Man Without Qualities

Thursday, April 11, 2002

The Vagrant Amendment

A "vagrant" was sometimes traditionally defined in the common law as a person about whom "no one knows from whence he comes nor whither he goeth." In this sense, the Second Amendment has become the vagrant provision of the Bill of Rights.

Glenn Reynolds of InstaPundit has a fine article out on the Second Amendment and its discontents. The article discusses the Fifth Circuit Court of Appeals decision in United States v. Emerson, which may signal a new willingness of the Federal Courts to address honestly that “embarrassing” Amendment.

But the article does not discuss what may be the most embarrassing feature of the Second Amendment, at least from the standpoint of the Federal Courts: Emerson and the new (or renewed) learning about the Amendment, if accepted, suggest that the Second Amendment is a fundamental right which should therefore be “incorporated” as a restriction on the States as well as the Federal government (although Emerson dealt only with Federal law). That the police power of the States (as opposed to the powers of the Federal government) might not extend to broad control of firearms raises very difficult federalism and historical questions. The Second Amendment has never been construed as being applicable to States. But if the courts are now to awaken to its significance, it is hard to see how its "incorporation" could be denied.

In any event, the following is a reasonable discussion of the Second Amendment and the Incorporation Doctrine produced for the Public Law Research Institute at Hastings College of the Law, which I reproduce but do not necessarily completely endorse:


The Bill of Rights only protects citizens against action by the federal government. However, through the doctrine of selective incorporation, the Supreme Court has held that the Due Process Clause of the Fourteenth Amendment may limit action by state and local governments as well. Nevertheless, the Supreme Court rejects the notion that the Fourteenth Amendment incorporates the entire Bill of Rights. Instead, the Court has decided on a case by case basis which rights are so "fundamental" as to be brought into the Fourteenth Amendment and to bind state and local governments. However, ambiguity remains. Some provisions of the Bill of Rights have still not been considered by the Supreme Court since it began applying the incorporation doctrine.

The Second Amendment is not among those rights incorporated into the Fourteenth Amendment. In United States v. Cruikshank, the Supreme Court held that "the second amendment . . . means no more than that it shall not be infringed by Congress." Subsequently, in Presser v. Illinois, the Court rejected a claim that the Second Amendment could invalidate a state law. In that case, the Court upheld an Illinois statute which made it unlawful for a group other than the state militia or federal troops to drill or parade with arms in public without permission from the governor. The defendant argued that this law violated the Second Amendment guarantee of the right to bear arms. Relying on Cruikshank, the Court disagreed, reasoning that "the amendment is a limitation only upon the power of Congress and the National government, and not upon that of the states."

The Validity of Nonincorporation

Because the Second Amendment has never been explicitly addressed in formal incorporation analysis, the conclusion that the amendment only applies to actions by the federal government has been questioned. The decisions in Cruikshank and Presser came several years before any provisions of the Bill of Rights were incorporated, thus one cannot be sure that the justices in the Second Amendment cases considered the possibility of incorporation.

The first incorporation decision occurred in 1897, eleven years after Presser and twenty-two years after Cruikshank. Today, only three provisions of the Bill of Rights, including the Second, Fifth and Seventh Amendments, remain unincorporated. The almost total incorporation of the Bill of Rights lends support to the theory that incorporation of the Second Amendment is inevitable. However, more than one hundred years have passed since Cruikshank and Presser were decided, during which time the Supreme Court has been content to let those decisions stand.

The Supreme Court's reluctance to revisit the Second Amendment incorporation question is most notable in its refusal to hear an appeal of a case in which the Seventh Circuit upheld a local government's ban on possession of handguns within its borders. The appeals court, citing Presser, based its decision on the nonapplicability of the Second Amendment to state and local governments.

Likewise, the Ninth Circuit has followed Cruikshank and Presser in upholding California's Roberti-Roos Assault Weapons Control Act of 1989 (AWCA). The plaintiffs attempted to have the AWCA declared unconstitutional on several grounds, including arguing that the law violates the Second Amendment right to bear arms. The court rejected this argument, holding that the Second Amendment only binds the federal government. This case was never appealed to the Supreme Court.

More than a century after they were decided, Cruikshank and Presser remain good law. Thus, the right to bear arms granted by the Constitution, if analyzed as an individual right, only limits the federal government's attempts to restrict firearms. State and local governments are not bound by the Second Amendment.

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