Balkinization: Is the Right to Keep and Bear Arms a Fundamental Right?

Is the Right to Keep and Bear Arms a Fundamental Right?

Deborah Pearlstein asks what evidence we have that the right to keep and bear arms is a fundamental right of the same kind as other fundamental rights, such as those mentioned in the Bill of Rights. I can offer no better evidence than the speech offered by Senator Jacob Howard, a member of the Joint Committee on Reconstruction that drafted the Fourteenth Amendment and the floor manager of the Fourteenth Amendment. He was given the task of introducing the amendment before the United States Senate and explaining its purposes.

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SENATOR JACOB HOWARD, SPEECH INTRODUCING THE FOURTEENTH AMENDMENT
Speech delivered in the U.S. Senate, May 23, 1866 [CONG. GLOBE, 39th Cong., 1st Sess. 2765-66 (1866).]

Mr. HOWARD. . . . I can only promise to present to the Senate, in a very succinct way, the views and the motives which influenced th[e] committee, so far as I understand those views and motives, in presenting the report which is now before us for consideration, and the ends it aims to accomplish. . . . .

The first section [of the proposed Amendment] relates to the privileges and immunities of citizens of the several States, and to the rights and privileges of all persons, whether citizens or others, under the laws of the United States. It declares that—

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

. . . .
[Howard next discusses Justice Washington's opinion in Corfield v. Coryell and its claim that the list of privileges and immunities include fundamental rights whose scope cannot be fully enumerated] To these privileges and immunities, whatever they may be— for they are not and cannot be fully defined in their entire extent and precise nature— to these should be added the personal rights guarantied and secured by the first eight amendments of 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 a redress of grievances, a right appertaining to each and all the people; the right to keep and to 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 punishments.

[A]ll these immunities, privileges, rights, thus guarantied by the Constitution or recognized by it, are secured to the citizen solely as a citizen of the United States and as a party in their courts. They do not operate in the slightest degree as a restraint or prohibition upon State legislation. . . . The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees.

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Howard's speech, at least to me, shows that the Framers of the Fourteenth Amendment assumed that the privileges or immunities clause would incorporate all the individual rights listed in the Constitution (not just those in the Bill of Rights) that bound the federal government, as well as other rights that would be discovered and articulated over the course of the country's history. It is a powerful piece of evidence that a particular form of living constitutionalism was not only consistent with the framing of the Fourteenth Amendment but expected by those who drafted and ratified it. If we think that Howard's speech (which, by the way, contains other statements of enormous relevance to today's debates about equal protection) is worthy of note, and I think it is very important indeed, we should not selectively reject those parts we do not like, in particular, its assumption that the right to keep and bear arms was a fundamental personal liberty and that one of the purposes of the Amendment was to keep states from abridging this fundamental guarantee.

What follows from the fact that a right is fundamental, of course, depends on the nature of the right. We need not treat the right to keep and bear arms exactly the same as the right to freedom of speech. Indeed, each of the fundamental rights in the Bill of Rights is treated according to different tests, and indeed, there are many different tests that apply to First Amendment rights. But the evidence is that all of the personal rights included in the Bill of Rights were privileges and immunities of citizens of the United States and the right to keep and bear arms was one of their number.

Posted 2:15 PM by JB [link]

Comments:

So how about a "person" who is not a "citizen" regarding privileges and immunities?

# posted by

Shag from Brookline : 2:47 PM

The framers made clear that with respect to civil (as opposed to political) rights, non-citizens are also protected. As Howard says in the first paragraph of his speech, "The first section [of the proposed Amendment] relates to the privileges and immunities of citizens of the several States, and to the rights and privileges of all persons, whether citizens or others."

# posted by

JB : 2:58 PM

I agree that Howard's evidence is very important. He was, however, just one member of Congress, albeit a very important one who explained the 14A on behalf of the Reconstruction committee. I think that the Freedman's Bureau Bill, passed by Congress itself, is more persuasive, noting that the Freedman's Bureau was to protect particular rights for citizens, "including the constitutional right to bear arms."

As to the introductory bit on persons and citizens, I don't think it's quite clear what rights aliens have on Howard's account. I don't think he's saying that they have all the same rights as citizens, merely that section one of the 14A has provisions (i.e., the Due Process and Equal Protection Clauses) that protect them too. Unless the Privileges or Immunities Clause is surplusage, it certainly seems that citizens have to get more constitutional rights than aliens.

FWIW, in this paper (section III.D) I argue that the tradition of giving aliens fewer rights than citizens causes grave difficulties for the standard reading of the Equal Protection Clause. "Civil" rights were the rights of citizens, not aliens. Aliens couldn't generally own land, for instance, and the Reconstruction Congress just two weeks before passing the Civil Rights Act of 1875 specifically reaffirmed racial restrictions on naturalization. In that light it would be pretty odd if the central meaning of the Equal Protection Clause, which protects aliens as well as citizens, were freedom from all racial discriminations. Offhand, I don't know about aliens' gun rights, though.

# posted by

Chris : 4:08 PM

I wonder how Paul Brest's 1980 article would examine what the framers made clear, ie, their intent? What about the ratifiers' intent? Is that as clear? First we should examine the text of the first section of the 14th Amendment to determine whether or not it is clear. There is no clear language that incorporates the first eight Amendments. But it is clear that the reference in the first clause to "privileges and immunities" does relate to "citizen." Subsequent clauses in the section refer to "person" not "citizen." Presumably "person" would include "citizen." It would have been simple to refer to "person" in the first clause as well if it were intended to include not only a "citizen." Yes, Howard had a particular understanding as noted in his speech. But does his understanding extend to other Senators who voted for the 14th Amendment AND the ratifiers? Did the meaning at the time of "citizen" include a "person" not a citizen?

As to the incorporation of the first eight Amendments, it is not clear that SCOTUS decisions back up incorporation of all eight. But assuming incorporation of the Second Amendment, was the incorporation without the lead in militia clause? If "intent" of the framers/ratifiers, the "understanding" and "meaning" of the text at the time of the adoption of the 14th Amendment are not clear, then was it a matter of expectation? (I have omitted thw word "original.") Up to now, SCOTUS has not addressed the incorporation of the Second Amendment by the 14th, or has it, or is it about to? Perhaps Howard thought the militia aspect was not incorporated? But who else? How might Justice Scalia value Howard's speech in any event based upon Scalia's attitude towards legislative history?

# posted by

Shag from Brookline : 5:23 PM

"Up to now, SCOTUS has not addressed the incorporation of the Second Amendment by the 14th, or has it...?"

Said no in Cruikshank, 92 U.S. 542 (1876), and Presser, 116 U.S. 252 (1886).

# posted by

Chris : 5:36 PM

Yes, Howard had a particular understanding as noted in his speech. But does his understanding extend to other Senators who voted for the 14th Amendment AND the ratifiers?

Unfortunately, our resources regarding ratification of the 14th are minimal compared to the Constitution itself (much like the BoR). I think the usual assumption is that if the sponsor of the bill says it will do X and others don't speak to the issue, those others are treated as accepting the sponsor's view.

As to the incorporation of the first eight Amendments, it is not clear that SCOTUS decisions back up incorporation of all eight.

In fact it's clear that they have NOT done so. The Court has always followed a policy of selective incorporation. The most notable omissions are the 2d A and some aspects of jury trial.

How might Justice Scalia value Howard's speech in any event based upon Scalia's attitude towards legislative history?

In my view, this is a problem for Scalia generally, not just in this case.

# posted by

Mark Field : 7:06 PM

"How might Justice Scalia value Howard's speech in any event based upon Scalia's attitude towards legislative history?"

He didn't join Kennedy's discussion of the 39th Congress legislative history in Boerne v. Flores. I can't think of any other constitutional cases he did that sort of thing, though.

# posted by

Chris : 7:13 PM

By the way, this paper contains in section II.D a detailed discussion of the "other statements of enormous relevance to today's debates about equal protection" from Howard's speech. I think the Privileges or Immunities Clause guards against caste legislation and requires equal citizenship, not the Equal Protection Clause, which guarantees the "protection of the laws." Howard's discussion of caste is one of the main pieces of evidence pointing the other way, but I think he's not giving a sufficiently-clearly-textually-reasoned account to outweigh other evidence of the original sense of the Equal Protection Clause.

# posted by

Chris : 7:58 PM

Howard correctly starts from the premise that all of the Bill of Rights are fundamental.

I would suggest that it is up to the states to provide a reasoned argument why the Second Amendment, which St John Tucker, America's Blackstone, called the "true palladium of liberty," is not a fundamental right as is the First Amendment and others.

# posted by

Bart DePalma : 10:59 PM

Bart makes a good point.

It bears noting that some, including Dahlia Lithwick in her blog comment over at Slate, imply there are many BOR provisions not applied to the states.

This is misleading at best. The 3A never directly came up, but Griswold implies it is part of a "right of privacy" that is applied to the states. If the Excessive Fine Clause never directly was addressed, it clearly falls w/i due process.

True enough both grand jury and civil juries (though what state doesn't secure the latter in some large way?) were not incorporated. But, the framers loved juries. John Harlan was probably right in Hurtado to dissent.

This leaves gun ownership, which the framers and the SC in dicta deemed a 'personal' right. Given the current rule is to incorporate fundamental rights, the argument -- which libs like Jack Balkin oppose -- must be made why it isn't one.

It's a hard sell.

# posted by

Joe : 1:18 PM

There's a distinction missed here about "fundamental" for purposes of incorporation vs. "fundamental" for purposes of strict scrutiny.

The right to bear arms is very likely so deeply rooted in our traditions so as to be fundamental. But it isn't "fundamental" in the sense that it permits almost no governmental regulation in the area, like free speech.

It's a fundamental right subject to a comparatively lower level of scrutiny.

# posted by

Dilan : 3:45 PM

dilan:

The First Amendment actually makes a pretty good template on how to apply the Second Amendment.

Just as government content based speech restrictions are subject to strict scrutiny, so should most restrictions on the ability of citizens to keep (own) firearms. Apart from keeping firearms from criminals, the mentally ill and very young children, I do not see many other restrictions which should survive strict scrutiny.

However, just as the First Amendment allows reasonable time, place, and manner restrictions on where one may exercise free speech rights, the Second Amendment should allow reasonable place and manner restrictions on where and how a citizen may bear (carry) arms.

# posted by

Bart DePalma : 6:02 PM

Bart:

The distinction you draw is completely artificial and appears nowhere in the Second Amendment. You are simply doing what you accuse liberals are doing-- pretending the Constitution mandates your own personal preferences.

In fact, the Second Amendment is completely different from the First Amendment. If the First Amendment read "a well-regulated political discourse being beneficial to the maintenance of a free republic, Congress shall make no law abridging the freedom of speech", you can bet it would get a narrower interpretation.

Further, why is CONCEALED CARRY subject to time, place, or manner restrictions but other aspects of gun ownership aren't (other than that the NRA supports concealed carry permits and opposes other forms of gun registration)? In the first amendment context, a prohibition on putting a billboard up at your residence is a reasonable time place or manner restriction. Yet you are claiming that ownership and maintenance of firearms at home is not subject to any regulation at all except for the rare regulation that meets strict scrutiny. Your analogy fails.

Just like the Fourteenth Amendment didn't enact Mr. Herbert Spenser's Social Statics, the Second Amendment does not enact the NRA platform. Indeed, while the DC gun ban should be struck down, many regulations that gun rights types hate-- such as registration, waiting periods, tracing material requirements, etc., are clearly constitutional.

# posted by

Dilan : 4:26 PM