By Jonathon Blevins,
Legal Satyricon Second Amendment Correspondent
As first reported here and here, the Second Amendment does not act (currently) as a restriction on the states’ power to regulate the right to keep and bear arms. The Heller decision simply laid the foundation for the eventual incorporation of the Second Amendment via the Fourteenth Amendment. Thus, unless you live in D.C. or are currently under Federal jurisdiction, Heller is not a shield from government intrusion.
A current illustration of the lack of protection comes from the United States Court of Appeals for the Eighth Circuit. See FN 2. The case demonstrates that while the right to keep and bear arms is an individual right, it is not a restraint on the individual states. For an analysis on the available constitutional restrictions please see post. However, this post will exclusively concern the incorporation doctrine as it applies, or should apply to the Second Amendment.
Post Heller, the Court still faces an obstacle based on the doctrine of incorporation. See Presser v. Illinois, 116 U.S. 252 (1886) (holding that the Second Amendment is only a restriction of federal power.). The Second Amendment is not unique by not being incorporated via the Fourteenth Amendment. The Third Amendment, the Fifth Amendment right to an indictment by a grand jury, the Seventh Amendment right to a jury trial in civil lawsuits, and the Sixth Amendment’s implicit command that a criminal jury can consist only of twelve members and must reach a unanimous verdict in order to convict of the Fifth and Seventh Amendments have not been deemed applicable to the states. So based on foundational constitutional law principles, the Court found an individual right that is only restrictive of the federal government. However, the Court did not take the opportunity to incorporate the Second Amendment. The only obstacles to the Supreme Court are discredited cases. Two Supreme Court cases, while dated, provide an obstacle to the Court’s determination of an incorporated individual right. The Court decided United States v. Cruikshank, 92 U.S. 542 (1876) and Presser v. Illinois, 116 U.S. 252 (1886) pursuant to Barron v. Baltimore, 32 U.S. 243 (1833), both concluding that the Second Amendment does not provide a restriction on the states’ ability to restrict the individual’s ability to keep and bear arms. The now rejected Barron held that the Bill of Rights did not apply to the states.
The first case to decide the incorporation issue regarding the Second Amendment was United States v. Cruikshank. The case involved criminal defendants convicted of violating the Enforcement Act of 1870. The defendants faced sixteen counts stemming from the Colfax Massacre in Colfax, Louisiana. The Massacre involved an armed mob of whites who killed nearly one-hundred blacks in Colfax. The Court faced a range of issues regarding the criminal indictments. Ultimately the Court held,
The First Amendment], like the other amendments proposed and adopted at the same time, was not intended to limit the powers of the State governments in respect to their own citizens, but to operate upon the National government alone.
Thus, the Court did not incorporate the Fourteenth Amendment to the states. The Court found that the Bill of Rights were restrictions on the federal government only. The Court found that the Fourteenth Amendment did not restrict the actions of individuals. The individual states were left with the ability to regulate within its borders. Pursuant to the dismissal of the incorporation question the Court held that the Second Amendment was not an individual right. The Court held,
“The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government….”
Thus, the Court held that the individual is not conferred any right by the Second Amendment. The only protections afforded to the individual are a matter of state laws and regulations. While Cruikshank was decided prior to the Supreme Court’s endorsement of the selective incorporation doctrine, the case has never been overruled.
The often sighted companion case to Cruikshank is Presser v. Illinois. The case involved the violation of the Military Code in the State of Illinois. The applicable sections of the Code restricted the ability of the individual to organize or march as a military company without a license from the governor. Violations of the Code involved possible imprisonment or a fine, not to exceed ten dollars. Presser was indicted for parading and marching at the head of nearly four hundred participants, all armed with rifles. Presser appealed the decision of the trial court. Presser argued that the Illinois statute was violative of the Second Amendment and that the Code infringed first section of the fourteenth amendment to the constitution of the United States. Regarding the Second Amendment issue, the Court held,
a conclusive answer to the contention that [the second] amendment prohibits the legislation in question lies in the fact that the amendment is a limitation only upon the power of congress and the national government, and not upon that of the state.
The Court affirmed its decision in Cruikshank find that the Second Amendment is not a restriction on the states. The only restriction on the states in reference to the Second Amendment is found in the Militia Clause of Article I Section 8 Clauses 15 – 16 of the United States Constitution. The Clauses confer the ability to call forth the Militia and to allow for organizing and arming the Militia, respectively. Thus, the states are restricted from eliminating the ability to keep and bear arms so as to eviscerate Congress’ ability to exercise its enumerated powers. However, this does not provide an individual right to the citizens of the states. The Court further held that the privileges and immunities clause of the Fourteenth Amendment was not infringed based on the Military Code of Illinois. The Court found that Presser could not bring a claim pursuant to the privileges and immunities clause of the Fourteenth Amendment because he did not demonstrate that he was a member of a state militia. Again, the Court held that the states are not bound by the Fourteenth Amendment so long as the states do not restrict the privileges and immunities of individuals as citizens of the United States. The Court held strong to the separation of powers and ideals of federalism in the pre-incorporation cases.
Cruikshank and Presser maintain value in precedent. However, the cases have been discredited and appear to be dated holdings. The Court should be forced to overrule the respective holdings. While the Court is usually reluctant to overrule its own precedent, the basis of the pre-incorporation cases is now rejected. The Court should take the opportunity post – Heller to incorporate the Second Amendment via the Fourteenth Amendment and provide protection against state infringement of the right to keep and bear arms. “The Bill of Rights was almost entirely a declaration of individual rights, and the Second Amendment’s inclusion therein strongly indicates that it, too, was intended to protect individual liberty.” Most of the provisions of the Bill of Rights have been incorporated via the Fourteenth Amendment. The incorporation of the Second Amendment would provide the states with a recognizable standard regarding the restriction on the right to keep and bear arms. The modern test for selective incorporation is based on Duncan v. Louisiana, 391 U.S. 145 (1968). The Second Amendment substantiates the test as being a fundamental right found at the baseline of our civil and political institutions. The states should be restricted in its regulatory schemes regarding the right to keep and bear arms.
The Second Amendment will be incorporated to the states…eventually. The Supreme Court will be unable to deny the obvious next step. No other individual right is unincorporated. Thus, it is only a matter of time. However, until then, D.C. will be the only protected land in the union. Maybe they will rethink “taxation without representation” in light of an armed populace.