Editor’s note: John Hopkins wrote this column on the Second Amendment in June 1999. While a few relevant court cases (e.g. Heller) have clarified several issues in the past few decades, he said his column does address the importance of the Fourteenth Amendment in understanding the Second Amendment today.
By JOHN HOPKINS
Los Alamos
The NRA regularly reminds us that the right to firearms is guarenteed by the constitution, but few know what this means in the context of today’s society. It might be instructive to briefly review the history of the Bill of Rights and the Second Amendment for clues of its relevance.
The Second Amendment reads: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. It was part of the Bill of Rights, ratified on December 15, 1791.
The Bill of Rights, or first ten amendments of the Constitution, was crafted during the late 1780s to preserve the rights of the majority against a strong federal government that might be unresponsive to the needs and desires of the people. It was generally thought that the State and local governments, being closer to the people, were more responsive. At the time of drafting of the bill the citizen militias were seen as checks against the possibility of a hostile federal standing army. The right to bear arms was viewed as a political right, such as voting or jury service. The “people” in the Second Amendment are the same people referred to in the Preamble and the First, Fourth, Fifth and Ninth Amendments. The casual interpretation of the “people” as the States and the right as a collective right is no longer supported by many, if any, constitutional history scholars.
The interpretation of the Bill of Rights with regard to states-rights was a matter of some debate throughout the first seven decades of the nineteenth century. The Fourteenth Amendment, drafted in 1866 and ratified July 9, 1868, incorporated, or applied, these rights against the States in a refined way, reflecting the context of the post-Civil War era. The key part of the Fourteenth Amendment is Section 1: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.…”
The Fourteenth Amendment along with the Civil Rights Act (of 1866), leaned toward the protection of the minority (in this case the just-freed slaves) from the majority power (hostile southern whites in general and the KKK in particular). In the formulation of the amendment, the right to bear arms metamorphosed to a private, civil right, like free speech or the right to peaceably assemble. In addition it evolved into a right of self defense rather than as a check on the federal government. Reference to the militia had disappeared; congressional and state debates centered around personal security and the right to defend body and soul. Interestingly, one could make the plausible argument that the Second Amendment applied only to those who might serve in the militia, who were generally thought of as the voters, and thus males who were over 21 years of age. On the other hand the historical record of the debates concerning the Fourteenth Amendment clearly show that the right to “own” and “carry” firearms extended to women. In other words, the rights extended to all citizens of the U.S.
Finally, with the Fourteenth Amendment, the Bill of Rights applied to all governments, state and local, and not just the powers in Washington. Curiously though, there are four clauses in the Bill of Rights that have yet to be incorporated against the states. These are the Second and Third (the right against quartering soldiers) Amendments, and the rights to civil and grand juries. The quartering issue hasn’t been raised in appropriate judicial institutions, but it is difficult to understand why there is selective incorporation with regard to the other three rights. So far the U.S. Supreme Court has avoided directly confronting the right to “keep and bear arms”. They have let stand lower courts’ decisions to permit regulations of firearms for the common good. The court has been reluctant to address the issue that loomed so large in the formulation of the Fourteenth Amendment; the basic right of self defense. That is where we are today.
“To keep and bear arms” does have a long and honorable tradition. The right to self defense can be tracked back to English Common Law with roots that extend to antiquity. In the very earliest days the English had a “duty” to be armed. A duty, however, differs from a right, which dates to the English Bill of Rights of 1689. As might be expected this right is a symbol of liberty to many throughout the world, particularly to those in nations that have neither arms nor liberty. The fact that the English no longer enjoy this right is only proof of the fragility of civil rights.
Clearly, by simply reading the Second Amendment in the context of today’s society is to miss the rich historical tapestry of our bill of rights and the enormous impact of the reconstruction period and the Fourteenth Amendment.
Few would seriously argue that the potential need for self defense has disappeared over the past 130 years and many have argued (correctly, I believe) that the right to own and carry firearms is as cogent today as it has ever been. However, many believe that the right should be tempered with sensible, and enforced, laws to account for the responsibilities that accompany the right to keep and bear arms, so cherished by millions of Americans.
As a final note I want to say that none of the reference material for this piece came from the NRA. Opponents of the NRA often accuse them of being the only ones to care about, or be interested in, the Second Amendment. Fortunately this is not true. Over the past decade or so there have been several important works on this issue from academics with no personal interest in firearms. For example, The Bill of Rights by Akhil Reed Amar of Yale University (Yale University Press 1998) and To Keep and Bear Arms by Joyce Lee Malcolm of Bentley College (Harvard University Press 1994). The references in those two books can lead the interested reader to additional material. For a thorough discussion of whether the right to bear arms in the Bill of Rights was an individual or collective right I suggest reading the recent San Angelo, Texas, District Court decision in United State v. Timothy Joe Emerson (Criminal Action No. 6:98-CR-103-C).
