When the United States Supreme Court ruled in June that the right to keep and bear arms applies to the states, I had mixed feelings. Although I agreed that this right is a “fundamental” liberty, I objected on federalist grounds that the Second Amendment to the Constitution is binding on the states by the Fourteenth Amendment’s Due Process Clause. Then I read Justice Clarence Thomas’ remarkable concurring opinion, to which Justice Antonin Scalia expressed some support in a separate concurring opinion.
The Bill of Rights (the First Ten Amendments to the United States Constitution) originally limited only the federal government from abridging liberty. Part of it was made applicable to the states through the Fourteenth Amendment’s Due Process Clause, which declares that no one could be denied liberty “without due process of law.” At first, the Supreme Court held that the Due Process Clause referred only to procedural rights of the accused, (e.g. to trial by jury, to compel witnesses, etc.), not substantive rights (e.g. freedom of speech or assembly). Such application of the Bill of Rights to the states is called “incorporation,” meaning that the Bill of Rights are thus made a part of the body of the Fourteenth Amendment because they define the “liberty” referred to in the Due Process Clause.
An argument was advanced that the entire Bill of Rights was made applicable to the states by the Due Process Clause, including even the substantive rights, but the Court rejected this idea and has never held that the Bill of Rights was incorporated in toto, not even all the procedural rights (for example, the right to a grand jury). Gradually, however, the Court has selectively incorporated most of the Bill of Rights, but only those that are judged “fundamental” to liberty, as opposed to those not essential to liberty.
In Heller v. District of Columbia in 2003, the Supreme Court ruled that the Second Amendment of the Constitution was an individual liberty that may not be abridged by the United States, but this case was only applicable to federal territory, as it was not necessary for the Court to rule whether the Second Amendment was a fundamental liberty, binding on the states through its incorporation by the Due Process Clause of the Fourteenth Amendment, a question that remained unsettled law until it ruled in McDonald v. Chicago last month.
In striking down Chicago’s ban on handguns, the Supreme Court ruled 5-4 in McDonald that the Second Amendment right to keep and bear arms is a fundamental liberty, binding on the states through the Due Process Clause. In its opinion, written by Justice Samuel Alito, the plurality cited the intent of the Framers of the Constitution, who recognized the right to keep and bear arms as a pre-existing right fundamental to liberty. They also cited the history of the post-Civil War period and the denial of this right to freed blacks by some of the states that necessitated the adoption of the Fourteenth Amendment.
Justice Thomas, however, suggests a broader, easier and more federalist method of determining what freedoms and rights are binding on the states. His original intent approach would also better prevent liberal justices from continuing their practice of making up rights as “fundamental” that were never contemplated as such at the time of the ratification, while denying those rights they dislike by judging them non-essential. In his concurring opinion, he states the issue of what liberty is protected by the Constitution does not depend upon “process” or whether it is judged a “fundamental” liberty incorporated into the Due Process Clause of the Fourteenth Amendment, but whether it is protected by the Privileges and Immunities Clause of the Fourteenth Amendment (“No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States”). Privileges and immunities mean “freedoms” and “rights.” The issue, then, is which freedoms and rights were understood at the ratification of the state constitutions as inalienable (i.e. Natural law, meaning granted to man by the Creator).
These privileges and immunities, freedoms and rights are not based upon the Bill of Rights, which was intended only to limit the federal government. Indeed, even under the federal Constitution, Natural law is not limited to those rights enumerated in the Bill of Rights, but includes rights that were not enumerated, which the Ninth Amendment declares are retained by the people. The rights enumerated in the Bill of Rights are examples of privileges and immunities that represent the minimum standard of liberty. The source of freedoms and rights is not the Bill of Rights, but Natural law as recognized as inalienable at the time of ratification. Thus, the Privileges and Immunities Clause prohibits states from denying liberty, not the Due Process Clause by incorporating the Bill of Rights. The Privileges and Immunities Clause not only prevents a state from abridging the rights and freedoms of some citizens while protecting those rights of others, but requires the states to guarantee liberty, much as the Bill of Rights requires the federal government.
Thomas cited legislative history and early Supreme Court precedent that suggests the original intent of the Fourteenth Amendment was to protect liberty through the Privileges and Immunities Clause, including specifically the right to keep and bear arms. This right is a pre-existing, inalienable Natural law right. Therefore, all such pre-existing rights are protected through the Privileges and Immunities Clause, not by the Due Process Clause.
In conclusion, in both Thomas’ and the plurality’s interpretation, the right to keep and bear arms is a “fundamental” liberty that pre-existed the Constitution. Unlike the plurality, however, Thomas does not find it necessary to determine whether a freedom or right is “fundamental” in order for it to be constitutionally binding on the states by the Due Process Clause of the Fourteenth Amendment, but whether it is recognized as inalienable by each of the states themselves in their own constitutions, which the Amendment’s Privileges and Immunities Clause requires them to uphold. Therefore, the Amendment does not violate the principle of federalism, but is dependent upon the states' own recognition of Natural law.