Feb 19, 2010

Posted in McDonald v. Chicago, Uncategorized

Did Scalia write that the Second Amendment should not be incorporated? Not really.

Today Jess Bravin wrote a fine piece in the WSJ about the odd bedfellows McDonald has generated.

In one section, Bravin suggests that Scalia intimated that the Second Amendment places no limitations on the states ability to limit ownership of arms:

In a 1997 book, “A Matter of Interpretation,” Justice Scalia wrote that he viewed “the Second Amendment as a guarantee that the federal government would not interfere with the right of the people to keep and bear arms.” Yet, this next passage gives court watchers some pause. “Of course,” Justice Scalia continued, “properly understood, it is no limitation upon arms control by the states.”

Damon Root has a great piece at Reason responding to this point, and he beat me to the punch, largely by graciously citing Pandora, and calling it a “superb article.” Root wrote:

The issue facing the Court in the Chicago gun case, however, is not simply what the Second Amendment means, but “Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment’s Privileges or Immunities or Due Process Clauses.” So what actually matters is Scalia’s view of incorporation under the 14th Amendment. That’s where things get interesting. As the legal scholars Ilya Shapiro and Josh Blackman note in their superb article “Keeping Pandora’s Box Sealed: Privileges or Immunities, The Constitution in 2020, and Properly Extending the Right to Keep and Bear Arms to the States,” Scalia has yet to vote in favor of incorporating a right against the states via the 14th Amendment’s Due Process Clause.

But, I’d like to elaborate a bit on Damon’s point. Scalia wrote that the Second Amendment does not place a limitation on the states. That is correct. The only element of the Constitution that places a limitation on the states is the Fourteenth Amendment. As Ilya and I argue in Pandora, the Privileges or Immunities Clause should be the clause relied upon to extend the right to keep and bear arms to the states. But what the 14th amendment extends is not the Second Amendment, as written. Rather, it refers to the pre-existing natural right of self defense of person and property embodied in the Privileges or Immunities of Citizenship. In that sense, the Second Amendment, as in the text ratified in 1791, places no limitations on the states. What actually counts is this external right to bear arms. And this right is among the privileges or immunities of citizenship. So what Scalia wrote is entirely consistent with using the Privileges or Immunities Clause to extend the right to keep and bear arms to the state.

Further, what is important to remember is that the Justices need to consider Originalism at the Right Time. The relevant time period to consider is Reconstruction, when the 14th amendment was ratified, not the revolutionary period. Scalia’s quote is in response to Tribe’s argument espousing the collective model of the Second Amendment. Nino cites lots of sources explaining the right to keep and bear arms from the Colonial era, including Professor Joyce Malcolm’s classic, To Keep and Bear Arms. None of these sources in the slightest bit bear on the question presented in McDonald v. Chicago.

Since my copy of A Matter of Interpretation is autographed, my understanding is certified to be correct.

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