Family Research Council

The Family Research Council (FRC) is a non-profit organization located in Washington, D.C., that exists to develop and analyze governmental policies that affect the family. FRC is committed to strengthening traditional families in America and advocates continuously on behalf of policies designed to accomplish that goal. Accordingly, FRC has an interest in presenting a theory of the Fourteenth Amendment that allows for the extension of the right to bear arms to the states, but does not reinforce doctrines whereby courts recognize and enforce rights lacking a foundation in the Constitution's text or the history and traditions of the American people, doctrines often resulting in outcomes detrimental to the rights of parents and families in the United States.

SUMMARY OF ARGUMENT

This Court held in District of Columbia v. Heller that the Second Amendment secured an individual right to keep and bear arms. 128 S. Ct. 2783, 2799 (2008). In so holding, this Court invalidated various sections of the District of Columbia's statutes establishing a virtually-categorical ban on handguns and other readily-usable firearms within the home. Id. at 2821ý"22. Yet despite the landmark nature of this case, its extreme facts properly led this Court to an appropriately narrow holding that the Constitution would not tolerate a complete ban on handguns in this nation's capital.

Of the remaining questions regarding the Second Amendment, perhaps none is more consequential than whether the Fourteenth Amendment protects the right to bear arms from infringement by the states. This Court expressly disclaimed that question in Heller, 128 S. Ct. at 2813 n.23, and is now presented with this issue.

Although most of the individual rights in the Bill of Rights have been "incorporated" through substantive due process, the right to keep and bear arms should instead be recognized as one of the "privileges or immunities" protected by the Fourteenth Amendment. This right is significantly different from the other rights in the Bill of Rights, and there are several advantages to this approach. There are, moreover, no serious disadvantages.

Significantly, and contrary to the assertions of Petitioner, this Court can and should decide this case under the Fourteenth Amendment Privileges or Immunities Clause without overruling the Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873). This Court in Slaughter-House held that rights inhering in federal citizenship are applicable to the states through the Privileges or Immunities Clause.

This holding was designed to preserve the federal system of government. Had this Court struck down a public health law passed pursuant to a state's policepower as violating a right without any textual support in the Constitution, this Court would have read Privileges or Immunities in an extraordinary broad manner with profound implications for federal-state relations.

The commonly-held view that Slaughter-House eviscerated the Privileges or Immunities Clause and precludes its extending federal rights to the states has never been adopted by this Court. That common view is incorrect, and is a post-hoc gloss created and promulgated by the legal academy, which this Court has not had occasion to consider. This anti-incorporation view is also unusual in that Slaughter-House did not involve any provision of the Bill of Rights and therefore was not an incorporation case. To the contrary, Slaughter-House listed several rights as being among the "privileges or immunities" of U.S. citizenship that could thus be applied to the states through the Privileges or Immunities Clause.

It is also possible for a right to be both a fundamental right within the purview of the states while also a federal right enforceable against the states. This list of rights inhering in federal citizenship includes two provisions of the First Amendment, demonstrating that Privileges or Immunities can be used to apply federal rights to the states, so long as those rights are rooted in the constitutional text.

The political aspect of the Second Amendment confirms that the right to bear arms inheres in federal citizenship and thus can be applied to the states consistent with the Slaughter-House Cases. The Second Amendment entails two distinct, but related, interests. The first is a right to self-defense, recognized in Heller. The second is a political right to hold the government accountable by threat of arms as a deterrent against tyranny. Other courts have explored this right in detail, characterizing the Second Amendment as a "doomsday provision," assuring an armed citizenry that could quell "tyrannical leaders," and expressly acknowledging that this aspect of the Second Amendment is a "political component." This Court in Heller recognized the significance of this component, noting its role during the Framing.

This political distinction does not diminish the right to bear arms. The Constitution distinguishes citizens from noncitizens. Consequently certain fundamental rights, notably the right to vote, are restricted to only U.S. citizens because they are political rights. The right to vote is the means for expressing consent to be governed by certain leaders, and the Second Amendment is an intergenerational insurance policy to guarantee that such leaders cannot retain power in a tyrannical fashion after the American people have rescinded their consent. This concern regarding the federal government in 1791 when the Second Amendment was adopted became a prominent concern regarding state governments in 1868 when the Fourteenth Amendment was adopted, and thus the right to bear arms was extended to the states through the Privileges or Immunities Clause.

There are three precedents that this Court must, and should, overrule to extend the right to bear arms to the states through the Privileges or Immunities Clause. These cases are United States v. Cruikshank, 92 U.S. 542 (1876), Presser v. Illinois, 116 U.S. 252 (1886), and Miller v. Texas, 153 U.S. 535 (1894). This Court has long since jettisoned the underlying rationales of Cruikshank and its progeny, all of which were decided before this Court began applying provisions of the Bill of Rights to the states. These cases must be overruled in that their clear language holds that the Second Amendment does not apply to the states through the Fourteenth Amendment, which would include both the Privileges or Immunities Clause and the Due Process Clause. These are prime examples of cases fit to be overruled, in that they meet this Court's criteria for overcoming stare decisis.

But the Slaughter-House Cases need not be overruled. By reaffirming that Slaughter-House stands for the proposition that rights applicable to the states through Privileges or Immunities are those inhering in federal citizenship, this Court could extend the right to bear arms--including a political component--through that clause with no adverse doctrinal consequences. Although there are several passages that appear problematic in Slaughter-House, all such passages are dicta, thus not protected by stare decisis, and the rejection of which therefore does not require overruling Slaughter-House.

Moreover, the Slaughter-House Cases should not be overruled. Doing so would render the Privileges or Immunities Clause a tabula rasa, which this Court in the future could interpret to mean anything this Court chooses, making that clause a cornucopia of various rights devoid of any textual support in the Constitution, with profound implications for both social and economic policy issues in this country, as future Members of this Court could constitutionalize their personal preferences, foreclosing political solutions on these matters.

This is because the Privileges or Immunities Clause, unlike the Due Process and Equal Protection Clauses, has only one major precedent defining its meaning. Thus, removing that constraint renders Privileges or Immunities malleable, which, given that it provides for enforcing certain rights against the states, could profoundly alter the federalist system of governance if those rights were suddenly to be whatever this Court decides they should be, without condition or restraint. Such rights could be social matters or economic entitlements, and empower this Court to override every state and local government or any policy matter this Court chooses.

Stare decisis strongly counsels against overruling the Slaughter-House Cases. There is no special justification for overruling Slaughter-House. While Cruikshank, Presser, and Miller meet this Court's criteria for being overturned, none of those factors apply to Slaughter-House.

There are additional reasons to apply the right to bear arms through Privileges or Immunities instead of Due Process. Fourteenth Amendment jurisprudence has suffered from an overreliance on the Due Process Clause. The first two clauses of the Fourteenth Amendment's first section pertain to citizens, and the last two pertain to all persons. Redirecting rights properly considered under Privileges or Immunities to Due Process has resulted in judges narrowing procedural protections out of concern for the consequently sweeping scope of the Due Process Clause.

Moreover, both the political aspect of the right to bear arms, and the inherent dangerousness of firearms, counsel for Privileges or Immunities over Due Process. This Court's precedent demonstrates that "the people" referenced in the Constitution, such as in the Second Amendment, refer to the U.S. citizenry. While states should enact statutory entitlements to enable law-abiding aliens access to firearms for self-defense, it is not xenophobic to recognize that political rights, whether the right to vote or the right to hold the government in check by an armed citizenry, only extend to American citizens.

Applying the Second Amendment to the states through Privileges or Immunities does not require reworking other aspects of incorporation doctrine. Settled precedents regarding which other provisions of the Bill of Rights are--or are not--incorporated need not be revisited, and this Court may possibly never again face an incorporation question for a provision of the Bill of Rights. Therefore, by preserving the Slaughter-House Cases, this case presents a rare opportunity to give effect to the original meaning of the Privileges or Immunities Clause while strictly limiting its implications for any right other than the right to bear arms.

Meet The Author
Chris Gacek Senior Fellow for Regulatory Policy

Dr. Chris Gacek is the Senior Fellow, Regulatory Affairs at Family Research Council. Dr. Gacek received a Bachelors of Science in economics from the Wharton School, University of (Full Bio)

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