Incorporation and the Second Amendment

In the next year or two, the Supreme Court will probably address the question of whether the Second Amendment applies to the States. To shed some light on this issue, I examined why the incorporation of the Bill of Rights was rejected (with the exception of the Takings Clause) around 1900. The result is an article that will be coming out in Minnesota called Why Did the Incorporation of the Bill of Rights Fail in the Late Nineteenth Century? Let me briefly summarize its contents.

First, the Slaughterhouse opinion is not the culprit. Others have pointed out that that this decision did not reject incorporation in its holding and was ambiguous on the issue in its dicta. What’s new about my research is that I looked at every case that cited Slaughterhouse from 1873 to 1900 and found that only one (a state opinion from Utah) read the decision as hostile to incorporation. No federal decision advanced that interpretation until the Court itself took that step in 1900.

Second, the cases that did address incorporation from 1873 to 1900 (by which I mean that there was no procedural default, pleading error, or alternate ground of decision) rejected the idea only with respect to procedural rights. They did so because procedure was just a means to the end of justice and could be improved (or so they said). Thus, they did not see the wisdom in foisting old common-law procedures on unwilling states. By contrast, the substantive parts of the Bill of Rights (such as the bar against cruel and unusual punishment) got a favorable hearing at the Court, and it was mostly bad luck (such as procedural default) that stopped the incorporation of these rights.

Third, the domestic upheavals of the 1890s (the Pullman Strike, Coxey’s Army, and the rise of William Jennings Bryan) scared legal elites into rejecting the incorporation of substantive rights with the lone exception of takings (which, after all, protected property rights from these folks). We are familiar with the idea that civil liberties contract in wartime. The 1890s presented the same dynamic in a domestic context. Violent protests and strikes created an unfavorable atmosphere for those claiming that states should face additional restrictions in dealing with dissent, and this shift in sentiment shows up in the key opinions from that time, such as In Re Debs. It also exerted an influence on the Court’s decision–rendered after all of this turmoil–to recast Slaughterhouse as a case about the Bill of Rights and not about contract regulation. (Perhaps I’ll blog more about this later, as it relates to my book on Bryan).

What does this examination tell us about what should be done with the Second Amendment? Well, for a start the right to own guns is the only substantive part of the Bill of Rights that is not applied to the States, which is an omission that sticks out like a sore thumb. More important, my review of the cases demonstrates (surprisingly) that there is no Supreme Court case holding that the Second Amendment does not apply to state action. The issue was raised in United States v. Cruikshank, but that involved private action (or at least the case can easily be read that way). In Presser v. United States, the claim was raised without clearly invoking the Fourteenth Amendment, which was a defective pleading. And in United States v. Miller (the 1894 version, not the one from the 1930s that involved federal action), the incorporation claim was procedurally defaulted. Thus, if the Justices decide to incorporate the Second Amendment, they do not need to overrule any holdings to do so.

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