Incorporating the 2nd Amendment

U.S. Supreme Court agrees to weigh issue of whether the Second Amendment should be applied to the states

A little more than a year after the United States Supreme Court held, in District of Columbia v. Heller, that the Second Amendment preserves an individual right to keep and bear arms and in the course of doing so struck down as unconstitutional the District’s strict ban on firearms, the gun battle is once again coming to the highest court in all the land.

Yesterday, the Supreme Court disclosed that it has granted certiorari and will hear McDonald v. City of Chicago, an Illinois case challenging the constitutionality of handgun laws in Chicago and nearby Oak Park. The issue at hand here is incorporation — or whether the Second Amendment will be made applicable to state and local governments.

While I absolutely refuse to predict how the Supreme Court will come down on this issue, or any issue for that matter, I personally firmly believe that the right to keep and bear arms should be incorporated against the states, and I believe that case law, along with the sentiments and intent of our nation’s founders, supports that idea.

To understand the how and why of incorporation and the Second Amendment, however, it is absolutely essential to consider the history of incorporation, the related controversies new and old, and how incorporation of the Second Amendment is a natural consequence of last year’s decision in Heller.

Meet the Bill of Rights

When, in September of 1787, news of the brand new Constitution of the United States of America reached John Adams in London, where he was serving as minister plenipotentiary to Great Britain, Adams immediately sent a letter to his counterpart in Paris. “What think you of a Declaration of Rights?” Adams asked Thomas Jefferson. “Should not such a thing have preceded the model?”

Jefferson made neither a response to Adams nor a public statement for some time, though in a December 20, 1787 letter to James Madison, wrote that “a bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse.”

Across the Atlantic, Alexander Hamilton had insisted in Federalist No. 84 that a separate Bill of Rights was unnecessary. He had argued that the compilation of a list of specific rights could leave the impression that any omitted were somehow forfeited – an interesting argument, considering that the States submitted a list of nearly two hundred amendments upon being invited to do so by a Congress worried that the new Constitution would go un-ratified, a list later whittled down to ten. He also argued that the limited scope of the federal government made any such measure redundant, asking simply: “For why declare that things shall not be done which there is no power to do?”

Eventually, the Bill of Rights was developed and intended to operate against only the American federal government. Since then, however, most of the first eight amendments have been incorporated against the States pursuant to the Fourteenth Amendment, which permitted two distinct routes to incorporation: selective incorporation, via the Due Process Clause; and total incorporation, via the Privileges or Immunities Clause.

Total Incorporation vs. Selective Incorporation

Because of some ambiguity in its creation and a healthy amount of apparent befuddlement among its creators, the original meaning of the Fourteenth Amendment has always been viewed as a little nebulous. Particularly contentious has been the Privileges or Immunities Clause, perennially subject to debate over whether the clause was designed to require states to ensure their laws applied equally to all citizens, or whether it was to mandate specific substantive content to state law. The former essentially means that whatever the content of a state law may be, it should apply equally to all citizens. The latter is what concerns the debate over the incorporation of the Second Amendment.

Despite best efforts from Congressman John Bingham, the principal architect of the Fourteenth Amendment, even the latter interpretation—that the Privileges or Immunities Clause is intended to mandate substantive content—has been subject to debate. The first view is that the clause draws upon the concept of natural law and the idea that we have certain natural rights never yielded to government; the second interpretation is that all of the rights and liberties and freedoms included in our Constitution, especially the first eight amendments, should be binding on the states.

Indeed, in 1947, Justice Hugo Black in deciding Adamson v. California looked to “historical events that culminated in the Fourteenth Amendment, and the expressions of those who sponsored and favored, as well as those who opposed its submission and passage” to support his decision that the Fourteenth Amendment was “intended . . . to make the Bill of Rights applicable to the states.” He came to the conclusion that Bingham and the other framers of the Privileges or Immunities Clause had very much intended to make the first eight amendments binding on the states.

Over the years and due to many decisions—such as 1873’s Slaughter-House Cases—which have essentially stripped much of the significant meaning from the clause, two primary schools of thought on the incorporation argument have emerged: Total incorporationists follow the Privileges or Immunities path and believe that all of the rights preserved by the first eight amendments are fundamental, and all should be incorporated, while selective incorporationists look to the Fourteenth Amendment’s Due Process Clause and believe only some of the provisions enumerated by the Bill of Rights are fundamental, and only those provisions should be applied to the states.

In deeming whether a particular right should be considered “fundamental,” the Court has taken a decidedly case-specific approach to the question, though has on occasion addressed the issue specifically. In 1937, in Palko v. Connecticut, the Court held that a right is fundamental to ordered liberty if “neither liberty nor justice would exist if [it] were sacrificed,” and in Duncan v. Louisiana in 1968 expanded the standard to include both “implicit in the concept of ordered liberty” and “deeply rooted in our nation’s history and traditions.” Furthermore, according to the Court in Washington v. Glucksberg, any such “fundamental right” within the Bill of Rights is “made obligatory on the States by the Fourteenth Amendment.”

The Incorporation Debate Before Heller

Prior to June 2008 and the United States Supreme Court’s landmark decision in District of Columbia v. Heller, two primary schools of thought emerged with regard to the nature of the right to keep and bear arms preserved by the Second Amendment.

Proponents of the “collective right” model argued that the Second Amendment guaranteed the right to keep and bear arms as a way for the people to maintain effective state militias, but insisted that it did not provide an individual right to keep and possess weapons. Prior to Heller, the Fourth, Sixth, Seventh and Ninth Circuits held the “collective right” view, in part based upon the idea that the Second Amendment’s prefatory clause–”a well-regulated militia, being necessary to the security of a free state”–was “a syntactical device that is absent from all other provisions of the Constitution, including the nine other provisions of the Bill of Rights.”

On the other end of the spectrum was the “individual right” model, proponents of which argued that the Second Amendment creates an individual right to keep and bear arms. Prior to Heller, the “individual right” model was taken up by the Fifth Circuit and D.C. Circuit. Finally, in Heller, the Supreme Court held that the Second Amendment preserves an individual right to keep and bear arms. Application of the newly defined and freshly clarified right seemed to be the next logical step; but as ripe as it may be in the wake of such a decision, however, the debate over incorporation of the Second Amendment is nothing new.

To understand the effect of Heller on the question of incorporation and the Second Amendment, it is vital to assess the status of the debate before Heller, and consider how the landmark decision changed or augmented things.

In the late 19th century, the attitude of the U.S. Supreme Court toward incorporation of the Second Amendment was quite clear, as nary a right preserved by the Bill of Rights had been applied to the States. In United States v. Cruikshank, the Court stated that the right of the people to keep and bear arms “is not a right granted by the Constitution”; in fact, the Court held, the Second Amendment only “declares … that it shall not be infringed by Congress.” Indeed, the Court held in both Cruikshank and, a few years later, Presser v. People of State of Ill., that the Second Amendment is merely a “limitation only upon on the power congress and the national government, and not upon that of the state.” Similarly, in an earlier decision, the Court held in Barron v. Baltimore that it cannot apply, to the States, “amendments [which] contain no expression indicating an intention to apply them to the state governments.”

Then came the doctrine of selective incorporation. Since then, the vast majority of the Bill of Rights has been incorporated, but with regard to whether or not the Second Amendment is applicable to the States the Court has declined to weigh in and reconsider prior decisions.

Despite Presser remaining as the definitive testimonial by the Court on the incorporation of the Second Amendment, two Courts of Appeal departed from that view, even before Heller, holding that the Second Amendment is sufficiently fundamental to society so as to be applied to the States. In Silveira v. Lockyer, the Ninth Circuit in 2002 held that “Cruikshank and Presser rest on a principle that is now thoroughly discredited,” and in United States v. Emerson, the Fifth Circuit in 2001 stated that, “[a]s these holdings all came well before the Supreme Court began the process of incorporating certain provisions of the first eight amendments into the Due Process Clause of the Fourteenth Amendment, and as they ultimately rest on a rationale equally applicable to all those amendments, none of them establishes any principle governing any of the issues now before us.” Still, in pre-Heller debate, many circuit courts held the line set forth so many years earlier by Cruikshank and Presser – indeed, five Courts of Appeal held that the Second Amendment imposes a restriction only on the federal government, and not upon the States.

The Incorporation Debate After Heller

While Heller may have ended the debate over the nature of the rights secured by the Second Amendment, it not only ripened the discussion of the Amendment’s incorporation but also stoked the fire considerably. While the question of incorporation was addressed briefly in several spots by the Court in Heller, in the most prominent such passage was conspicuously and expressly left open for lower courts to consider in footnote 23:

With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois (citations omitted) and Miller v. Texas (citations omitted) reaffirmed that the Second Amendment applies only to the Federal Government.

On one hand, the Court notes “Cruikshank’s continuing validity on incorporation” and that other late 19th century cases—Presser, Miller—had reaffirmed the Court’s decision in Cruikshank that the Second Amendment does not apply to the States. On the other hand, however, the Court appears to reinforce the importance of a reexamination of the incorporation question, going so far as to suggest that a “Fourteenth Amendment inquiry” such as those performed in “later cases” is “required.”

The “later cases” in question, of course, were those through which the Supreme Court found certain rights preserved in the first eight amendments to be “fundamental” and applicable to the states via the Due Process Clause of the Fourteenth Amendment, cases which incorporated as fundamental the right to a jury trial (in criminal cases) preserved by the Sixth Amendment , the Fifth Amendment privilege against self-incrimination, the Sixth Amendment right to confront adverse witnesses, and the First Amendment right to free speech and free religious exercise.

And so the Court, with regard to the question of incorporation of the Second Amendment, deferred to the lower courts. Currently, the circuits are split over whether the right to keep and bear arms should apply to the States. Four major cases are at the center of the split, with the Ninth Circuit in Nordyke v. King holding that the Second Amendment is applicable to the States (though it is currently under review), and the Second Circuit in Maloney v. Cuomo and the Seventh Circuit in Nat’l Rifle Assoc. of Am. Inc. v. City of Chicago and McDonald v. City of Chicago concluding that the Second Amendment only applies to the federal government.

In the Second Circuit, Maloney is in some circles better known as the “nunchaku case,” as it arose from petitioner James Maloney’s arrest for possession and seizure of the weapon, certainly unconventional by New York standards but a veritable staple in Bruce Lee films.

Maloney argued that the arrest and seizure was a violation of the individual right to keep and bear arms guaranteed by the Second Amendment as determined by the Supreme Court in Heller and of the Fourteenth Amendment because such action lacked a rational basis. The respondents argued that the petitioner’s possession of nunchaku violated N.Y. Penal Law § 265.01(1), that the Second Amendment—regardless of the rights conferred within—does not apply to the states, and provided statements from various parties concerning the dangerous nature of the weapon.

On the Second Amendment question, the Second Circuit affirmed the trial court’s decision in favor of the respondents, addressing Heller directly and nonetheless holding that Presser was still good law, and that regardless of the finding in Heller that the Second Amendment preserves an individual right to keep and bear arms, the Second Amendment does not apply to the states. Apart from the control of Presser, the Second Circuit held that the right to keep and bear arms preserved by the Second Amendment is not sufficiently fundamental, stating in its decision on the rational basis question that “[l]egislative acts that do not interfere with fundamental rights or single out suspect classifications carry with them a strong presumption of constitutionality and must be upheld if ‘rationally related to a legitimate state interest.’”

The two cases from the Seventh Circuit Court of Appeals, McDonald and Nat’l Rifle Assoc., are unique among the cases for a two reasons: first, because the pair were filed at the United States District Court for the Northern District of Illinois a day apart from one another as two separate cases, combined upon appeal to the Seventh Circuit, and separately sought certiorari at the Supreme Court; and second, because McDonald not only argues that the Second Amendment is fundamental and should therefore be incorporated against the states through selective incorporation, but that it also challenges and calls for the Court to overturn Slaughter-House, thus rendering the entire selective incorporation process unnecessary and incorporating the Bill of Rights in its entirety through total incorporation.

The Seventh Circuit cases argue that the municipalities of Chicago and Oak Park, the latter a Chicago suburb, have run afoul of the Supreme Court’s decision in Heller. That decision, the petitioners maintain, struck down a gun ban in the District of Columbia which amounted “to a prohibition of an entire class of ‘arms’ that is overwhelmingly chosen by American society for that lawful purpose,” self-defense, and that Oak Park and Chicago have enacted the same sort of ban put in place by the District of Columbia and deemed unconstitutional by the Supreme Court. Furthermore, though Heller struck down a ban that extended such a prohibition to the home of law-abiding residents, “where the need for defense of self, family and property is most acute,” the petitioners argue that the ban in Chicago and Oak Park does the same.

The Seventh Circuit held that Cruikshank, Presser and Miller, “decisions that no one thinks fossilized,” control and have “direct application” in the combined case despite any appearance that they may “rest on reasons rejected in some other line of decisions,” stating that as a mere court of appeals it should follow the Supreme Court decision which directly controls and leave to the Court “the prerogative of overruling its own decisions.” Should any doubts arise regarding the direct application of Cruikshank, Presser and Miller to the case at hand, the court stated, clarification that Cruikshank is reaffirmed and that the Second Amendment applies only to the federal government can be found in Heller, specifically in footnote 23.

In terms of whether or not the Second Amendment could be construed as fundamental by the definitions set forth in Washington and Palko, the Seventh Circuit Court of Appeals made a comparison between the fundamental nature of the right to keep and bear arms secured by the Second Amendment and the right to civil jury trials preserved by the Seventh Amendment, which has not been applied to the States. “’Selective incorporation,’” the court stated, “thus cannot be reduced to a formula.”

Also noteworthy is that the Seventh Circuit addressed the ripeness of the incorporation question in Nat’l Rifle Assoc., stating that “Cruikshank is open to reexamination by the Justices when the time comes,” and warning that “[i]f a court of appeals may strike off on its own, this not only undermines the uniformity of national law but also may compel the Justices to grant certiorari before they thing the question ripe for decision.”

In Nordyke, the Ninth Circuit Court of Appeals indeed did strike off on its own, affirming the incorporation of the Second Amendment against state and local governments under the Fourteenth Amendment. In doing so, the Ninth Circuit panel chose to apply selective incorporation under the Due Process Clause, the same approach that had been rebuffed in Maloney and Nat’l Rifle Assoc., rather than the total incorporation route pursuant to the Fourteenth Amendment’s Privileges or Immunities Clause which had yet to gain traction in McDonald.

Nordyke came about after the Alameda County Board of Supervisors passed an ordinance rendering illegal the possession of firearms—loaded or unloaded—on county property. The petitioners, gun show promoters, filed suit in the United States District Court for the Northern District of California, arguing that the measure would enjoin any presentation of firearms at shows held on fairgrounds in the county, thus violating their Second Amendment right to keep and bear arms, First Amendment right to free speech, and Fourteenth Amendment right to due process.

On the First Amendment issue, the three-judge panel held that the ordinance did not sufficiently burden the “expressive conduct of gun possession,” and even if it did, the reduction of gun violence in such public areas provided reasonable basis enough to justify a legislative measure not intended to chill free speech. The county, the court held, could indeed prohibit guns from the fairgrounds and public areas in question.

With regard to the Second and Fourteenth Amendments, however, the court held that the former does in fact apply to the States (though it seems to be under review). In doing so, the court distinguished its own 1992 decision, Fresno Rifle & Pistol Club Inc. v. Van de Kamp, in which it held that “the Second Amendment constrains not only the actions of Congress, not the states” by noting that Fresno followed Cruikshank and Presser which, according to the court, “involved direct application and incorporation through the Privileges or Immunities Clause, but not [selective] incorporation through the Due Process Clause.” In a footnote, the court explained further:

Because, as Heller itself points out, Cruikshank and Presser did not discuss selective incorporation through the Due Process Clause, there is no Supreme Court precedent directly on point that bars us from heeding Heller’s suggestions.

In determining whether the right to keep and bear arms was fundamental and, according to the standard set forth in Duncan, “necessary to an Anglo-American regime of ordered liberty,” the circuit court in Nordyke cited the importance of arms to the colonists at the time of the American Revolution and at the time of the ratification of the Fourteenth Amendment, noting also that 44 state constitutions include a provision preserving, in some form, a right to keep and bear arms. To the colonists at the time of the Revolution, the court stated, “the importance of the right to bear arms” was nothing short of “the lived experience of the age,” Moreover, the court held, “whereas the Supreme Court has previously incorporated rights the colonists fought for, we have here both a right they fought for and the right that allowed them to fight.”

To Incorporate or Not to Incorporate?

There are several possible obstacles to the potential incorporation of the right to keep and bear arms secured by the Second Amendment. The first such obstacle is textual. The 1833 decision by the Supreme Court in Barron, for example, can be interpreted so as to suggest that the first eight amendments provided no such “privilege” or “immunities” to United States citizens, and for that reason the federal government simply does not have the power to apply the Bill of Rights against the States. Given the nature of the public discourse and congressional debate during the time of the framing of the Fourteenth Amendment, however, this construal of Barron could be reasonably cast aside as a minority view.

Another obstacle to incorporation would be concerns over federalism. In Nat’l Rifle Assoc., the Seventh Circuit panel noted that “[o]ne function of the Second Amendment is to prevent the national government from interfering with state militias” and that incorporating the Second Amendment could burden the states with federal input and interference with regard to the management of an effective militia. Once again, however, the importance of Heller emerges, as the Court explicitly maintained that the founders intentionally confronted concerns about federal influence over state militias in “separate structural provisions” of the Constitution which provided the States with “concurrent and seemingly nonpre-emptible authority to organize, discipline and arm” militias, and not in the text of the Second Amendment, which protected “only individuals’ liberty to keep and carry arms.”

Finally, there is the argument featured as the cornerstone of the decisions rendered by the Second and Seventh Circuit Courts of Appeal in Maloney and Nat’l Rifle Assoc.—opinions notably penned by judges from both sides of the political spectrum, Judges Easterbrook and Posner in the Seventh Circuit, and new Associate Justice Sonia Sotomayor, formerly of the Second—that, despite the years which have passed, the line of authorities anchored by Cruikshank, Presser and Miller still control, and that the right to keep and bear arms preserved by the Second Amendment is applicable only to the federal government.

Even in those opinions, however, the Second and Seventh Circuits left the issue open for the Supreme Court to decide, expressly stating that it is up to the Court to overturn its own precedent. Furthermore, since Cruikshank, Presser and Miller were all decided before the emergence of the doctrine of selective incorporation, in many ways the inquiry of whether or not the Second Amendment should be incorporated will be one of first impression for the Supreme Court, and will turn on whether the right preserved by that amendment is considered “fundamental.”

Considering the definitions provided by the court in Palko, Duncan and Washington, the right to keep and bear arms was indeed considered fundamental, both at the time the Fourteenth Amendment was adopted and at the time of the founding of our nation. Should the Supreme Court have an opportunity to do so, for those reasons the Court will likely vote to incorporate the Second Amendment against the States.

In the wake of the Civil War, the very time when the Fourteenth Amendment was being drafted, there was significant concern over reports that recently freed black slaves and Union loyalists alike were being forcibly disarmed all across the post-War southern states, and many elected officials in Washington, D.C. advocated the adoption of the Amendment so such people could have the benefit of the right to keep and bear arms. Indeed, the record of the debate held by the 39th Congress over the Fourteenth Amendment is a veritable wealth of information as to just how fundamental the right preserved by the Second Amendment was perceived to be at the time.

Kansas Congressman Sidney Clarke, for example, recited the operative clause of the Second Amendment and then insisted that it apply to the states: “I find in the Constitution … an article which declares that ‘the right of the people to keep and bear arms shall not be infringed.’ For myself, I shall insist that the reconstructed rebels of Mississippi respect the Constitution in their local laws.” Massachusetts Sen. Charles Sumner noted that “[freed black slaves] also ask that they should have the constitutional protection in keeping arms, in holding public assemblies, and in complete liberty of speech and of the press.” Sen. Samuel Pomeroy of Kansas considered it “indispensable” that every man enjoy “the right to bear arms for the defense of himself and family and his homestead.” Rep. James Nye of Nevada went so far as to argue that the Fourteenth Amendment was unnecessary, as freed black slaves were citizens of the United States and therefore already have “equal right to protection, and to keep and bear arms for self-defense.”

The Supreme Court, in Heller, addressed such reports and incidents, describing the congressional deliberations surrounding the Fourteenth Amendment as “an outpouring of discussion of the Second Amendment in Congress and in public discourse” and a debate over “whether and how to secure constitutional rights for newly freed slaves.” At the end of the day, the Court stated, “[t]he understanding that the Second Amendment gave freed blacks the right to keep and bear arms was reflected in congressional discussion of the bill, with even an opponent of it saying that the founding generation ‘were for every man bearing his arms about him and keeping them in his house, his castle, for his own defense.’” It was precisely this debate which led the Court, in Heller, to determine that “[i]t was plainly the understanding in the post-Civil War Congress that the Second Amendment protected an individual right to use arms for self-defense.”

Above and beyond anything else, perhaps it is the words of another of the Amendment’s framers that is the most telling as to whether the Second Amendment was viewed to be applicable to the states. In 1886, during the first session of the 39th Congress, it was Sen. Jacob Howard of Michigan who unveiled and introduced on the Senate floor what would eventually develop into the adopted Fourteenth Amendment to the United States Constitution. In an attempt to convey the nature of the amendment’s Privileges or Immunities Clause to his Senate colleagues, Howard lamented the difficulty inherent in trying to identify and “solve” the privileges and immunities of citizens in each of the states.

To these privileges and immunities, whatever they may be—for they are not and cannot fully be defined in their entire extent and precise nature—to these should be added the personal rights guaranteed and secured by the first eight amendments to the Constitution; such as the freedom of speech and of the press, the right of the people peaceably to assemble and petition the Government for redress of grievances, a right appertaining to each and all of the people, the right to keep and bear arms; the right to be exempted from the quartering of soldiers in a house without the consent of the owner; the right to be exempt from unreasonable searches and seizures, and from any search or seizure except by virtue of a warrant issued upon a formal oath or affidavit; the right of an accused person to be informed of the nature of the accusation against him, and his right to be tried by an impartial jury of the vicinage; and also the right to be secure against excessive bail and against cruel and unusual punishment.

Sen. Howard’s statements during the very introduction of the Fourteenth Amendment was not the first occasion when the right to keep and bear arms preserved by the Second Amendment was compared with the right to freedoms of speech, of worship and of the press guaranteed by the First Amendment, nor would it be the last.

Indeed, in several instances, the Court in Heller made the same sort of comparison, acknowledging that the right preserved by the Second Amendment joins those preserved by the First and Fourth Amendments in that it predates the Constitution, by stating that “[i]t has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right,” and it was the very nature of the decision in that case which made it possible to draw upon such comparisons.

Because the Second Amendment has been determined, in Heller, to protect and preserve an individual right to keep and bear arms, that individual right could therefore be compared with the freedom of speech and press inured to the people in the First Amendment, those being “among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States.”

Long before Heller, or even the Reconstruction-era debates for that matter, Samuel Adams addressed the U.S. Constitution ratification convention in Massachusetts in 1788, and equated the right to possess arms with the right to a free press, stating that “[t]he said Constitution [shall] be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms.”

In those times, during the precarious initial days of our fledgling nation, most of Adams’ contemporaries viewed the right to bear arms as a fundamental right, a perspective which lines up with the “deeply rooted in our nation’s history and traditions” definition of “fundamental” proffered in Duncan. In his book, A Defence of the Constitutions of Government of the United States of America, which had a profound impact upon the Constitutional Convention in his absence during the pivotal summer of 1787, John Adams wrote that “[a]rms in the hands of individual citizens may be used at individual discretion . . . in private self-defence.” James Madison pointed out that the governments of Europe were “afraid to trust the people with arms.” If they did, Madison said, “the people would surely shake off the yoke of tyranny, as America did.”

Even the typically stoic and reserved George Washington was outspoken with regard to the idea of the right to keep and bear arms as being fundamental, noting in a speech to Congress on January 7, 1790, that “[f]irearms stand next in importance to the Constitution itself.” He described them as “the American people’s liberty teeth and keystone under independence,” and argued that “[f]rom the hour the Pilgrims landed, to the present day, events, occurrences, and tendencies prove that to ensure peace, security and happiness, the rifle and pistol are equally indispensable . . . the very atmosphere of firearms everywhere restrains evil interference — they deserve a place of honor with all that’s good.” As federalists like Alexander Hamilton pushed more and more for a strong and influential centralized federal government, and as the topic of gun registration arose, Washington would have nothing of it. “Absolutely not,” he said. “If the people are armed and the federalists do not know where the arms are, there can never be an oppressive government.”

To our founders, the right to keep and bear arms was indeed fundamental, regardless of the modern definition. Implicit in the concept of ordered liberty? Jefferson wrote that “no freeman shall be debarred the use of arms.” Neither liberty nor justice would exist if [it] were sacrificed? Madison wrote that an armed populace “forms a barrier against the enterprises of ambition,” a sentiment akin to Jefferson’s own, that “[t]he strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in Government.”

To the founders of this nation and the framers of its Constitution, the right to keep and bear arms was indeed implicit in the concept of ordered liberty. In their opinion, neither liberty nor justice would exist if that right were sacrificed. And, most certainly since the very first shots of the American Revolution were fired at Lexington and Concord by individually-owned muskets, the individual right preserved by the Second Amendment has proven itself to be deeply rooted in our nation’s history and traditions. For those reasons, the Second Amendment should be incorporated, and the right to keep and bear arms applied to the States.



  1. Gail B says:

    Cralfap! We have a legal lesson, and my eyelids are too heavy to read it tonight!

    Jeff, I don't want to skim over it, think I've got it, and go off half-cocked with bad ammunition (puns intended). So, I'll get on it in the a.m. with fresh coffee.


  2. Bodenzee says:

    Clear, and unambiguous.

    Article I. Declaration of Rights.

    Section 16. To keep and bear arms.

    Every citizen has a right to
    keep and bear arms and this right shall never be questioned.

  3. 9 TURTLES says:

    How can a court too lazy to tackle Article 2 Section 1 Clause 5 tackle an equally easy to determine Amendment in the BILL OF RIGHTS ???


    26. Weapons; right to bear arms

    That the citizens of this State have a right to keep and to bear arms for their common defense; but the Legislature shall have power, by law, to regulate the wearing of arms with a view to prevent crime.


    [Art.] 2-a. [The Bearing of Arms.] All persons have the right to keep and bear arms in defense of themselves, their families, their property and the state.


    SECTION 8. Right to bear arms.–

    (a) The right of the people to keep and bear arms in defense of themselves and of the lawful authority of the state shall not be infringed, except that the manner of bearing arms may be regulated by law.

    (b) There shall be a mandatory period of three days, excluding weekends and legal holidays, between the purchase and delivery at retail of any handgun. For the purposes of this section, "purchase" means the transfer of money or other valuable consideration to the retailer, and "handgun" means a firearm capable of being carried and used by one hand, such as a pistol or revolver. Holders of a concealed weapon permit as prescribed in Florida law shall not be subject to the provisions of this paragraph.

    (c) The legislature shall enact legislation implementing subsection (b) of this section, effective no later than December 31, 1991, which shall provide that anyone violating the provisions of subsection (b) shall be guilty of a felony.

    (d) This restriction shall not apply to a trade in of another handgun.

  7. Anonymous says:

    No problem predicting 1 new Justice who will vote against our rights.


    You just HAVE to LOVE New Hampshire. Live FREE or DIE.

    Article 10. Right of Revolution
    New Hampshire is the only state besides Kentucky and Maryland which provides for a "Right of Revolution" in its state constitution. The Right of Revolution is a right dating back to the Revolutionary War, and is held in high regard in New Hampshire by members of the libertarian Free State Project.

    Part I., Article 10 reads:
    Government being instituted for the common benefit, protection, and security, of the whole community, and not for the private interest or emolument of any one man, family, or class of men; therefore, whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought to reform the old, or establish a new government. The doctrine of nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind.

  9. Gail B says:

    Off topic but URGENT:

    From Herman Cain (Conservative radio talk show host in Atlanta):

    A Bipartisan bill (H. Res. 554) that would require major legislation to be posted on the web for public review for 72 hours before coming to a vote on the floor of the House of Representatives IS STALLED.. Unless Members of Congress from both parties hear from their constituents that they want it passed, it is likely that Speaker Nancy Pelosi will have her way and the bill will be buried.
    Please CALL your U.S. HOUSE REPRESENTATIVE and ask that he or she sign the Discharge Petition in favor of passing a mandatory 72-hour reading period for all non-emergency legislation.

    The 72 hour reading period mandate could have prevented several votes that, like a thief in the night, were hastily rushed through congress:

    · The massive $787 billion stimulus billed passed in February which appeared at midnight one night, giving members just 12 hours to read it before a final vote.

    · The $1870 per household global warming tax bill which came to the floor just 16 hours after a 316 page amendment was introduced.

    · The huge prescription drug entitlement bill that was jammed through late one night in 2003 when most members had not had a chance to read it.

    Currently, the discharge petition has 178 signatures but it needs 218 in order to override Pelosi's objections and be forced to the floor for a vote.

    Please call your U.S. House Representative ASAP.

    The phone number of the U.S. Capitol switchboard is 202-224-3121.

    The toll-free number is 866-220-0044.

    Our calls have made a difference in the past and they will make a difference again.

    (Feel free to spread this message)

    Thanks, Jeff.

  10. Gail B says:

    Well stated! Jeff, you should be a lawyer! (The fact that you're in law school got lost in the recesses of my brain while I was reading your brilliant observations.)

    But then, there's no telling what the SCOTUS will decide, particularly since they are probably complicit with the Obama/Soetoro regime.

    If our guns are taken away, we're really screwed! Buckshot is getting age on him.

  11. Anonymous says:

    This just may be the best explanation of the 2A incorporation issue I've read to date. I've shared it with others and really think it will help enlighten some people. That took some time to write and I'm grateful for it. Thank you.

  12. JEFF SCHREIBER says:

    No, thank you.

    I put a bit of work into this one. Just please make sure that you point people to the specific piece and not just AR in general — while I'll be including this in the list of essentials on the right side, and while I intentionally left it at the top of the site for a while today, it won't be up there for long.

    Here's the link:

  13. JEFF SCHREIBER says:

    Oh, yeah … I have a copy with full legal citations, if anybody wants it. I just figured I'd save everyone from the alphabet soup between nearly every sentence.

    – Jeff

  14. Gail B says:

    And, in addition to the gun control issue, let's just add that we are tired of being told when and where we may pray.

    The Constitution provides for freedom of religion, not freedom FROM religion.

    If the Muslims can do their religious thing on The Hill, why can't we pray in schools as we used to? (Because the leftists want to tear down morals.)

  15. Rix says:

    The Constitution of New Jersey makes no mention of any right to bear arms. My, what a craphole I chose to live in. :(

  16. Uncle Rick says:

    Jeff et al, please excuse the ravings of a person who is not a lawyer.

    I think it is silly to go round and round about total incorporation, selective incorporation, etc. The notion of 'collective rights' is especially absurd.

    The fact that all people have the same rights, even in the absence of a state, is universally recognized among all but those committed to restrictive ideologies, and it is easily proven. It is equally easily shown that rights pertain to individuals, not groups, since groups are composed of individuals who bring to the group only what they have, and they all have the same thing with respect to their rights.

    The principal — indeed only real — purpose of the state is to defend ("secure" in the Declaration of Independence) our rights — the rights we already have. These rights are restricted only in that no person may harm or threaten to harm another or another's property, or create or maintain a hazard or a nuissance.

    Once these simple ideas are understood, all the weird mental contortions necessary to get a grip on incorporation and 'collective' vs 'individual' rights disappear, and the solution is farily obvious. It also does away with the necessity of trying to figure out which specific rights are 'fundamental': they're all fundamental. And it doesn't take a genius to figure it out.

  17. Roses,WA says:

    Jeff, not to worry, while your treatise on the subject is very academic, the conclusion is exactly what I would hope, and expect to see.
    The right to keep and bear arms should be applied to the states whether they have it in their constitution specifically, or not.

    Now if you could just get these "gun free zones" eliminated with a supreme court case… the world would be a safer place.
    Thanks for the hard work!!

  18. Rix says:

    Jeff, your analysis was quoted (and praised) in "The Right Side of Life". A praise well deserved, I say.

  19. Anonymous says:


    You need to move to FL. After I moved here, I purchased a hand gun, got a concealed weapons permit…. and I was able to do it in less than 3 weeks. The great thing is, if I am threatened (and fear for my safety) or someboby tries to rob me, I can use deadly force. I love it here.

    By the way, I am a gun toting and gun loving liberal.


  20. Bill says:


    An excellent article that I will share with many.

    I have always found it interesting for those that argue the "Bill of Rights" only applies to the Federal Government.

    What is the point if states and local Governments would be allowed to suppress rights where the Feds can't? Just seems logical that it needs to apply and was meant to apply across the board.


  21. Anonymous says:

    just for arguments sake…

    If the 2nd should be incorporated.

    I could open carry or conceal carry [properly licensed in any state w/reciprocity], under any of the following conditions:

    1-any public land, such as; public schools, courts, police stations, law enforcement centers, state county or city lands/parks, etc…

    2-any private land per missed?

    3-federal land?

    4-national forests?

    BANG@!! BANG! BANG!!!!

  22. Vibe says:

    Had SCOTUS decided Miranda before Miller, all of this would be a non-issue and well settled law. Becasue Miller would then have had to have been represented, the "missing" required evidence would have been produced (since it was, and is, quite abundant) – The NFA '34 would have been severely damaged by being exposed for the infringement that it was, possibly leading to it's complete repeal and much of the GCA '68 would have been forestalled.

  23. Kevin Wieler says:

    It’s easy to see you’re a Law Student, after reading this dissertation on incorporating rights. I’ll bet you have a pretty good GPA, also. Merry Christmas and keep up the good work.

  24. dallasdan says:

    An excellent dissertation based upon sound research, such as you have provided, is no match for the social engineering model embraced by liberal justices. I am not an attorney, but I see this as a 5-4 decision, with the outcome depending on a coin-flip.

  25. Rick M. says:

    I will not adhere to the law/decision of the Supreme Court unless they do not change one single word of the Constituiton and my right to keep and bear Arms! I know Jeff that you are a lawyer or are going to be. Please do not take this personally. I have some training in the paralegal feild and in law enforcement. Our forefathers wrote the constitution with the average education level of that time. They wrote it in a way that someone with an ability to read and write could understand. I think its a travesty that because we have lawyers who know how to twist and turn the english language that they through the courts try and change the meaning of what was written. I get very incensed about this and is one reason that I beleive alot of people do not trust lawyers. There is no I repeat no excuse why the 2ond amendment should be changed through the courts. If this is the case then I want to see the 1st amendment changed as well! I think politicians should have a “truth in language” type law sorta like a “truth in lending law”. Anyways, with this off my chest I wish you all a Merry Christmas…

  26. Thank you so much, there aren’t enough posts on this… or at least i cant find them. I am turning into such a blog nut, I just cant get enough and this is such an important topic… i’ll be sure to write something about your site

  27. Congress Works For Us says:

    Jeff – Great article and explanation.

    Unfortunately, it is the perfect example of where things have gone wrong in this country.

    The 10th Amendment clearly states that the powers not granted to the feds in the constitution are reserved to the states and the people.

    The 2nd Amendment clearly states that the people’s right to keep and bear arms shall not be infringed.

    Therefore the feds are responsible for making sure the people can keep guns.

    Therefore the States CAN NOT interfere.

    Good God, why oh why must we make things so damned complicated!?!?

  28. Joe says:

    There is one Amendment (not mentioned) which does expressly give states, and other subordinate governments within the USA, regulatory powers over something enumerated in the Constitution: Amendment 21, Section 2. Logic would demand that since the 2nd does not include this power in enumerating a basic right, as do none of the others (1-7), that the states cannot regulate it. In addition, if the 2nd does not apply to the states, but instead only to the federal government, to whom would it even apply and how could this fundamental right be singled out for exclusion while the other 7 are enshrined as bastions of our freedom? A major difference is in Amendment 1, which only states that “Congress shall make no law . . .”, but does not prevent states from doing so, as the omission from the 1st and inclusion in the 10th should clarify.

    Why is it that such a simple document, written to protect the rights of many, can be twisted into something so complex by so few? Each word has a meaning and the history behind the writing and adoption of the Constitution is well-documented and should be understandable by anyone with a fifth-grade education.

    “It will be of little avail to the people that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man who knows what the law is today can guess what it will be to-morrow.” –Federalist No. 62

  29. Nancy Maas says:

    I called my Congressman about the Discharge Petition and got straight through on the toll free line. More people should be calling. Plus, I know I am no genius on constitutional law and I sure wish there had been a summary at the end of the disertation regarding the Second Amendment.

  30. Long time viewer / first time poster. Really enjoy reading the blog, keep up the good work. Will most definitely start posting more oftenin the future.


  1. [...] of McDonald and of the incorporation of the Second Amendment in the aftermath of Heller, check out the piece I put together last year, now in A.R. [...]

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