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Federalismand theConstitutional
Right
to Keep and Bear Arms
Nelson Lund
Mason University
SchoolofLaw
George
Until recently,thefederal courtsagreed that theSecond Amendmentprotectstheinterestofstates in
maintaining theirown militias. In United States v. Emerson, the US. Court ofAppealsfor theFifth
Circuit rejectedthis consensus, and held that the Constitutionprotectsa rightofprivate individuals to
keep and bear arms. The fifthcircuit'sposition is moreplausible than the consensus view, and the
set of
argumentsfor treatingtheSecond Amendmentas a kind offederalismdeviceare weak. A different
federalismissues is raised bytheprospectthat theSupremeCourt mightadopt thefifthcircuit'sposition,
and then take the next step of applying the Second Amendmentto the states throughtheFourteenth
Amendment. Finally, Emerson shows how certain technicallegal doctrinesthatprotectthedignityof
tostrengthen
thefederalgovernment's
thestatescan operate
by
abilitytoundermine
afforded
protections
theSecond Amendment.
63
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AMENDMENT
Beforelookingat theprefatory
language of theSecond Amendment,upon
which the states' rightinterpretationrests,we should note that the language of the operativeclause is parallel to thatused in theFirstand Fourth
Amendments:
Congressshallmakeno law . .. abridging... the rightof thepeople
fora redressof
peaceablyto assemble,and to petitiontheGovernment
grievances.
The rightofthepeopletobe securein theirpersons,
houses,papers,and
searchesandseizures,
shallnotbe violated...
effects,
againstunreasonable
All threeamendmentswere framedtogether,and the Firstand Fourth
Amendment rightshave alwaysbeen treated as individual rather than
governmentalrights. It would be odd to use the same referenceto "the
rightof the people" to create a rightbelonging to states,especiallywhen
one notes thatthe TenthAmendmentplainlydistinguishesthe statesfrom
the people:
The powersnotdelegatedto theUnitedStatesbytheConstitution,
nor
totheStatesrespectively,
or to
prohibited
byitto theStates,arereserved
thepeople.'0
It is true that in the original Constitution,"the people" is sometimes
used to include only a subset of the entirecitizenry.The preamble,for
example, statesthatthe Constitutionwas establishedby"the people," but
many citizens were barred from participating in the state ratifying
conventions. Similarly,
ArticleI requiresthatmembersof the U.S. House
of Representativesbe elected by "the people," but we know thatwomen
were not permittedto vote and thatpropertyqualificationswerecommon
at the time. Thus, "the people" referredto in the Second Amendment
could be a subsetof the citizenry.
Nonetheless,the Constitutionnowhere uses the term"the people" to
referto stategovernments.ArticleI, forexample,specifiedthatthe House
ofRepresentatives
wouldbe electedby"thepeople," butthatsenatorswould
be chosen bythelegislatureofeach state. The importanceof thelinguistic
distinction between the people and the states is confirmed by the
SeventeenthAmendment,whichcreateda newruleprovidingthatsenators
would be elected "bythe people" of each state. Similarly,
the membersof
the electoralcollege are appointed byeach statein whateverwaythe state
legislaturedirects,whichmayinvolveelectionbythe people or some other
'?U.S. Const. art. I, ? 8, cl. 8.
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be read to mean: "The states shall have the right to maintain a well
regulatedmilitia."
THE PATENT AND COPYRIGHT CLAUSE AND THE
PREAMBLE
CONSTITUTION'S
The Second Amendmentis unique among theelementsoftheBillofRights
in containingan explanationof itspurpose. One provisionof the original
Constitution,however,is similarto the Second Amendmentin thisrespect:
The CongressshallhavePower... To promotetheProgressofScience
and usefulArts,bysecuringforlimitedTimesto Authorsand Inventors
theexclusiveRightto theirrespective
and Discoveries.
Writings
Unlike the Second Amendment,thisconstitutionalprovisiondoes seem
to implythroughits grammaticalstructurethatits statementof purpose
servesa definitelimitingfunction.On itsface,theprovisiongrantsCongress
a powerto pursue a statedgoal and to do so onlybyspecifiedmeans. The
naturalreading of the provisionis thatCongressmaygrantcopyrightsto
authorsand patentsto inventorsonlyin order to promotethe progressof
science and usefularts. From this natural and logical reading,it would
seem to follow that Congress has no power to grant copyrights to
whosewritings
do nothingto promote
pornographersor racisthatemongers,
the progressof science or usefulknowledge. Similarly,it would seem to
followthatCongresshas no powerto grantcopyrights
to Luddites,who are
retard
the
to
of
science
and
the
usefularts."12
activelyseeking
progress
these obviousimplicationsfromthe textof the clause,
Notwithstanding
Congresshas extended copyrightprotectionto all mannerofwritingsthat
obviouslycontributenothing, or less than nothing, to the progress of
knowledge. Yet, the courts have never held that Congress has thereby
exceeded its authority.Even more striking,the Supreme Court recently
held thatCongresshas the powerto extend the termof existingcopyrights
evenifitisvirtually
retroactively,
impossibleforsuchan extensionto promote
the progressof knowledge.'"
Ifthegrammatically
clause
limitinglanguage ofthepatentand copyright
does not in factlimitthe power grantedby thatclause, it would seem to
followafortiori
thattheablativeabsolutein theSecond Amendment-which
does notevenservea limitingfunctiongrammatically-cannot
limitthescope
of the rightspecifiedin the operativeclause.
the Constitution'spreamble saysthatitspurposesinclude the
Similarly,
establishmentof'justice" and promotionof"the generalwelfare."No one
believes thatthisauthorizesthe courtsto strikedown everyunjuststatute
2Leavingaside modern case law,therewould be no necessaryconflictbetween the FirstAmendment
and thisreading of the patent and copyrightclause because the refusalto granta copyrightwould not
preventpornographers,racists,and Luddites fromdisseminatingtheirviews.
123 S. Ct. 769 (2003).
3Eldredv. Ashcroft,
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OF THE SECOND
AMENDMENT
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CONVENTION
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and difficult
leavesopen a huge numberofinteresting
questionsabout the
exactscope oftheright.No one wouldsuggestforexample,thateveryoneincludingfelons,children,and the insane-has a rightto possess anykind
ofweapon,up to and includingnucleardevicesand guidedmissiles.Thanks
to technological progress, the line-drawingproblems that courts will
necessarilyencountertodayare much more severe than theywould have
been in thelate eighteenthcenturywhensoldiersand civilianswerearmed
withessentiallyidenticalweapons.29Trustingthe generalpopulationwith
mattertodaythanit was then.
standardmilitary
weapons is a fardifferent
The line-drawingproblems that courts will face if they accept the
circuit,however,are not
interpretation
adopted bythefifth
individual-right
result
of
in
the
advances
technological
military
weaponry.Rather,
primarily
theyare the resultof legal developmentsthathave occurredsince the Bill
of Rightswas adopted in 1791. The Second Amendment,like the other
guaranteesof individuallibertyin the Bill of Rights,at firstacted onlyas a
restrictionon the federal government."0There was littleneed for the
between
framersto be concernedabout thedetailsoftheinevitabletradeoffs
individualfreedomand publicsafetybecause theConstitutionleftthestates
freeto balance those competinggoals in whateverwaystheythoughtfit.
Everystatewas leftfreebythefederalBill ofRightsto establishan official
religion,to require governmentlicensesin order to publish a newspaper,
to abolish the rightof trialbyjury,to take privatepropertywithoutjust
or propertywithout
compensation,and to deprivecitizensof life,liberty,
thestateswereleftfreeto regulatetheprivate
due processoflaw. Similarly,
possessionofweapons in whateverwayseemed appropriateto themselves.
The framerscould, therefore,have reasonablyexpected that new issues,
likethosearisingfromtechnologicaldevelopmentsin weaponry,could and
would be addressedbythe stategovernmentsas theyarose. So long as the
stateswereleftwiththeiralmostunbounded regulatorypowers,moreover,
therewould be littledanger to public order arisingfromstraightforward
interpretations of the Constitution's effortsto disable the national
government.If somethingreallyneeded to be done to preventdisorders
guaranteeingto the people a rightto keep and bear armsbecause the militiatraditionthatthe founders
presupposed has been thoroughlyundermined. For a particularlysophisticatedand elaborate versionof
and ConstitutionalChange,"
"The Second Amendment:Structure,History,
thisargument,see DavidYassky,
MichiganLaw Review99 (December 2000): 588-668. Mypositionis thatconstitutionalprovisionsthatcan
should
the
formalamendmentprocess
be repealed onlythrough
no longer servetheiroriginalpurposes
set out in ArticleV, and thatthe purpose of the Second Amendmentwas in any eventbroad enough to
encompasstheaim ofguaranteeingto civiliansthemeans ofprotectingthemselvesfromnon-governmental
oppression (such as criminalviolence) fromwhich the governmentfails to protectthem. For further
detail,see Lund, "The Past and Futureof the Individual'sRightto Arms,"59-67.
"The term"arms"in the Second Amendmentmayhave been meant to referonly to those weapons
thatcan be deployed byan unassistedindividual. See Stephen P. Halbrook, "Whatthe FramersIntended:
A LinguisticAnalysisof the Rightto 'Bear Arms',"Law & Contemporary
Problems
49 (Winter1986): 159lethalweapons (such as portable
160. Today,in contrastto the eighteenthcentury,some extraordinarily
devices
and
antiaircraft
fit
this
nuclear
missiles)
description.
"The Supreme Court accepted thisunderstandingof the Bill of Rightsat an earlydate. See Barronv.
32 U.S. (7 Pet.) 243 (1833).
MayorofBaltimore,
77
and iftheBillofRightsforbadeWashington
arisingfroman excessofliberty,
to do it,the statescould take care of the problem.31
has nowbeen altereddrastically.
That stateofaffairs
Duringthetwentieth
century,the Supreme Court began invoking"substantivedue process" to
applyselectedprovisionsoftheBillofRightsagainstthestategovernments.32
Concomitantlywiththat development,the Court began deciding a wide
range of questions thathad not arisen earlier,and thatmightneverhave
arisenbutforthisprocessofFourteenthAmendment"incorporation."Even
to the federal government
afterthe enormous transferof responsibility
beginning in the 1930s, it is still the states that engage in most of the
regulatoryactions thattend to generatehard questionsunder the Bill of
Rights.The effecthas been profound.When theSupremeCourtinterprets
a provisionoftheBillofRightsin a waythatleads to a dangerouscurtailment
forthe
ofgovernmentpower,thereis no longera safetyvalvein thesystem,
Court's decision disables the states as well as the federal government.
assumed
and almostnecessarily,
Consequently,the Court has increasingly,
the essentiallylegislativefunctionof balancing the competingpolicygoals
ofpublic safetyand individualliberty.Because itsdecisionsabout thelimits
of governmentpowerapplyto thefederaland stategovernmentsalike,the
Court now engages in an endless process of adjustingand readjustingthe
permittedbounds of libertyin a varietyof sensitivecontexts.
BeforetheCourtfacesthenecessityofundertakingthisbalancingprocess
in thearea ofgun control,itwillhaveto decide thattheSecond Amendment
does applyto thestates.In theyearssince theincorporationprocessbegan,
the Supreme Court has refused,withoutexplanation,to address the issue
of Second Amendment incorporation.33 In this respect, the Second
Amendmentis unique."
31Asa matterof constitutionaldesign,a case can be made in favorof restoringthisstateof affairs,not
onlywithrespectto the rightto armsbut also withrespectto the other individualimmunitiesin the Bill
of Rights.See Nelson Lund, "Federalismand Civil Liberties,"University
ofKansas Law Review45 (July,
1997): 1045-1073.
32Anextensiveacademic debate has arisenabout the originalmeaningof theFourteenthAmendment
and whetherit was meant to make the restrictionsin the Bill of Rightsapplicable to the states. The
seriousargumentsin favoroftreatingsome or all oftheserightsas "incorporated"all involvetheprivileges
or immunitiesclause, not the due process clause. The Supreme Court, however,has relied entirelyon
substantivedue process,and has rejectedincorporationargumentsbased on the privilegesor immunities
clause.
33TheCourt has declined at least twoopportunitiesto address the issue. See Quiliciv. MortonGrove,
695 F.2d 261 (7th Cir. 1982), cert.denied,464 U.S. 863 (1983); Burtonv. Sills,53 N.J.86, 248 A.2d 521
394 U.S. 812 (1969).
(1967), appealdismissed,
34Beginningin the late nineteenthcentury,the Court has incorporatedall the provisionsof the first
eight amendments,withthe followingexceptions. The Court has expresslyrefusedto incorporatethe
SeventhAmendmentand the grandjury indictmentprovisionof the FifthAmendment. See Minneapolis
241 U.S. 211 (1916) (SeventhAmendmentdoes not apply to the states);
& St. Louis R.R. Co. v. Bombolis,
345 F. Supp. 1025 (E.D. La. 1972) (same), aff'd,409 U.S. 943 (1972); Hurtadov.
Melanconv. McKeithen,
110 U.S. 516 (1884) (FifthAmendmentindictmentprovisionnot applicable to states);Alexander
California,
v. Oliver,510 U.S. 266, 272 (1994)
v. Louisiana, 405 U.S. 625, 633 (1972) (endorsing Hurtado);Albright
(recallingHurtado'sholdingwithapparentapproval). The Court has assumed,withoutexpresslyholding,
thattheexcessivebail clause of the EighthAmendmentapplies to the states. Schilbv. Kuebel,404 U.S. 357,
365 (1971). The Court has not been asked to consider a case involvingthe Third Amendment. That
leaves onlythe Second Amendment.
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