Saturday, November 21, 2009

Are There Two Bills of Rights?

I have occasionally on these pages wondered whether there are, or at least should be, two sets of the provisions of the Bill of Rights: one that is applied against the federal government, another against the states. Here's how I expressed it in a post entitled Are There Two Sets of Constitutional Amendments?:
Here's something I don't get. Can the same constitutional amendment mean one thing when applied to the federal government and another when applied to the states?

I use the Second Amendment only because it makes for a vivid and easily-understood example. Assume that the original understanding of the Second Amendment was that it did not create an individual right to bear arms (for convenience, I'll refer to the opposite of an individual rights model, a "militia model"). Assume further -- and I think that the legislative history clearly shows this to be the case -- that, in passing the Fourteenth Amendment, the 39th Congress believed that the Second Amendment did create an individual right to bear arms, and intended that the States should be barred from from infringing that individual right.

Logically, you would then have, in effect, two Second Amendments, or at least two versions of the Second Amendment. The first, applicable directly to the federal government, would convey no individual right to bear arms. The second, applicable to the States via the Privileges or Immunities Clause of the Fourteenth Amendment, would convey an individual right. In other words, the federal government would be free to restrict an individual's right to bear arms, but the States would not be free to do so.

I've never found a clear answer to my question, but a recent post by Prof. David Bernstein at Volokh at least suggests that I'm not crazy. Although the post focuses on a different issue (whether the Supremes will or should use the Privileges or Immunities Clause rather than the Due Process Clause for purposes of analyzing whether to incorporate the Second Amendment into the Fourteenth), in the course of it Prof. Bernstein refers to my issue.

I'm happy to report that Prof. Bernstein suggests that it may make good sense to apply a given Amendment differently against the states and the federal government, and he appears to agree that the Second Amendment may be the perfect example of where such a dichotomy is warranted by the historical evidence (emphasis added):
Second, I would explain why I think it’s important to decide this case on [Privileges or Immunities] grounds. My argument would be that in due process incorporation cases, the Court has consistently (and thoughtlessly) determined that the scope of the right against the states is precisely the same as the scope of the right against the Federal government. This is problematic in the context of the right to bear arms because of the confusion over what the “militia” language in the Second Amendment means. Heller came out the “right” way, but by a bare 5–4 majority, with much dispute about whether the Second Amendment was meant to protect an individual right to bear arms. By contrast, it’s entirely clear that the Framers of the Fourteenth Amendment thought that the [Privileges or Immunities] Clause protected an individual right to bear arms. In particular, they understood that African Americans and “carpetbaggers” needed weaponry to protect themselves from assaults by armed Southern terrorist groups.

No comments:

Post a Comment

Related Posts with Thumbnails