The Right to Bear Arms: a Fundamental Liberty

by Austin Raynor

In McDonald v. Chicago the Supreme Court must decide whether to incorporate (i.e., apply) the Second Amendment right to bear arms to the states via either the Privileges and Immunities or Due Process clauses of the Fourteenth Amendment. An examination of history and case law results in the conclusion that the Supreme Court should, and will, incorporate.

Standing alone, the Second Amendment does not apply to the states. However, the relevant portion of the Fourteenth Amendment reads: “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.”

The Fourteenth Amendment, then, although it clearly protects some rights from state infringement, does not make clear specifically which rights those are. The Supreme Court, as a result, has employed a variety of standards in determining whether or not a specific right is deserving of incorporation. In Duncan v. Louisiana, it held that those rights should be incorporated which are “fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.”

Duncan further specified incorporable rights as those “necessary to an Anglo-American regime of ordered liberty.” In Washington v. Glucksberg the Court refined and concretized this standard, identifying incorporable rights as those which are “objectively, deeply rooted in this Nation’s history and tradition.” The right to bear arms, then, in determining whether or not it is worthy of incorporation, must be evaluated in light of these standards.

A short survey reveals its fundamentality and historical importance. In the landmark 2008 case, D.C. v. Heller, the Supreme Court held that the Second Amendment codified a “pre-existing right.” The Second Amendment, the Court declared, found its origins in a 17th century English law protecting the arms of Protestants from confiscation by an oppressive government.

Founding-era sources confirm the fundamentality of the right to bear arms. Blackstone, the preeminent English legal commentator at the time, referred to the right to bear arms as “the natural right of resistance and self-preservation.” Guns were viewed not only as a means of providing for one’s family and as a defense against criminals, but also as a check against oppressive government.

It was the English’s attempt to confiscate colonists’ weapons that ignited the American Revolution. George Mason, during Virginia’s ratification convention in 1788, said, “I ask, sir, what is the militia? It is the whole people…to disarm the people is the best and most effectual way to enslave them.” 19th century Congressman George Tucker said that the right to bear arms “may be considered as the true palladium of liberty…the right to self-defense is the first law of nature.”

The right to bear arms remained relatively unthreatened until Reconstruction, when the importance of this fundamental liberty was considerably magnified by the efforts of southern states and the Ku Klux Klan to deprive newly freed blacks of their arms in order to subjugate them. It was in this context that the Fourteenth Amendment was passed, which applied to the states many of the limitations already applied to the federal government by the Bill of Rights.

That the Fourteenth Amendment was intended to incorporate the Second Amendment is clear. Both Representative John Bingham, drafter of the amendment, and Senator Jacob Howard, who presented the bill to the Senate, explicitly stated that the bill would incorporate the Second Amendment against the states. No Congressman disputed these assertions.

An examination, such as that conducted by Second Amendment scholar Stephen Halbrook, of debates in Congress on the Fourteenth Amendment, the abolitionist origins of the Fourteenth Amendment, the understanding of the public at large at the time, the state conventions called to ratify the amendment, and the southern state conventions required to adopt constitutions consistent with the amendment, similarly results in the inescapable conclusion that the Fourteenth Amendment was intended and understood to incorporate the Second Amendment.

The importance of the right to bear arms has pervaded the history of the American struggle for freedom; in the words of Scottish philosopher Andrew Fletcher, “arms are the only true badges of liberty.” The Second Amendment protects the individual’s right to defend both his life and his liberty: the right to bear arms is the freedom from which all other freedoms flow. The philosophical and historical fundamentality of the Second Amendment is undeniable and thus the liberty it protects must be incorporated.