March 21, 2007
The Second Amendment II Posted by Joshua Zeitz at 09:45 AM EST Further to Fred Smoler’s post, I’d highly recommend Akhil Reed Amar’s book The Bill of Rights: Creation and Reconstruction, which challenges conventional wisdom by arguing that the original Bill of Rights was intended more to protect the republican majority against the tyrannical central state than the individual against the tyrannical majority. Amar, a law professor at Yale, charts the process by which the Reconstruction-era Congress framed the Fourteenth Amendment, which ultimately allowed the federal courts to “incorporate” most of the Bill of Rights and thus apply their provisions to the states. (Remember that before 1868 the first 10 amendments placed limits on the federal government but not the states. Unless a state explicitly protected free speech in its constitution, it was essentially free to throw someone in prison for criticizing the legislature or governor.) In the context of the 1860s, it’s not difficult to understand why Republican legislators grew less enamored of state militias and more trusting of central power. It was the Virginia state militia, after all, that raised arms against the government in Washington; it was the government in Washington that fought a war to limit and then abolish slavery. The congressmen who passed the Fourteenth Amendment were no longer in the thrall of localism. They were also seeking to turn the Bill of Rights into a sweeping protection of individual rights. Much of the impetus for the amendment, and for the statutory measure that anticipated it, the Civil Rights Act of 1866, grew out of the “black codes” that Southern states passed in the summer and fall of 1865. These codes restricted the movement, economic independence, and speech and assembly rights of former slaves. The codes also sharply restricted the right of freedmen to bear arms. (This restriction was intended both to limit black firepower and to prevent freedmen from hunting, something that would have allowed them a modicum of self-sufficiency.) When Congress barred states from infringing on the “privileges and immunities” of American citizens, they almost certainly had gun ownership on their minds. Where this leaves us on the gun control question, I don’t know. Benjamin Wittes believes that “one can still muster strong arguments in favor of a collective-rights conception of the Second Amendment, the view that has prevailed in most other circuits; and the individual-rights view does not necessarily doom all gun control (though it probably does doom the most sweeping bans).” But let me post a historical rather than political question for my colleagues: Until recently the only two amendments that remained “unincorporated” were the Second and the Third. It’s unlikely that anyone will soon bring a test case to the Supreme Court on the right of states to quarter guardsmen in private homes. But if the D.C. gun-ban case winds its way to the Supreme Court, and if the Court upholds the appellate decision, will the process of incorporation be almost complete? Many years ago, Justice Hugo Black argued for a total “absorption” of the Bill of Rights rather than piecemeal incorporation. Does the Court stand on the verge of fulfilling Black’s fondest wish?
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