Restoring the Second Amendment

Why state and local governments should respect the right to bear arms

Damon W. Root | October 7, 2008

For nearly 10 years, the case of Nordyke v. King has been winding its way through the California courts. At issue is a 1999 Alameda County ordinance banning the possession of firearms on county-owned property, a law enacted primarily to keep gun shows out of the county fairground. To date, the case has been heard by the district court, the California Supreme Court, and the U.S. Court of Appeals for the Ninth Circuit, where gun show promoters Russell and Sallie Nordyke have so far proven unsuccessful in their fight to overturn the law.

But that was before District of Columbia v. Heller (2008), the U.S. Supreme Court's landmark decision holding that the Second Amendment protects an individual right—not a collective one—to keep and bear arms. As Justice Antonin Scalia wrote for the majority, the Second Amendment protects the right "to use arms for the core lawful purpose of self-defense." One question Heller did not answer, however, is whether the Second Amendment applies just to the federal government (which oversees Washington, D.C.) or to state and local governments as well.

Nordyke, it now appears, might help with the answer. Last week, four preeminent legal scholars—Michael Kent Curtis, Richard Aynes, Michael Lawrence, and William W. Van Alstyne—filed a friend of the court brief arguing that the 14th Amendment "and specifically its privileges or immunities clause were designed to forbid states from abridging fundamental rights of citizens, including those rights in the Bill of Rights." The Second Amendment, of course, is right there on that list.

As the four professors demonstrate, the text of the amendment, the historical events leading to its adoption, the goals of its framers, and the statements of purpose made both by its supporters and by those who ratified it, all point in the exact same direction: The 14th Amendment was designed to nationalize the Bill of Rights and other fundamental rights.

The amendment's origins lie in the anti-slavery politics that gave rise to the Republican Party. After the Civil War, as the former Confederate states began passing Black Codes and other restrictions on the political, economic, and civil rights of African Americans and their white allies, the Radical Republicans of the 39th Congress responded with federal civil rights laws and a constitutional amendment to give them force.

One of the leading figures in this movement was Rep. John Bingham of Ohio, the author of the 14th Amendment's crucial first section, which reads in part, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." In a speech before the House, Bingham explained that, "the privileges and immunities...are chiefly defined in the first eight amendments to the Constitution." Similarly, Sen. Jacob Howard of Michigan, who presented the amendment to the Senate, described its purpose as "to restrain the power of the States and compel them at all times to respect these great fundamental guarantees," including "the right to keep and to bear arms." As Michael Kent Curtis writes in his book No State Shall Abridge, both Bingham and Howard "clearly said that the amendment would require the states to obey the Bill of Rights. Not a single senator or congressman contradicted them." (Italics in original.)

For its part, Alameda County currently maintains that, "the Second Amendment constrains only Congress," while the amendment's core purpose of "self-preservation...is best advanced through the establishment and exercise of the police power." Which means that while Congress may not legally disarm the American people, state and local governments may.

As evidence, the county offers page after page justifying its interpretation of the Second Amendment. But there's nothing, not a single word, about the history, purpose, or meaning of the 14th Amendment. The county's lawyers might at least have cited former federal appeals court Judge Robert Bork, who has argued that "the intended meaning" of the Privileges or Immunities Clause "remains largely unknown," that "it is quite possible that the words meant very little to those who adopted them." In Bork's view, the federal courts have no business locating rights in such "vague" or "silent" language.

There's actually nothing vague about it, as the professors' brief aptly demonstrates. For instance, the phrase privileges and immunities has long been accepted as a legal term of art, employed by no less an authority than William Blackstone in his 1765 Commentaries on the Laws of England, where he defined it as a combination of civil rights and natural rights. Similarly, James Madison and other Founders used the words privileges and rights interchangeably.

Indeed, the real trouble with Nordyke v. King is that the Alameda County ordinance seems to fall so comfortably within the range of acceptable gun control laws spelled out in Heller, including "laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."

The same can't be said for the gun rights case currently underway in Chicago, however, where that city's ban looks very much like the one struck down in Washington, D.C. In any case, the overwhelming historical evidence submitted here is certain to be a major factor when the courts finally get around to restoring the Second Amendment to its rightful place among the Bill of Rights.

Damon W. Root is an associate editor of reason.