iOS app Android app More

Featuring fresh takes and real-time analysis from HuffPost's signature lineup of contributors
Robert J. Spitzer

Robert J. Spitzer

Posted: June 29, 2010 10:19 AM

Incorporating Guns?

What's Your Reaction:

Pity poor John Barron. The Baltimore businessman found his business -- a wharf where ships docked -- ruined when the city's public works improvements resulted in the depositing of sand, gravel, and dirt off of the wharf and into the bay. The city refused to compensate Barron for his loss, so he sued, arguing that the Bill of Rights' Fifth Amendment, which says that private property was not to be taken "for public use without just compensation" should yield compensation for him. On its face, Barron's claim was just; nevertheless, the Supreme Court concluded in 1833 that Barron was out of luck because the Bill of Rights applied only to the national government, not the states.

Jump ahead to 1897 when the high court reversed course, ruling that the states must now abide by the just compensation protection. Why the change? The short answer is the addition of the Fourteenth Amendment to the Constitution in 1868, which said in part that states may not deprive persons of "life, liberty, or property, without due process of law." This wording eventually became the means by which the courts began to apply or "incorporate" parts of the Bill of Rights to the states, including free speech, free press, free exercise of religion, and most of the rest of the first eight amendments. By the time the court incorporated the Fifth Amendment's protection against double jeopardy in 1969, the consensus was that incorporation was probably at an end. As the piecemeal incorporation process suggested, not all Bill of Rights protections were equally important. No one was beating down the doors of judicial chambers to incorporate the Third Amendment's protection against the quartering of troops in people's homes in peacetime, or the Seventh Amendment's right to common law suits "where the value in controversy shall exceed twenty dollars," or, for that matter, the Second Amendment's militia-based right to keep and bear arms -- a right rendered obsolete with the decline of old-style militia system.

But the calculus changed for the Second Amendment in 2008, when the Supreme Court, for the first time in history, ruled that the amendment protected an individual right of civilians to own handguns for the purpose of personal self-protection in the home. The court's D.C. v. Heller decision was notable not only for rejecting its own past precedents, but for creating a new right built on what most historians considered a suspect reading of the amendment's history. Having carved out this new right, how could the five member majority in Heller not see the process through to incorporation? As Justice Anthony Kennedy noted twice during oral argument in McDonald v. Chicago, if the right to bear arms was an individual right (that is, unconnected to militia service), it must be fundamental -- that is, worthy of incorporation -- and "if it's not fundamental, then Heller is wrong."

When the court incorporated just compensation, free speech, and other civil liberties, it meant that states had to conform to a higher definition of these personal freedoms. Yes, it would mean protecting speech some found odious; countenancing unorthodox religious beliefs alien to a nation dominated by Judeo-Christian traditions; protecting the publication of xenophobic or racist utterances; occasionally releasing from prison suspects who seemed obviously guilty because of improper searches and seizures; and providing lawyers to people who couldn't afford to pay for them.

McDonald, though, does something else. It applies to persons, all right, but it does not enshrine a right to personal self-defense (that right has existed as bedrock law for centuries). Instead, it's a right (admittedly limited) to civilian gun ownership, which means, quite simply, a right to civilian-controlled deadly force. In a nation where ever-fewer citizens have guns, where crime has steadily declined across two decades, where police are more respected and efficient than ever, where the most frequent fatal use of guns is suicide, where violence against the government is increasingly seen by some as noble, and where we teach our children that it's better to talk over differences than fight about them, this court's McDonald is an anomaly.


Spitzer's books include Saving the Constitution From Lawyers, The Politics of Gun Control, and Gun Control.