The right thing for the wrong reasons? The incorporation of the Second Amendment in McDonald v. Chicago.

• Author: Scott, Joshua A.

In 2008, the U.S. Supreme Court decided District of Columbia v. Heller, (1) holding that the "Second Amendment conferred an individual right to keep and bear arms." (2) However, several questions regarding the scope of the Second Amendment of the U.S. Constitution remain unanswered. Some of these questions concern the precise limits on the federal government's power to restrict firearm ownership and use, as well as what other requirements the government can place on firearm owners and users. (3) The Court has now answered, in the affirmative, the separate question of whether the Second Amendment applies to the states as well as the federal government in the case of McDonald v. Chicago, (4) which involves a gun control law very similar to the District of Columbia's. (5) In fight of McDonald, this Note will address three questions: First, did the framers of the Fourteenth Amendment intend it to apply the Second Amendment against the states? The Petitioner in McDonald argues that The Slaughter-House Cases, (6) which construed the Privileges and

Immunities Clause of the Fourteenth Amendment narrowly, (7) wrongly decided the issue and that the framers of the Fourteenth Amendment intended to enforce the Second Amendment against the states through that provision. (8) In light of this argument, the intent of the framers of the Fourteenth Amendment becomes particularly relevant, and this Note will examine their intent in detail and will argue that the framers of the Fourteenth Amendment did not intend to incorporate the Second Amendment. Second, this Note will address the Supreme Court's recent decision in McDonald v. Chicago, (9) analyzing the rationales of both the plurality and Justice Thomas' concurring opinion. The opinion of the Court incorporates the Second Amendment through the Due Process Clause, which this Note will show has no historical basis in the intent of the framers of the Fourteenth Amendment. Justice Thomas, on the other hand, bases his argument on the Privileges and Immunities Clause, which has a stronger basis in history, but still fails to counter numerous statements to the effect that no incorporation was intended. Third, this Note addresses some of the non-legal reasons why the Court should not have incorporated the Second Amendment, such as the value of a federalism-based approach and the problem of using incorrect rationales.

To answer the first question, Part I of this Note will begin with some preliminary background study of the original understanding of "due process" and "privileges and immunities," the two key terms in the argument over incorporation, as understood prior to their use in the Fourteenth Amendment. A strong case for well-established meanings of these phrases requires a correspondingly strong argument to prove a contrary meaning in the Fourteenth Amendment. If the original meanings do not encompass the protection of the Second Amendment, the framers of the Fourteenth Amendment must have clearly indicated a different meaning for those terms for incorporation to follow. (10)

With this background in mind, Part II will look to the history of the ratification of the Fourteenth Amendment to determine whether the framers intended any incorporation, and specifically incorporation of the Second Amendment. This discussion will show that they did not intend incorporation under any of the provisions of the Fourteenth Amendment. Part III will then analyze the opinions of the plurality and of Justice Thomas in light of the original intent of the framers. Part IV will discuss the negative effects and implications of the Court's decision to incorporate the Second Amendment, followed by a brief conclusion in Part V.

1. "DUE PROCESS" AND "PRIVILEGES AND IMMUNITIES"

   The terms "due process" and "privileges" and "immunities" (11) both appeared in the Constitution before the ratification of the Fourteenth Amendment. (12) Through the former, the Court has "incorporated" many of the Bill of Rights provisions against the states. (13) Before discussing the Fourteenth Amendment's use of these terms, some background on their meaning will provide a useful context in determining what the framers of the Fourteenth Amendment meant by them.

   A. Due Process

   Shortly before the Philadelphia Convention, Hamilton cited "Lord Coke, that great luminary of the law," for the proposition that the "law of the land [means] presentment and indictment, ... as contradistinguished from trial by jury." (14) Edward Coke equated "the law of the land" with "due process." (15) Therefore, due process meant "presentment and indictment." (16) Hamilton further stated that "[t]he words "due process' have a precise technical import, and are only applicable to the process and proceedings of the courts of justice; they can never be referred to an act of legislature." (17) In other words, Hamilton considered the phrase a term of art with a well-established meaning. This apparently conflicts with Murray's Lessee v. Hoboken Land & Improvement Co., (18) where Justice Curtis stated for the Court that the Fifth Amendment Due Process Clause

   is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave congress free to make any process 'due process of law,' by its mere will. To what principles, then, are we to resort to ascertain whether this process, enacted by congress, is due process? To this the answer must be twofold. We must examine the constitution itself, to see whether this process be in conflict with any of its provisions. (19) However, Justice Curtis still emphasizes the procedural aspect of the clause: While he seems to expand the meaning of due process to all provisions of the Constitution, he probably did not mean this. Given the context of the statement, he likely meant that a given process must not conflict with procedural provisions of the Constitution. If he meant otherwise, he conflicted with Hamilton, and by implication Coke, on the matter. Since "American lawyers relied heavily upon Coke's ... Institutes of the Laws of England to learn the principles of the common law," (20) Justice Curtis more likely meant to include only the procedural provisions of the Constitution, especially since he also cited Coke in his opinion. (21) Justice Story also cited to Coke for an understanding of the clause, noting that it "affirms the right of trial according to the process and proceedings of the common law." (22) However, this leaves unsettled the question of whether due process extends beyond presentment and indictment. Assuming Justice Curtis thought so, his opinion conflicts with Hamilton's. Since Hamilton not only lived during the founding generation but also attended the Philadelphia Convention and coauthored The Federalist, he carries great weight. Furthermore, nothing in the recorded debates on the Fifth Amendment in the First Congress reveals any discussion of what the phrase "due process" meant, (23) implying the Representatives had no questions on the matter. Combining this with Coke's prominence in the colonies and early states and Hamilton's statement, it seems clear that "due process" had an accepted meaning, which almost certainly matched what Hamilton expressed rather than Justice Curtis' definition. Regardless, even under Justice Curtis' definitions it would not reach to include the Second Amendment.

   B. Privileges and Immunities

   The phrase "privileges and immunities" has less history to clarify its meaning. Certainly the framers included it in the original Constitution (24) in order to prevent the states from discriminating in favor of their own citizens. (25) However, this does not answer the question of what the phrase "privileges and immunities" includes. It may correspond to every right held by a state citizen, or only a subset of them. If a subset, this begs the question of which rights fit into that category. The history of the term in America provides few clear answers, but the documents do give some guidance.

   The term first appears in the Articles of Confederation, in language similar to the Constitution's use of the phrase:

   [T]he free inhabitants of each of these States ... shall be intitled to all privileges and immunities of free citizens in the several states; and the people of each State shall have free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions as the inhabitants thereof respectively. (26) Publius' argument regarding the General Welfare clause would lead the reader to believe that "privileges and immunities" meant simply the "privileges of trade and commerce." (27) Raoul Berger argues that in light of this argument, the lack of debate on the clause in the Convention of 1787, (28) and the fact that many of the delegates had served in the Continental Congress, the framers must have accepted this as the meaning of the phrase, and the truncated version found in the Constitution merely eliminated the redundancy. (29)

   Publius himself only addresses the clause twice. In the first instance, he notes that the Constitution improves on the language by changing "free inhabitants" to "citizens," thereby eliminating the possibility that an alien in one state could claim the rights of citizens in another. (30) In the midst of this discussion, he notes that it "cannot easily be determined" why the phrase "privileges of trade and commerce" accompanied the language in the Articles of Confederation. (31) Publius again mentions the phrase in his discussion of the national judiciary, where he calls the clause "the basis of the union," but otherwise gives no hint as to what the phrase means. (32) Justice Story says little more than Publius about the meaning of the clause, but confirms that it at least includes the right to "take or hold real estate." (33)

   This indicates that Berger may have reached the wrong...