The 14th didn't automatically bind the states. It took centuries to selectively incorporate the bill of rights, and the court has refused to incorporate certain provisions. This could go either way.
First a technical quibble: It has been barely a century and a half since the 14th Amendment was enacted, not "centuries".
More pertinent, however, is the language of
Heller. This paragraph from its conclusion seems fairly definitive:
The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns, see supra, at 54–55, and n. 26. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.
Further, prior court rulings are far from unfriendly towards the application of the Fourteenth Amendment toward an incorporation of Second Amendment rights into state law. Regarding the Second Amendment, there are three Supreme Court cases of particular interest:
U.S. v. Cruikshank (1876),
Presser v. Illinois (1886), and
U.S. v. Miller (1939).
Cruikshank did not extend the Bill of Rights into state law, drawing instead a clear delineation between State and Federal jurisdiction:
The government thus established and defined is to some extent a government of the States in their political capacity. It is also, for certain purposes, a government of the pepole. Its powers are limited in number, but not in degree. Within the scope of its powers, as enumerated and defined, it is supreme and above the States; but beyond, it has no existence. It was erected for special purposes, and endowed with all the powers necessary for its own preservation and the accomplishment of the ends its people had in view. It can neither grant nor secure to its citizens any right or privilege not expressly or by implication placed under its jurisdiction.
However,
Cruikshank also explicitly stated that the rights within the Bill of Rights were pre-existing rights (inalienable rights, if you will):
Only such existing rights were committed by the people to the protection of Congress as came within the general scope of the authority granted to the national government.
Cruikshank goes on to explicitly identify the right to keep and bear arms as being one such existing right:
The right there specified is that of 'bearing arms for a lawful purpose.' This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress.
Interestingly, while
Cruikshank declined to explicitly extend Fourteenth Amendment into the particular matter at hand, it did describe how the Amendment binds the states:
The fourteenth amendment prohibits a State from denying to any person within its jurisdiction the equal protection of the laws; but this provision does not, any more than the one which precedes it, and which we have just considered, add any thing [92 U.S. 542, 555] to the rights which one citizen has under the Constitution against another. The equality of the rights of citizens is a principle of republicanism. Every republican government is in duty bound to protect all its citizens in the enjoyment of this principle, if within its power. That duty was originally assumed by the States; and it still remains there. The only obligation resting upon the United States is to see that the States do not deny the right. This the amendment guarantees, but no more. The power of the national government is limited to the enforcement of this guaranty.
Joining even just
Cruikshank with Heller, the proper resolution of
National Rifle Association,
Maloney, and
Nordyke is to incorporate Second Amendment protection into state laws.
Presser took a similar stance. Without specifically speaking to the right to keep and bear arms, it drew a similar delineation between the State and Federal government:
The provision in the Second Amendment to the Constitution, that "The right of the people to keep and bear arms shall not be infringed" is a limitation only on the power of Congress and the national government, and not of the states. But in view of the fact that all citizens capable of bearing arms constitute the reserved military force of the national government as well as in view of its general powers, the states cannot prohibit the people from keeping and bearing arms so as to deprive the United States of their rightful resource for maintaining the public security.
The provision in the Fourteenth Amendment to the Constitution that "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States" does not prevent a state from passing such laws to regulate the privileges and immunities of its own citizens as do not abridge their privileges and immunities as citizens of the United States.
Unless restrained by their own constitutions, state legislatures may enact statutes to control and regulate all organizations, drilling, and parading of military bodies and associations except those which are authorized by the militia laws of the United States.
Note also that
Presser, while declining to extend the Fourteenth Amendment protections into State law, still binds the states against an absolute prohibition of the keeping of arms ("the states cannot prohibit the people from keeping and bearing arms so as to deprive the United States of their rightful resource for maintaining the public security").
US v Miller is the first Supreme Court case that directly addresses the 2nd Amendment. However, it merely rules on the relative merits of Federal authority versus state police power; it is silent on the fundamental right to keep and bear arms itself.
The original trial court in
US v Miller held that the National Firearms Act was an unconscionable usurpation of a police power properly delineated to the states, and thus was unconstitutional. The Supreme Court reverse, ruling the original trial court's finding to be "untenable".
However,
US v Miller by refutation demonstrates the supremacy of Federal over State authority in this area:
In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. Aymette v. State of Tennessee, 2 Humph., Tenn., 154, 158.
The Constitution as originally adopted granted to the Congress power- 'To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.' U.S.C.A.Const. art. 1, 8. With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.
While
US v Miller is silent on the right to keep and bear arms itself, it definitively allocates whatever regulatory capacity as may exist to the Federal government and not the State government.
Common to each of these cases is the sense that the US Constitution prevails over state law where there is clear conflict. This is very much in keeping with the Fourteenth Amendment.
Cruikshank very appropriately notes the boundaries of both state and federal government, and points out that neither functionally exists outside of its boundaries, but also accepts the potential for both governments to overlap, and where such overlap does occur, the controlling standards are those of the US Constitution.
I've read the Chicago case, and I believe they erred in their reasoning; the thrust of their ruling was that the Constitution meant to preserve differences among the states:
But the municipalities can, and do, stress another of the themes in the debate over incorporation of the Bill of Rights: That the Constitution establishes a federal republic where local differences are to be cherished as elements of liberty rather than extirpated in order to produce a single, nationally applicable rule
This is a valid point, but as a judicial standard it has to fail when a fundamental right guaranteed by the Constitution is violated, else the entirety of the US Constitution has no substance at all. It would be one thing to argue a state having a different regulatory scheme for firearms from federal statute; that is not the argument made in the Chicago case, which deals with outright prohibitions on most types of handguns. Local differences cannot justify eliminations of Constitutionally protected rights. We know from
Heller that the Second Amendment elucidates a fundamental right to keep and bear arms. We know from
Cruikshank that the Fourteenth Amendment works to ensure that Constitutional rights are equally protected in all the states. We know from
US v Miller that such capacity for firearms regulation as may constitutionally exist is indisputably within the province of the Federal government.
No case is ever guaranteed a specific outcome, but, in light of
Heller, I do not see how the Supreme Court could possibly sustain the Chicago ruling.
) have the same right to resistance to tyranny of us hardy, countryfolk.
