Putting the Second Amendment Second

[krispos42]

Putting the Second Amendment Second

Reframing the constitutional debate over gun control.
By Akhil Reed Amar
Posted Monday, March 17, 2008, at 3:25 PM ET

The language of the Second Amendment has been the obsessive focus of just about everyone interested in District of Columbia v. Heller, the D.C. gun-ownership case to be argued before the Supreme Court on Tuesday. That amendment is indeed important and much misunderstood. But Heller's facts, which involve the possession of a gun inside the home for self-defense, lie rather far from the Second Amendment's core concerns, as originally understood by the Founding Fathers. To think straight about gun control and the Constitution, we need to move past the Second Amendment and pay more heed to the Ninth and 14th Amendments.

Let's begin here: Suppose, for argument's sake, that we concede that everything gun-control advocates say about the Second Amendment is right. Suppose that the amendment focused solely on arms-bearing in military contexts, and that it said absolutely nothing about an individual's right to have a gun while sleeping in his own home or hunting in his own private Idaho. Would this concession mean that no individual constitutional right exists today?

Hardly. According to the Ninth Amendment: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage other rights retained by the people." In other words, there may well be constitutional rights that are not explicitly set forth in the Second Amendment (or in any other amendment or constitutional clause, for that matter). In identifying these unenumerated "rights retained by the people," the key is that a judge should not decide what he or she personally thinks would be a proper set of rights. Instead, the judge should ask which rights have been recognized by the American people themselves—for example, in state constitutions and state bills of rights and civil rights laws. Americans have also established, merely by living our lives freely across the country and over the centuries, certain customary rights that governments have generally respected. Many of our most basic rights are simply facts of life, the residue of a virtually unchallenged pattern and practice on the ground in domains where citizens act freely and governments lie low.

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But the 14th Amendment did not specifically enumerate these sacred privileges and immunities. Instead, like the Ninth, the 14th invited interpreters to pay close attention to fundamental rights that Americans had affirmed through their lived experience—in state bills of rights and in other canonical texts such as the Declaration of Independence and landmark civil rights legislation. And when it came to guns, a companion statute to the 14th Amendment, enacted by Congress in 1866, declared that "laws … concerning personal liberty personal security … including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens." Here, in sharp contrast to founding-era legal texts, the "bear arms" phrase was decisively severed from the military context. Women as well as men could claim a "personal" right to protect their "personal liberty" and "personal security" in their homes. The Reconstruction-era Congress clearly understood that Southern blacks might need guns in their homes to protect themselves from private violence in places where they could not rely on local constables to keep their neighborhoods safe. When guns were outlawed, only outlaw Klansmen would have guns, to paraphrase a modern NRA slogan. In this critical chapter in the history of American liberty, we find additional evidence of an individual right to have a gun in one's home, regardless of the original meaning of the Second Amendment.

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http://www.slate.com/id/2186750/pagenum/all/#page_start

Interesting about the 9th and 14th amendments. Other DUers have mentioned them in the past, but this is the first explanation I've scene with some detail to it.

Looks like the SCOTUS will have more to think about than how many commas are in the 2nd, and where they are placed!

[MaryCeleste]

1. Here is hoping they do the right thing and strike down the DC nonsense

and put in place some sort of reasonable national standard. They did with Wade, this should be no different

[SteveM]

2. I agree with Amar, esp. with regards the 14th...

When one looks at the context of the 14th (Southern "restoration" of white supremacy), which prevented the states from abridging the privileges and immunities of U.S. Citizens, one can see how 2A was an individual right; after all, how can one depend on a state government to call for, equip and regulate a militia in Southern states when those states were bent on disarming and punishing black citizens? This is why the "militia clause" is ultimately a secondary concern, growing out of a broader, deeper fundamental right to keep and bear arms.

Arguing the primacy of the "militia clause" was just what Jim Crow ordered. And got.