Putting the Second Amendment Second
Reframing the constitutional debate over gun control.
In addition to the Ninth Amendment, we should also view the right to bear arms through the lens of the 14th Amendment's command that "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." Though this particular sentence applies only to the states, other language in the 14th Amendment affirms that the federal government, too, has a parallel obligation to respect the fundamental rights of citizens.
But the 14th Amendment did not specifically enumerate these sacred privileges and immunities. Instead, like the Ninth, the 14th invited interpreters to pay close attention to fundamental rights that Americans had affirmed through their lived experience—in state bills of rights and in other canonical texts such as the Declaration of Independence and landmark civil rights legislation. And when it came to guns, a companion statute to the 14th Amendment, enacted by Congress in 1866, declared that "laws … concerning personal liberty [and] personal security … including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens." Here, in sharp contrast to founding-era legal texts, the "bear arms" phrase was decisively severed from the military context. Women as well as men could claim a "personal" right to protect their "personal liberty" and "personal security" in their homes. The Reconstruction-era Congress clearly understood that Southern blacks might need guns in their homes to protect themselves from private violence in places where they could not rely on local constables to keep their neighborhoods safe. When guns were outlawed, only outlaw Klansmen would have guns, to paraphrase a modern NRA slogan. In this critical chapter in the history of American liberty, we find additional evidence of an individual right to have a gun in one's home, regardless of the original meaning of the Second Amendment.
There are at least three advantages in shifting 21st-century gun-control discourse in this direction. First, a Ninth-and-14th Amendment framework is more modest. Unusually draconian gun laws can be struck down simply because they lie outside the lived pattern of the American experience, while more mainstream gun laws can be upheld precisely because they have proved acceptable to the people in many places. If our nation's capital wants to argue that specially strict gun rules should apply there because the city faces unique risks, no rigid textual language prevents judges from considering such pragmatic claims in the course of interpreting the boundaries of actual American practice. By contrast, if the Second Amendment's language really did guarantee a right to guns in homes, by what authority could judges allow for a different approach in D.C.? And then, if one has a Second Amendment right to a pistol or shotgun at home, why not a machine gun? Given that the Second Amendment's core right is military, it would seem odd that military arms would be easier to ban than other weapons.
Second, the Ninth and 14th Amendments are more modern and democratically responsive. The Ninth invites us to consider not only rights that have long been part of the American tradition but also rights that have emerged in actual modern practice and in state constitutional clauses of relatively recent vintage that are relatively easy to amend. The 14th directs our attention to the still-relevant problems of race and police protection or the absence thereof. By contrast, the Second Amendment harkens back to a lost 18th-century America, where citizens regularly mustered for militia service on the town square and where the federal army was rightly suspect. This is not our world.
Finally, a focus on the Ninth and 14th Amendments is simply more honest. The open-ended language of the Ninth and 14th Amendments really did aim to invite Americans to ponder state constitutional provisions that declare rights, and these provisions really do focus on individual self-defense. The framers of the 14th Amendment really did focus intently on self-defense in the home. The framers of the Second did not.
Akhil Reed Amar is a Yale law professor and author of America’s Unwritten Constitution: The Precedents and Principles We Live By.