Having Been Duck Hunting with Cheney, Scalia Should Know Better
“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.â€
This is the text of the 2nd Amendment, and it preserves the right of the States, against actions of the federal government, to organize and maintain an armed militia. The 2nd is an oddity among the other provisions in the Bill of Rights; while the other Amendments have been held by the Supreme Court to apply to the states, the 2nd has not.* This inconsistency was never advocated by the founders. It was the result of an ad hoc process that began when the Civil War Amendments augmented federalism (the doctrine that respects the balance between State sovereignty and federal enumerated (limited) powers). Before the 14th Amendment, the Bill of Rights bound only the federal government; they were “collective rights†of the citizens of States against federal oppression. The States, pursuant to their police power, were free to act upon their citizens, limited only by their own constitutions. The status of the 2nd Amendment is a jurisprudential inconsistency, but it draws an intuitive line between the individual liberties of speech, thought, privacy, seizure, etc. and state collective rights like “the right to bear arms.†I would describe this line as one that acknowledges externalities: my speech generally doesn’t hurt others, and when it does, it isn’t protected by the First Amendment (e.g., hate speech, defamation, child pornography, etc.); but rarely can an individual use a gun – a weapon by design – in a manner that doesn’t implicate the liberties of others. Incorporation of the 2nd Amendment would trump the ability of a State to impose any but the most compelling restrictions. The Supreme Court will review the distinction between collective rights and individual liberties this term in District of Columbia v. Heller, a decision that could take a giant step toward incorporation of the right and the end of a pragmatic approach to gun control.
