Benton is unclear.
Adding still more confusion to the situation, the Ninth Circuit decision referenced in note 11 that came
down as this Article was in final editing cites Duncan, Moore, and Glucksberg. See Nordyke v. King, 563 F.3d
439, 450 (9th Cir. 2009). This panel reasons that Duncan replaced Palko, id. at 449, 450 n.9, but does nothing to
explain why, if Duncan did in fact replace Palko, Glucksberg uses Palko instead of Duncan. All this reinforces
my primary contention that current incorporation doctrine is disjointed, inconsistent, and confusing, and should
be reexamined by the Supreme Court.
212 NEW MEXICO LAW REVIEW [Vol. 39
have applied Duncan, instead of Palko. Some may contend that there is in fact only
one incorporation test, and that these are merely varying articulations of it.
168
But
while some may speculate, the Supreme Court is silent, and therefore so is the law.
IV.
INCORPORATING THROUGH THE PRIVILEGES OR IMMUNITIES
CLAUSE
IS PREFERABLE TO INCORPORATING THROUGH THE DUE
PROCESS
CLAUSE
As a general rule, incorporating provisions of the Bill of Rights through the
Privileges or Immunities Clause is preferable to incorporating through the Due
Process Clause. While various legal protections apply to the states through Due
Process or Equal Protection, the meaning of “privileges or immunities” and the
history of the Fourteenth Amendment make the Privileges or Immunities Clause the
ideal vehicle for incorporation.
The Reagan Justice Department examined the original meaning of the Clause in
a 1987 report.
169
This report found that the “privileges” referenced in the Clause are
likely privileges held by American citizens as a result of their national citizenship,
and are not held by natural persons who are not American citizens.
170
The report
also found that the privileges or immunities referenced in the Clause could refer to
the rights enforceable against the federal government from the Bill of Rights.
171
The
report also noted a competing theory that the privileges or immunities in the Clause
are natural rights or common law rights that are not originally derived from the
constitutional text.
172
This position surely comes in part from Justice Washington’s
commentary when riding circuit in Corfield v. Coryell, where he wrote, pre-
Fourteenth Amendment, that the Constitution protected “those privileges and
immunities that are, in their nature, fundamental; which belong, of right, to the
citizens of all free governments.”
173
Some believe, perhaps by selectively adopting parts of the second theory just
mentioned, that the Clause should be used for finding and constitutionalizing new,
unenumerated rights,
174
such as the right to privacy.
175
Seeing how that has already
been accomplished through substantive due process (attended by a great deal of
controversy), and that some jurists are quick to assert that this merely facilitates
constitutionalizing personal preferences,
176
a vastly preferable course is to use
168. But see Nordyke, 563 F.3d at 449, 450 n.9; Nelson Lund, Anticipating Second Amendment
Incorporation: The Role of the Inferior Courts, 59 S
YRACUSE L. REV. 185, 195 (2008); Lund, Past and Future,
supra note 9, at 53 (arguing that Duncan likely replaced the Palko test).
169. O
FFICE OF LEGAL POLICY, U.S. DEP’T OF JUSTICE, REPORT TO THE ATTORNEY GEN., WRONG TURNS ON
THE
ROAD TO JUDICIAL ACTIVISM: THE NINTH AMENDMENT AND PRIVILEGES OR IMMUNITIES CLAUSE 28–31 (1987)
[hereinafter O
FFICE OF LEGAL POL’Y].
170. Id. at 28–29 & nn.103–04 (citing A
N AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (Noah
Webster ed., 1828)).
171. Id. at 30.
172. Id. at 31.
173. 6 F. Cas. 546, 551 (C.C.E.D. Pa. 1823) (No. 3230) (opinion of Washington, J.) (dictum).
174. E
LY, supra note 89, at 28.
175. Philip B. Kurland, The Privileges or Immunities Clause: “Its Hour Come Round at Last”?, 1972 W
ASH.
U. L.Q. 405, 419.
176. E.g., Silveira v. Lockyer, 328 F.3d 567, 568–69 (9th Cir. 2003) (Kozinski, J., dissenting from denial
of rehearing en banc).
Spring 2009] INCORPORATING THE SECOND AMENDMENT 213
Privileges or Immunities to incorporate a right that the Constitution does in fact
secure.
Probably concerned with avoiding such runaway results, Justice Thomas, with
Chief Justice Rehnquist, cautioned that before the Court reanimates the Privileges
or Immunities Clause, “we should endeavor to understand what the Framers of the
Fourteenth Amendment thought that it meant.”
177
Therefore Part IV will
demonstrate that the Privileges or Immunities Clause was originally concerned with
incorporating rights against the states, and can still do so. Parts IV.A & B explain
the adoption of the Clause along with the rest of the Fourteenth Amendment,
proving that the Clause was clearly intended and designed to incorporate rights. Part
IV.C then shows how this can be done without overturning precedent, including the
Slaughter-House Cases, and Part IV.D shows how such an outcome would be
consistent with recent legal developments.
A. Development of the Privileges or Immunities Clause
It is undisputed that the Privileges or Immunities Clause was intended to
incorporate certain rights against the states; although there is debate over which
rights it incorporated, and whether some or all of those rights are contained in the
Bill of Rights.
1. The Article IV Privileges and Immunities Clause
For the reasons set forth below, it is impossible to understand the Privileges or
Immunities Clause of the Fourteenth Amendment without a basic understanding of
the Privileges and Immunities Clause of Article IV. That provision reads, “The
Citizens of each State shall be entitled to all Privileges and Immunities of Citizens
in the several States.”
178
There are two competing views of the Privileges and Immunities Clause of
Article IV.
179
The first view is a Lockean, natural-law understanding that employs
language that foreshadows verbiage later used by the Court to identify fundamental
rights.
180
This language designating fundamentality is also of a type used in
incorporating provisions of the Bill of Rights through the Due Process Clause.
181
This natural-rights view had many adherents among the Framers of the Fourteenth
Amendment.
182
The Privileges and Immunities Clause in the Constitution is a streamlined version
of a similar clause in the Articles of Confederation.
183
The Articles of Confederation
used expansive language in guaranteeing privileges and immunities, stating in part:
177. Saenz v. Roe, 526 U.S. 489, 528 (1999) (Thomas, J., and Rehnquist, C.J., dissenting). Prior to Saenz,
the Clause was long considered a “dead letter.” See, e.g., Stanley Morrison, Does the Fourteenth Amendment
Incorporate the Bill of Rights? The Judicial Interpretation, 2 S
TAN. L. REV. 140, 144 (1949).
178. U.S. C
ONST. art. IV, § 2, cl. 1.
179. See T
RIBE, supra note 6, at 1295.
180. See infra Part IV.B.1. See generally Trisha Olson, The Natural Law Foundation of the Privileges or
Immunities Clause of the Fourteenth Amendment, 48 A
RK. L. REV. 347 (1995).
181. See supra Part III.B.
182. See Richard L. Aynes, On Misreading John Bingham and the Fourteenth Amendment, 103 Y
ALE L.J.
57, 74–75, 78–83 (1993).
183. See O
FFICE OF LEGAL POL’Y, supra note 169, at 32.
214 NEW MEXICO LAW REVIEW [Vol. 39
The better to secure and perpetuate mutual friendship…among the people of the
different States in this Union, the free inhabitants of each of these States…shall
be entitled to all privileges and immunities of free citizens in the several States;
and the people of each State shall have free ingress and regress to and from any
other State, and shall enjoy therein all the privileges of trade and commerce.…
184
It was therefore intended to foster comity between the citizens of the various newly-
minted states.
185
Charles Pinckney, who proposed the Article IV Privileges and
Immunities Clause, stated during the Constitutional Convention that the Article IV
language was modeled on the language from the Articles of Confederation.
186
This opinion was also held by other Framers. So important was building rapport
between the former colonies and facilitating their embrace of each other that
Alexander Hamilton referred to the Privileges and Immunities Clause as “the basis
of the union.”
187
This “comity-based construction” is a competing view of the
Clause.
188
The Privileges and Immunities Clause subsequently developed into a form of
equal-rights guarantee, whereby the citizens of one state traveling in another state
are on equal footing with the citizens of that second state.
189
The Court explains that
the Clause secures “to a citizen of State A who ventures into State B the same
privileges which the citizens of State B enjoy,”
190
so long as the right at issue is
“basic” or “fundamental.”
191
Some argue that this equal-protection reading is likewise the proper under-
standing of the Privileges or Immunities Clause.
192
However, that argument proves
too much in that it would render the Equal Protection Clause unnecessary and
without effect.
193
Therefore this reading must be rejected.
Even during the antebellum constitutional period, some authorities suggested
Second Amendment rights should be constitutionally enforceable against the states
through Article IV Privileges and Immunities. For example, Justice Washington
advocates that the Clause refers to “fundamental” privileges and immunities,
194
184. ARTICLES OF CONFEDERATION, art. IV, § 1 (U.S. 1777).
185. O
FFICE OF LEGAL POL’Y, supra note 169, at 32 (noting that this provision is sometimes referred to as
the Comity Clause).
186. Id. at 33 & n.114 (quoting T
HE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 112 (Max Farrand
ed., 1911)).
187. T
HE FEDERALIST NO. 80, at 476 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
188. T
RIBE, supra note 6, at 1295.
189. Wildenthal, supra note 150, at 1085–86.
190. Toomer v. Witsell, 334 U.S. 385, 395 (1948); accord Paul v. Virginia, 75 U.S. (8 Wall.) 168, 180
(1868); see also Sup. Ct. of N.H. v. Piper, 470 U.S. 274, 279–80 (1985); Austin v. New Hampshire, 420 U.S. 656,
660–61 (1975).
191. See, e.g., Baldwin v. Fish & Game Comm’n of Mont., 436 U.S. 371, 387–88 (1978) (holding that the
Privileges and Immunities Clause applies to rights that are “fundamental” or “basic to the maintenance or well-
being of the Union”).
192. See, e.g., John Harrison, Reconstructing the Privileges or Immunities Clause, 101 Y
ALE L.J. 1385, 1390
& n.15 (1992).
193. Cf. infra Part IV.B.2.
194. This language is quite similar to language the Court uses when incorporating fundamental rights through
the Due Process Clause. See supra Part III.B.
Spring 2009] INCORPORATING THE SECOND AMENDMENT 215
including as a protected liberty, citizens being able to “obtain happiness and
safety.”
195
The possession of arms is an effective means to secure such safety.
Taken alone, the Article IV Privileges and Immunities Clause seems insufficient
to incorporate the Second Amendment. However, building on that foundation, the
Fourteenth Amendment augmented Article IV to directly curtail state action.
2. Creation of the Fourteenth Amendment
The Fourteenth Amendment was passed in the aftermath of the Civil War.
Though the Thirteenth Amendment had abolished slavery, there was debate over
whether it could compel the states to treat the newly-freed blacks as anything other
than slaves, denying them the rights of free people. While some disagree on exactly
what rights are incorporated against the states through exactly what clause, the
Fourteenth Amendment was intended to incorporate federal rights against the states.
The Fourteenth Amendment was originally proposed in separate sections of the
Civil Rights Bill, not as a constitutional amendment.
196
But as shown below, it soon
became apparent that only a constitutional amendment could accomplish the desired
result.
a. Events Leading to the Proposal of the Fourteenth Amendment
Slavery was abolished in the United States when the Thirteenth Amendment was
adopted in 1865,
197
but that was only the beginning of reintegrating the former slave
states. On December 4, 1865, the first postwar Congress convened, and considered
forming a joint committee of fifteen members to “inquire into the condition of the
States which formed the so-called confederate States of America, and report
whether they or any of them are entitled to be represented in either House of
Congress.”
198
On December 13, 1865, the Joint Committee on Reconstruction was
created,
199
comprised of nine representatives and six senators.
200
Its primary function
was to examine whether the states that had seceded were entitled to congressional
delegations,
201
though its activities were not limited to that question. It first
proposed the Freedmen’s Bureau Bill, section 7 of which authorized the military
occupation of Southern states under presidential authority, to be implemented by
the War Department, to protect and enforce the civil rights of former slaves.
202
195. Corfield v. Coryell, 6 F. Cas. 546, 552 (C.C.E.D. Pa. 1823) (No. 3230) (opinion of Washington, J.)
(dictum).
196. F
LACK, supra note 86, at 55. There were several versions of the Civil Rights Bill. The final version used
language mirroring the Fourteenth Amendment. See Act of Apr. 9, 1866, ch. 31, 14 Stat. 27–30 (1866) (codified
as amended at 42 U.S.C. §§ 1981–82 (2006)).
197. U.S. C
ONST. amend. XIII, § 1 (“Neither slavery nor involuntary servitude, except as a punishment for
crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject
to their jurisdiction.”). Secretary of State William Seward announced the Thirteenth Amendment had been ratified
on Dec. 18, 1865. 2 A
NDREW C. MCLAUGHLIN, A CONSTITUTIONAL HISTORY OF THE UNITED STATES 648 (1935).
198. C
ONG. GLOBE, 39th Cong., 1st Sess. 6 (1865).
199. Id. at 30, 46–47.
200. Id. This committee was also known as the Committee of Fifteen or the Reconstruction Committee.
F
LACK, supra note 86, at 60.
201. M
CLAUGHLIN, supra note 197, at 648.
202. C
ONG. GLOBE, 39th Cong., 1st Sess. 209–10 (1866).
216 NEW MEXICO LAW REVIEW [Vol. 39
Then on January 5, 1866, Senator Lyman Trumbull introduced the Civil Rights
Bill to secure citizens’ rights for freed blacks,
203
augmenting the Freedmen’s Bureau
Bill. Although the two bills had many similar provisions,
204
the Freedmen’s Bureau
Bill only applied to the former Confederate States, and only until those states were
considered fully restored, while the Civil Rights Bill would permanently apply to
every state in the country.
205
On January 11, 1866, these bills were referred to the
Senate Judiciary Committee,
206
where Senator Trumbull was chairman.
207
Many at
that time considered these measures unconstitutional,
208
to which others replied that
Section 2 of the Thirteenth Amendment
209
gave Congress the power to pass any
laws that would end discrimination and ensure that former slaves enjoyed full
rights.
210
The first Civil Rights Bill was vetoed by President Andrew Johnson on February
19, 1866, because he considered it unconstitutional.
211
Another objection was that
it left “civil rights” undefined.
212
The record suggests that civil rights did not
include political rights
213
(such as voting, which would explain why the Fifteenth
Amendment would later be required specifically for voting rights), but did include
natural rights.
214
Others also considered the bill unconstitutional,
215
and voted
against it for that reason even though they supported its policy goals.
216
One
historian asserts that those voting against it for this reason included many who were
accounted the most able members of Congress.
217
A second version of the bill was also vetoed, but Congress overrode that veto.
218
Thus the Civil Rights Act became law on April 9, 1866.
219
But concerns over the
statute’s constitutionality remained, as the legislation went beyond the textual
mandate of any constitutional provision (as the Supreme Court later defined the
limits of the Thirteenth Amendment).
220
While the Freedmen’s Bureau Bill could
203. Id. at 129 (introducing S. No. 60 & S. No. 61).
204. F
LACK, supra note 86, at 32.
205. Id.
206. C
ONG. GLOBE, 39th Cong., 1st Sess. 184 (1866).
207. Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights?, 2 S
TAN. L. REV.
5, 7 (1949). While cited for historical content, please note that, as shown in Part V, infra, Fairman’s core thesis is
incorrect.
208. E.g., C
ONG. GLOBE, 39th Cong., 1st Sess. 415–19 (statement of Sen. Davis); see also MCLAUGHLIN,
supra note 197, at 654.
209. U.S. C
ONST. amend. XIII, § 2 (“Congress shall have power to enforce this article by appropriate
legislation.”).
210. C
ONG. GLOBE, 39th Cong., 1st Sess. 321–23 (statement of Sen. Trumbull).
211. Id. at 915–17 (veto message of President Johnson).
212. Id. at 916.
213. See C
ONG. GLOBE, 39th Cong., 1st Sess. 476 (statement of Sen. Trumbull); id. at 1151 (statement of
Rep. Thayer); id. at 1157 (statement of Rep. Thornton).
214. See id. at 1117–18 (statement of Rep. Wilson).
215. See, e.g., id. at 600–01 (statement of Sen. Guthrie); id. at 604–05 (statement of Sen. McDougall).
216. See F
LACK, supra note 86, at 29–34.
217. Id. at 40. That assertion is of course subjective. Historical accounts of that era may lead others to
different results. See generally E
RIC FONER, RECONSTRUCTION 1863–1877: AMERICA’S UNFINISHED REVOLUTION
(1989); MICHAEL LES BENEDICT, A COMPROMISE OF PRINCIPLE: CONGRESSIONAL REPUBLICANS AND
RECONSTRUCTION 1863–1869 (1974).
218. F
LACK, supra note 86, at 18.
219. Act of April 9, 1866, ch. 31, 14 Stat. 27 (1866) (codified as amended at 42 U.S.C. §§ 1981–82 (2006)).
220. See The Civil Rights Cases, 109 U.S. 3, 20–23 (1883) (holding that the Thirteenth Amendment’s effect
was limited to eliminating the badges and incidents of slavery).
Spring 2009] INCORPORATING THE SECOND AMENDMENT 217
be justified as a wartime measure because it was temporary and applied solely to the
states formerly in rebellion, and was thus predicated on Article I’s anti-insurrection
provision,
221
the permanence and national scope of the Civil Rights Act required
additional constitutional justification.
222
b. The Adoption of the Fourteenth Amendment
A constitutional amendment was required.
223
Professor Amar notes that during
the 1860s when the Civil Rights Act and the Fourteenth Amendment were
considered, many in Congress were unaware that the Court had held that the Bill of
Rights does not constrain the states.
224
This explains why Barron was mentioned in
the debates relating to the adoption of the Fourteenth Amendment, as supporters of
the proposed amendment explained its necessity.
225
The Fourteenth Amendment was the work product of many members of
Congress.
226
Congressman John Bingham was the principal author of its first
section.
227
Bingham, from Ohio, was considered one of the finest constitutional
lawyers in the House of the 39th Congress,
228
and introduced what would become
Section 1 of the Amendment.
229
This is significant in looking to Bingham’s
comments and intentions for Section 1, because although there are competing
claims to the authorship of other parts of the Amendment,
230
there is no dispute over
Section 1.
231
Bingham was among those who voted against the Civil Rights Bill
because he considered it unconstitutional, despite supporting its provisions.
232
When President Andrew Johnson vetoed the Civil Rights Act of 1866, he stated
that he did so in part because it was beyond the power of the federal government to
enact such a statute.
233
Some members of Congress had not considered the
legislation’s unconstitutionality, erroneously believing that the Bill of Rights
already applied to the states.
234
The members who did understand the impact of
Barron therefore decided that a constitutional amendment was needed to effectuate
the purposes of Reconstruction. Bingham explained that Congress’s lack of
authority to protect civil rights “makes plain the necessity of adopting this
amendment.”
235
221. U.S. CONST. art. I, § 8, cl. 15.
222. See Fairman, supra note 207, at 8.
223. M
CLAUGHLIN, supra note 197, at 655.
224. Amar, Fourteenth Amendment, supra note 126, at 1205.
225. E.g., C
ONG. GLOBE, 39th Cong., 1st Sess. 84 app. (1871) (statement of Rep. Bingham) (explaining how
Barron had influenced his choice of diction in drafting the Fourteenth Amendment in 1866).
226. F
LACK, supra note 86, at 55.
227. Amar, Fourteenth Amendment, supra note 126, at 1233.
228. F
LACK, supra note 86, at 68.
229. Id. at 70.
230. Id. at 69–71.
231. Id.
232. Id. at 35. In fact, Bingham went further than most, as he considered political rights such as voting to
fall under the aegis of civil rights, and thought suffrage should be secured under that heading by the Fourteenth
Amendment and appropriate legislation. Id. at 31.
233. C
ONG. GLOBE, 39th Cong., 1st Sess. 916 (1866) (veto message of Pres. Johnson).
234. R
ANDY E. BARNETT, RESTORING THE LOST CONSTITUTION 193 (2004).
235. C
ONG. GLOBE, 39th Cong., 1st Sess. 1089 (1866).
218 NEW MEXICO LAW REVIEW [Vol. 39
The Fourteenth Amendment was introduced on the same day in both
congressional chambers on February 13, 1866.
236
Bingham explained what he
designed Section 1 to address when it was introduced in the House: “Sir, it has been
the want of the Republic that there was not an express grant of power in the
Constitution to enable the whole people of every State, by congressional enactment,
to enforce obedience to these requirements of the Constitution.”
237
The Amendment
was passed by Congress on June 13, 1866.
238
The Fourteenth Amendment overruled Dred Scott,
239
but the debate over the
Fourteenth Amendment was not about citizenship per se. Dred Scott held that
blacks were not citizens,
240
and was expressly overruled in the Fourteenth
Amendment’s Citizenship Clause.
241
But although citizenship was debated in
1866,
242
the record of the Amendment’s adoption does not focus on whether blacks
were citizens.
243
The arguments instead primarily concerned the rights of such
citizenship, and separately, due process and equality for all persons.
Critical to this Article’s thesis is the stark distinction maintained throughout the
adoption of the Fourteenth Amendment between the Privileges or Immunities
Clause and the Due Process Clause. In each of the versions of the Fourteenth
Amendment considered in Congress, there were always two classes of persons.
244
There were always references to the legal entitlements held by citizens, in
contradistinction to rights of due process and equal protection that extended to all
persons, whether citizens or not.
245
Such a reading of the Fourteenth Amendment
is further supported by the common nineteenth-century distinction between the
rights of citizens versus non-citizens.
246
B. Privileges or Immunities Versus Due Process
One of the four provisions in Section 1 of the Fourteenth Amendment is the
Privileges or Immunities Clause,
247
while another is the Due Process Clause.
248
Entire classes in law school are solely concerned with the rules, statutes, and
doctrines based on the Due Process Clause. Every Bill of Rights provision that has
been incorporated thus far has been incorporated through the Due Process Clause.
Nevertheless, Privileges or Immunities is a far better vehicle for the incorporation
of some—if not all—federal rights. Michael Kent Curtis even argues that the Clause
236. Id. at 806 (introducing S. Res. 30 in the Senate); id. at 813 (introducing H.R. 63 in the House).
237. Id. at 1034 (statement of Rep. Bingham).
238. M
CLAUGHLIN, supra note 197, at 655.
239. T
RIBE, supra note 6, at 1298.
240. Scott v. Sandford (Dred Scott), 60 U.S. (19 How.) 393, 587 (1857).
241. U.S. C
ONST. amend. XIV, § 1, cl. 1.
242. See, e.g., C
ONG. GLOBE, 39th Cong., 1st Sess. 1088, 1153, 1266, 1757, 1832–33 (1866) (statements
of Reps. Woodbridge, Thayer, and Raymond, Sens. Trumbull and Lawrence).
243. F
LACK, supra note 86, at 71, 73. But see Rebecca E. Zietlow, Belonging, Protection and Equality: The
Neglected Citizenship Clause and the Limits of Federalism, 62 U.
PITT. L. REV. 281, 308–16 (2000) (arguing that
the Citizenship Clause was intended as a font of many federal rights and that the congressional debates largely
centered on citizenship).
244. F
LACK, supra note 86, at 63.
245. Id.
246. Harrison, supra note 192, at 1390 & n.15 (referencing various examples).
247. U.S. C
ONST. amend. XIV, § 1, cl. 2.
248. U.S. C
ONST. amend. XIV, § 1, cl. 3.
Spring 2009] INCORPORATING THE SECOND AMENDMENT 219
was a congressional attempt to “correct” what some considered the mistake in
Barron v. Baltimore, restoring what they considered the proper constitutional effect
of compelling states to uphold constitutional rights.
249
But if contemplating the Due
Process Clause is like drinking at the end of a fire hose because of its voluminous
case law, then considering the Privileges or Immunities Clause is like squeezing
water from a desert cactus. There is much less material to consider, making it more
difficult to interpret.
But that does not mean that examining Privileges or Immunities and comparing
it to Due Process is unhelpful. Both clauses were written into the Fourteenth
Amendment for a reason, and both have distinct meaning. That meaning may have
been obfuscated by current incorporation doctrine, but that does not erase it, or even
make it hard to find.
There is no persuasive reason why the Second Amendment—or any Bill of
Rights provision—should as a normative matter be incorporated through the Due
Process Clause instead of the Privileges or Immunities Clause. Professor Nelson
Lund seems puzzled that, though he expects academic disdain toward the Second
Amendment to result from the self-evident hostility many professors have toward
guns, the same explanation would not apply to exploring Privileges or Immunities
in that there is no antipathy to that provision in the academy.
250
He hypothesizes that
exploring Due Process instead of Privileges or Immunities stems from the
professoriate thinking that it is “more fun to spend one’s time coming up with
arguments and theories that explain why the Constitution should be interpreted to
produce what we’re sure would be a better world than to figure out what its makers
meant by what they said.”
251
Perhaps the reality may be more cynical than even Professor Lund allows. By
their very text, the Privileges or Immunities Clause applies only to citizens, while
the Due Process Clause applies to every human being.
252
Perhaps some believe that
there are no rights that should be limited to American citizens; any right good
enough for an American is good enough for every human being.
253
Hence,
constitutional rights should be incorporated through the Due Process Clause so that
they apply to all persons, not just Americans.
However, this view is incongruent with distinctions made between citizens and
non-citizens since the Framing. Denying certain privileges to persons who are not
citizens in no way degrades them or devalues their worth. Equal under the law does
not always mean identical. The Supreme Court has long recognized the difference
between the rights of citizens versus non-citizens. As the Court said in Johnson v.
Eisentrager:
249. Book Note, A Radical Intent, 101 HARV. L. REV. 869, 870 (1988) (reviewing CURTIS, supra note 122).
250. Lund, Outsider Voices, supra note 155, at 717.
251. Id.
252. Compare U.S. C
ONST. amend. XIV, cl. 2, with U.S. CONST. amend. XIV, cl. 3.
253. For example, Professor Louis Henkin posits that “the provisions of the Bill of Rights are not rights of
citizens only but are enjoyed by non-citizens as well.” Louis Henkin, “Selective Incorporation” in the Fourteenth
Amendment, 73 Y
ALE L.J. 74, 78 n.16 (1963).
220 NEW MEXICO LAW REVIEW [Vol. 39
The alien, to whom the United States has been traditionally hospitable, has been
accorded a generous and ascending scale of rights as he increases his identity
with our society.…
But, in extending constitutional protections beyond the citizenry, the Court
has been at pains to point out that it was the alien’s presence within its territorial
jurisdiction, that gave the Judiciary power to act.
254
Thus, non-citizens’ enjoyment of some rights is directly correlated to the extent of
their identification with the American nation, and the Supreme Court emphasizes
that non-citizens’ presence on American soil is a sine qua non of the judiciary even
having jurisdiction to enforce rights for non-citizens.
255
Yet current incorporation
doctrine does not recognize this distinction. Nowhere in Fourteenth Amendment
jurisprudence is such a principle evident.
Herein lies the key to incorporation. An explication of the Privileges or
Immunities Clause illuminates this distinction.
1. The Meaning of “Privileges or Immunities”
Begin with definitions. While perhaps no phrase is used more often in law than
“due process,” few people of any profession use “privileges or immunities.”
However, “privileges or immunities” had a discernable meaning in 1866 when it
was proposed.
At the time the Fourteenth Amendment was adopted, the words “privileges” and
“immunities” were defined in dictionaries as rights and freedoms.
256
This is also
true in modern dictionaries.
257
It was also true long before the Fourteenth
Amendment. In his Commentaries, Blackstone equates “privileges” and
“immunities” with rights.
258
The Framers’ statements further define the terms. Senator Jacob Howard, during
the congressional debates, said:
Such is the character of the privileges or immunities spoken of in the second
section of the fourth article of the Constitution. To these privileges and
immunities, whatever they may be—for they are not and cannot be fully defined
in their entire extent and precise nature—to these should be added the personal
rights guarantied and secured by the first eight amendments of the Constitution;
such as the freedom of speech and of the press;…the right to keep and bear
arms.…
254. Johnson v. Eisentrager, 339 U.S. 763, 770–71 (1950).
255. But see Boumediene v. Bush, 128 S. Ct. 2229, 2262, 2275 (2008) (holding that the writ of habeas
corpus extends to non-citizens held by the U.S. military as enemy combatants at Guantanamo Bay, Cuba). Although
the Court engages in a lengthy discussion to argue that U.S. control is so comprehensive in Guantanamo Bay that
it amounts to “de facto sovereignty” (in contradistinction to “de jure sovereignty”) in an attempt to distinguish
Boumediene from Eisentrager, see id. at 2257–62, this analysis is so strained that it appears untenable. Id. at
2298–2299 & n.3, 2300–02 (Scalia, J., dissenting). If Eisentrager cannot be distinguished, then to the extent that
it is inconsistent with Boumediene, Eisentrager has been overruled sub silentio (or abrogated at the very least),
creating doubt as to the precedential value of the Eisentrager passage quoted above.
256. Akhil Reed Amar, Did the Fourteenth Amendment Incorporate the Bill of Rights Against the States?,
19 H
ARV. J.L. & PUB. POL’Y 443, 444 (1995).
257. Id. at 444 n.9 (citing 12 O
XFORD ENGLISH DICTIONARY 522, 691 (2d ed. 1989)).
258. See 1 B
LACKSTONE, supra note 157, at *127–45.
Spring 2009] INCORPORATING THE SECOND AMENDMENT 221
Now, sir, here is a mass of privileges, immunities, and rights, some of them
secured by…the first eight amendments of the Constitution.…
259
According to Howard, while the full list is difficult to determine, it minimally
includes the Bill of Rights. And the Amendment’s supporters argued that their
opponents’ goal was to prevent protections from the first eight amendments from
being extended to constrain state and local action.
260
The Clause could have been meant to incorporate rights in addition to those
found in the Bill of Rights, which would explain why a broad phrase like
“privileges or immunities” would be used instead of the term “Bill of Rights.”
261
This would leave to future courts or Congresses the task of expositing those
rights.
262
Some courts at the time held this view,
263
concluding that “The clause is
best seen…as incorporating the Bill of Rights against state governments without
implying the exclusivity of that set of guarantees.”
264
In the Slaughter-House Cases (explored below in Part IV.C), the Court states that
the rights comprising the privileges or immunities of citizens are “more tedious than
difficult to enumerate.”
265
But to give some idea, the Court quotes Corfield to list:
They may, however, be all comprehended under the following general heads:
Protection by the government; the enjoyment of life and liberty, with the right
to acquire and possess property of every kind, and to pursue and obtain
happiness and safety, subject nevertheless, to such restraints as the government
may justly prescribe for the general good of the whole; the right of a citizen of
one State to pass through, or to reside in, any other State for purposes of trade,
agriculture, professional pursuits, or otherwise; to claim the benefit of the writ
of habeas corpus; to institute and maintain actions of any kind in the courts of
the State; to take, hold, and dispose of property, either real or personal; and an
exemption from higher taxes or impositions that are paid by the other citizens of
the State, may be mentioned as some of the particular privileges and immunities
of citizens which are clearly embraced by the general description of privileges
deemed to be fundamental.
266
The Slaughter-House Court also stated that “rights which are fundamental…have
always been held to be in the class of rights which the State governments were
created to establish and secure.”
267
The Court distinguished such rights from the
“privileges or immunities of citizens,” which are those “belonging to a citizen of the
United States as such.”
268
However, it does not necessarily follow that fundamental
259. CONG. GLOBE, 39th Cong., 1st Sess. 2765 (1866) (statement of Sen. Howard) (emphasis added).
260. Id. at 1090 (“[Opponents of] this amendment oppose the grant of power to enforce the bill of rights.”)
(statement of Rep. Bingham).
261. See C
URTIS, supra note 122, at 125.
262. Michael J. Gerhardt, The Ripple Effects of Slaughter-House: A Critique of a Negative Rights View of
the Constitution, 43 V
AND. L. REV. 409, 427 (1990).
263. E.g., United States v. Hall, 26 F. Cas. 79, 82 (C.C.S.D. Ala. 1871).
264. T
RIBE, supra note 6, at 1302.
265. 83 U.S. (16 Wall.) 36, 117 (1873).
266. Id. at 117 (quoting Corfield v. Coryell, 6 F. Cas. 546 (C.C.E.D. Pa. 1823) (No. 3230) (opinion of
Washington, J.)).
267. Id. at 76.
268. Id. at 75.
222 NEW MEXICO LAW REVIEW [Vol. 39
rights protected by the states are unprotected by the Clause.
269
If a right thus secured
by state governments is also manifestly a right against the federal government, then
it could concurrently be a right of federal citizens per se, and yet also apply against
the states. Such a right could be one that state governments are intended to secure,
but also one that the federal government must safeguard as being among the
“privileges or immunities” of federal citizenship. As explained in Part V.B, the
Second Amendment is such a right.
A final point to note here is the 1860s mindset in contradistinction to the 1780s.
During the original ratification debates the preeminent concern was constraining the
new central government being erected in far-off New York City,
270
reminiscent
perhaps of colonial government under a far-off Crown. The Bill of Rights was
drafted in 1789 to allay concerns over the scope of this new central government in
its ability to override a citizen’s state government.
271
However, in the ensuing years
large swaths of territory under the American flag existed as territories, not states.
Many of those territories subsequently became states in their own right. Federal
territories were directly governed by the Bill of Rights, just as the Bill of Rights
directly applies to the District of Columbia today.
272
Professor Amar writes that
after the Civil War, when the Fourteenth Amendment was proposed, if you were a
senator from a state like Ohio (formerly a territory), it would seem odd to you that
the protections Ohioans enjoyed under the Bill of Rights when Ohio was a territory
could be stripped away by your state when Ohio attained statehood, especially since
your federal government anteceded your state government.
273
It was therefore
natural for a congressman in 1866 to think that the proposed Fourteenth
Amendment would apply the Bill of Rights to the states.
Finally, the record reveals that “rights, liberties, privileges, and immunities, seem
to have been used interchangeably.”
274
That fact, taken with the above material from
both case law and the literature concerning the Clause, suggests the purpose of
Privileges or Immunities was to apply substantive rights against the states.
2. Separate Meanings of the Two Clauses
Each provision of the Constitution has a distinct meaning.
275
If this tenet is
applied to every provision across the seven articles of the original Constitution, then
it follows a fortiori that it applies all the more to the four clauses adopted
simultaneously in Section 1 of the Fourteenth Amendment. While there are
269. Contra Saenz v. Roe, 526 U.S. 489, 521–28 (1999) (Thomas, J., dissenting).
270. Amar, Against the States, supra note 256, at 448.
271. Id.
272. See District of Columbia v. Heller, 128 S. Ct. 2783 (2008) (applying the Second Amendment directly
to the District of Columbia); Pernell v. Southall Realty, 416 U.S. 363, 369–80 (1974) (applying the Seventh
Amendment directly to the District of Columbia).
273. Amar, Against the States, supra note 256, at 449.
274. C
URTIS, supra note 122, at 64–65.
275. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174 (1803) (“It cannot be presumed that any clause
in the constitution is intended to be without effect.…”). This principle is used often in interpreting statutes. See,
e.g., Corley v. United States, 129 S. Ct. 1558, 1566 (2009) (applying “one of the most basic interpretive canons,
that a statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or
superfluous, void or insignificant” (quoting Hibbs v. Winn, 542 U.S. 88, 101 (2004)) (internal quotation marks
and brackets omitted)).
Spring 2009] INCORPORATING THE SECOND AMENDMENT 223
provisions in the Constitution that may be redundant, it strains credulity that Section
1 would include four distinct clauses written as one unit, where one or more were
surplusage because they had no separate meaning. Viewed through that lens, it
becomes increasingly clear that the Privileges or Immunities Clause applies
substantive rights for citizens, while the Due Process Clause secures procedural
safeguards for the life, liberty, and property for all persons regardless of citizenship.
In 1859, two years before the Civil War, John Bingham forecasted what he would
later do in drafting Section 1. Speaking of federal protection against state action,
Bingham distinguished citizens’ rights from natural rights when he identified two
types of constitutional rights—one being the “wise and beneficent guarantees of
political rights to the citizens of the United States, as such, and [the other] of natural
rights to all persons, whether citizens or strangers.”
276
Two separate clauses secure
these respective rights.
It was widely accepted by many legal authorities in the 1860s that embraced a
broad application of the Bill of Rights, including many who supported broadly
incorporating rights by creating the Fourteenth Amendment, that the Bill of Rights
applied to citizens.
277
Yet the Framers of the Fourteenth Amendment also wished
to extend certain legal protections, such as due process, to aliens.
278
Therefore one
clause, the Privileges or Immunities Clause, incorporates certain rights to citizens,
and two others, the Due Process Clause and the Equal Protection Clause,
incorporate other rights both to citizens and to non-citizens. As Congressman
Bingham stated:
Is it not essential to the unity of the people that the citizens of each State shall
be entitled to all the privileges and immunities of citizens…? Is it not [also]
essential…that all persons, whether citizens or strangers, within this land, shall
have equal protection in every State in this Union in the rights of life and liberty
and property?
279
This naturally invites the judiciary to create two separate, though related, lines of
jurisprudence: one for citizens and one for all persons. Accordingly, the Court’s
explication of the latter rights of due process and equal protection do nothing to
stop the Court from likewise exploring the former rights of citizenship.
As explained in Part V.B.2, Professor Amar advances the theory that these rights
of citizenship are political rights. The greatest challenge to Amar’s theory, however,
ironically comes from its primary source: the history surrounding the Fourteenth
Amendment’s adoption. The debates surrounding the drafting, revising, and
proposing of the Amendment form the bulk of Amar’s evidence. Yet those same
debates constantly distinguish civil rights from political rights, with civil rights
being covered by the Privileges or Immunities Clause, but political rights, such as
voting, being specifically excluded, therefore necessitating the adoption of the
276. CONG. GLOBE, 35th Cong., 2d Sess. 983 (1859) (statement of Rep. Bingham).
277. See Amar, Fourteenth Amendment, supra note 126, at 1223 & nn.135–38 (citations omitted).
278. Id. at 1224; James W. Ely, Jr., Due Process Clause, in T
HE HERITAGE GUIDE TO THE CONSTITUTION
394 (2005).
279. C
ONG. GLOBE, 39th Cong., 1st Sess. 1090 (1866) (statement of Rep. Bingham).
224 NEW MEXICO LAW REVIEW [Vol. 39
Fifteenth Amendment.
280
That notwithstanding, it would be simplistic to say that
political rights were not included in the Fourteenth Amendment. While some
members of Congress believed they were, others did not.
281
There were floor
speeches supporting both sides of that question. There is no clear answer, and the
fact that Congress soon thereafter proposed what became the Fifteenth Amendment
to secure the quintessential political right—voting—reveals a weakness in Amar’s
thesis.
282
The Framers of the Fourteenth Amendment deliberated on the difference of
citizens’ rights versus the rights of all persons, as reflected by early drafts of the
Fourteenth Amendment.
283
In Heller the Court recognized that “the people” has a
political connotation,
284
further supporting this position. Though it is possible to
arrive at different conclusions about exactly where the citizen/person line is drawn,
it is clear that Privileges or Immunities concerned the former, while Due Process
governed the latter.
3. The Privileges or Immunities Clause Was Intended to Incorporate Certain
Rights
Having defined “privileges or immunities” and seen that the clauses of Section
1 have separate meanings, the next question concerns the purpose of Privileges or
Immunities. This task is made more difficult because the congressional debates
surrounding the Fourteenth Amendment used generalizations, obscuring the
Amendment’s meaning.
285
As early as 1859, John Bingham stated his belief that “whenever the Constitution
guaranties to its citizens a right…such guarantee is in itself a limitation upon the
States.”
286
Yet he understood that Barron v. Baltimore barred extending the Bill of
Rights to the states.
287
Congressman Bingham thus stated plainly that the purpose
of the Fourteenth Amendment was to overrule Barron. Bingham explained on the
House floor that Section 1 was intended to supersede Barron, stating:
In reexamining the case of Barron, Mr. Speaker,…I noted and apprehended
as I never did before, certain words in that opinion of Marshall. Referring to the
first eight…amendments to the Constitution…the Chief Justice said: “Had the
framers of these amendments intended them to be limitations on the powers of
the State governments they would have imitated the framers of the original
Constitution, and have expressed that intention.”.…
280. U.S. CONST. amend. XV (providing that the right to vote shall not be denied on account of race).
281. Compare F
LACK, supra note 86, at 31 (citing members who believed that political rights were included),
with, e.g., C
ONG. GLOBE, 39th Cong., 1st Sess. 1151–53 (1866) (statement of Sen. Thayer) (denying that voting
rights were included).
282. This is not to say that the argument is so weak that it ought not to be considered persuasive. It is possible
that the majority of the Fourteenth Amendment’s adopters considered political rights entailed by that amendment,
but still supported the Fifteenth Amendment as an insurance policy.
283. Amar, Fourteenth Amendment, supra note 126, at 1225 & n.146 (quoting B
ENJAMIN B. KENDRICK, THE
JOURNAL OF THE JOINT COMMITTEE OF FIFTEEN ON RECONSTRUCTION 51 (1914)); see also FLACK, supra note 86,
at 63–64.
284. District of Columbia v. Heller, 128 S. Ct. 2783, 2790–91 (2008).
285. See C
URTIS, supra note 122, at 15.
286. C
ONG. GLOBE, 35th Cong., 2d Sess. 982 (1859) (statement of Rep. Bingham).
287. 32 U.S. 243 (1833).
Spring 2009] INCORPORATING THE SECOND AMENDMENT 225
Acting upon this suggestion I did imitate the framers of the original
Constitution…to the letter [in drafting] the first section of the fourteenth
amendment as it stands in the Constitution.…
288
John Bingham had come to accept that his personal beliefs as to the nature of the
Bill of Rights were insufficient; an amendment was needed.
289
When proposing the Fourteenth Amendment and working for its adoption,
Congressman Bingham elaborated on those sentiments, saying:
Gentlemen admit the force of the provisions in the bill of rights, that the citizens
of the United States shall be entitled to all the privileges and immunities of
citizens of the United States in the several States, and that no person shall be
deprived of life, liberty, or property without due process of law; but they say,
“We are opposed to its enforcement by act of Congress under an amended
Constitution, as proposed.” That is the sum and substance of all the argument
that we have heard on this subject. Why are gentlemen opposed to the
enforcement of the bill of rights, as proposed? Because they aver it would
interfere with the reserved rights of the States! Who ever before heard that any
State had reserved to itself the right, under the Constitution of the United States,
to withhold from any citizen of the United States within its limits, under any
pretext whatever, any of the privileges of a citizen of the United States…?
290
The critical sentence is the last, where Bingham speaks of citizenship privileges
being a barrier to the action of state governments.
This message is consistent over time. Several years later, Congressman Bingham
again restated his own view of incorporation when he said that:
[T]he privileges and immunities of citizens of the United States, as
contradistinguished from citizens of a State, are chiefly defined in the first eight
amendments to the Constitution of the United States.…These eight articles I
have shown never were limitations upon the powers of the States, until made so
by the fourteenth amendment.
291
Such statements are not dispositive, of course. But they illustrate the tenor of the
public debate around Privileges or Immunities, and at a minimum show that at least
some of the provisions from the Bill of Rights were considered incorporated by the
Clause.
Nor is the historical record limited to discussion of the application of just an
isolated right or two to the states. The above references are to multiple amendments
in the Bill of Rights. The Privileges or Immunities Clause was therefore intended
to incorporate a “broad array” of individual rights,
292
including the enumerated
provisions in the Bill of Rights.
293
Accordingly, it is a far more natural vehicle for
incorporation than the Due Process Clause.
288. CONG. GLOBE, 42d Cong., 1st Sess. 84 app. (1871) (statement of Rep. Bingham).
289. William Winslow Crosskey, Charles Fairman, “Legislative History,” and the Constitutional
Limitations on State Authority, 22 U. C
HI. L. REV. 1, 52 (1954).
290. C
ONG. GLOBE, 39th Cong., 1st Sess. 1089 (1866) (statement of Rep. Bingham).
291. C
ONG. GLOBE, 42d Cong., 1st Sess. 84 app. (1871) (statement of Rep. Bingham).
292. T
RIBE, supra note 6, at 1299.
293. See generally C
URTIS, supra note 122.
226 NEW MEXICO LAW REVIEW [Vol. 39
C. Incorporating Through the Privileges or Immunities Clause Is Still
Possible After the Slaughter-House Cases
The issue of incorporation took an unexpected turn shortly after the Fourteenth
Amendment’s passage that sent the issue in an unforeseeable direction. The Court
took up the question of whether certain rights were incorporated against the states
through the Privileges or Immunities Clause in the Slaughter-House Cases. Though
many authorities cited throughout this Article contend that Slaughter-House
virtually denuded the Clause of any effect, that proposition is untrue. A thoughtful
analysis of Slaughter-House shows that the Court merely declined to adopt an
exceptionally-broad reading of the Clause. The Court subsequently embarked on
substantive due process, incorporating rights through Due Process, thereby
obviating the need to consider alternative routes of incorporating rights and thus
never revisiting Privileges or Immunities. But Slaughter-House did not foreclose the
possibility that Privileges or Immunities could be effectual for incorporating rights
against the states.
1. What Really Happened in the Slaughter-House Cases
On April 14, 1873, the Supreme Court handed down a landmark decision in
several consolidated cases decided in one opinion styled the Slaughter-House
Cases.
294
At issue in Slaughter-House was a Louisiana statute that created a
monopoly over the slaughter of animals within city limits.
295
Those challenging the
law argued that it violated their right to exercise their profession, contravening the
Privileges or Immunities Clause.
296
The Court said that it is the right and duty of
legislatures to regulate slaughtering within cities, and rejected the contention that
butchers were being “deprived of the right to labor in their occupation.”
297
Noting
that states regulate “unwholesome trades” in dense population centers for public
health,
298
the Court found no constitutional violation.
299
The Court reasoned, “there
is a citizenship of the United States, and a citizenship of a State, which are distinct
from each other, and which depend upon different characteristics or circumstances
in the individual.”
300
The Court continued that the plaintiffs’ argument “rests wholly
on the assumption that the citizenship is the same, and the privileges and immunities
guaranteed by the clause are the same.”
301
Comparing the privileges or immunities
of U.S. citizens to those of state citizens, the Court ruled “that it is only the former
which are placed by this clause under the protection of the Federal Constitution, and
that the latter, whatever they may be, are not intended to have any additional
protection by this paragraph of the amendment.”
302
Therefore:
294. 83 U.S. (16 Wall.) 36 (1873).
295. Id. at 60.
296. Id.
297. Id. at 61.
298. Id. at 82.
299. Id. at 66.
300. Id. at 74.
301. Id.
302. Id. (emphasis added).
Spring 2009] INCORPORATING THE SECOND AMENDMENT 227
If, then, there is a difference between the privileges and immunities belonging
to a citizen of the United States as such, and those belonging to the citizen of the
State as such the latter must rest for their security and protection where they have
heretofore rested; for they are not embraced by this paragraph of the
amendment.
303
Finding that the right to engage in the butchering trade is not encompassed by the
U.S. Constitution, the Court held that the Louisiana statute does not violate the
Clause.
304
Thus the Court declined its first opportunity to give the Fourteenth Amendment
a broad reach, which would have thrown open the floodgates. This has led some to
say that Slaughter-House “construed the Privileges or Immunities Clause so
narrowly as to pave the way for its virtual elimination from the body of the
Constitution.”
305
2. Incorporation Is Still Possible Under the Slaughter-House Cases as Long as
the Right Inheres in Federal Citizenship
However, Justice Miller’s majority opinion in Slaughter-House contains
language that allows a number of rights to be incorporated through the Privileges
or Immunities Clause. Justice Miller includes among these rights habeas corpus,
peaceable assemblies, and seeking redress for grievances.
306
This part of the opinion
is dictum, as it was unnecessary for resolving the question of the butchers’
constitutional rights. But it reinforces that Slaughter-House is fairly read as
allowing incorporation through the Clause, leaving open what rights could be
incorporated for future cases. At the very least, Slaughter-House cannot be read as
barring incorporation through the Clause.
307
It is difficult to overstate the difference between what Slaughter-House actually
held, versus what many scholars characterize Slaughter-House as holding. The idea
that the Fourteenth Amendment did not fundamentally alter the federal–state
303. Id. at 75.
304. Id. at 81.
305. T
RIBE, supra note 6, at 1303.
306. Slaughter-House, 83 U.S. (16 Wall.) at 79. It should be noted that Justice Miller’s reference to
petitioning the government was specifically the right to petition the national government. However, this is
reasonable in light of the fact that he was writing of the rights of national citizenship. There is nothing in that
reference that would restrict the right to petition to national matters; Slaughter-House says nothing to suggest that
the right to petition does not mean the right to petition government generally, which would then include state and
local governments as well.
307. See, e.g., E
LY, supra note 89, at 196–97 & n.59. Indeed, Slaughter-House need not be read as an anti-
incorporation case, in that no specific Bill of Rights provision was at issue. See Wildenthal, supra note 150, at
1064. Some argue that “privileges or immunities” should also include rights arising from federal statute. E.g.,
William J. Rich, Taking “Privileges or Immunities” Seriously: A Call to Expand the Constitutional Canon, 87
M
INN. L. REV. 153, 191–93 (2002).
However, this approach must be rejected because it opens the door for Congress to constitutionalize
current policy preferences by passing a statute, and then having private parties invoke Privileges or Immunities as
entailing that policy. Although Congress can confer statutory rights that are subordinate to the Constitution, the
Fourteenth Amendment cannot and should not be read as empowering Congress to create constitutional rights on
par with rights guaranteed in the constitutional text, as this would enable Congress to override the Constitution’s
text by an ordinary statute. This could facilitate Congress circumventing the arduous amendment process with all
its democratic safeguards, and should be denied.
228 NEW MEXICO LAW REVIEW [Vol. 39
balance was, at most, only suggested by Slaughter-House;
308
it was not the Court’s
holding. But those who seek to use the Fourteenth Amendment as a cornucopia of
boundless unenumerated rights go too far. It is a strawman argument to say that the
Fourteenth Amendment must either incorporate essentially no rights or almost every
right imaginable. The truth lies between, in that various rights are incorporated, but
only those meeting certain criteria. While various criteria have (inconsistently) been
advanced for incorporating through the Due Process Clause, the text of Slaughter-
House provides the starting point for tracing the scope of Fourteenth Amendment
incorporation.
Several clauses in the Constitution have been held nonjusticiable, often because
they concern political questions.
309
However, Slaughter-House did not render
Privileges or Immunities nonjusticiable. Instead, it limited its scope to a certain set
of rights. While this set excludes almost all unenumerated rights,
310
some authorities
suggest or advocate that provisions of the Bill of Rights could be incorporated
through Privileges or Immunities. Justice Hugo Black, who supported total
incorporation of the Bill of Rights,
311
believed the Clause to be an effective vehicle
for such incorporation.
312
Some may say that Slaughter-House precludes the possibility of incorporating
a provision of the Bill of Rights through the Privileges or Immunities Clause, but
that is simply not the case. The Slaughter-House majority sought to maintain the
federal system of constitutional governance. The butcher plaintiffs were asking the
Court to declare that a state law granting a monopoly over slaughtering animals
violated the federal Constitution.
313
The majority was correct in concluding that
“such a construction…would [render the Court] a perpetual censor upon all
legislation of the States…with the authority to nullify [any laws] it did not
approve.”
314
Such an interpretation of the Fourteenth Amendment would also
empower Congress, through Section 5, to override state law at will by legislatively
finding a federal right and passing a law carrying it into effect.
315
The result would
be that both the federal legislature and the federal courts could supersede state law
whenever they chose, severely degrading—if not effectively eradicating—state
sovereignty, as states would henceforth only retain laws that the federal branches
chose not to override.
316
However, it goes too far to say that the Court must disallow
incorporating through Privileges or Immunities to avoid this anti-federalism result.
The narrowness of the Slaughter-House holding is seen in its list of possibly
incorporated rights. There were no First Amendment or habeas issues in Slaughter-
308. See TRIBE, supra note 6, at 1321.
309. E.g., Colegrove v. Green, 328 U.S. 549, 556 (1946) (Frankfurter, J., concurring) (asserting that the
Guaranty Clause, U.S.
CONST. art. IV, § 4, is a nonjusticiable political question).
310. O
FFICE OF LEGAL POL’Y, supra note 169, at 6.
311. See Adamson v. California, 332 U.S. 46, 71–72 (1947) (Black, J., dissenting).
312. Duncan v. Louisiana, 391 U.S. 145, 166 (1968) (Black, J., concurring).
313. See Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 61–63 (1873).
314. Id. at 78.
315. See id. This would also have the effect of enabling Congress to amend the Constitution by ordinary
statute, circumventing the amendment process. See supra note 307.
316. See Slaughter-House, 83 U.S. (16 Wall.) at 78.
Spring 2009] INCORPORATING THE SECOND AMENDMENT 229
House. The plaintiffs there did not assert any enumerated right;
317
they were
pushing the Court to find an implied right devoid of textual support. Further, while
there are significant public health issues involved in slaughtering animals today, in
the 1870s those issues were far more significant because of the lack of antibiotics
and refrigeration. Laws governing public health are part of the police power.
318
And
while states have police power,
319
the federal government does not.
320
The police
power was mentioned in Slaughter-House,
321
and doubtlessly augmented whatever
federalism concerns the Court had in deciding the case. Instead of barring
incorporation through Privileges or Immunities—a possibility scuttled by the dictum
regarding First Amendment rights being among the rights characterizing federal
citizenship
322
—Slaughter-House holds that whatever the rights incorporated through
317. At least one other writer has noted the significance of that fact. See Kevin Christopher Newsom, Setting
Incorporationism Straight: A Reinterpretation of the Slaughter-House Cases, 109 Y
ALE L.J. 643, 685 (2000).
318. Gonzales v. Oregon, 546 U.S. 243, 270 (2006) (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 475
(1996)).
319. Id.
320. Hamilton v. Ky. Distilleries & Warehouse Co., 251 U.S. 146, 156 (1919). This is a general proposition
where the several states are involved. Congress does have a basis for asserting police power for the District of
Columbia or over federal territories. See Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 261 (1964)
(quoting District of Columbia v. John R. Thompson Co., 346 U.S. 100, 110 (1953)); see also U.S. C
ONST. art. I,
§ 8, cl. 17; cf. North Dakota v. United States, 495 U.S. 423, 429 n.2, 430–32 (1990) (discussing how the federal
government exercises police power regarding the consumption of alcohol in national parks and military bases).
321. 83 U.S. (16 Wall.) at 62–63.
322. Id. at 78–79. This dictum is quite significant. In recently deciding to incorporate the Second
Amendment through Due Process instead of Privileges or Immunities in the case discussed in note 11, Nordyke
v. King, 563 F.3d 439 (9th Cir. 2009), the Ninth Circuit concluded that Heller precluded using Privileges or
Immunities for the right to bear arms. Id. at 446–47. The panel read Slaughter-House as holding that Privileges
or Immunities only pertains to rights created under the Federal Constitution as an aspect of federal citizenship,
while Due Process protected rights that predated the Constitution. Id. Noting that in Heller the Supreme Court
stated that the Second Amendment right to self-defense was a pre-existing right at the time the Constitution was
adopted, the Ninth Circuit concluded that Privileges or Immunities does not incorporate the Second Amendment.
Id. at 447 (citing District of Columbia v. Heller, 128 S. Ct. 2783, 2797 (2008)).
But such a reading of Slaughter-House is difficult to reconcile with the dictum from Slaughter-House
referenced in this footnote. Does the Ninth Circuit suggest that the writ of habeas corpus, or the First Amendment
rights to peaceably assemble and petition government, were first created by the Constitution and did not antecede
the Constitution? That must be so, if the panel’s reading is correct, because these rights are referenced in this
Slaughter-House dictum as among the privileges and immunities of federal citizenship. 83 U.S. (16 Wall.) at 79.
But if these rights were derived from English common law, or acknowledged in America before 1789, then the
Ninth Circuit is incorrect in asserting that Privileges or Immunities cannot incorporate rights that existed before
the Constitution was adopted, because the very case that the panel cites, Slaughter-House, is also the case that
would defeat the circuit court’s position.
And in fact, the Supreme Court declared the right of assembly to be a pre-existing right. See United
States v. Cruikshank, 92 U.S. 542, 551 (1876) (“The right of the people peaceably to assemble for lawful purposes
existed long before the adoption of the Constitution of the United States.…It was not, therefore, a right granted to
the people by the Constitution.”). In more recent years, Justices of the Supreme Court have stated that the other
First Amendment right mentioned in the Slaughter-House dictum, the right to petition for redress, likewise predates
the Constitution. See Adderly v. Florida, 385 U.S. 39, 49 & n.2 (1966) (Douglas, J., joined by Warren, C.J., and
Brennan and Fortas, JJ., dissenting) (referring to the fact that “[t]he right to petition for the redress of grievances
has an ancient history”).
Moreover, the origin of habeas corpus voluminously fills the pages of the United States Reports, all
supporting the undisputed fact that the writ preceded the U.S. Constitution. As recently as the Court’s 2007 Term,
this discussion of the pre-American origins of the Great Writ dominated a lengthy opinion in a watershed case. See
Boumediene v. Bush, 128 S. Ct. 2229, 2244–51 (2008); id. at 2303–07 (Scalia, J., dissenting). It has also figured
prominently in other recent decisions. See, e.g., Rasul v. Bush, 542 U.S. 466, 502–04 (2004) (Scalia, J.,
dissenting). So habeas corpus was a pre-existing right when the Constitution was adopted. Yet habeas is listed in
the Slaughter-House dictum as being among the privileges and immunities of U.S. citizens, entailed in the
230 NEW MEXICO LAW REVIEW [Vol. 39
Privileges or Immunities might be, that list does not include a commercial/labor
right against monopolies where public health and the local economy are
concerned.
323
Far from “denying the provision any significant content,”
324
Slaughter-House simply drew a line in the sand on a narrow matter, and future
Courts did not revisit the Clause to expose Slaughter-House’s narrowness. Although
few have questioned the conclusion of scholars that the Clause lacks meaningful
effect, the Court is not bound by this post-hoc gloss invented by the legal academy.
Rather than precluding incorporation, Slaughter-House limits the rights that can
be incorporated through Privileges or Immunities to those inhering in federal
citizenship.
325
Slaughter-House stands for the proposition that certain rights
distinctive to national citizenship are to be applied to the states through the
Privileges or Immunities Clause,
326
establishing the test of whether the right in
question inheres in federal citizenship. Which rights belong on that list is a largely
unanswered question, though a Slaughter-House dissent suggests that many could
be included.
327
All we know from Slaughter-House is that state laws granting
monopolies over food services inside cities do not violate the Clause, a holding
influenced by the fact that businesses slaughtering animals are mostly governed by
state law. Also, even though the Court differentiated between federal and state
citizenship, nowhere does it state that there can be no overlap of rights derived from
the former with those derived from the latter.
328
Indeed, there is an overlap.
329
More
recently, the Court has held that the right to receive equal benefits immediately
upon moving to a new state, derived from the right to interstate travel, is such an
overlapping federal right.
330
Beyond that, what is and is not covered by the Clause
remains an open question to be answered by the judiciary.
Federal citizenship is rarely referenced in the original Constitution,
331
and had no
express textual definition until the Fourteenth Amendment.
332
Even after the
Amendment’s adoption, the rights pertaining to federal citizenship remain
undefined in many respects. One unfortunate foundation for defining national
Privileges or Immunities Clause. 83 U.S. at 79. Hence, the Nordyke opinion’s statement that Privileges or
Immunities does not concern rights that predated the Constitution must be incorrect, and therefore so is the theory
on incorporation promulgated in that suit.
323. Cf. Wildenthal, supra note 150, at 1080–81, 1094–95.
324. T
RIBE, supra note 6, at 1316.
325. See W
ILLIAM E. NELSON, THE FOURTEENTH AMENDMENT: FROM POLITICAL PRINCIPLE TO JUDICIAL
DOCTRINE 162–63 (1988); Rebecca E. Zietlow, Congressional Enforcement of Civil Rights and John Bingham’s
Theory of Citizenship, 36 A
KRON L. REV. 717, 746–49 (2003). I should note that my theory on the purpose and
proper role of the Privileges or Immunities Clause, in terms of the rights entailed in citizenship, differs from these
two, but I agree that the record is clear that the Clause was intended to incorporate the rights of federal citizens
against the states. See Book Note, 89 C
OLUM. L. REV. 1966, 1967 (1989) (reviewing NELSON, supra, at 155–64).
326. 83 U.S. (16 Wall.) at 79 (referencing rights that “owe their existence to the Federal government, its
National character, its Constitution, or its laws”).
327. See id. at 112–19 (Bradley, J., dissenting).
328. Robert C. Palmer, The Parameters of Constitutional Reconstruction: Slaughter-House, Cruikshank,
and the Fourteenth Amendment, 1984 U.
ILL. L. REV. 739, 744.
329. Richard L. Aynes, Freedom: Constitutional Law: Constricting the Law of Freedom: Justice Miller, The
Fourteenth Amendment, and the Slaughter-House Cases, 70 C
HI.-KENT L. REV. 627, 648 (1994).
330. Saenz v. Roe, 526 U.S. 489, 499–500, 503 (1999). The right to interstate travel is also in the dictum
list in Slaughter-House, 83 U.S. (16 Wall.) at 79.
331. See U.S. C
ONST. art. I, § 2; U.S. CONST. art. II, § 1.
332. See U.S. C
ONST. amend. XIV, § 1.
Spring 2009] INCORPORATING THE SECOND AMENDMENT 231
citizenship was Dred Scott, where the Court declared that only U.S. citizens could
bring suit in federal court, and that blacks could not bring suit because they were
not citizens of the federal government.
333
While Dred Scott was superseded by the
Fourteenth Amendment,
334
the proposition stands that there are rights inherent in
federal citizenship distinct from those of state citizenship.
3. Therefore at Least Some Rights Could Be Incorporated Through the
Privileges or Immunities Clause Without Overruling Slaughter-House
Advocates of reviving the Privileges or Immunities Clause posit that the single
greatest barrier to doing so is stare decisis.
335
This position rests on the premise that
Slaughter-House would have to be overruled.
336
Setting aside Saenz v. Roe
337
where
the Court certainly used the Clause to significant effect, that argument is simply
inaccurate.
As just shown, there is a tremendous difference between much of the scholarly
commentary on Slaughter-House vis-à-vis where Slaughter-House actually leaves
the Privileges or Immunities Clause. The Court is obliged to consider only the latter
under stare decisis, not the former. The current state of the Clause, or at least the
pre-Saenz state, was that “the Court all but read the Privileges or Immunities Clause
out of the Constitution in the Slaughter-House Cases.”
338
Perhaps, but not in the
Court’s holding, so not in a way that precludes the Court bringing it back into
effectuality.
The Court decides cases based on what it actually said in previous cases, not on
the post-hoc gloss that law professors overlay on the Court’s decisions in later
years. It therefore does not matter that many authorities believe that Slaughter-
House nullified the Privileges or Immunities Clause. What does matter is what the
Court actually said in Slaughter-House, and what the Court said in that case can
reinvigorate the Clause.
Such a holding would abrogate what has long been the effect of Slaughter-House,
but again it does not require overruling,
339
and therefore stare decisis need not be
an obstacle to incorporating through Privileges or Immunities. Much of the
Slaughter-House opinion is dicta.
340
A proposition repeated in dicta but never as the
basis for judgment is not entitled to stare decisis protection.
341
Any argument that
333. Scott v. Sandford (Dred Scott), 60 U.S. (19 How.) 393, 427 (1857).
334. T
RIBE, supra note 6, at 1298.
335. Id. at 1321; Sanford Levinson, Some Reflections on the Rehabilitation of the Privileges or Immunities
Clause of the Fourteenth Amendment, 12 H
ARV. J.L. & PUB. POL’Y 71, 73–74 (1989).
336. T
RIBE, supra note 6, at 1321 & n.4, 1322; Laurence H. Tribe, Taking Text and Structure Seriously:
Reflections on Free-Form Method in Constitutional Interpretation, 108 H
ARV. L. REV. 1221, 1297 n.247 (1995);
cf. Levinson, supra note 335, at 73.
337. 526 U.S. 489 (1999) (finding in the Privileges or Immunities Clause a right to be treated as a full citizen
in any state immediately upon taking residence in that state).
338. Id. at 521 (Thomas, J., joined by Rehnquist, C.J., dissenting).
339. Newsom, supra note 317, at 648.
340. Saenz, 526 U.S. at 516 (Rehnquist, C.J., joined by Thomas, J., dissenting); see also David P. Currie,
The Reconstrnction [sic] Congress, 75 U.
CHI. L. REV. 383, 400 n.108 (2008); Michael Kent Curtis, Historical
Linguistics, Inkblots, and Life After Death: The Privileges or Immunities of Citizens of the United States, 78 N.C.
L. R
EV. 1071, 1072–75 (2000); Rich, supra note 307, at 196–98 (2002).
341. Gonzales v. United States, 128 S. Ct. 1765, 1774 (2008) (Scalia, J., concurring in judgment) (citing
Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 545–46 (2005)).
232 NEW MEXICO LAW REVIEW [Vol. 39
Slaughter-House must be overruled, or even limited to its facts, thus misunderstands
the holding in Slaughter-House.
342
By not defining the rights of national citizenship
and holding only that local laws impacting the butchering profession are not among
them, the Court left wide open the opportunity to explicate the rights of national
citizenship. While three obscure cases must be overruled to incorporate the Second
Amendment, Slaughter-House is not one of them, and the reasoning of those cases
has long since been rejected by the Court.
343
The Court could simply hold that
various rights are rights of national citizenship. The Court should do so for the
Second Amendment, and can do so consistent with Slaughter-House.
D. Incorporating Through the Privileges or Immunities Clause Would Be
Consistent with Recent Court Actions
Incorporating a constitutional provision such as the Second Amendment through
the Privileges or Immunities Clause would be consistent with recent Court action.
The formerly moribund Privileges or Immunities Clause has recently been
resuscitated by the Court. In addition, recent years have seen several other
constitutional provisions reemerge into modern jurisprudence. This trend bodes well
not only for Privileges or Immunities but also for the Second Amendment, as both
have not heretofore been major issues in American law, but are now poised to be
dual focal points of constitutional development.
The Court has recently revived Privileges or Immunities, inaugurating an entirely
new era. There was no fixed meaning to the Clause when it was ratified in 1868.
The Supreme Court ruled on it in 1873, taking what many characterize as a narrow
view of the Clause.
344
Then, with the advent of substantive due process there
seemed no reason to revisit the Clause,
345
so it sat dormant. But with Saenz v. Roe
in 1999, the Court brought the Clause back into modern jurisprudence, and by using
it to strike down a state law, the Court affirmed that the Clause can have significant
power. However, that one case is all that has been done under the Clause thus far,
analogous to where Heller leaves the Second Amendment today. And just as Heller
leaves the door wide open for exploring the contours of the Second Amendment, so
too Saenz leaves the door just as open for exploring the contours of the Privileges
or Immunities Clause in the Fourteenth Amendment.
And the Court has recently changed direction in several other areas of law that
were thought settled. For decades after the New Deal and World War II, the Court
read the Commerce Clause so broadly that it is a bold statement to say that the
342. Robert Palmer, while agreeing that federal rights can be incorporated through Privileges or Immunities
without overruling Slaughter-House, Palmer, supra note 328, at 740–41, argues that the Clause was stripped of
incorporation potential by United States v. Cruikshank, 92 U.S. 542 (1876). Palmer, supra note 328, at 762.
Assuming arguendo that Palmer is correct, this need not bar incorporation. The Court jettisoned most of
Cruikshank long ago when it incorporated other rights, see infra Part V.C.1.a, and signaled in Heller that it was
willing to jettison the remainder. District of Columbia v. Heller, 128 S. Ct. 2783, 2812–13 & n.23 (2008). Ergo,
to the extent Cruikshank is inconsistent with incorporation doctrine and the arguments explored in this Article, it
should be overruled. The Court as it is currently constituted appears prepared to do so.
343. See infra Part V.C.1.a (discussing Miller v. Texas, 153 U.S. 535 (1894), Presser v. Illinois, 116 U.S.
252 (1886), and United States v. Cruikshank, 92 U.S. 542 (1876)).
344. See supra Part IV.C.1.
345. See supra Part II.
Spring 2009] INCORPORATING THE SECOND AMENDMENT 233
provision even nominally constrained federal action.
346
However, two recent
decisions, United States v. Lopez
347
and United States v. Morrison,
348
may have
substantially shortened the reach of the Commerce Clause, although that reach may
have since been thrust back to its outer limits in Gonzales v. Raich.
349
The Court has
also now reinvigorated the Tenth Amendment, which could have been thought a de-
facto dead letter, by barring federal law from tasking state and local officials with
law enforcement in United States v. Printz.
350
Likewise, longstanding doctrine
governing the interpretation of the Eleventh Amendment has recently been altered
by Seminole Tribe v. Florida,
351
and then again in Alden v. Maine.
352
The Second
Amendment has become the latest beneficiary of this trend with Heller.
353
And just
as Alden continued the work begun in Seminole Tribe several years after Seminole
Tribe was decided, so too can the Court continue the work it began in Saenz and
Heller when it faces its next Second Amendment case.
There has also been renewed interest in the Privileges or Immunities Clause in
recent years, making the Clause an effective vehicle for applying substantive federal
rights to the states. The Clause was developed in the aftermath of the Civil War at
the center of Congress’s efforts to declare and protect federal rights on a national
scale.
354
The Framers of the Fourteenth Amendment designed the Privileges or
Immunities Clause to protect rights in a manner distinct from the protections of the
Due Process Clause.
355
Based on this constitutional design in the Fourteenth
Amendment, the Supreme Court can incorporate the Second Amendment through
Privileges or Immunities without overturning the Slaughter-House Cases.
356
The
Slaughter-House holding was narrowly limited by the questions presented in that
case,
357
and the Court promulgated the test that rights could be applied to the states
through the Privileges or Immunities Clause if the right in question inhered in
federal citizenship.
358
However, should the Court deem Slaughter-House
346. See Wickard v. Filburn, 317 U.S. 111, 124–25 (1942).
347. 514 U.S. 549, 558–59 (1995), superseded by statute, 18 U.S.C. § 922(q)(2)(A) (2006), (holding that
under the Commerce Clause, Congress can only regulate (1) the channels of interstate commerce, (2)
instrumentalities of interstate commerce or objects moving in interstate commerce, and (3) activities having a
substantial relation to commerce if they substantially affect that commerce).
348. 529 U.S. 598, 604, 615, 617 (2000) (holding that the Commerce Clause only reaches economic activity).
349. 545 U.S. 1, 17–22 (2005) (invalidating a California medical marijuana statute). Raich seems to be a
move back in the direction of an expansive reading of the Commerce Clause, holding that the federal law being
invoked to preempt California’s statute was within the scope of the Commerce Clause because the test should be
only if Congress could rationally have believed that the action in question would substantially affect interstate
commerce, rather than actually having such an effect. Id. at 21–22. Such a low bar, whereby a challenger must
prove that Congress’s action was not even rational, makes it much more difficult to succeed in a Commerce Clause
challenge.
350. 521 U.S. 898 (1997) (holding that the Tenth Amendment does not allow the federal government to
commandeer state law enforcement). It should also be noted that Printz extended and elaborated on the line of
reasoning regarding the Tenth Amendment articulated in another then-recent case, New York v. United States. See
505 U.S. 144, 155–59 (1992).
351. 517 U.S. 44 (1996).
352. 527 U.S. 706 (1999).
353. Klukowski, Armed by Right, supra note 3, at 178.
354. See supra Part IV.A.
355. See supra Part IV.B.
356. See supra Part IV.C.3.
357. See supra Part IV.C.1.
358. See supra Part IV.C.2.
234 NEW MEXICO LAW REVIEW [Vol. 39
undeserving of stare decisis protection, given the apparent consensus that the Clause
does not mean what the Slaughter-House Court said it meant,
359
the Court could
simply discard Slaughter-House and incorporate the Second Amendment through
the Clause anyway.
V.
THE SECOND AMENDMENT, IN PARTICULAR, MUST BE
INCORPORATED
THROUGH THE PRIVILEGES
OR IMMUNITIES CLAUSE
The incorporation issue takes on added significance regarding the Second
Amendment. As the foregoing Parts show, the Privileges or Immunities Clause is
a superior vehicle for incorporation vis-à-vis the Due Process Clause. Privileges or
Immunities can be thought of as “an empty and unused vessel which affords the
Court full opportunity to determine its contents without even the need for pouring
out the precedents that already clog the due process and equal protection clauses.”
360
At this point, the issue of incorporating the Second Amendment could simply
turn on a choice between past practice versus first principles. The foregoing
material in Part IV sets forth a clear narrative that strongly argues for incorporating
any provision of the Bill of Rights—including but not limited to the Second
Amendment—through Privileges or Immunities. However, Parts II & III
demonstrate that there is at this point more than a century of case law wherein the
Supreme Court has exclusively used Due Process as the vehicle for incorporation.
Perhaps with the benefit of hindsight the Court would choose to employ Privileges
or Immunities if it were to do it all over again. But such hypothesizing is idle
speculation at this point. The reality remains that Privileges or Immunities is better
suited for incorporation, but Due Process has been the method employed to date.
And so the Court will have a choice to make, once it is squarely faced with the
question of applying the Second Amendment to the actions of state and local
governments.
There are also several reasons, peculiar to the Second Amendment, that strongly
counsel in favor of incorporating the Amendment’s rights through Privileges or
Immunities. Part V.A discusses several legal and policy problems that would attend
incorporating gun rights through the Due Process Clause. Part V.B explains how the
core purpose of the Second Amendment is to hold government in check, which is
a right reserved to American citizens. Finally, Part V.C explores several supple-
mental arguments regarding incorporating the Second Amendment.
A. Due Process Would Implicate Certain Problems Peculiar to Firearms
There are several distinctive problems that could attend incorporating the Second
Amendment through Due Process, though they do not bar such incorporation. The
Court must apply the law as it is. If some aspects of that law are problematic, the
Court must deal with them in due time. However, the Court is no doubt cognizant
359. Saenz v. Roe, 526 U.S. 489, 522 n.1 (1999) (Thomas, J., dissenting) (“[L]egal scholars agree on little
beyond the conclusion that the Clause does not mean what the Court said it meant in 1873.”). Contra Wildenthal,
supra note 150, at 1067 (rejecting the position articulated by Justice Thomas).
360. Kurland, supra note 175, at 420.
Spring 2009] INCORPORATING THE SECOND AMENDMENT 235
of the law of unintended consequences, and so to the extent it can avoid problems,
it will. Therefore the Court must consider three problems peculiar to gun rights.
1. Applying Strict Scrutiny to All Gun Laws, or Disingenuous Distinction
This Article argues that the Second Amendment entails not only an individual
right, but a fundamental right.
361
Finding Second Amendment rights to be
fundamental also has implications for the level of scrutiny attending Second
Amendment challenges.
The Heller Court did not decide what level of scrutiny should attach to Second
Amendment questions, because it held that the D.C. gun ban at issue in Heller
would fail under any meaningful standard of review.
362
The general rule is that strict
scrutiny applies to burdens on fundamental rights,
363
though free speech is an
example of a fundamental right where the laws burdening it are often not subject
to strict scrutiny.
364
When the Court invoked the right to interstate travel under the
Privileges or Immunities Clause, it applied strict scrutiny to strike down that law,
365
suggesting that this level of review holds true across the Fourteenth Amendment
regardless of the clause implicated in the case. Therefore, finding Second
Amendment rights to be fundamental means that strict scrutiny will likely be the
test for at least some types of gun laws.
However, strict scrutiny is a hurdle that few laws survive. So often does it prove
unbeatable that cases describe strict scrutiny as “strict in theory, but fatal in fact.”
366
Therefore the Supreme Court must be concerned about the possibility of thousands
of firearm regulations being subject to such a test, especially since laws subject to
that test are presumptively invalid,
367
shifting the burden to the government to
defend them.
Though it is beyond the scope of this Article, the multi-level system of review
in free speech jurisprudence would work well for the Second Amendment.
368
A
multi-tier system similar to free speech rules could be applied to Second
Amendment questions, regardless of which clause of the Fourteenth Amendment
is used for incorporation. The Court in Heller suggests that it might consider such
a possibility, comparing free speech rights under the First Amendment with Second
Amendment rights.
369
The Court then suggests it again, noting that possession of
firearms by certain dangerous people or in certain sensitive locations may still be
subject to regulations that would be impermissible for ordinary firearms, and also
361. See infra Part V.B.1.
362. District of Columbia v. Heller, 128 S. Ct. 2783, 2817 (2008).
363. Williams v. Rhodes, 393 U.S. 23, 30–31 (1968).
364. See supra Part II.
365. Lund, Outsider Voices, supra note 155, at 719; see also Saenz v. Roe, 526 U.S. 489, 500 (1999).
366. E.g., Richmond v. J. A. Croson Co., 488 U.S. 469, 552 (1989) (quoting Fullilove v. Klutznick, 448 U.S.
448, 519 (1980)) (internal quotation marks omitted). It should also be noted, however, that the Court emphasizes
that strict scrutiny is not always fatal. E.g., Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct.
2738, 2817 (2007) (citing Grutter v. Bollinger, 539 U.S. 306, 326–37 (2003); Adarand Constructors v. Pena, 515
U.S. 200, 237 (1995)). However, it is called “strict” for a reason, and is designed to be exceedingly difficult to
meet.
367. See supra notes 111–14 and accompanying text.
368. See Klukowski, Armed By Right, supra note 3, at 186–88.
369. See District of Columbia v. Heller, 128 S. Ct. 2783, 2821 (2008).
236 NEW MEXICO LAW REVIEW [Vol. 39
that it may allow stricter regulation of especially dangerous firearms.
370
Therefore
strict scrutiny could be the rule for core exercises of the right, just as it is for core
exercises of free speech.
371
And lower scrutiny—perhaps intermediate—could apply
for incidental burdens and possibly other unusual circumstances,
372
while
conversely some burdens could also be per se invalid for situations where even
strict scrutiny is insufficient to vindicate Second Amendment rights.
373
2. Unlimited Firearm Rights to Non-citizens
Another concern with incorporating through the Due Process Clause is its
implications for public policy. Among the enumerated rights in the Constitution, the
370. Id. at 2816–17.
371. Republican Party of Minn. v. White, 536 U.S. 765, 774–75 (2002) (applying strict scrutiny to a law
burdening free speech).
372. As this Article was being edited, a federal trial court applied intermediate scrutiny to a federal firearm
regulation. See United States v. Bledsoe, No. SA-08-CR-13(2)-XR, 2008 WL 3538717, at *4 (W.D. Tex. Aug. 8,
2008) (order denying motion to dismiss indictment). The district court distinguishes state action constituting a
proscription of a constitutional right from a restriction of that same right. See id. at *3. The court reasons that the
Supreme Court in Heller was dealing only with the former, not the latter. Id. at *3. The court cites no support
whatsoever for the proposition that burdens on constitutional rights can be differentiated between proscriptions and
restrictions.
The Bledsoe court is not alone in applying intermediate scrutiny. See, e.g., United States v. Moore, No.
3:09cr18, 2009 WL 1033363, at *3 (W.D.N.C. Apr. 17, 2009); United States v. Miller, No. 08-cr-10097, 2009 WL
499111, at *6 (W.D. Tenn. Feb. 26, 2009); United States v. Radencich, No. 3:08-CR-00048(01)RM, 2009 WL
127648, at *4 (N.D. Ind. Jan. 20, 2009); United States v. Schultz, No. 1:08-CR-75-TS, 2009 WL 35225, at *5
(N.D. Ind. Jan. 5, 2009). As of the time of this writing, all the federal courts taking up the question of what standard
of review is appropriate for Second Amendment claims have been district courts. This is not surprising, given how
recent the Heller decision is, and circuit courts should begin weighing in on this issue in the coming months.
It is also worth noting that at least one district court claims to apply strict scrutiny to Second
Amendment claims. See United States v. Engstrum, No. 2:08-CR-430, 2009 WL 975286, at *3 (D. Utah Apr. 17,
2009). The court upheld the criminal statute at issue. Id. at *6.
On a separate note, in the Nordyke case discussed above in note 11, the Ninth Circuit did not specify
a level of scrutiny. See Nordyke v. King, 563 F.3d 439 (9th Cir. 2009). Yet the panel there was clearly not applying
strict scrutiny, as it did not reference narrow tailoring or compelling state interests. Nordyke instead engaged in an
analysis reminiscent of the approach used under the Free Speech Clause with the public forum doctrine. See supra
note 117. If so, this should be taken as additional support for the proposition that the multi-level framework used
in free speech cases could be imported into Second Amendment jurisprudence.
373. An example of a situation where strict scrutiny would be insufficient protection for Second Amendment
rights is National Rifle Ass’n of America, Inc. v. Nagin, No. 2:05-cv-4234 J(2), 2006 U.S. Dist. LEXIS 275 (E.D.
La. Jan. 3, 2006) (consent order granting permanent injunction and dismissing remaining claims). The National
Rifle Association brought suit when, during the chaos of Hurricane Katrina in 2005, New Orleans’ Mayor Ray
Nagin ordered local law enforcement to go door-to-door to all residences believed to contain firearms, and to
confiscate all such firearms from their owners, effectively disarming all the law-abiding citizens remaining in the
city. See generally Stephen P. Halbrook, “Only Law Enforcement Will Be Allowed To Have Guns”: Hurricane
Katrina And The New Orleans Firearm Confiscations, 18 G
EO. MASON U. CIV. RTS. L.J. 339 (2008).
It is possible that this action could survive strict scrutiny. See supra notes 111–14 and accompanying
text (discussing the elements of strict scrutiny). The City of New Orleans could argue that the disintegration of
social order caused by the maelstrom of Hurricane Katrina made securing and pacifying the city a compelling
interest. The city could then further argue that confiscating all civilian firearms advanced the compelling interest
of securing the city. Such an argument may well be deemed sufficient to satisfy strict scrutiny.
Therefore the level of protection for Second Amendment rights in such emergency circumstances should
be higher than strict scrutiny to prevent disarmament during times when citizens would most need the right and
the means to defend themselves. If the rebuttable presumption of invalidity that accompanies strict scrutiny were
elevated to an irrebuttable presumption, then this would create a rule whereby wholesale firearm confiscations
would be per se invalid. Such a per se rule would mean that gun confiscations are never permissible under the
Second Amendment, analogous to the per se rule under the First Amendment whereby viewpoint discrimination
is never permissible. See supra note 117.
Spring 2009] INCORPORATING THE SECOND AMENDMENT 237
right to bear arms is sui generis in that it carries the inherent power to take life;
firearms are unavoidably dangerous; guns can kill. Thus, a constitutional right to
own guns carries unique policy implications.
Therefore it is possible to argue that at least certain aspects of Second
Amendment rights are intended to be reserved to American citizens. The
Amendment’s prefatory clause references “the people” and announces the civic
purpose of maintaining the security of a free state.
374
Though that civic purpose is
not exclusive, as the Supreme Court noted,
375
it does announce an important purpose
for the right nonetheless.
376
As will be explained in detail in Part V.B.2, the Second
Amendment entails a political right of public accountability. Such political rights
are properly restricted to citizens. Since the Privileges or Immunities Clause
expressly applies only to citizens, and the Due Process Clause applies to persons
without referencing citizenship, this makes Privileges or Immunities the more
natural vehicle for incorporating this right.
Additionally, a key part of Professor Amar’s reasoning in designating the Second
Amendment a “political right” is that the Second Amendment references “the
people,” as does the First Amendment rights to petition and assembly, which Amar
posits are likewise citizens’ political rights.
377
Such a view is consistent with the
arguments of a number of individual-right advocates that “the people” should be
read in pari materia throughout the Bill of Rights, which would mean that “the
people” must carry the same meaning in the First, Second, Fourth, Ninth, and Tenth
Amendments.
Unfortunately for advocates of a single meaning for “the people,” case law erects
an obstacle to this argument. The Court stated in United States v. Verdugo-Urquidez
that:
“[T]he people” seems to have been a term of art employed in select parts of the
Constitution. The Preamble declares that the Constitution is ordained and
established by “the People of the United States.” The Second Amendment
protects “the right of the people to keep and bear Arms,” and the Ninth and
Tenth Amendments provide that certain rights and powers are retained by and
reserved to “the people.” While this textual exegesis is by no means conclusive,
it suggests that “the people” protected by the Fourth Amendment, and by the
First and Second Amendments, and to whom rights and powers are reserved in
the Ninth and Tenth Amendments, refers to a class of persons who are part of a
national community or who have otherwise developed sufficient connection with
this country to be considered part of that community.
378
374. U.S. CONST. amend. II.
375. Heller, 128 S. Ct. at 2789.
376. Justice Scalia’s opinion says that the prefatory clause states the reason for codifying the right to bear
arms. Id. at 2801. But the reason for putting a right into print is not necessarily the sole purpose for the right. There
could be multiple purposes for a right, and yet only one of those purposes also calls for codification. In this case,
the right is one of self-defense against both public and private violence, id. at 2799, but the purpose for codifying
it was to prevent the disarmament that was historically used in England to suppress political opponents. Id. at 2800.
377. Amar, Constitution, supra note 132, at 1163; accord Slaughter-House Cases, 83 U.S. (16 Wall.) 36,
79 (1873) (asserting that the rights of assembly and of seeking redress are rights of federal citizenship).
378. 494 U.S. 259, 265 (1990) (citations omitted).
238 NEW MEXICO LAW REVIEW [Vol. 39
Since that time, Verdugo-Urquidez has been invoked to hold that at least some (if
not all) aliens in this country have Fourth Amendment rights as part of “the
people.”
379
Compounding this complication, Verdugo-Urquidez has been invoked
by several appellate courts examining the question of whether the Second
Amendment confers an individual right, suggesting “the people” has one uniform
meaning throughout the Bill of Rights.
380
This position has a provocative application in the current national debate over
immigration. The Supreme Court has assumed, without deciding, that “the people”
in the Fourth Amendment includes illegal aliens in the United States.
381
Though this
assumption was not part of the Court’s holding,
382
and thus is not controlling, it was
both strongly suggested by a plurality in Immigration and Naturalization Service
v. Lopez-Mendoza,
383
and four dissenting Justices in that case expressly argued that
illegal aliens are protected by the Fourth Amendment as part of “the people.”
384
This weight of persuasive authority led the appellate court in Verdugo-Urquidez to
hold that illegal aliens are part of “the people” under the Fourth Amendment,
385
and
in reversing the Ninth Circuit’s judgment the Supreme Court did not vacate or
negate that part of the Ninth Circuit opinion,
386
leaving at least one current casebook
to state that a majority of the Justices considered illegal aliens to be part of “the
people” if they lived in the United States.
387
While that casebook’s statement
misreads the opinions of at least two of the Justices that its authors cite (Justice
Kennedy
388
and Justice Stevens
389
) the fact remains that Verdugo-Urquidez is
sufficiently unclear that such a misreading is possible. If “the people” in the Fourth
Amendment is the same as “the people” in the Second Amendment, then this could
lead to the bizarre and extraordinarily troubling result of finding that illegal aliens
379. E.g., United States v. Portillo-Aguirre, 311 F.3d 647, 650 (5th Cir. 2002) (finding Fourth Amendment
rights for resident aliens); Farm Labor Org. Comm. v. Ohio State Highway Patrol, 308 F.3d 523, 528 (6th Cir.
2002) (finding Fourth Amendment rights for resident aliens).
380. E.g., Parker v. District of Columbia, 478 F.3d 370, 382 (D.C. Cir. 2007).
381. Verdugo-Urquidez, 494 U.S. at 263.
382. INS v. Lopez-Mendoza, 468 U.S. 1032, 1038, 1041–50 (1984).
383. Id. at 105–51 (plurality opinion of O’Connor, J.).
384. Id. at 1051 (Brennan, J., dissenting); id. at 1055 (White, J., joined in part by Stevens, J., dissenting);
id. at 1060 (Marshall, J., dissenting).
385. United States v. Verdugo-Urquidez, 856 F.2d 1214, 1223–24 (9th Cir. 1988).
386. See Verdugo-Urquidez, 494 U.S. at 266–69, 271 (reasoning that the Fourth Amendment does not apply
against non-citizens on foreign soil). Most of the Court’s discussion in this part of its opinion focuses on the fact
that this search of an alien’s property was on foreign soil. The Court’s analysis here seems driven by geography,
not citizenship, and also by distinguishing the reach of the Fourth Amendment from that of the Fifth and Sixth
Amendments. See id. at 265.
387. S
TEPHEN A. SALTZBURG & DANIEL J. CAPRA, AMERICAN CRIMINAL PROCEDURE: CASES AND
COMMENTARY 33 (8th ed. 2007).
388. Id. Justice Kennedy stated that he believed the Fourth Amendment governed all searches and seizures,
not merely searches and seizures of “the people.” Verdugo-Urquidez, 494 U.S. at 276 (Kennedy, J., concurring).
Justice Kennedy never says whether illegal aliens are part of “the people,” only that whether they are or not is
irrelevant. Id.
389. S
ALTZBURG & CAPRA, supra note 387, at 33. Justice Stevens expressly noted that “comment on illegal
aliens’ entitlement to the protections of the Fourth Amendment [is not] necessary to resolve this case,” Verdugo-
Urquidez, 494 U.S. at 279 (Stevens, J., concurring in judgment) and restricted his opinion to “aliens who are
lawfully present in the United States,” id.
Spring 2009] INCORPORATING THE SECOND AMENDMENT 239
have a constitutional right to possess guns. In fact, such an argument has now been
made in federal court.
390
Of course, the Court can partially resolve that issue by holding that “the people”
does not include illegal aliens when that question is presented. Such a ruling
resolves the problem of illegal aliens possessing firearms. However, Verdugo-
Urquidez cites a long line of cases for the proposition that non-citizens have
constitutional protections if they are on American soil and have “developed
substantial connections with this country.”
391
This may entitle many lawful aliens
to purchase firearms. However, at least one state, Indiana, currently restricts the
carrying of concealed handguns by non-citizens.
392
Therefore, incorporating the Second Amendment through Due Process might
strike down Indiana’s law and any such similar statutes across the country.
393
Incorporating through Privileges or Immunities would not mean that only American
citizens could bear arms. States could choose to allow non-citizens full access to
firearms. But the choice would be a public policy decision for state legislatures;
aliens would not be able to assert a constitutional right to own firearms.
There is no place for xenophobia in a free society such as America. Part of the
drive to extend the Bill of Rights in toto to non-citizens could be to further distance
the law from Dred Scott, which held inter alia that the Fifth Amendment Due
Process Clause, along with the rest of the Bill of Rights, only protects citizens.
394
It is important not to throw the baby out with the bathwater. Just because some parts
of the Bill of Rights extend to aliens, it does not necessarily follow that no parts of
the Bill of Rights are reserved to citizens, or incorporated to the states to protect
only citizens. Whatever its motivation, the Court should not risk unintended
consequences by mooring incorporation of the Second Amendment to Due Process
when Privileges or Immunities is available.
390. See, e.g., United States v. Guerrero-Leco, No. 3:08cr118, 2008 WL 4534226 (W.D.N.C. Oct. 6, 2008)
(rejecting the argument that Second Amendment’s protection extends to illegal aliens); United States v. Boffil-
Rivera, No. 1:08-cr-20437-DLG (S.D. Fla. entered Aug. 12, 2008) (Magistrate’s Report and Recommendation).
It is critical to note that while neither of these cases extended Second Amendment rights to the aliens in question,
they gave no legal rationale for doing so and these cases are still ongoing. It should also be noted that these opinions
were handed down within several months of Heller, and so more such decisions will likely be forthcoming.
391. Verdugo-Urquidez, 494 U.S. at 271 (citing Plyler v. Doe, 457 U.S. 202, 211–12 (1982) (Equal
Protection Clause); Kwong Hai Chew v. Colding, 344 U.S. 590, 596 (1953) (Fifth Amendment); Bridges v. Wixon,
326 U.S. 135, 148 (1945) (First Amendment); Russian Volunteer Fleet v. United States, 282 U.S. 481, 491–92
(1931) (Just Compensation Clause); Wong Wing v. United States, 163 U.S. 228, 238 (1896) (Fifth and Sixth
Amendments); Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886) (Fourteenth Amendment)).
392. See I
ND. CODE ANN. § 35-47-1-7 (West 2008). Of course, all Heller secures is the right to have a
handgun within the home, so Heller does not invalidate the Indiana statute, but a subsequent case might.
393. I say “might” because any possible invalidation of this state law presupposes that private Second
Amendment rights include a right to carry a handgun in public, which is currently an open question. The Court long
ago stated that the Second Amendment does not protect carrying a concealed weapon in public. See Robertson v.
Baldwin, 165 U.S. 275, 281–82 (1897) (dictum). But this statement was dictum because the case did not concern
the carrying of concealed weapons or the Second Amendment, and therefore the Court has never squarely faced
the issue.
394. Scott v. Sandford (Dred Scott), 60 U.S. (19 How.) 393, 404, 449 (1857).
240 NEW MEXICO LAW REVIEW [Vol. 39
3. Current Due Process Jurisprudence Is Inconsistent at Best, Incoherent at
Worst
A final reason to use a channel other than the Due Process Clause for
incorporation is that, as discussed above, due process jurisprudence is convoluted
and at times borders on incoherence. A gun case is no time to experiment.
Incorporating through Due Process implicates the entirety of due process
jurisprudence. The Court should circumvent this body of law, with its tangled web
of inconsistencies, by taking another route.
One aspect of this concern comes from those invoking due process protections.
Many criminals use guns while committing crimes, and many of their arguments
during prosecution invoke the Due Process Clause. At some point the Court will
need to address these due process concerns. It would be prudent to forestall that day
to a time when the judiciary will have the benefit of experience in applying Second
Amendment principles.
B. Core Purpose of Second Amendment Is to Hold Federal Government in Check
The Second Amendment is intended to serve two purposes: to enable people to
defend themselves against criminals, and to enable “the people” to defend
themselves against government force, both foreign and domestic. While two
centuries of almost-unbroken domestic peace and stability, juxtaposed with America
having the most powerful military in history, has caused the latter purpose to recede
as a concern relative to the former, it was nonetheless foremost in the Framers’
minds in 1791,
395
and was still a concern in 1868.
396
The interpretive principles of
originalism include the “context of the revolutionary struggle” and the Framers’
political philosophy.
397
Therefore from an originalist viewpoint any interpretation
of the Amendment must include this concern.
Early Americans were deeply concerned with the possibility of an oppressive
central government. They had just escaped such a government after the war against
Great Britain. The fear of exchanging one oppressor for another was very much on
the minds of the Framers, shown by the space devoted in The Federalist to
reassuring Americans that the new Constitution would not threaten their liberty.
Often The Federalist gave this assurance by reminding the people that their right
to arms enabled them to keep the government in check. That is what led James
Madison to explain that if the federal government were to ever threaten the rights
of American citizens, that government would “be opposed [by] a militia amounting
395. See, e.g., 1 ANNALS OF CONG. 778 (Joseph Gales ed., 1789) (statement of Rep. Gerry) (“What, sir, is
the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty.…Whenever
Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in
order to raise an army upon their ruins.”); see also, e.g., T
HE FEDERALIST No. 46, at 296 (James Madison) (Clinton
Rossiter ed., 1961) (“[The Constitution preserves] the advantage of being armed, which the Americans possess over
the people of almost every other nation…[where] the governments are afraid to trust the people with arms.”); cf.,
e.g., T
HE FEDERALIST No. 24, at 156 (Alexander Hamilton) (Clinton Rossiter ed., 1961) (“Though a wide ocean
separates the United States from Europe, yet there are various considerations that warn us against an excess of
confidence or security.”).
396. See infra Part V.B.4.
397. David F. Forte, The Originalist Perspective, in
HERITAGE GUIDE, supra note 278, at 16.
Spring 2009] INCORPORATING THE SECOND AMENDMENT 241
to near half a million of citizens with arms in their hands.”
398
This number refers to
most of the able-bodied adult male population of the country at the time,
399
which,
by law, is what the militia was,
400
and largely still is.
401
The idea of armed citizens
as a bulwark against tyranny is why Madison described, as an advantage, the
American citizenry “being armed, which the Americans possess over the people of
almost every other nation.”
402
Some would object that in modern times, an armed citizenry would not be
effective at keeping at bay a professional military force armed with military
weaponry.
403
Such statements misunderstand the effect of having vast numbers of
people armed with guns. The purpose of the Second Amendment is not necessarily
to automatically preclude tyranny;
404
it is simply to credibly deter tyranny.
405
This purpose applies to government per se, which includes both national
governments and also smaller sovereignties, such as states. Referring to the “chief
palladium of constitutional liberty,” Madison said, “the people who are the authors
of this blessing, must also be its guardians.”
406
Threats to liberty can come from
state governments as easily as from the federal government. Protecting liberty is
both the right and the duty of citizens; it is one of the rights protected by the
Privileges or Immunities Clause. Hence the Second Amendment ensures that “the
people” of the United States will always be able to act as guardians of their liberty,
retaining supremacy over every level of government.
In the 1860s this ideal was codified in laws to protect citizens against state
governments. The Freedmen’s Bureau Act,
407
passed by the same Congress that
proposed the Fourteenth Amendment,
408
included among the protections that blacks
should have as U.S. citizens “full and equal benefit of all laws and proceedings
concerning personal liberty [and] personal security…including the constitutional
right to bear arms.”
409
1. The Second Amendment Right Is Fundamental
The Supreme Court has now held that the Second Amendment is an individual
right, but not whether that right is fundamental.
410
Some argue that fundamental
rights precede the government, and the purpose of legitimate government is to
398. THE FEDERALIST No. 46, at 296 (James Madison) (Clinton Rossiter ed., 1961).
399. Cf. T
HE DEBATES IN THE CONVENTION OF THE COMMONWEALTH OF VIRGINIA, reprinted in 3 JONATHAN
ELLIOT, THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION
425 (3d ed. 1937) (statement of George Mason, June 14, 1788) (“Who are the militia? They consist now of the
whole people.…”).
400. Act of May 8, 1792, ch. 33, 1 Stat. 271.
401. See 10 U.S.C. § 311(a) (2006).
402. T
HE FEDERALIST No. 46, at 296 (James Madison) (Clinton Rossiter ed., 1961).
403. See Amar, Constitution, supra note 132, at 1164.
404. See Lund, Past and Future, supra note 9, at 3, 13–14, 19.
405. Lund, Political Liberty, supra note 41, at 115.
406. Letter of James Madison to Thomas Jefferson (Oct. 17, 1788), reprinted in 14 T
HE PAPERS OF JAMES
MADISON 218 (R. Rutland & C. Hobson eds., 1977).
407. See supra Part IV.A.2.a.
408. S
TEPHEN P. HALBROOK, FREEDMEN, THE FOURTEENTH AMENDMENT, AND THE RIGHT TO BEAR ARMS,
1866–1876, at vii (1998).
409. Freedmen’s Bureau Act, ch. 184, 14 Stat. 173, 176 (1866) (emphasis added).
410. See supra Part I.B.
242 NEW MEXICO LAW REVIEW [Vol. 39
secure such rights.
411
All the evidence surrounding the liberty interests entailed by
the Second Amendment lead to the conclusion that it is a fundamental right, and the
question of fundamentality has important ramifications for incorporating the right.
The Second Amendment is fundamental under any of the tests the Court has
employed to find fundamental rights. As explained in Part III.B, it is unclear
whether the test is if the right is implicit in the concept of ordered liberty,
412
necessary to an Anglo-American regime of ordered liberty,
413
deeply rooted in
American history and tradition,
414
fundamental to the American scheme of justice,
415
or some combination of the above.
416
Whichever it is, the Second Amendment is at
the heart of the American constitutional model. The Heller Court recognized that
the right to arms was considered fundamental to Englishmen when the Constitution
was adopted.
417
The Court gave no reason why this would not also translate into a
fundamental right in the American system.
Hobbes considered the one fundamental right of a person to be the right of self-
defense.
418
This right was also mentioned by others whose writings had a formative
impact on the Framing, such as Locke
419
and Montesquieu.
420
There is a right to
self-defense in the Bill of Rights, which some argue could have its locus in the
Ninth Amendment,
421
if not the Second Amendment. But the right to self-defense
should not be confused with the right to choose any means for self-defense. While
self-defense presupposes some means of effectuating that defense, it is not a
necessary concomitant that this right entails choosing a specific instrumentality for
self-defense. That is why the right to arms was an auxiliary right in England,
422
411. E.g., Edwin Meese III, The Meaning of the Constitution, in HERITAGE GUIDE, supra note 278, at 2.
Others may disagree with Attorney General Meese, noting that rights such as the right to a jury trial are inherently
rights that coincide with government, rather than precede government, because they can only be exercised within
organized society.
412. Palko v. Connecticut, 302 U.S. 319, 325–26 (1937), overruled in part by Benton v. Maryland, 395 U.S.
784, 794 (1969).
413. Duncan v. Louisiana, 391 U.S. 145, 149 n.14 (1968).
414. Moore v. East Cleveland, 431 U.S. 494, 503 (1977) (plurality opinion).
415. Duncan, 391 U.S. at 149.
416. E.g., Washington v. Glucksberg, 521 U.S. 702, 721 (1997). Some jurists have found Second
Amendment rights to be fundamental without specifying a test. E.g., Kasler v. Lockyer, 2 P.3d 581, 602 (Cal. 2000)
(Brown, J., concurring) (“[S]urely, the right to preserve one’s life is at least as fundamental as the right to preserve
one’s privacy.”). The Ninth Circuit has recently applied a different combination of these tests to find that the
Second Amendment is a fundamental right. See Nordyke v. King, 563 F.3d 439, 457 & n.17 (9th Cir. 2009), and
the Second Circuit rejected the argument that the Second Amendment is a fundamental right without specifying
a test. See United States v. Sanchez-Villar, 99 Fed. Appx. 256, 258 n.1 (2d Cir. 2004) (citing United States v.
Toner, 728 F.2d 115, 128 (2d Cir. 1984)), vacated and remanded, 544 U.S. 1029 (2005).
417. District of Columbia v. Heller, 128 S. Ct. 2783, 2798 (2008).
418. T
HOMAS HOBBES, LEVIATHAN 146 (Marshall Missner ed., Pearson Education 2008) (1651).
419. See J
OHN LOCKE, THE SECOND TREATISE ON GOVERNMENT § 16 (Thomas P. Pearson ed., Liberal Arts
Press 1952) (1690).
420. See C
HARLES-LOUIS DE SECONDAT, BARON DE MONTESQUIEU, DE L’ESPRIT DES LOIS [THE SPIRIT OF
THE
LAWS] bk. X, ch. 2 (Legal Classics Library 1984) (1748).
421. E.g., James Warner, Disarming the Disabled, 18 G
EO. MASON U. CIV. RTS. L.J. 267, 282–83 (2008)
(arguing that an alternative locus for the right of self-defense would be the Ninth Amendment, with self-defense
being among the rights retained by the people yet not specifically enumerated in the Bill of Rights).
422. See Robert J. Cottrol & Raymond T. Diamond, The Fifth Auxiliary Right, 104 Y
ALE L.J. 995, 1003–04
(1995).
Spring 2009] INCORPORATING THE SECOND AMENDMENT 243
because access to arms was a means to an end (of self-defense), as opposed to self-
defense per se, which was a primary right.
423
Thus far the Court has only incorporated rights that are fundamental. Each time
the Court faces incorporation it asks whether the right is fundamental,
424
and each
of the tests given above is merely a different definition for fundamental rights.
When the Court has denied incorporation, it has done so on the grounds that the
right in question—though binding at the federal level—is not fundamental and thus
does not apply to the states.
425
Under any of the tests applied by the Court, the right to bear arms is fundamental.
Gun ownership has an honorable and storied past since the founding of the
republic,
426
so it is deeply-rooted in American history and tradition. The record is
clear that many of the Framers considered the right to bear arms essential to the
American scheme of liberty,
427
and used language suggesting that the right is
necessary to ensure the perpetuity of any system of ordered liberty.
428
Therefore
whatever test is employed, the result is a fundamental right.
429
423. See id.
424. E.g., Malloy v. Hogan, 378 U.S. 1 (1964) (holding that the Fifth Amendment right against self-
incrimination is a fundamental right).
425. E.g., Alexander v. Louisiana, 405 U.S. 625, 633 (1972) (holding that the Fifth Amendment right to not
be tried for a felony without first being indicted by a grand jury is not incorporated because it is not fundamental).
426. See United States v. Emerson, 270 F.3d 203, 236–45 (5th Cir. 2001); Steven G. Calabresi & Sarah E.
Agudo, Individual Rights Under State Constitutions when the Fourteenth Amendment Was Ratified in 1868: What
Rights are Deeply Rooted in American History and Tradition, 87 T
EX. L. REV. 7, 49–56 (2008).
427. See, e.g., George Mason, Virginia Convention, June 14, 1788, reprinted in T
HE ORIGIN OF THE SECOND
AMENDMENT: A DOCUMENTARY HISTORY OF THE BILL OF RIGHTS, in COMMENTARIES ON LIBERTY, FREE
GOVERNMENT AND AN ARMED POPULACE, 1789–1792, at 401 (David E. Young, ed., 2d ed. 1995) [hereinafter THE
ORIGIN] (“Under various pretences, Congress may neglect to provide for arming and disciplining the militia; and
the state governments cannot do it, for Congress has an exclusive right to arm them.…Should the national
government wish to render the militia useless, they may neglect them, and let them perish, in order to have a
pretence of establishing a standing army.”); A Democratic Federalist, P
HILADELPHIA PA. HERALD, Oct. 17, 1787,
reprinted in T
HE ORIGIN, supra, at 46 (“[T]he federal rulers are vested with each of the three essential powers of
government.…What then will there be to oppose their encroachments? Should they ever pretend to tyrannize over
the people, their standing army will silence every popular effort; it will be theirs to explain the powers which have
been granted to them.…[T]he liberty of the people will be no more.…”).
428. E.g., John Hancock, N.Y J., Jan. 28, 1790, reprinted in THE ORIGIN, supra note 427, at 731 (“A well
regulated and disciplined militia, is at all times a good objection to the introduction of that bane of all free
governments—a standing army.”).
Professor Lund makes the additional point that the prefatory clause of the Second Amendment includes
a restatement of the test for fundamentality. Lund, Anticipating Incorporation, supra note 168, at 194. The
Amendment’s phrase, “necessary to the security of a free State” is quite similar to the phrase “necessary to an
Anglo-American regime of ordered liberty.” Id. (quoting U.S. C
ONST. amend. II; Duncan v. Louisiana, 391 U.S.
149 n.14 (1968)). By this reasoning, it would be a simple matter for the Supreme Court to equate these two phrases,
and in so doing incorporate the Second Amendment.
Professor Lund’s argument, however, is for incorporating the Second Amendment through the Due
Process Clause. Id. at 191–96. But as explained above in Part V.A.2, entailing due process jurisprudence in cases
involving gun rights would carry significant complications, and therefore ought to be eschewed if a superior route
for incorporation could be utilized. The Privileges or Immunities Clause provides such a vehicle.
429. As a coda to this discussion, if the Second Amendment only secures a right to self-defense, with no
political/civic aspect, then one could argue that it should be incorporated under the Due Process Clause instead of
the Privileges or Immunities Clause.
The concept of a right to self-defense finds support in English law, providing insight into the Second
Amendment. The Supreme Court found that the English Bill of Rights of 1689 secured an individual right to self-
defense, District of Columbia v. Heller, 128 S. Ct. 2783, 2798 (2008), following in the aftermath of a series of
disarmaments that left Englishmen defenseless. See J
OYCE LEE MALCOLM, TO KEEP AND BEAR ARMS: THE ORIGINS
244 NEW MEXICO LAW REVIEW [Vol. 39
Therefore it is possible that the Second Amendment would be incorporated only
if it is held to be a fundamental right. The Court has only incorporated such rights
through Due Process, and Parts IV.A and B strongly suggest that this is true for
incorporating rights through Privileges or Immunities as well. As many scholars
argue, the Second Amendment secures such a right,
430
and therefore ought to be
incorporated.
2. The Second Amendment Primarily Secures a Right to Political
Participation, and Separately Secures a Right to Self-Defense
The Second Amendment secures two rights. One is self-defense, which is the
focus of most Second Amendment literature. The other right, referenced by the
Amendment’s prefatory clause, is a political right. It is a right that enables the
electorate to hold the government accountable and even to replace it if necessary.
431
As Heller puts it, the right to bear arms protects individuals against both public and
private violence.
432
Exactly which rights are political is a debatable question. Professor Amar makes
the point that freedom of speech and the press are such rights because they
specifically prohibit Congress from abridging personal or press communication.
433
This allows the elected government to be criticized, thereby impacting politicians’
ability to retain office. Various authorities seem to consider the right to assemble
OF AN ANGLO-AMERICAN RIGHT 99–117 (1994). William Blackstone’s Commentaries on the Laws of England was
a leading treatise in America when the U.S. Bill of Rights was adopted. M
EMORANDUM OPINION FOR THE
ATTORNEY GENERAL, WHETHER THE SECOND AMENDMENT SECURES AN INDIVIDUAL RIGHT 15 (Aug. 24, 2004),
http://www.usdoj.gov/olc/secondamendment2.pdf. It was also the foremost authority on the English constitution.
Lund, Past and Future, supra note 9, at 14. Blackstone wrote that the right to arms was a necessary concomitant
of “the natural right…[t]o self-preservation.” 1 B
LACKSTONE, supra note 157, at *144.
This proposition finds support from both ancient and medieval times. Warner, supra note 421, at
269–74 (citing H
UGO GROTIUS, DE JURE BELLI AC PACIS [THE LAW OF WAR AND PEACE] (Louise R. Loomis trans.,
Walter J. Black, Inc. 1949) (1625); P
LATO, THE LAWS, in THE COLLECTED DIALOGUES OF PLATO 1429 (Edith
Hamilton & Huntington Cairns eds., Bollingen Found. 1961) (360 B.C.)). This sentiment is so ubiquitous that some
literature characterizes self-defense as a human right. E.g., David B. Kopel, Paul Gallant & Joanne D. Eisen, The
Human Right of Self-Defense, 22 BYU J. P
UB. L. 43 (2008).
430. E.g., Lund, D.C.’s Handgun Ban, supra note 66, at 249–50.
The Second Amendment has focused so heavily on self-defense that some posit that only arms suited
to self-defense are protected by the Second Amendment. E.g., Stephen P. Halbrook, What the Framers Intended:
A Linguistic Analysis of the Right to “Bear Arms,” 49 L
AW & CONTEMP. PROBS. 151, 157–60 (Winter 1986); Don
B. Kates, Jr., The Second Amendment: A Dialogue, 49 L
AW & CONTEMP. PROBS. 143, 148 (Winter 1986). It should
be noted that variations of this theory suggest the right to bear arms may not be strictly limited to self-defense. See
Kates, Handgun Prohibition, supra note 41, at 258–61.
If the right to arms is a natural right or human right, it is difficult to explain why it should be limited
to citizens instead of all persons. If all persons possess this right, then Due Process is the appropriate vehicle.
Assuming arguendo the right to self-defense is universal, it does not necessarily follow that the right to choose any
instrumentality of self-defense is likewise universal. This would justify restricting firearm rights to citizens, keeping
it within Privileges or Immunities. Non-citizens may still retain access to firearms, but as a policy choice by
legislatures, not a constitutional right.
431. See T
HE DECLARATION OF INDEPENDENCE, para. 2 (U.S. 1776); Kasler v. Lockyer, 2 P.3d 581, 602 (Cal.
2000) (Brown, J., concurring) (noting the Framers’ intention of “assuring an armed citizenry capable of…quelling
tyrannical leaders”).
432. District of Columbia v. Heller, 128 S. Ct. 2783, 2798–99 (2008); accord Kasler, 2 P.3d at 602 (Brown,
J., concurring) (“Extant political writings of the period repeatedly expressed a dual concern: facilitating the natural
right of self-defense and assuring an armed citizenry capable of repelling foreign invaders and quelling tyrannical
leaders.”).
433. Amar, Constitution, supra note 132, at 1142.
Spring 2009] INCORPORATING THE SECOND AMENDMENT 245
as one of these political rights as well,
434
if for no other reason than that the
Constitutional Convention was such an assembly, and preserving the right to thus
assemble would ensure that the people could convene to amend the Constitution if
necessary.
435
The Second Amendment secures both rights. The predominant right is a political
right, specifically securing political participation and accountability.
436
The other
is a natural right to self-defense.
437
While both rights overlap—or are compli-
mentary—they are nonetheless distinct, and implicate different provisions of the
Fourteenth Amendment.
The right with the most textual support in the Second Amendment is a political
right. It secures democracy by guaranteeing political participation, ensuring that the
electorate can manifest its will against rulers who turn on the citizenry. It serves to
maintain political accountability, by adding a self-executing aspect to the concept
that “whenever any form of government becomes destructive of [the people’s] rights
[without their consent], it is the right of the people to alter or to abolish it.”
438
This view is evinced by the correlation with other Framing-era political rights.
It is true, as many gun-control advocates argue, that maintaining firearms was
associated with being considered part of the militia. As the Supreme Court has
noted, far from being a small select body like America’s modern National Guard,
the militia consisted of all able-bodied males.
439
Discussing the Second Amendment,
Professor Tribe notes that “the ‘militia’ included all able-bodied, property-owning
white males who enjoyed the defining political rights of citizenship: the ability to
vote, hold public office, and serve on juries.”
440
One can derive from Tribe’s list the
principle that the primary right to bear arms is coextensive with other rights of
citizenship. As access to such rights has expanded over the years, the right to arms
should expand with them. As Professor Amar explains, “arms-bearing and suffrage
were intimately linked 200 years ago and have remained so for two centuries.”
441
The right is a political right, reserved to citizens.
The assertion that one of the Second Amendment’s rights is political is not in
derogation of the proposition that there is also a self-defense right in the
Amendment.
442
There are compelling arguments for a self-defense right
contemplated by the Framers and codified in the Amendment,
443
and the Court has
434. Id. at 1152 n.99 (quoting 3 JEAN-JACQUES ROUSSEAU, DU CONTRAT SOCIAL [THE SOCIAL CONTRACT],
ch. XII (1762)); id. 1153–54 & nn.102–10 (citations omitted).
435. Id. at 1155.
436. Cf. Heller, 128 S. Ct. at 2798–99, 2801. Some might say that Justice Scalia’s opinion calls into question
the political right entailed by the Second Amendment. Perhaps the majority seeks to distance itself from any
insinuation of condoning revolution. But Heller acknowledges the prefatory clause’s meaning is purely political,
and led to the codification of the right. See id. at 2797–2802. Thus, while Heller may cast doubt on the political
right entailed by the Amendment, it by no means rejects it. This should be revisited in a future case.
437. Id. at 2801.
438. T
HE DECLARATION OF INDEPENDENCE, para. 2 (U.S. 1776).
439. Heller, 128 S. Ct. at 2799–2800.
440. T
RIBE, supra note 6, at 898 & n.212 (citing Perpich v. U.S. Dep’t of Defense, 496 U.S. 334, 341 (1990);
Amar, Constitution, supra note 132, at 1164; Levinson, supra note 8, at 647).
441. Amar, Constitution, supra note 132, at 1164 n.152.
442. Some assert that the political right precludes a self-defense right. See, e.g., T
RIBE, supra note 6, at 899
(explaining this argument). Contra Halbrook, What the Framers Intended, supra note 430.
443. E.g., Warner, supra note 421, at 269–77.
246 NEW MEXICO LAW REVIEW [Vol. 39
now found such a right.
444
But even if there was no such right in 1791, there could
be after 1868. Amar contends that the Framers did not intend a self-defense right
in the original Second Amendment, but that when the Fourteenth Amendment was
adopted, its creators did intend to establish a non-military, non-revolutionary,
private civil right to self-defense in the Second Amendment.
445
The Framers thus had two separate justifications for the right to arms. The
Glorious Revolution was relatively recent history for the Framers,
446
transpiring less
than a century before American independence. They had this self-defense
understanding from their English tradition, and the English Bill of Rights heavily
informed the drafting of the American Bill of Rights.
447
In the aftermath of the
American Revolution, these students of John Locke and Montesquieu would have
foremost in their minds the people’s need to hold their government in check, as seen
in the express reference in the Declaration of Independence to abolishing and
replacing unjust government.
448
These twin justifications fulfill the two purposes of
the Amendment: deterring tyranny and facilitating self-defense.
449
This political right cannot be dismissed because, of the two rights, it is the one
accompanied by an express textual reference in the Second Amendment. Some
argue that when the Constitution refers to “the people” it speaks of collective rights
that the people express as a whole, while references to each “person,” “freeman,”
or “man” refers to individual rights.
450
An alternative reading is that “the people”
refers to political rights,
451
while “person” could refer to non-political rights such
as due process and equal protection. If so, it should then be noted that rights such
as speech and press are often exercised by persons individually, and collective
entities such as “the press” are in fact comprised of individuals, often acting qua
individuals. But this theory encounters turbulence when it reaches the Fourth
Amendment, a criminal procedural safeguard that nonetheless references “the
people,” giving rise to the danger that every right could then shortly find itself
designated a political right because such procedural rights are rights against state
action,
452
and rights against actions by the state, by definition, carry political
connotations. Such a position could destroy any distinctions between rights, and so
either approach might be sufficiently attended by difficulty as to be unhelpful. Then
again, this latter approach also argues that such a collective right of “the people”
444. Heller, 128 S. Ct. at 2788.
445. See A
KHIL AMAR, THE BILL OF RIGHTS 258–66 (2000).
446. The “Glorious Revolution” in England saw King James II driven from the throne in 1688, and
Parliament voting to support William of Orange and his wife Mary crowned as king and queen. Shortly thereafter,
the British adopted a Bill of Rights that enumerated specific rights that Englishmen could assert against
government power. See generally E
DWARD VALLANCE, THE GLORIOUS REVOLUTION: 1688—BRITAIN’S FIGHT FOR
LIBERTY (2008).
447. See generally M
ALCOLM, supra note 429.
448. See T
HE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776).
449. Lund, Past and Future, supra note 9, at 3; see also Kasler v. Lockyer, 2 P.3d 581, 602 (Cal. 2000)
(Brown, J., concurring).
450. E.g., Lawrence D. Cress, An Armed Community: The Origins and Meaning of the Right To Bear Arms,
71 J.
AM. HIST. 22, 31 (1984).
451. See Amar, Constitution, supra note 132, at 1176.
452. Though Professor Amar then proceeds to make a historically-based argument as to why the Fourth
Amendment should be considered something of a political right. See id. at 1176–77 & nn.201–09.
Spring 2009] INCORPORATING THE SECOND AMENDMENT 247
need not be a solely collective right,
453
so perhaps this model can be incorporated
into the individual-right model in a way that could address many objections raised
by some collective-right theorists.
Professor Amar points out that Senate rules circa 1866 disallowed foreigners to
petition the Senate because petition was a right “of the people,”
454
providing further
evidence that this phrase could refer exclusively to citizens. If “the people” can
petition the Senate because the Senate is answerable to “the people,” then the term
refers only to American citizens, not all people who happen to be in the country.
The Supreme Court has all but adopted this argument in Heller. The Court notes
that the Framers’ concern was that government would disarm the people to avoid
being held accountable.
455
The Court also says that the prefatory clause of the
Second Amendment, while not limiting its scope, announced the reason it was
codified.
456
As the Court puts it, the meaning of that prefatory clause is that the
Second Amendment was intended to “safeguard against tyranny.”
457
This argument applies a fortiori against the states. The purpose of incorporating
the Second Amendment against the states finds support in the Framing era. Madison
argued in The Federalist No. 10 that states presented a greater danger of oppressing
unpopular minorities within state boundaries than did the federal government.
458
If
this is true, then to whatever extent citizens should be protected against oppression
from the federal government, the need to be protected from state governments could
be even greater.
459
3. Right Inhering in Federal Citizenship
This need makes evident why the right to bear arms is a right inhering in federal
citizenship, allowing it to be incorporated under the Slaughter-House Cases. It is
a fundamental right that the Framers of the Second Amendment intended for
citizens. The Supreme Court used such terminology at the time when speaking of
constitutional rights, as seen in the infamous Dred Scott decision which refers to
provisions in the Bill of Rights as “rights and privileges of the citizen.”
460
The
Framers of the Fourteenth Amendment referenced it as applying to citizens and
intended to constrain the states.
461
Now in the Supreme Court’s sole examination
of the Second Amendment, the Court speaks of it as a right of citizens. Long before
that, although the Federalists and Anti-Federalists differed on many issues, they
453. Id. at 1177.
454. Amar, Fourteenth Amendment, supra note 126, at 1226 & n.151 (citing U.S. C
ONST. amends. I, II, IV,
IX, X).
455. District of Columbia v. Heller, 128 S. Ct. 2783, 2801 (2008).
456. Id.
457. Id. at 2802.
458. Amar, Constitution, supra note 132, at 1148.
459. Cf. 1 A
NNALS OF CONG. 755 (J. Gales ed. 1834) (Aug. 17, 1789). Madison’s actual word choice in his
House floor speech was that it is “equally necessary” to protect against the states, id., but if the danger is greater,
then the need is correspondingly greater as well.
460. Scott v. Sandford (Dred Scott), 60 U.S. (19 How.) 393, 449 (1857).
461. See supra Parts IV.B.2 & 3.
248 NEW MEXICO LAW REVIEW [Vol. 39
shared the conviction that the federal government should not be able to disarm the
citizenry because an armed population helped protect liberty.
462
This focus on the right to arms being a right of citizens is also seen from the
right’s intended reach. At least some Framers intended to limit the right to arms to
citizens that were law-abiding and peaceable.
463
This reflects the ideal of a virtuous
citizenry being a prerequisite to republican government,
464
where the people are
sovereign over the government, holding them accountable and ensuring that only
republican forms of government would be permitted in the United States.
The Second Amendment secured to the people the right to alter or to abolish their
government, if necessary.
465
“[T]he simple truth—born of experience—is that
tyranny thrives best where government need not fear the wrath of an armed
people.…”
466
The Second Amendment is therefore a “doomsday provision,”
467
operating as a “safeguard against tyranny”
468
to prevent the people losing control
of their country to a government intent on maintaining rule by force of arms. The
political component of the right to bear arms is that it is a right to ensure that
American government is by the consent of the governed.
Certain rights—even rights that are fundamental—are restricted to citizenship.
The most obvious example of a fundamental right so restricted is voting. While the
Court has held this right fundamental,
469
and requires that severe burdens on the
right to vote be subjected to strict scrutiny,
470
only American citizens ages eighteen
and above can vote.
What, then, is the constitutional line for restricting certain rights to citizens,
while other rights apply indiscriminately to all “the people” associated with the
United States, or alternately, to every person in the United States? The key element
might be whether the right in question is essential to our form of government. The
Declaration of Independence says that a just government’s legitimacy is “derived
from the consent of the governed.”
471
The most obvious expression of popular
consent is being elected by voters in a free and fair election. The Declaration thus
provides the rationale for limited voting rights to citizens, and it also provides the
basis for the Second Amendment’s political purpose.
This right to hold rulers accountable and even remove tyrannical rulers if
necessary is a “transcendent sovereign right” of the American people.
472
It should
then follow that the specific textual right designed as an insurance policy on the
people’s sovereignty—the right to remove the government by force—is
462. See Nelson Lund, To Keep and Bear Arms, in HERITAGE GUIDE, supra note 278, at 320.
463. Cress, supra note 450, at 34 (noting that Samuel Adams, cousin to future president John Adams,
believed that only “peaceable citizens” had a right to arms).
464. Cf. U.S. C
ONST. art. IV, § 4.
465. Cf. T
HE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776).
466. Silveira v. Lockyer, 328 F.3d 567, 569 (9th Cir. 2003) (Kozinski, J., dissenting from denial of rehearing
en banc).
467. Id. at 570.
468. District of Columbia v. Heller, 128 S. Ct. 2783, 2802 (2008).
469. Burdick v. Takushi, 504 U.S. 428, 433 (1992).
470. Clingman v. Beaver, 544 U.S. 581, 586–87 (2005).
471. T
HE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776).
472. See Amar, Constitution, supra note 132, at 1133.
Spring 2009] INCORPORATING THE SECOND AMENDMENT 249
fundamentally an intrinsic part of our national system and thus a right inhering in
national citizenship.
473
4. Special Concern in Reconstruction
The concept of enabling citizens to defend themselves against the action of states
was especially prevalent during Reconstruction. As explained in Part IV.A, the
constant concern during the adoption of the Fourteenth Amendment was to
empower blacks, especially in the South, to enjoy the full liberties and protections
of American citizens. The Fourteenth Amendment’s Framers were concerned with
blacks being safe and secure, both from lawless elements in society and also from
their own state governments. The Second Amendment secures the most effective
means to protect against both.
That is why Second Amendment rights came up with such frequency during
Reconstruction. The Second Amendment right to bear arms was specifically
mentioned as one of the civil rights Congress intended to restore to blacks. One
congressman made this point on the House floor.
474
Another said that granting
citizenship to blacks would secure rights of interstate travel, testifying in federal
court, and keeping firearms.
475
The congressional debate centered on ending
oppression of blacks by state governments.
476
In that debate, the right to keep and
bear arms was specified as one of the “privileges or immunities” of citizens to be
protected by Section 1 of the Fourteenth Amendment.
477
Since it is already clear that
the Framers of the Fourteenth Amendment did not believe the Due Process Clause
protected substantive rights, the Privileges or Immunities Clause is therefore the
provision they intended to secure that right against the states.
Further evidence is found in the language of the Civil Rights Act of 1866 and its
congressional deliberations. The Civil Rights Act states that citizens, “shall have
the same right…to inherit, purchase, lease, sell, hold, and convey real and personal
property, and to full and equal benefit of all laws and proceedings for the security
of person and property, as is enjoyed by white citizens.…”
478
This language is
mirrored in much of the congressional debate of the Civil Rights Bill, where
empowering citizens for self-defense was an express consideration.
479
Perhaps the single strongest historical argument for incorporating the Second
Amendment is that the Southern states had a long history of oppressing blacks after
slavery.
480
Southern slave states endeavored to prevent even free blacks from
473. Cf. THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776). This does not imply that the government
must arm the citizenry and train them in the use of arms. It creates no governmental obligation, instead only
preserving the right of the people to choose whether or not to bear arms and to become proficient in using them.
474. C
ONG. GLOBE, 39th Cong., 1st Sess. 654 (1866) (statement of Rep. McKee).
475. Id. at 1266 (statement of Rep. Raymond).
476. F
LACK, supra note 86, at 96.
477. Id.
478. Act of Apr. 9, 1866, 14 Stat. 27.
479. E.g., C
ONG. GLOBE, 39th Cong., 1st Sess. 1833 (1866) (statement of Rep. Lawrence) (“[Civil rights
include] the absolute right to live, the right of personal security, personal liberty, and the right to acquire and enjoy
property.”).
480. See Robert J. Cottrol & Raymond T. Diamond, The Second Amendment: Toward an Afro-Americanist
Reconsideration, 80 G
EO. L.J. 309, 335–58 (1991); see generally HALBROOK, THAT EVERY MAN BE ARMED,
supra note 41.
250 NEW MEXICO LAW REVIEW [Vol. 39
keeping weapons.
481
Therefore securing an individual right was necessary to protect
them.
Some say that the Second Amendment militia “was carefully designed to protect
liberty through localism.”
482
It is more accurate to say that the Second Amendment
was designed to protect liberty through individualism. The Amendment empowers
an individual citizen to be self-sufficient in being able to protect himself, his family
and property against any who would threaten them, his nation against foreign
invasion, or his liberty against his government. Though it is certainly true that it is
easier to flee a locality than a nation,
483
some Framers were concerned that smaller
political units could pose a greater threat to liberty than national governments.
484
During Reconstruction the concern was not protecting local units of government,
but rather protecting individuals.
This wariness of government per se is consistent with the republican ideal of
representative government. The Second Amendment’s prefatory clause pronounces
a republican principle of governance.
485
That principle dictates wariness against all
forms of government, whether of a vast nation or a smaller (yet still vast vis-à-vis
the individual) state or city. The preamble speaks of what is “necessary to a free
state,”
486
including all units of government that constitute the state, which as found
in Hobbes’s Leviathan, is the organized power of government over man, not just a
specific level of government that we designate the national level.
487
States, no less
than nations, can threaten life, liberty, or property, and thus what is necessary to
secure liberty against one level of government is equally necessary to secure that
same liberty against another level of government.
488
While some might say that such a reading of the Second Amendment as
something more than a federalism provision is due to “our modern day fixation on
individual rights,”
489
to force a federalism-only gloss on the individual-right model
of the Second Amendment is to blithely ignore the profound distrust that the
Framers of the Second Amendment had toward all forms of government, not just
national government. Such statements also cannot account for the debates
surrounding the adoption of the Fourteenth Amendment, because the particular
concern of the Framers in protecting blacks against local oppression is fatal to the
federalism-only view.
John Bingham, author of the Privileges or Immunities Clause, said that the
Fourteenth Amendment was needed to protect citizens of certain states from tyranny
from their own state government.
490
If the principal purpose of the Second
Amendment was as an insurance policy against an oppressive government, then
481. Amar, Against the States, supra note 256, at 448.
482. E.g., Amar, Constitution, supra note 132, at 1171.
483. Id.
484. E.g., T
HE FEDERALIST No. 10 (James Madison).
485. Amar, Constitution, supra note 132, at 1171 & n.184 (quoting 1 A
NNALS OF CONG., supra note 395,
at 750 (statement of Rep. Gerry) (“What, sir, is the use of the militia? It is to prevent the establishment of a standing
army, the bane of liberty.”)).
486. U.S. C
ONST. amend. II, cl. 1 (emphasis added).
487. See generally H
OBBES, supra note 418.
488. See Eugene Volokh, Necessary to the Security of a Free State, 83 N
OTRE DAME L. REV. 1, 3–6 (2007).
489. Amar, Constitution, supra note 132, at 1175.
490. See C
ONG. GLOBE, 39th Cong., 1st Sess. 1090 (1866).
Spring 2009] INCORPORATING THE SECOND AMENDMENT 251
Bingham’s statements further support the idea that the Second Amendment was
very much in the mind of 1866 lawmakers as they proposed the Fourteenth
Amendment, and was intended to extend the Second Amendment’s protective
power to hold state governments in check. The Fourteenth Amendment was
designed to create federal protections “to protect the citizens of a state against the
state itself.”
491
It is difficult to conceive what protection could be more effective
than the right to keep and bear arms.
Stephen Halbrook wrote a book arguing, like this Article, that the Second
Amendment should be incorporated through the Privileges or Immunities Clause.
492
But Halbrook identifies the right at issue as self-defense, and he argues that it
should be incorporated through Privileges or Immunities because every citizen has
a constitutional right to protect himself.
493
Throughout the book Halbrook has a
race-focused rationale, whereby the Fourteenth Amendment protects blacks equally
with other Americans. He reasons that the Framers of the Fourteenth Amendment
intended blacks to be citizens and also intended to protect their civil rights,
including a right to self-defense; ergo, self-defense is a right of citizenship, and so
is incorporated through Privileges or Immunities. Halbrook states that:
the constitutional right to bear arms was perhaps considered as the most
fundamental protection for the rights of personal liberty and personal security,
which may explain its unique mention in the Freedmen’s Bureau Act. To the
framers of the Fourteenth Amendment, human emancipation meant the
protection of this great human right from all sources of infringement, whether
federal or state.
494
Halbrook’s thesis is only partially correct. While the Second Amendment should
be incorporated through Privileges or Immunities, a right to self-defense would find
its locus in the Due Process Clause under the Court’s modern substantive due
process jurisprudence, not Privileges or Immunities.
495
There is no compelling
reason why, if self-defense is so universal that Halbrook refers to it as a “human
right,”
496
it should be denied to non-citizens. The idea of self-defense being a
natural right has deep roots in Anglo-American law, as evidenced by Blackstone’s
Commentaries.
497
Halbrook’s thesis would be more defensible if he argued that self-
defense is a right of citizenship, but by characterizing it as arising from natural law
and human rights, he removes it from the realm of citizenship and makes it a right
491. MCLAUGHLIN, supra note 197, at 656.
492. H
ALBROOK, THAT EVERY MAN BE ARMED, supra note 41, at 6, 10–11, 40–43, 139–40 (arguing and
citing various authorities supporting that the right to bear arms is a right pertaining to citizenship).
493. Id. at 153.
494. H
ALBROOK, FREEDMEN, supra note 408, at 43–44 (internal quotation marks omitted).
495. Halbrook’s argument is stronger as an originalist argument, that self-defense should be incorporated
through Privileges or Immunities because all substantive rights incorporated under the Fourteenth Amendment
should be incorporated through Privileges or Immunities, while the Due Process Clause constrains only state
procedural actions. But while that argument may be true as a normative matter, the reality is that the Court is
simply not going to undo over a century of substantive due process jurisprudence or totally rewrite incorporation
doctrine on every right that has thus far been incorporated, and that massive body of precedent cannot be ignored
in formulating the argument for how and why the Second Amendment should be incorporated.
496. H
ALBROOK, FREEDMEN, supra note 408, at 44.
497. 3 B
LACKSTONE, supra note 157, at *4 (“Self-Defence, therefore, as it is justly called the primary law
of nature, so it is not, neither can it be in fact, taken away by the law of society.”).
252 NEW MEXICO LAW REVIEW [Vol. 39
that transcends national boundaries. The only way to make his case is to argue that
the right to self-defense, while possessed by all persons, does not include the right
to choose the instrumentality of that defense, that being reserved to citizens. But
that argument proves too much, as it then naturally follows that a self-defense right
in Privileges or Immunities would likewise not entail the right to choose the
instrumentality, in which case there would still be no concomitant right to arms. In
addition, the concept of protecting a discrete racial group on equal terms with other
racial groups has been completely subsumed by the Equal Protection Clause, and
the Court is not going to revisit the issue when the concept has thus been fully
addressed.
The only argument that could justify this approach is to bifurcate the right to
arms into two rights: self-defense versus instrumentalities. Under this approach, the
right to self-defense could be a natural right that is fundamental and should extend
to all persons regardless of citizenship, in which case that right should be
recognized under due process and equal protection principles. But the liberty to
choose a firearm as the instrumentality of self-defense, which is an auxiliary right
under the English system,
498
is a right of citizens that could be incorporated through
the Privileges or Immunities Clause.
C. Additional Arguments For and Against Incorporation
There are several final arguments both for and against incorporation that must be
considered in a full treatment of this issue.
1. Arguments Against Incorporation
There are several arguments against incorporating the Second Amendment. Some
of these arguments counsel against incorporating through the Privileges or
Immunities Clause, and others would bar incorporation through any part of the
Fourteenth Amendment. While these arguments are not without merit, they are
nonetheless unpersuasive.
As previously noted, the strongest argument against incorporating the Second
Amendment is that it is a federalism provision. If the Second Amendment was to
deter a despotic central government then it would have no application to the states;
its focus would be solely national. As many argue that the Establishment Clause is
a federalism provision,
499
so too can it be argued that the Second Amendment has
a similarly national scope. If so, then the Amendment would not logically apply to
the states.
One argument that has not received much attention is to argue in favor of state
police power. As discussed previously, the police power enables states to regulate
public health and safety.
500
Now that Heller has held that Second Amendment rights
can be asserted against the federal government, another factor in incorporating the
Second Amendment concerns police power. The concept of firearm rights against
states raises the question of what should be the proper balance between the state
498. See generally Cottrol & Diamond, supra note 422.
499. See supra note 154.
500. See Hamilton v. Ky. Distilleries & Warehouse Co., 251 U.S. 146, 156 (1919).
Spring 2009] INCORPORATING THE SECOND AMENDMENT 253
police function and the individual’s right to arms.
501
There is a countervailing
interest that opponents of the Amendment can use in a case challenging state law.
This argument finds additional strength from the fact that the Slaughter-House
Cases, long-used as a talismanic anti-incorporation case,
502
invokes the police power
in refusing to extend federal power to the state law at issue in that case.
503
a. Case Law
The Supreme Court has thrice stated that the Second Amendment only constrains
federal action, not state action.
504
However, those cases came down in the era of
Barron v. Baltimore,
505
where the Court held that the Bill of Rights only limits
federal power.
506
That era ended long ago, and even during that era some state
courts nonetheless extended Bill of Rights protections to state matters.
507
It was
unclear for many years whether the anti-incorporation statements in this trio of
cases discussing the Second Amendment constituted part of the Court’s holding.
508
The Court clarified that question in Heller. Though Justice Scalia makes clear in
Heller that the Court was not deciding the incorporation question,
509
he does say
that the earlier cases held the Second Amendment was not incorporated.
510
Therefore, incorporating the Second Amendment requires overruling those parts of
Miller v. Texas, Presser v. Illinois, and United States v. Cruikshank. However, he
also notes that those cases likewise stated that the First Amendment was not
incorporated.
511
It is thus clear that the Court has long since abandoned the
reasoning in those cases. They have been effectively abrogated for decades, as
Lochner was abrogated in 1937.
512
Just as Lochner was not expressly overruled until
many years later (1963, to be exact),
513
so too these cases can be explicitly
repudiated when the incorporation issue is again presented to the Court. The Court
in Heller suggested it would welcome the opportunity to do so.
514
Stare decisis should not bar overruling the Cruikshank line of cases. Stare decisis
requires that precedent be adhered to unless there is a special justification for
501. Cf. Lund, To Keep and Bear Arms, in HERITAGE GUIDE, supra note 278, at 321.
502. See supra Part IV.C.1.
503. 83 U.S. (16 Wall.) 36, 117 (1873).
504. Miller v. Texas, 153 U.S. 535, 538 (1894); Presser v. Illinois, 116 U.S. 252, 264–66 (1886); United
States v. Cruikshank, 92 U.S. 542, 551 (1876). Cruikshank ruled that the Second Amendment did not apply to the
states, and both of the later cases reaffirmed Cruikshank as the controlling precedent.
505. 32 U.S. (7 Pet.) 243 (1833) (holding that the Fifth Amendment did not apply to a municipal law
regulating wharfs in the harbor).
506. Id. at 247.
507. E.g., Nunn v. Georgia, 1 Ga. 243, 250 (1846).
508. See Lund, Outsider Voices, supra note 155, at 715 & nn.42–43 (arguing the Court’s statements
regarding incorporation in Presser and Cruikshank were not part of their holdings).
509. District of Columbia v. Heller, 128 S. Ct. 2783, 2813 n.23 (2008) (noting that “Cruikshank’s continuing
validity on incorporation” was not an issue in Heller).
510. Id. at 2812–13.
511. Id. at 2813 n.23.
512. See supra note 95.
513. See supra note 95.
514. See Heller, 128 S. Ct. at 2809–11.
254 NEW MEXICO LAW REVIEW [Vol. 39
overruling it;
515
it is not an inexorable command.
516
It is simply a policy reflecting
that it is usually better for a rule of law to be settled, than to be settled correctly.
517
There are exceptions, denoted by “usually.” Stare decisis is not as high a hurdle
where constitutional questions are involved.
518
Further, the Court has held that stare
decisis “does not prevent us from overruling a previous decision where there has
been a significant change in, or subsequent development of, our constitutional
law.”
519
The change and development regarding this constitutional question is
obvious: no rights were incorporated in 1876, while over a dozen rights are now
incorporated,
520
and in a manner inconsistent with Cruikshank. Therefore
Cruikshank is a textbook example of a case fit to be overruled.
However, lower courts are another story. Until such time as it is overruled, lower
courts considering Second Amendment challenges to a state or local government
action may well regard Cruikshank as controlling,
521
in which case it is
dispositive.
522
Some argue that Cruikshank can be read as only barring incorporation through
Privileges or Immunities, leaving open the possibility of incorporating through Due
Process.
523
But there are two problems with this argument. The first is that
Cruikshank does not confine its language to Privileges or Immunities, simply
holding that the Second Amendment does not apply to the states.
524
Although this
515. Payne v. Tennessee, 501 U.S. 808, 827 (1991).
516. Agostini v. Felton, 521 U.S. 203, 235 (1997) (citation omitted).
517. Id. (quoting Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932) (Brandeis, J., dissenting)).
518. Seminole Tribe v. Florida, 517 U.S. 44, 63 (1996) (citation omitted).
519. Agostini, 521 U.S. at 235–36.
520. See supra note 79.
521. Agostini, 521 U.S. at 223–38.
522. Lund, Anticipating Incorporation, supra note 168, at 186–87. There are other arguments that may still
allow for Second Amendment rights to be extended through arguments not addressed, and therefore not rejected,
in Cruikshank. See id. at 188 (citations omitted).
523. E.g., Lund, Anticipating Incorporation, supra note 168, at 199. As this Article was being edited, the
Ninth Circuit adopted this reasoning to incorporate the Second Amendment through the Due Process Clause. See
Nordyke v. King, 563 F.3d 439, 448, 457 n.16 (9th Cir. 2009); cf. notes 11, 167, 322, 372 & 416 (discussing
Nordyke).
524. United States v. Cruikshank, 92 U.S. 542, 553 (1876). As this Article was being edited, the Second
Circuit adopted this reasoning in denying incorporation to the Second Amendment. See Maloney v. Cuomo, 554
F.3d 56, 58–59 (2d Cir. 2009). However, although it was the first federal appellate court to examine a Second
Amendment incorporation claim post-Heller, surprisingly the Second Circuit panel did nothing to explore this
issue. By contrast, Judge O’Scannlain’s opinion in Nordyke, joined by Judges Alarcon and Gould, thoroughly
explored the incorporation issue. See Nordyke, 563 F.3d at 446–57. The per curiam opinion in Maloney, for a panel
consisting of Judges Pooler, Sotomayor, and Katzmann, did nothing to ventilate the issues entailed by incorporation
or consider whether the nineteenth-century precedent the panel cited is still good law, devoting only one paragraph
to the issue. See Maloney, 554 F.3d at 58–59. This decision may well receive intense scrutiny, given that, also as
this Article was being edited, Judge Sotomayor was nominated to fill the vacancy created by the retirement
announcement of Justice David Hackett Souter. See President Barack Obama, Remarks by the President in
Nominating Judge Sonia Sotomayor to the U.S. Supreme Court (May 26, 2009),
http://www.whitehouse.gov/the_press_office/Remarks-by-the-President-in-Nominating-Judge-Sonia-Sotomayor-to-
the-United-States-Supreme-Court/. It should be noted that the Maloney panel’s conclusion was consistent with
another Second Circuit decision with Judge Sotomayor sitting on the panel. See United States v. Sanchez-Villar,
99 Fed. Appx. 256, 258 n.1 (2d Cir. 2004) (holding that the Second Amendment is not a fundamental right),
vacated and remanded, 544 U.S. 1029 (2005). Although the Maloney panel’s conclusion might have been
compelled by Agostini, 521 U.S. at 237 (quoting Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477,
484 (1989)), see supra notes 521–22 and accompanying text, a much more thorough discussion of such a
significant constitutional question seems warranted. The hallmarks of well-crafted judicial opinions include that
Spring 2009] INCORPORATING THE SECOND AMENDMENT 255
statement could be read narrowly because the Court gave no indication that it was
specifically contemplating Due Process, and case law suggests the Court was
focused on Privileges or Immunities when considering such claims during this
period,
525
a natural reading of Cruikshank suggests that its statement extends to all
of the Fourteenth Amendment. Second, if incorporating the Second Amendment
through Due Process is permissible for lower courts under Cruikshank, that would
still leave the Second Amendment freighted with all of the problems set forth in
Part V.A. The Second Amendment should instead be incorporated through
Privileges or Immunities, free of the baggage that accompanies Due Process
incorporation.
Therefore although the Second Amendment should be incorporated, Privileges
or Immunities remains the ideal route. With Cruikshank and its progeny still on the
books, the lower federal courts therefore may have no choice but to wait until the
Supreme Court takes up the issue.
b. Charles Fairman
Professor Fairman argues that the Fourteenth Amendment does not incorporate
provisions of the Bill of Rights against the states.
526
He quotes Joseph Story to
they ventilate the relevant legal issues and fairly consider the pertinent arguments, providing clear reasoning as to
which arguments the court finds persuasive, and why. Maloney’s cursory opinion did not even attempt to explore
the issues raised in the case.
In this regard, the Maloney opinion is strikingly similar to another recent Second Circuit opinion
involving Judge Sotomayor. See Ricci v. DeStefano, 264 Fed. Appx. 106 (summary order), withdrawn and
replaced by 530 F.3d 87 (per curiam), rev’d, 129 S. Ct. 2658, 2681 (2009). In Ricci, the constitutional issues raised
by a city throwing out an entire firefighter-promotion program because of the racial composition of the highest-
achieving test-takers were disposed of in a single paragraph of a brief summary order, see 264 Fed. Appx. at 107,
and then later replaced by an equally brief per curiam opinion, see 530 F.3d at 87. This cursory treatment prompted
a strongly-worded dissent from another Second Circuit judge when the full court declined to rehear the case en
banc, see Ricci, 530 F.3d 88, 92 (2d Cir. 2009) (Cabranes, J., dissenting from the denial of rehearing en banc),
including the extraordinary statement that the panel opinion “tersely adopts the reasoning of a lower court” to
“insulate[] [the judgment] from further judicial review.” Id. at 101. It is possible that portions of this dissent could
likewise be appended to the Maloney opinion.
Contrast the Second Circuit panel’s approach in Maloney to the one employed by a jurist in an earlier
case involving firearms. Judge Janice Rogers Brown currently serves on the U.S. Court of Appeals for the D.C.
Circuit, and before that was a justice on the California Supreme Court. See U.S. Court of Appeals for the District
of Columbia Circuit, About the Court, Judges, http://www.cadc.uscourts.gov/internet/home.nsf/content/VL+-
+Judge+-+JRB (last visited May 10, 2009). During her tenure on the California court, then-Justice Brown wrote
the opinion when the court considered a challenge to a California ban on various types of firearms on state (not
federal) constitutional grounds. See Kasler v. Lockyer, 2 P.3d 581, 583 (Cal. 2000). Justice Brown also wrote
separately from her own majority opinion, however, to explore the issue of possible developments in Second
Amendment jurisprudence, including surveying relevant scholarly literature. Id. at 601–05 (Brown, J., concurring).
Even though the California plaintiffs did not raise a federal constitutional issue and so did not invoke the Second
Amendment, Justice Brown saw the relevance of the Second Amendment and so added this material to the opinion.
Such an examination was helpful in that there had been considerable then-recent scholarly developments
concerning the Second Amendment, and Justice Brown clearly thought such material worthy of being discussed
by the judiciary when deciding a case that invoked firearm rights. Such judicial treatment helped to lay a firm
foundation upon which the U.S. Supreme Court could eventually consider the Second Amendment, which the Court
did eight years after Kasler in Heller.
525. See Miller v. Texas, 153 U.S. 535, 538 (1894) (discussing how the Fourteenth Amendment impacted
the Second and Fourth Amendments “as pertaining to citizens of the United States”).
526. See Fairman, supra note 207, at 138–39. Fairman limits his argument to the Privileges or Immunities
Clause, but this was before most of the Bill of Rights was incorporated through the Due Process Clause. His
argument is anti-incorporation, not just anti-incorporation through a specific clause.
256 NEW MEXICO LAW REVIEW [Vol. 39
support his contention that the Article IV clause was merely intended to ensure
equal treatment under the law.
527
He further supports this reading by quoting
antebellum state cases.
528
However, Fairman never addresses the obvious flaws in this position. Justice
Story was commenting only on the Article IV Privileges and Immunities Clause; the
Fourteenth Amendment would not exist until decades later. Fairman’s
characterization of that clause’s effect is addressed in our modern Constitution by
the Equal Protection Clause. But each constitutional provision is presumed to have
separate and distinct meaning.
529
Therefore the Privileges or Immunities Clause of
the Fourteenth Amendment must be given separate meaning from the Equal
Protection Clause. If Story’s meaning is covered under the Equal Protection Clause,
then it violates the presumption of antisuperfluousness to say Privileges or
Immunities has no separate meaning. Further, the state cases Fairman cites were
pre-Fourteenth Amendment, so they did not purport to interpret Privileges or
Immunities, and were not even federal cases.
530
The weakness inherent to these
citations is instructive of just how thin the evidence is favoring Fairman’s position.
The greatest flaw in Fairman’s position, however, is fatal to his anti-
incorporation argument. Fairman extensively examines various floor speeches made
during Congress’s debates over the Fourteenth Amendment,
531
and also state
ratification debates.
532
Despite this enormous amount of material, Fairman’s
argument fails for two reasons.
First, his speeches are cherry-picked. Many pro-incorporation comments were
made during the congressional debates,
533
and surprisingly Fairman even quotes a
couple of them without acknowledging their pro-incorporation content.
534
Fairman
also tries to pit one speaker against another when their statements can be
reconciled.
535
527. Id. at 12 (quoting 2 STORY, supra note 154, § 1806 (“The intention of this clause was to confer on
[citizens of each state]…a general citizenship, and to communicate all the privileges and immunities which citizens
of the same State would be entitled to under like circumstances.”)).
528. Id. at 13–54 (quoting Abbot v. Bayley, 6 Pick. 89 (Mass. 1827); Campbell v. Morris, 3 H. & McH. 535
(Md. 1797)).
529. See Corley v. United States, 129 S. Ct. 1558, 1566 (2009) (“[A] statute should be construed so that
effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant….”)
(citations and internal quotation marks omitted); Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174 (1803) (“It
cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such a
construction is inadmissible, unless the words require it.”).
530. Id. at 177 (“It is emphatically the province and duty of the [federal] judicial department to say what the
law is.”).
531. See Fairman, supra note 207, at 28–50.
532. Id. at 81–132; see also Duncan v. Louisiana, 391 U.S. 145, 165 (1968) (Black, J., concurring).
533. See supra Part IV.B.3.
534. E.g., C
ONG. GLOBE, 39th Cong., 1st Sess. 1088 (1866) (statement of Rep. Bingham); see also
Wildenthal, supra note 150, at 1072 & nn.71, 73 (criticizing Fairman’s portrayal).
535. For example, Fairman says “unless the first eight amendments enumerate ‘rights that attach to all free
governments,’ [one speaker’s] understanding is to be counted as opposed to that of [another speaker].” Fairman,
supra note 207, at 63. However, Fairman never acknowledges the possibility that both speakers could consider the
first eight amendments to attach to free governments, which would reconcile the statements and show both speakers
are in agreement. The language later employed by the Court in incorporating the Bill of Rights is strikingly similar
to this language, suggesting the Court reconciles these statements.
Spring 2009] INCORPORATING THE SECOND AMENDMENT 257
Second, legislative history is not a sound basis for constitutional interpretation.
Legislative history should not be accorded interpretive weight when the meaning
of the terms is intrinsically discernable.
536
The weight of the evidence is that
“privileges or immunities” encompasses the Bill of Rights.
537
Therefore, at a
minimum, the Clause was intended to incorporate substantive rights.
Ironically, it is something beyond Fairman’s ken that dooms his argument. In
quoting a lengthy portion from Senator Jacob Howard’s congressional remarks, he
includes:
[I]t is a fact well worthy of attention that the course of decision of our courts and
the present settled doctrine is, that all these immunities, privileges, rights, thus
guaranteed by the Constitution or recognized by it, are secured to the citizen
solely as a citizen of the United States and as a party in their courts. They do not
operate in the slightest degree as a restraint or prohibition upon State legislation.
States are not affected by them, and it has been repeatedly held that the
restriction contained in the Constitution against the taking of private property for
public use without just compensation is not a restriction upon State legislation,
but applies only to the legislation of Congress.
538
This does not speak against incorporation through Privileges or Immunities; it
would bar incorporation under any provision of the Fourteenth Amendment,
including Due Process. Since the Court has incorporated over a dozen clauses from
the Bill of Rights,
539
mostly after Fairman published his article, it is beyond
question that the Court does not accept this premise. This passage specifically
mentions the Takings Clause as one such unincorporated provision. Yet the Takings
Clause was the first Bill of Rights provision to be incorporated,
540
a decision that
was reasserted as recently as Kelo v. City of New London.
541
Therefore, this
argument fails, because not only is Fairman incorrect from an originalist
interpretation, but also the Court has rejected Fairman’s conclusion by repeatedly
incorporating specific provisions that Fairman argues are not incorporated.
2. Arguments for Incorporation
In addition to the arguments explored in this Article favoring incorporation,
several collateral points should be added. While none are dispositive, each provides
an additional rationale for incorporating the right to bear arms.
a. Founding-Era Arguments for Incorporation
There are arguments for applying the Second Amendment against the states from
the time the Second Amendment was adopted. This Article focuses on how the
536. SCALIA, supra note 85, at 31; see also Carcieri v. Salazar, 129 S. Ct. 1058, 1063–64 (2009) (stating that
if the language of a law is plain and unambiguous, it must be applied according to its terms); William N. Eskridge,
Jr., The New Textualism, 37 UCLA L. R
EV. 621 (1990).
537. See supra Part IV.B.1.
538. Fairman, supra note 207, at 57 (quoting C
ONG. GLOBE, 39th Cong., 1st Sess. 2765 (1866) (statement
of Sen. Howard)).
539. See supra note 79 (listing incorporation cases).
540. See Chicago, Burlington & Quincy R.R. Co. v. Chicago, 166 U.S. 226 (1897).
541. 545 U.S. 469, 472 n.1 (2005).
258 NEW MEXICO LAW REVIEW [Vol. 39
Fourteenth Amendment applies the right to bear arms to the states. However, there
is also evidence from when the Second Amendment was ratified showing that the
Framers may have originally intended the right to bear arms to directly apply
against the states. While not exhaustive, the examples below represent many such
statements made during that time.
William Rawle is a prominent constitutional authority from the time of the
Framing. Rawle was held in such legal esteem among the Framers that President
George Washington offered him the position of U.S. Attorney General during the
critical formative period of America’s first administration, an offer Rawle
declined.
542
But as a member of the Pennsylvania Assembly that voted to ratify the
proposed Bill of Rights, in his famous exposition of the Constitution Rawle wrote
of the Second Amendment:
In the second article, it is declared, that a well regulated militia is necessary
to the security of a free state; a proposition from which few will
dissent.…[W]hile peace prevails, and in the commencement of a war before a
regular force can be raised, the militia form the palladium of the country.…
The corollary, from the first position, is, that the right of the people to keep
and bear arms shall not be infringed.
The prohibition is general. No clause in the Constitution could by any rule of
construction be conceived to give to congress a power to disarm the people.
Such a flagitious attempt could only be made under some general pretence by a
state legislature. But if in any blind pursuit of inordinate power, either should
attempt it, this amendment may be appealed to as a restraint on both.
543
Note how Rawle speaks to first principles. Rather than narrow remarks directed
against some easily-discerned policy concern, Rawle frames the right to bear arms
as essential to free government. He then proceeds to characterize disarming citizens
as a tactic resulting from a “blind pursuit of inordinate power.” While this is self-
evidently possible for any level of government, not just federal government, Rawle
then goes on to specify that he believes the Second Amendment constrains state
government as well as federal.
b. Credibility of the Judiciary
A final argument in favor of incorporating through the Privileges or Immunities
Clause is that it will increase the institutional strength and integrity of the judiciary.
A significant part of the courts’ effectiveness in fulfilling their constitutional role
in our governmental framework is the credibility that the public attaches to their
work. In a country governed by the rule of law, where the judiciary is an
independent branch that cannot be overridden by the legislature or the executive,
it is essential that the judgments and opinions of the judiciary demand respect.
Continuing to inconsistently employ discredited Lochner-type substantive due
process principles detracts from that credibility.
542. Hardy, supra note 41, at 613 (citing ELIZABETH KELLY BAUER, COMMENTARIES ON THE CONSTITUTION
1790–1860, at 15 (1965); MEMOIRS OF THE HISTORICAL SOCIETY OF PENNSYLVANIA 55 (1840)).
543. W
ILLIAM RAWLE, A VIEW OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA 125–26 (2d ed.
1829).
Spring 2009] INCORPORATING THE SECOND AMENDMENT 259
Jurists ought not to believe that they can decide individual issues according to
their personal policy preferences, being called out by dissenting jurists with
scathing criticism, without such decisions having the aggregate effect of
diminishing the judiciary’s capacity to fulfill its essential role. Some sitting on the
Court have made precisely this point.
544
The solution is not for dissenters to remain
silent, but instead for majority opinions to not give cause for such dissent. While
some would say that it is merely the way substantive due process is employed that
gives rise to such statements, others suggest that substantive due process per se is
the problem. There is a “danger that the potential disillusionment occasioned by the
courts’ continued use of an interpretive theory that is both textually and historically
suspect will lead judges to abdicate, in whole or in part, their role as the guarantors
of individual rights.”
545
Incorporating the Second Amendment through Privileges
or Immunities instead of Due Process would help wean the law away from
substantive due process, and would be a step in the right direction.
VI.
CONCLUSION
The Second Amendment secures the right to protect life, liberty, and property
against those who would seek to unjustly take them. That threat often comes from
criminals. Therefore the Supreme Court held in District of Columbia v. Heller that
the Second Amendment secures a right of self-defense and defense of others.
546
However, those who adopted the Second Amendment—and those who adopted the
Fourteenth Amendment—knew that sometimes that threat comes from the
government. When it does, the people must be able to protect themselves.
This applies to all levels of government. For the Framers of the Second
Amendment, the threat came from a national government. For the Framers of the
Fourteenth Amendment, the threat came from state governments. The Heller Court
suggests that it recognizes this, quoting Justice Joseph Story for the proposition that
the Second Amendment is necessary to a free polity,
547
addressing government per
se and therefore encompassing all levels and forms of government. Therefore the
Second Amendment was focused on enabling the people to protect themselves
against nations, and the Fourteenth Amendment focused on extending that
protection to include the states.
Supporters of finding implied fundamental rights in the Constitution should
welcome reviving the Privileges or Immunities Clause. Some scholars believe that
the Privileges or Immunities Clause provides a far stronger foundation upon which
to enact public policy, which reorders society through the courts, than the Due
544. E.g., Lawrence v. Texas, 539 U.S. 558, 602 (2003) (Scalia, J., joined by Rehnquist, C.J., and Thomas,
J., dissenting); Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 1001–02 (1992) (Scalia, J., joined by
Rehnquist, C.J., and White and Thomas, JJ., dissenting).
545. T
RIBE, supra note 6, at 1318.
546. 128 S. Ct. 2783, 2811 (2008).
547. Id. at 2800–01.
260 NEW MEXICO LAW REVIEW [Vol. 39
Process Clause,
548
especially since these decisions would no longer carry the odious
shades of Lochner.
549
Some express concern that incorporating through Privileges or Immunities would
render Due Process superfluous.
550
Why the controversy? First, only in an ivory
tower could one become concerned about whether alternate legal theories render a
pre-existing philosophical construct less important. Most people—including most
lawyers (and their clients)—are far more concerned with practical application and
how it impacts the welfare of individuals and groups. Second, the argument is
wrong. There are hundreds of settled precedents interpreting or applying Due
Process, some governing critical aspects of American jurisprudence. Any future
cases employing Privileges or Immunities will work no mischief against this case
law, so none should fear that Due Process will fade into obscurity in the wake of
judicial exploration of Privileges or Immunities.
Some conservative jurists have expressed deep concern over the potential for
judicial mischief that a revitalized Privileges or Immunities Clause could spawn,
551
with one even calling it a “dormant volcano.”
552
While that may be true, Privileges
or Immunities could not surpass what the Court has done in recent years through the
Due Process Clause (all decided after Justice Thomas and Judge Wilkinson
expressed their opinions).
553
It cannot be a sound canon of constitutional
interpretation that the Supreme Court should not explicate a constitutional provision
for fear of how that provision might be abused.
The Second Amendment should be incorporated against the states, but there are
difficulties with doing so through the Due Process Clause. Now that the Privileges
or Immunities Clause has been revived, it provides the ideal route for the Court to
incorporate Second Amendment rights without triggering any of the challenges
inherent in due process jurisprudence. Therefore the Supreme Court ought to
incorporate the Second Amendment through the Privileges or Immunities Clause,
extending the rights entailed by the Second Amendment to all Americans.
548. E.g., TRIBE, supra note 6, at 1319–20; Erwin Chemerinsky, The Supreme Court and the Fourteenth
Amendment: The Unfulfilled Promise, 25 L
OY. L. REV. 1143, 1147 (1992); Gerhardt, supra note 262, at 442.
549. Chemerinsky, supra note 548, at 1147.
550. T
RIBE, supra note 6, at 1327–30.
551. Saenz v. Roe, 526 U.S. 489, 521–28 (1999) (Thomas, J., dissenting).
552. J. Harvie Wilkinson III, The Fourteenth Amendment Privileges or Immunities Clause, 12 H
ARV. J.L.
&
PUB. POL’Y 43, 51 (1989).
553. See, e.g., Lawrence v. Texas, 539 U.S. 558, 579 (2003); Grutter v. Bollinger, 539 U.S. 306, 344 (2003);
Stenberg v. Carhart, 530 U.S. 914, 930 (2000).
