The incorporation of the Second Amendment is likely to be accomplished through the due process clause of the 14th Amendment, like other parts of the Bill of Rights. Oral arguments made clear incorporated the Second Amendment through the privileges and immunities clause instead is precluded by the Slaughter House cases decided in 1873 (gutting the Privileges and Immunities Clause), which are still good law.
There is division among the Justices over how broadly the right to bear arms should be defined and how much regulation of that right should be permitted.
The Court already established in the Heller case which established that the Second Amendment includes an individual right vis the federal government to bear arms for self-defense that almost all current federal restrictions on gun ownership other than the municipal ordinances of the District of Columbia are permitted by the Second Amendment. The need to define the scope of the right is more intense now that myriad state and local regulations must be reviewed.
[T]he focus of debate will be how extensive a “right to keep and bear arms” should be spelled out: would it be only some “core right” to have a gun for personal safety, or would it include every variation of that right that could emerge in the future as courts decide specific cases? The liberal wing of the Court appeared to be making a determined effort to hold the expanded Amendment in check, but even the conservatives open to applying the Second Amendment to states, counties and cities seemed ready to concede some — but perhaps fewer — limitations.
Regular readers of this blog will know that I believe that this is the wrong call. But, it looks like the writing is on the wall.
UPDATED WITH MORE REPORTING FROM THE SAME SOURCE ON EXTENT OF THE RIGHT:
Justice John Paul Stevens explored whether such an extension would “apply to all of the Second Amendment” — including any court interpretations that ensued — or only “a homeowner’s right to protect against intruders in the home” — the specific right that Heller recognized. Gura responded that the Second Amendment “was not so limited.” Stevens then asked whether the right would include “a right to parade around in the streets with a gun.” Gura said that the states and cities would have to obey a right that was fully equal to all rights embraced by the right to keep and bear arms.
Justice Kennedy soon joined in that exchange, and asked whether “incorporation” would embrace “all of the refinements” that courts would make in interpreting the right, or “just the core of the right.” . . .
The remainder of Gura’s time was spent amid an exchange between Breyer and Scalia over whether courts should give the Second Amendment lesser scope based on statistics about the social cost that would result in people killed from others’ use of gun rights. . . . it was during Clement’s time at the podium that the Court’s liberal bloc began making a case — which Clement essentially resisted — to limit the “incorporated” right to, at most, some core guarantee, without all of the variations that would later develop. Clement noted that there were “not a lot” of variations of the gun right yet, since Heller was the only precedent so far, and that was limited to gun rights for self-defense in the home.
Clement, however, said that the Court should allow a “carryover” into the 14th Amendment of all of the jurisprudence that develops on the Second Amendment’s scope. There should not be a Second Amendment right and then a mere “shadow” of it that applied to state and local government, he argued. He did concede, though, that constitutional gun rights might be allowed to develop differently at the state and local level than at the federal level. But that, he said, is different from creating only a “shadow” right applied to state and local laws. . . .
Feldman, the lawyer for the two cities involved in the case. . . . almost immediately frustrated Kennedy by arguing that gun rights were not an essential attribute of “ordered liberty,” thus questioning whether such rights qualify as fundamental. If they are not, Kennedy shot back, then the Heller decision was wrongly decided. And Chief Justice Roberts told Feldman that there was no way to read the Heller opinion to make the Second Amendment seem a less important right. . . . the Chief Justice commented that “we haven’t said anything about what the content of the Second Amendment is,” so that, over time, it may develop that state and local governments may well be allowed to impose restrictions, such as bans on carrying concealed weapons. And Scalia reminded Feldman that the Court in the Heller decision had left room for some regulation of guns even though the Second Amendment now embraced a personal right to have a gun. Kennedy also noted that “there are provisions of the Constitution” that allow states to have “significant latitude” in regulating what those provisions seek to protect.
Feldman . . . also scored no points with a complaint that “incorporation” of the Second Amendment would go a long way toward establishing a national constitutional right of “self-defense,” which he said the Court has never mandated and should not now. For 200 years, he said, it has been up to state and local government to sort out when self-defense was justified. No member of the Court seemed persuaded that that was now at stake in the Second Amendment context.
FWIW, Feldman's argument about "ordered liberty" is entirely a legitimate one. Some federal rights are not incorporated because they are not necessary to ordered liberty, even though they are important federal rights and Heller really doesn't squarely address the issue. But, the court seems to have decided the issue of incorporation already, so this is probably a lost cause.
How Far Should The Right Go?
So, how should be define the scope of the Second Amendment?
The strongest argument for making the Second Amendment an indvidual right which I articulated pre-Heller was that the Second Amendment is fundamentally designed to serve as a check on deliberate government failure to address, often for political reasons, private violence. This explains why the right should be fundmental and part of our political charter, in a way that does not give legality to armed insurrection, and by providing a theory for the right, illuminates when restrictions by government on the right are, or are not, reasonable regulations of the right.
The most compelling arguments for an individual right to bear arms in self-defense, in my view, are the mirror image of the fact that there is no individually enforceable right to receive protection from violence through governmental law enforcement authorities.
The government has no obligation to help you even when informed through proper channels and court certified determinations, in no uncertain terms, of a known and imminent deadly threat to your personal safety which would be possible for law enforcement officers to respond to if the responsible government manager chose to do so. This proposition is settled law enunciated by the U.S. Supreme Court in a case out of Castle Rock, Colorado. . . .
Our constitutional scheme is largely not designed to protect people from non-state actors; private law is largely the province of the states and of statutory federal law. Civil rights violations, for example, by definition, involve acts by state actors under color of law.
Similarly, in American law (unlike the law of most European countries where there is a duty to prosecute crimes subject to certain limitations), prosecutors likewise have the absolute right not to pursue a prosecution even in the face of irrefutable proof that a crime has been committed at a time when the prosecutor's office has sufficient resources to take on the case. This right [to not prosecute], called prosecutorial discretion, is rarely systemically abused . . . . But, this doctrine has the potential to allow violent private actors empowered by an indifferent prosecutor to commit crimes against innocent citizens with impunity in circumstances where the rest of the government, motivated by majoritarian political motives, isn't offended enough by this act to remove the prosector from office.
Thus, an individual right to bear arms may be the only available recourse available to someone who needs to secure their personal safety from private violence. Viewed in this manner, the universal privilege to use deadly force in self-defense in some circumstances is reinforced by the right to bear arms, and both recognize the inability or unwillingness of the government to provide adequate protection to everyone.
This most compelling justification has lost some of its currency in the popular mind, because it rarely manifests itself in modern urban life which is were most voters live their lives. Cases like the one in Castle Rock are a notable product of unusual incompetence, lack of leadership and a bueaucratic bad attitude, more than they are a product of any active malice. The modern urban reality is that it is rare for law enforcement to show deliberate disregard for the safety of the general public. Also, while law enforcement responses are never instantaneous, in violent emergencies, police in the vast majority of the territory of most modern urban areas can usually be counted upon to arrive in a matter of minutes.
But, like cell phone coverage, the quality and good faith of police protection varies from place to place.
In low density urban areas, particularly in the early days of the Republic when muscle power was the only way to travel overland, but even now in remote areas, the ability of law enforcement to mount a prompt response to violent actors was negligible. In places like the pre-civil rights era rural South, law enforcement often deliberately refused to protect citizens from lynch mobs. In a deeply distressed urban ghetto, the kind often called a "war zone," police are often not effective at securing minimal personal protection for residents. A temporary interlude of lost law enforcement authority can arise when a large criminal motorcycle gang sudden drives into town outnumbering local law enforcement officers ten to one or more. In natural disasters, the police may be to overwhelmed to act or unable to reach you and protect you. Calling the cops isn't a viable options if your cell phone battery is dead, the landline is down or has been cut, and you are out of earshot from potentially helpful neighbors. Use your imagination and you can conjure up similar situations.
While some of the individuals have only a passing and transitory need for armed self-defense, and one would expect a majoritarian government to make reasonable laws governing when to allow people to arm themselves for these kinds of eventualities, there is another class of cases in these examples that is systemic and political in nature, without being revolutionary. An individual Second Amendment right to bear arms becomes political when the government chooses to refrain from providing a minimal level of personal protection from private violence to members of some unpopular minority group.
Perhaps that group consists of Korean storekeepers in a large Los Angeles neighborhoods who have dealt sharply with local residents in areas so beset by riots by angry African-Americans protesting an unjust judicial verdict that majority white police are incapable of protecting them or disinclined to risk their own lives to do so. Perhaps that group consists of blacks in a neighborhood beset by private KKK violence that local sheriff's choose to ignore. Perhaps that group consists of lawfully striking union members attacked by goons employed by their employers. Perhaps that group consists of Muslim women targeted for honor killings, or police informants targeted for gang or organized crime hits, whose killings are notoriously difficult to solve. Perhaps the group consists of Jews targeted by private Nazi organizations, in a Warsaw ghetto type situation. As Rwanda illustrated, collective violence even by crowds armed only with machettes and torches from a basically disarmed population can be the ulimate genocidal weapon of a majority unimpeded by governmental authority, against an unpopular minority. . . .
[T]yrants, either majoritarian or minoritarian, can act tyanically simply by letting private actors disregard the rule of law. Inaction can be as much of a force for tyrany as active governmental action in a world with organized private actors willing to take advantage of the license that the tyrant grants to them. Quite a bit of the violence in Iraq under U.S. occupation can be explained through that model.
Of course, the ability of members of a group to buy and own guns when they anticipate a legitimate reason to fear the combination of law enforcement indifference and organized private violence against them, might discourage the use of private violence as a political weapon generally, protecting minority political and personal rights from partisan political violence . . . even if the government is inclined to overlook it. It discourages headlines like the one in the New York Times after Pakistan's most recent election that proclaimed the election mostly orderly because "only 15 people" were murdered in election related violence.
A lens that sees an individual right to bear arms as a backstop against failures of the government to adequately secure public safety for some individuals whom it may lack poltical incentives to protect comes closest to outlining what sort of reasonable regulation of the right makes sense, while recognizing that the Second Amendment does have a political character.
This view fits comfortably into a legal regime that does not legitimatize the right of individuals to decide for themselves to carry out treason against the existing state, because they personally see it as illegitimate, which is the usual tyrrany argument.
Seen as a tool to use to enforce the democratically enacted criminal laws when the government fails to do so, so that one may protect the individual rights that the criminal law is a device to ensure, when a lawsuit would be unavailing, an individual right to bear arms seems less threatening to public safety, and develops a framework within which it is possible to assess what regulations of the right are reasonable, and which are not.
This isn't necessarily how the law will turn out. But, without an illuminating theory such as this one, it is hard to see how a consistent Second Amdendment jurisprudence that does anything more than validate gun ownership in vary narrow circumstances (like ownership of a handgun by a non-felon possessed in his own home for self-defense, the situation in Heller) can emerge.
Implications For Total Incorporation
This also moves us one step closer to "total incorporation" of the Bill of Rights. Now, there are a few provisions of the Bill of Rights that do not apply to the states:
The rights (other than the Second Amendment) which do not apply to the states are the 5th Amendment right to be indicted by a grand jury, the 6th Amendment requirement that juries have twelve member and be unanimous, the 7th Amendment right to a civil jury trial, and the 8th Amendment protections against excessive bail and excessive fines (although there is some dispute as to this point and over the applicability to states of the 3rd Amendment (quartering soldiers)).
In practice, the 3rd Amendment almost never comes up and would be no great burden (it has been held incorporated one of the U.S. Courts of Appeals), the 6th Amendment unanimity requirement is violated in only two states (Oregon and Louisiana, a stance that the court refused to revisit in an October 2008 death penalty appeal), the 7th Amendment's protections are honored in fact in every state but Louisiana (with some possible narrow exceptions), and state constitutions in every states already protect the 8th Amendment prohibitions against excessive bails and excessive fines (a 2008 U.S. Supreme Court ruling even suggested that they were incorporated).
Thus, the main practical impacts of total incorporation would be to require grand juries to commence criminal cases for "capital or infamous crime" (something not required in about half of the states), to make civil juries available in most cases in Louisiana, and to require unanimous verdicts on criminal juries in Oregon and Louisiana.
Appellate litigation over what constitutes a capital or infamous crime has largely been forestalled by Federal Rule of Criminal Procedure 7(a) which provides that every felony punishable by death or one or more years of imprisonment must be prosecuted by indictment. But, it isn't obvious that the term "infamous crime" is synonomous with "felony" and if it is not, states might limit the right to a grand jury indictment prior to prosecution to a narrower class of offenses.
The official notes on Rule 7(a) state:
An infamous crime has been defined as a crime punishable by death or by imprisonment in a penitentiary or at hard labor, Ex parte Wilson, 114 U.S. 417, 427; United States v. Moreland, 258 U.S. 433 (1922).
Any sentence of imprisonment for a term of over one year may be served in a penitentiary, if so directed by the Attorney General, 18 U.S.C. 753f (now 4082, 4083) (Commitment of persons by any court of the United States and the juvenile court of the District of Columbia; place of confinement; transfers). Consequently any offense punishable by imprisonment for a term of over one year is an infamous crime.
The later case also makes clear that: "It is what sentence can be imposed under the law, not what was imposed, that is the material consideration. When an accused is in danger of an infamous punishment if convicted, he has a right to insist that he be not put upon trial except on the accusation of a grand jury."
The complete misdemeanor exclusion is justified with reference to Duke v. United States, 301 U.S. 492 (1937) (under prior law punishment of more than six months and a $500 fine had been subject to the indictment requirement).
But, the courts haven't dealt with what constitutes infamy for 73 years, and since the term could have a cultural component, it is conceivable the only more serious offenses might be subject to the indictment requirement.