Will The Second Amendment Be Found Applicable To The States?

by Pejman Yousefzadeh on March 2, 2010

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Will the Second Amendment be found applicable to the states? As the Magic 8-Ball would put it, “All signs point to ‘Yes’”:

Most of the Supreme Court justices who two years ago said the 2nd Amendment protects individual gun rights signaled during arguments Tuesday that they are ready to extend this right nationwide and to use it to strike down some state and local gun regulations.

Since 1982, Chicago has outlawed handguns in the city, even for law-abiding residents who sought to keep one at home. That ordinance was challenged by several city residents who said it violated their right “to keep and bear arms” under the 2nd Amendment.

The case forced the high court to confront a simple question it had never answered: Did the 2nd Amendment limit only the federal government’s ability to regulate guns and state militias, or did it also give citizens a right to challenge state and local restrictions on guns?

All signs Tuesday were that five justices saw the right to “bear arms” as national in scope and not limited to laws passed in Washington.

This stance makes sense; it is ridiculous to think that all of the other parts of the Bill of Rights extend liberties to Americans, while only the Second Amendment restricts those liberties.

Some might think that the Supreme Court’s decision in United States v. Miller says otherwise. The decision in Miller has been taken by some legal observers to favor only a collective right to bear arms, as opposed to the recognition of an individual right sought by Second Amendment activists. However, this view is likely mistaken. In Miller, the Supreme Court merely states that “[I]n the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.”

The Court’s discussion clearly centered on whether a particular shotgun with specific dimensions (a sawed-off shotgun) had a relationship to the preservation of a well-regulated militia, with the answer being no. This is an exceedingly narrow ruling, and did not constitute a declaration by the Court that the Second Amendment did not convey upon the citizenry an individual right to bear arms. Put another way, Miller merely addressed whether the Second Amendment guaranteed the possession of a specific shotgun. It did not address whether the Second Amendment grants an individual or a collective right to bear arms.

A search for more conclusive language regarding the Second Amendment’s extension of an individual right to bear arms requires only a look at recent court rulings. Of course, there was the Supreme Court’s ruling in D.C. v. Heller, which appears to trend towards the Court eventually finding that the Second Amendment is incorporated against the states. But even before the Heller ruling, we have had inklings that the Court would reject the view that the Second Amendment is an especially restricted right. For example, the Fifth Circuit Court of Appeals’ decision in United States v. Emerson. Agreeing that Miller did not resolve the issue of whether the Second Amendment grants an individual or a collective right, the Emerson court took up the matter itself. It found that the Second Amendment “protects the rights of individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms.” While the Emerson court hastened to add that the right is not absolute, the fact is that no right guaranteed anywhere in the Constitution is absolute.

Some might argue that the specific language of the Second Amendment militates against an individual right to bear arms. The Second Amendment reads as follows: “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.” Opponents of individual rights focus on the prefatory language, “a well regulated Militia being necessary to the security of a free State,” and argue that the Second Amendment was only meant to arm militias. The Framers, this argument goes, limited the scope of the Second Amendment by use of the prefatory language, which they did not do elsewhere in the Bill of Rights.

However, Second Amendment authority Eugene Volokh has pointed out that this argument has little merit. Prefatory language is much more common in the construction of constitutional text than individual rights critics like to claim. For example, the state constitutions for both Rhode Island and New Hampshire use prefatory language in reference to free press and criminal trials, respectively. Rhode Island’s constitution reads, “[t]he liberty of the press being essential to the security of freedom in a state, any person may publish his sentiments on any subject, being responsible for an abuse of that liberty.”

Would the same Second Amendment critics want their prefatory language argument used to restrict speech or impair the right to a fair trial?

Obviously, no one can predict for certain what the Supreme Court will do in the Second Amendment case currently before it. But as mentioned above, the trendlines have favored a ruling that the Second Amendment is an individual right, which is incorporated against the states. And there is plenty of scholarship and legal reasoning justifying those trendlines too.

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