That Every Man Be Armed: The Evolution of a Constitutional Right. Revised and Updated Edition.

CHAPTER 6: THE SUPREME COURT SPEAKS

173 ✯ CHAPTER 6 THE SUPREME COURT SPEAKS I n Cummings v. Missouri (1867)1 the Supreme Court held that a state’s test oath was unconstitutional as a bill of attainder and ex postfactolaw.AnalyzingcivilrightsprotectedbytheConstitution, the Court stated: In France, deprivation or suspension of civil rights or of some of them, and among these of the right of voting, of eligibility of office, of taking part in family councils, of being guardian or trustee, of bearing arms, and of teaching or being employed in a school or seminary of learning, are punishments prescribed by her Code. The theory upon which our political institutions rest is, that all men have certain inalienable rights—that among these are life, liberty and the pursuit of happiness; and that in the pursuit of happiness all avocations, all honors, all positions, are alike open to everyone and that in the protection of these rights all are equal before the law. Any deprivation or suspension of any of these rights for past conduct is punishment, and can be in no otherwise defined. Punishment not being, therefore, restricted as contended by counsel, to the deprivation of life, liberty or property, but also CHAPTER 6 174 embracing deprivation or suspension of political or civil rights, and the disabilities prescribed by the provisions of the Missouri Constitution being, in effect, punishment, we proceed to consider whether there is any inhibition in the Constitution of the United States against their enforcement.2 Ironically, prior to the adoption of the Fourteenth Amendment, the bearing of arms and other civil rights were thus deemed as protected by the Constitution; the above language from Cummings was cited on the floor of Congress as a norm that the Fourteenth Amendment meant to attain.3 But after the adoption of the Fourteenth Amendment and with the end of Reconstruction the Court took a restrictive view of the extent to which the federal government could protect civil rights. Nonetheless, the Court continued to treat the right to have arms as a fundamental right and vindicated the right to use deadly force in self-defense. Then, in United States v. Miller (1939)4 the Supreme Court held that the Second Amendment protected the right to keep and bear militia-type arms and relied on case law holding that all citizens were members of the militia. In more recent times, the Court has also alluded to the right to have arms as a specific guarantee provided in the Constitution. Post-Reconstruction Decisions The Fourteenth Amendment did not exist when Chief Justice Marshall wrote the opinion in Barron v. Mayor and City Council of Baltimore (1833),5 which held that the Bill of Rights was inapplicable to the states. That precedent ’s influence remained long after 1868, to the extent that selective incorporation by the Supreme Court did not begin until the turn of the century and became more fully developed only in the 1960s. Yet far more progressive antebellum state courts held fundamental rights guaranteed in the Bill of Rights to be protected from state deprivation. Even the notion of selective incorporation, which applies some freedoms in the Bill of Rights to the states and does not apply others, was articulated by state courts. The opinion of the Texas State Supreme Court in English v. State (1872)6 assumed that the Second Amendment applies to the state and referred to the right to keep and bear arms as a “personal right” that is “inherent and inalienable to The Supreme Court Speaks 175 man.”7 Owing to the fundamental character of the right, the Court approvingly cited Bishop’s treatise on criminal law that “though most of the amendments are restrictions on the general government alone, not on the States, this one seems to be of a nature to bind both the State and National Legislatures, and doubtless it does.”8 Implicit rejection of the applicability to the states of the Bill of Rights via the Fourteenth Amendment was initiated in the Slaughter-House Cases (1873),9 the first Supreme Court opinion to construe the Reconstruction amendment. This now discredited opinion was soon followed by United States v. Cruikshank (1876),10 which has been cited by modern gun prohibitionists as a precedent for the proposition that the Fourteenth Amendment implies no individual right to keep and bear arms. Actually, the Court decided nothing of the kind, and Cruikshank asserts the fundamental character of the right to bear...