During last week's oral argument in McDonald v. City of Chicago —the term's blockbuster gun law case—Justice Antonin Scalia was quick to move away from arguments about the Constitution's "text and history" and instead took solace in the judge-made "substantive due process" doctrine he has long attacked. Why was this champion of "originalism" so quick to embrace this modern and amorphous judicial doctrine, at the expense of his express preference for carefully considering the text and history of the 14th Amendment? Some scholars argue that it was to avoid relying on the 14th Amendment's "privileges or immunities clause" (which Scalia lambasted as "the darling of the professoriate"). But another possible reason for Scalia's move is that it's simply impossible to square his broad view of the right to bear arms with the history of the 14th Amendment itself. If the justices take a hard look at the actual history of gun regulation in America, then they will recognize that expansive gun rights vis-à-vis states and localities have never really had a place here.
The McDonald case is the court's first opportunity to consider whether the 14th Amendment prohibits states and cities from enacting certain gun regulations. Two years ago, in Heller v. District of Columbia, a divided court decided that the Second Amendment protects an individual right to bear arms. But it reserved the question of whether that amendment limits only the federal government for another day. Justice Scalia's view, set forth in Heller, is that the Second Amendment protects an individual right to bear certain types of arms unrelated to militia service. By relying on the substantive due process doctrine to "incorporate" the Second Amendment into the 14th, Justice Scalia could ensure that the same right would apply against states and cities, not just a federal protectorate like the District of Columbia.
The problem for Scalia, and for those who want to expand gun rights and also stay faithful to the history and text of the Constitution, is that this view cannot be reconciled with the history of the 14th Amendment. In the years before and after the adoption of the amendment, numerous states and cities—motivated by the danger posed as firearms and other deadly weapons became smaller—enacted laws banning the carrying and possession of certain dangerous weapons, including handguns. In other words, there is ample historical evidence showing that at the time the 14th Amendment was ratified, states had broad authority to enact nondiscriminatory gun-safety regulations. We submitted an amicus brief to the court describing dozens of these laws, but just a few examples suffice to make this point: In 1879, Tennessee outlawed the carrying of "any … belt or pocket pistol, revolver, or any kind of pistol, except the army or navy pistol," including on a person's own farm. And in 1876, Wyoming barred anyone from "bear[ing] upon his person, concealed or openly, any fire-arm or other deadly weapon, within the limits of any city, town or village." And beginning in 1872, you had to check your firearm at the jurisdictional door before even entering the town of Wichita, Kan.
This Reconstruction-era regulation by states and localities was hardly new. Near the time of the Founding, several states regulated the storage of gunpowder in order to protect against fires, in some cases effectively banning the possession of loaded weapons in the home. As Justice John McLean explained in 1847, in light of the "explosive nature of gunpowder, a city may exclude it" as an "[act] of self-preservation."
New state Constitutions adopted during the Reconstruction era explicitly codified states' power to regulate guns alongside a right to bear arms. In Texas, for instance, a constitutional convention in 1868 (the same year as the ratification of the 14th Amendment) subjected "the right to keep and bear arms" to "such regulations as the legislature may prescribe." Utah's 1889 Constitution provided that "the Legislature shall regulate the exercise of this right by Law." Justice Scalia asserted during oral argument that "something like 44 States currently have in their constitutions protection of the right to bear arms," but he ignored that at the time the 14th Amendment was ratified, these provisions went hand-in-hand with others providing for state gun regulation.
When state and local gun laws were challenged in the era of the ratification of the 14th Amendment, courts regularly held that these restrictions passed constitutional muster. For example, Tennessee's Supreme Court observed in 1871 that the right to bear arms in that state's constitution could "be subordinated to such regulations and limitations as are or may be authorized by the law of the land," and the Arkansas Supreme Court upheld in 1876 that state's ban on carrying pistols as a proper "exercise of the police power of the State without any infringement of the constitutional right" to bear arms.
When the existence of these laws was mentioned in passing by Chicago's counsel at oral argument, Justice Scalia suggested that the laws at the time of the 14th Amendment did not concern "handguns in the home." But as the examples above demonstrate, that is not so. And state courts repeatedly upheld those laws against constitutional attack.
During argument last week, the court struggled to balance a state or city's right to regulate guns with the Second Amendment right to possess them, without seeming to grapple with the fact that such regulations have been on the books since the Reconstruction period (and before). Several Justices asked the advocates whether there was any basis for concluding that the 14th Amendment protected some kind of right to bear arms, but a right that nevertheless permitted states to adopt more flexible and robust laws than Heller permitted of the federal government. History provides overwhelming support for the proposition that states and cities, through their elected representatives, have the authority to balance the public safety interests impacted by the possession and use of dangerous weapons such as handguns.
As John Bingham, the leading drafter of the 14th Amendment, wrote in an 1867 speech, the new Amendment "would maintain intact the powers of the national government and State governments—the one for general defense and protection, the other for local administration and personal security." The 14th Amendment prevented states from discriminating against the rights of certain classes of people, but states could (and did) continue to enact neutral laws banning classes of weapons. Although Justice Scalia did not appear to be interested in this history, there's no reason the rest of the court can't become Originalists this time around.