Guns, guns, guns!

Though some argue that the Second Amendment, properly parsed, only confers the collective right to join a state militia, the legal issue presented in Chicago was not, strictly speaking, whether the Second Amendment confers an individual right to bear arms without state or local interference. Rather, precisely the same issue arises when we ask if the First Amendment, which reads “Congress shall make no law…” is violated by the actions of a local school district in requiring school prayer. The question is whether the Fourteenth Amendment implicitly contains such a right, by way of the Privileges or Immunities Clause (as Thomas believes) or the Due Process Clause (as the others in the majority believe).

Since the Fourteenth Amendment was ratified, there has been a debate as to whether it was intended to “incorporate” the protections of the Bill of Rights and apply them against the states. Most but not all such rights have now been held by the Supreme Court to be so incorporated. There is a historical argument for which there is some evidence that the Fourteenth Amendment was intended to confer an individual gun right (as the right to join a state militia in a former Confederate state would be fairly unhelpful to African-Americans under threat from their white neighbors). So while the question of whether the Second Amendment was intended to confer an individual or collective right as against the federal government is relevant to the question of what the Fourteenth Amendment intends, it is not dispositive, as the intent of the drafters and ratifiers of the Fourteenth Amendment are ultimately what is at issue. Yale law professor Akhil Amar has argued in his book The Bill of Rights that the incorporation of the Second Amendment into the Fourteenth had the effect of “individualizing” it. The better argument, though still not perfect, is that there is no more a mention of guns than there is of abortion in the Fourteenth Amendment (I say not perfect because there actually is mention of guns in contemporaneous ratification discussions of the Fourteenth Amendment).

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