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Legal Commentary

: Balkinization

Is the Right to Keep and Bear Arms a Fundamental Right?

By Jack M. Balkin

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Deborah Pearlstein asks what evidence we have that the right to keep and bear arms is a fundamental right of the same kind as other fundamental rights, such as those mentioned in the Bill of Rights. I can offer no better evidence than the speech offered by Senator Jacob Howard, a member of the Joint Committee on Reconstruction that drafted the Fourteenth Amendment and the floor manager of the Fourteenth Amendment. He was given the task of introducing the amendment before the United States Senate and explaining its purposes.

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SENATOR JACOB HOWARD, SPEECH INTRODUCING THE FOURTEENTH AMENDMENT
Speech delivered in the U.S. Senate, May 23, 1866 [CONG. GLOBE, 39th Cong., 1st Sess. 2765-66 (1866).]

Mr. HOWARD. . . . I can only promise to present to the Senate, in a very succinct way, the views and the motives which influenced th[e] committee, so far as I understand those views and motives, in presenting the report which is now before us for consideration, and the ends it aims to accomplish. . . . .

The first section [of the proposed Amendment] relates to the privileges and immunities of citizens of the several States, and to the rights and privileges of all persons, whether citizens or others, under the laws of the United States. It declares that?

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

. . . .
[Howard next discusses Justice Washington's opinion in Corfield v. Coryell and its claim that the list of privileges and immunities include fundamental rights whose scope cannot be fully enumerated] To these privileges and immunities, whatever they may be? for they are not and cannot be fully defined in their entire extent and precise nature? to these should be added the personal rights guarantied and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining to each and all the people; the right to keep and to bear arms; the right to be exempted from the quartering of soldiers in a house without the consent of the owner; the right to be exempt from unreasonable searches and seizures, and from any search or seizure except by virtue of a warrant issued upon a formal oath or affidavit; the right of an accused person to be informed of the nature of the accusation against him, and his right to be tried by an impartial jury of the vicinage; and also the right to be secure against excessive bail and against cruel and unusual punishments.

[A]ll these immunities, privileges, rights, thus guarantied by the Constitution or recognized by it, are secured to the citizen solely as a citizen of the United States and as a party in their courts. They do not operate in the slightest degree as a restraint or prohibition upon State legislation. . . . The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees.

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Howard's speech, at least to me, shows that the Framers of the Fourteenth Amendment assumed that the privileges or immunities clause would incorporate all the individual rights listed in the Constitution (not just those in the Bill of Rights) that bound the federal government, as well as other rights that would be discovered and articulated over the course of the country's history. It is a powerful piece of evidence that a particular form of living constitutionalism was not only consistent with the framing of the Fourteenth Amendment but expected by those who drafted and ratified it. If we think that Howard's speech (which, by the way, contains other statements of enormous relevance to today's debates about equal protection) is worthy of note, and I think it is very important indeed, we should not selectively reject those parts we do not like, in particular, its assumption that the right to keep and bear arms was a fundamental personal liberty and that one of the purposes of the Amendment was to keep states from abridging this fundamental guarantee.

What follows from the fact that a right is fundamental, of course, depends on the nature of the right. We need not treat the right to keep and bear arms exactly the same as the right to freedom of speech. Indeed, each of the fundamental rights in the Bill of Rights is treated according to different tests, and indeed, there are many different tests that apply to First Amendment rights. But the evidence is that all of the personal rights included in the Bill of Rights were privileges and immunities of citizens of the United States and the right to keep and bear arms was one of their number.

Full post as published by Balkinization on March 19, 2008 (boomark / email).