This week the U.S. Supreme Court refused to hear appellate court decisions upholding Maryland’s ban on semi-automatic rifles, such as the AR-15 and AK-47 and Rhode Island’s ban on large-capacity magazines. Second Amendment cases are a perfect litmus test for determining whether we want to abide by our written constitution or the one the U.S. Supreme Court writes for us. It is time to start a constitutional “arms war” over the Second Amendment.
The language of the Second Amendment is simple: "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.” But its application to the states is not simple.
The Second Amendment Did Not Apply to the States
Laying aside how its words and phrases should be interpreted, the first point to consider is that the Bill of Rights, when adopted, did not apply to the states. It placed restrictions only on the authority of the federal government. By its adoption, the states were protecting their jurisdictional authority over intrastate matters of a domestic nature.
The Court explained this in Barron v. Baltimore (1833) by applying the following rationale:
“Had congress engaged in the extraordinary occupation of improving the constitutions of the several states by affording the people additional protection from the exercise of power by their own governments in matters which concerned themselves alone, they would have declared this purpose in plain and intelligible language.”
The right to keep and bear arms was a domestic issue under the jurisdictional authority of each state.
Why the Second Amendment Now Restricts State Authority
As I wrote in my book, Recovering the Constitution—Using the Ninth Amendment to Restore Civil Liberty, “There is no doubt the Fourteenth Amendment made shifts in the relationship between the federal government and the states.” But the question that the Court has refused to tackle since a decision in 1873 is the scope of that shift.
The shift we now live under is based on a “doctrine” made up by the Court. It is called called substantive due process. Due process, by its terms, addresses process or procedure, but the Court decided to infuse the phrase with a substantive meaning tied to things like “ordered liberty,” whatever that means. It has been used to expand the nature of the federal judicial power and hold unconstitutional state laws five or more unelected justices on the Supreme Court don’t like.
For 75 years or so, the Supreme Court has effectively been amending state constitutions through substantive due process. Through this expansion of federal judicial power, the Court applied the Second Amendment’s limitation on the federal government to the states, amending state constitutions on the subject.
Conservatives liked that, but not so much when the same doctrine imposed on state constitutions abortion rights and a homosexual understanding of the marital relationship.
How One State’s Constitution Treated Gun Rights Post Fourteenth Amendment.
Tennessee’s current Constitution, adopted in 1870 following ratification of the Fourteenth Amendment (1868) says, “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.” (emphasis supplied).
Laying aside the import of the words “for their common defense,” Tennesseans thought its elected representatives should be able to regulate the “wearing of arms.” Notice it is an authority, not a command to regulate. But the authority is limited to what the legislature thinks would “prevent crime.”
Tennessee gun rights organizations and Second Amendment enthusiasts hate it when I ask them to explain the relationship between the text and the history of the Fourteenth Amendment and this provision in Tennessee’s Constitution. My point in asking is to help those willing to see that we like the expansive powers of Supreme Court justices, but only when they amend our state constitutions in a way we like.
What Is the Constitutional Solution?
Because we are a nation of dual sovereigns, I believe the Court should apply the analysis employed in Barron to the next gun rights case by asking this question: What rights did the Fourteenth Amendment effectively add to that state’s constitution to protect its citizens from their state government encroaching on the common law right to keep and bear arms?
I believe that the long history behind this common law right carried into the United States from England and recognized as one the federal government should not infringe makes it one of the privileges and immunities belonging to United States Citizens. Thus, that right is protected against state infringement by the following text in the Fourteenth Amendment: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” No made up judicial “doctrine” is needed.
Next, the Court should interpret that right and the kind of arms protected by the Privileges and Immunities Clause (“P&I Clause”) according to their historical common law meaning at the time the Second Amendment was adopted. It should then determine whether that common law understanding had changed by the time the Fourteenth Amendment was ratified.
Does the P&I Clause Make State Constitutions Irrelevant?
The answer is no. Having completed the preceding tasks, the Court should consider the extent to which that right meshes with whatever right relative to arms is found in a state’s Constitution.
The test for deciding how federal and state constitutions relate to each other was offered by Justice Joseph Story in his Commentaries on the Constitution of the United States: Is the authority asserted by a state “absolutely and totally contradictory and repugnant” to an authority given the federal government?
For example, assume Tennessee enacts a law that forbids wearing concealed handguns without a permit. The Court would have to decide if the state’s legislative power to regulate the “wearing” of those arms as a crime prevention measure is “absolutely and totally contradictory and repugnant” to the authority of the Congress to prevent state laws that infringe a right to “keep” arms under the P&I Clause. That authority is found in Section 5 of the Fourteenth Amendment: “The Congress [not the judicial branch] shall have power to enforce, by appropriate legislation, the provisions of this article.”
What Should Be the Final Answer?
Personally, I think keeping and wearing arms are two different issues, and the Tennessee concealed weapon law would be constitutional. But the P&I Clause allows a person to own 100 AR-15s if he or she likes.
This concession to Tennessee’s Constitution doesn’t mean I have to like my state’s law. I could engage with fellow citizens for its repeal. It does mean I am willing to abide by the form of government established by our two written constitutions.
It also means I would rather live under federal and state constitutions adopted by the states and the people, respectively, and by the laws enacted by legislative bodies than under amendments to state constitutions made by as few as five unelected and unaccountable Supreme Court justices by application of a made-up “doctrine” nowhere in the U.S. Constitution’s text.
What about you? Do you prefer the written constitutions we adopt or the ones written by essays (opinions) penned by U.S. Supreme Court justices?
