By Lorraine Marie Simonis
Simonis is a third-year student at the University of Virginia School of Law..
The Parkland school shooting has reignited America’s cyclical gun control debate. At the urging of Parkland student activists, thousands of people demonstrated across the country and the world in the “March for our Lives” on March 24, demanding restrictions on gun sales and ownership.
As usual, the Second Amendment has been at the forefront of this debate, with pro- and anti-gun forces arguing about its meaning and relevance. Tellingly, in expressing his support for the Parkland activists, retired Supreme Court Justice John Paul Stevens called for an outright repeal of the Second Amendment.
Yet, for gun-control activists, the prime target shouldn’t be the Second Amendment—it should be the Fourteenth Amendment. Specifically, it should be the Supreme Court’s “incorporation” doctrine, which holds that the Amendments constituting the Bill of Rights (like the Second Amendment) apply to state governments.
When ratified in 1791, the Bill of Rights constrained only Congress and other parts of the federal government. That meant that states remained free to regulate conduct the federal government could not, so long as their own state constitutions allowed it. So they could establish churches, censor newspapers—and regulate the use and ownership of firearms—however they pleased.
But the Fourteenth Amendment, ratified following the Civil War in 1868, applies directly to the states. It forbids states from depriving any person of “life, liberty or property” without “due process of law.” Gradually, the Supreme Court came to interpret the “due process” clause as “incorporating” (almost) all of the Bill of Rights, applying them to the states.
Certain rights, such as speech, were incorporated early; other rights took longer. The Second Amendment was not incorporated until 2010 in a case called McDonald v. City of Chicago. In McDonald, the Supreme Court said that its recent decision in District of Columbia v. Heller, striking down a handgun ban in Washington, D.C. (federal government), also applied to a similar Chicago gun ban (state government). Heller interpreted the Second Amendment as protecting an individual right to bear arms, rather than a collective right associated with service in a militia.
But the Court’s first decision did not require the second. That is, it’s possible to believe the Second Amendment protects an individual right, while also believing it only protects that right against Congress, not state legislatures. In fact, Justice Stevens himself said as much in his McDonald dissent. But Stevens’s position in McDonald was an awkward one because he supported incorporating just about every other Amendment aside from the Second, which made his position seem unprincipled.
The Supreme Court’s commitment to the incorporation doctrine reflects not just an evolving understanding of the Fourteenth Amendment’s meaning, but a changing attitude toward the respective boundaries of authority between the federal and state governments. The modern view is that the federal government, not the state governments, is the ultimate protector and defender of our rights.
There’s a certain appeal to that view. We may think the federal government will take a broader view—will be less captured by local prejudices—and so will better protect our interests.
Maybe. But then again, maybe not. Under the current presidential administration, for example, states that had enthusiastically invited federal involvement in a variety of areas seem to be having a “come to Jesus moment” with regards to the value of state and local control, particularly in the immigration arena. And as the citizens of Chicago discovered when the Court invalidated their democratically-enacted gun laws, a federal government that giveth also taketh away.
Gun violence may be a national problem, but a good place to start seriously addressing it would be at the state and local level. Doing so has two main benefits. First, building a nationwide consensus on divisive issues such as guns is extremely difficult—and amending the Constitution, as Justice Stevens suggests, is notoriously so. With an unincorporated Second Amendment, however, states and cities across the country wouldn’t have to wait for our slow-moving and special-interest-beholden Congress. They could start working right away.
Second, such grassroots efforts would provide us with useful information about guns and gun regulation. People disagree about whether, for example, a statewide ban on handguns and extensive training and licensing requirements would reduce gun violence. If some states experimented in this regard, those states could serve as “laboratories of democracy,” providing useful lessons about whether such measures prove effective. If they do, they could be an inspirational success story; if they don’t, they would be cautionary tales. Unfortunately, thanks to our constitutional doctrine, we may never know.