Non-Economic Individual Rights

AuthorCharles D. Kelso; R. Randall Kelso
ProfessionProfessors of Law

Page 988

All individuals rights protections in the Constitution involving non-economic rights other than the First Amendment, Fifth Amendment Due Process Clause, or Civil War Amendments are included in the original Constitution or the initial ten Amendments, the Bill of Rights. To ensure ratification, the supporters promised the states that they would draft a Bill of Rights. It has been noted:

The omission of a Bill of Rights proved to be one of the most formidable stumbling blocks for the ratification of the Constitution and it became the unifying force of the anti-Federalists who were opposed to a strong central government and wished to defeat the Constitution. Faced with this development, the supporters of the Constitution pledged that if the Constitution were adopted, the adoption of a Bill of Rights would be the first order of business for the new Congress. If the pledge were not kept, a new constitutional convention would be convened that could once again reargue the issue of redistribution of powers between the states and the national government.1

On this issue, Jefferson similarly insisted that "a bill of rights is what the people are entitled to against every government on earth . . . and what no just government should refuse, or rest on inference." Jefferson further noted that a written Bill of Rights would place a "legal check . . . into the hands of the judiciary," a body that merited "great confidence" if "rendered independent, and kept strictly to their own department."2

The first eight of these Amendments provide for a range of civil liberties protections. Each of these Amendments is discussed in Chapter 23, with the exception of the Fifth Amendment Takings Clause, discussed at ß 22.2, the Fifth Amendment Due Process Clause as applied to civil matters, discussed in Chapter 27, and the First Amendment, discussed in Chapters 29-32. The Ninth Amendment is discussed in Chapter 24. The Tenth Amendment is discussed at ß 18.4.

The first eight Amendments involving civil rights - the Second, Third, and Seventh Amendments - are discussed at ß 23.1. This section also addresses the civil rights provision of the Full Faith and Credit Clause, Article IV, ß 1. Those Bill of Rights provisions involving criminal rights - the Fourth, Fifth, Sixth, and Eighth Amendments - are discussed at ß 23.2. This section also addresses the criminal rights provisions in the original Constitution of the Bill of Attainder Clause, Ex Post Facto Clause, Habeas Corpus Clause, and the Extradition Clause. Page 987

ß 23 1 Civil Rights Protections: The Second, Third & Seventh Amendments & The Full Faith and Credit Clause of Article IV, ß 1
ß 23 1.1 The Second Amendment: Right to Bear Arms

The Second Amendment provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed." As with other provisions of the Bill of Rights considered in 1833 in Barron v. Baltimore, discussed at ß 27.2.1 n.95, the Court held in 1875 in United States v. Cruikshank,3 that the Second Amendment has "no other effect than to restrict the powers of the National Government." For state legislation, however, 44 states have "right to arms" provisions in their state constitutions that almost always are read to provide an individual some right to own guns, and thus limit state legislation to some extent. Only California, Iowa, Maryland, Minnesota, New Jersey, and New York do not have such provisions in their state constitutions. Only Massachusetts treats its provision as referring to the right to bear arms as part of a state militia, not an individual right to own guns.4

This Cruikshank holding was reaffirmed on several occasions during the 19th century.5 However, all of these cases were decided before the Court began to hold that provisions in the first eight Amendments were incorporated into the Due Process Clause of the 14th Amendment, beginning in 1897 with the Taking Clause, discussed at ß 27.2.2 n.107. Thus, it is not likely that the current Court would consider these holdings as binding precedents. The modern doctrine by which most Bill of Rights provisions have been incorporated into the 14th Amendment, and thus made applicable against the states, discussed at ß 27.2.4 nn.120-27, seems equally applicable to the Second Amendment, as noted at ß text following n.128. The Cruikshank doctrine is thus inconsistent with modern doctrine regarding incorporation. Inconsistency with related doctrines is one of the additional reasons that justifies overruling a precedent from a natural law tradition, as noted at ß nn.67-70. Nevertheless, based on the doctrine that lower courts should follow Supreme Court precedents directly on point until the Court decides otherwise, noted at ß 4.3.4 n.100, lower courts properly continue to hold that the Second Amendment has no applicability against the states.6

The major Supreme Court case to consider possible limits on the right of the people protected by the Second Amendment is United States v. Miller,7 decided during the Holmesian deference-to- government era in 1939. That case upheld the constitutionality of a federal statute that made it Page 988criminal to transport in interstate commerce a shotgun with a barrel less than 18 inches in length. The Court said this law did not violate the Second Amendment because: (1) there was "no evidence" in the record that such a gun has a "reasonable relation to the preservation or efficiency of a well regulated militia," and (2) the Court understandably refused to hold as a matter of "judicial notice" that a sawed-off shotgun was part of "ordinary military equipment or that its use would contribute to the common defense." Reflecting the Holmesian emphasis on purpose in addition to literal text, the Court explained, "With obvious purpose to assure the continuation and render possible the effectiveness of such forces [i.e., the militia] that declaration and guarantee of the Second Amendment was made. It must be interpreted and applied with that end in view." Despite this language in Miller, it has been noted that dicta in other Supreme Court cases, both before and after Miller, can be used to support an individual right to keep and bear arms.8

Three possible ways of interpreting the Miller case were explored by the Fifth Circuit Court of Appeals in 2001 in United States v. Emerson.9 In Emerson, the Fifth Circuit noted that the Fourth, Sixth, Seventh, and Ninth Circuits had decided cases holding that the Second Amendment merely recognizes the right of a state to arm its militia. This has been called a "collective rights" interpretation of the Amendment. The First and Third Circuits have found an individual right to bear arms, but only for members of the militia, and then only if the federal and state governments fail to provide the firearms necessary for such military service. This has been referred to as the "sophisticated collective rights" model. The majority opinion in Emerson rejected both of these theories in favor of a third approach, the "individual rights" model. Under this approach, the Second Amendment recognizes the right of individuals to keep and bear arms regardless of whether they are actually a member of a militia. This right, however, is subject to reasonable regulation (e.g., the possession of guns may be denied to minors, incompetent persons, and felons). The majority then applied these principles to hold that an injunction against the possession of a weapon by an individual under a restraining order was a reasonable regulation, in the particular case a restraining order granted to the wife against the husband in the context of a divorce proceeding.

The method of interpretation used by the majority in Emerson included reference to each of the kinds of interpretation materials that are considered appropriate by the natural law approach to decisionmaking. For the sources of text, context, and history, there are competing interpretations as between some version of the "collective rights" model and the "individual rights" model.

Regarding text, the literal text of the Second Amendment refers to the "right of the people to keep and bear arms." This reference to the right of the "people," rather than the right of the "states," to keep and bear arms, supports the individual rights model...

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