In McDonald v. Chicago, its landmark 2010 decision striking down that city's handgun ban, the U.S. Supreme Court held that the Second Amendment right to keep and bear arms applies against state and local governments via the 14th Amendment, which declares: "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."
If you ask most libertarians, they will probably tell you that McDonald was a great victory for individual rights. But that view isn't unanimous. Most notably, the distinguished New York University law professor and libertarian legal icon Richard Epstein will tell you that the Supreme Court got it wrong.
In a new essay for the journal Defining Ideas titled "The Libertarian Gun Fallacy," Epstein argues that most libertarians, including me, make the mistake of ignoring "the key federalism component of the Second Amendment." As Epstein sees it, the Second Amendment isn't about individual rights at all. Instead, its purpose is to maintain federalism by keeping "states free and clear of federal oversight on their own internal regulation of the use of firearms."
Under that interpretation, the Supreme Court should have sided with Chicago and prevented 76-year-old Otis McDonald from getting a legal handgun for self-defense. As Epstein puts it, "It would be very strange indeed if the provision that is intended to preserve state independence from federal control should now be read as an individual right that binds the states as well as the federal government."
The problem with Epstein's reading is that he seems to give too little weight to the text and history of the 14th Amendment, which was specifically added to the Constitution in order to provide a check on the powers of state governments, including giving federal courts the authority to nullify state and local laws that violate the Bill of Rights. The text of the 14th Amendment, the historical events leading to its ratification, and the statements of purpose made by its framers, supporters, and opponents all testify to the fact that it was created to protect individual rights—including the right of armed self-defense—on the state and local level.
Consider the amendment's origins. After the conclusion of the Civil War, the former Confederate states began passing various laws that robbed the recently freed slaves (and their white unionist allies) of their political, economic, and civil rights, including the right to arms. Mississippi's Black Code, for example, declared "that no freedman, free Negro, or mulatto…shall keep or carry firearms of any kind," while Florida made it illegal for blacks to possess "any bowie-knife, dirk, sword, fire-arms, or ammunition of any kind" without a license. Needless to say, those licenses were not easy to come by.
In response to these violations, the Republican-controlled 39th Congress produced the 14th Amendment, which was ratified in 1868. One of the leaders of this process was Rep. John Bingham of Ohio, who authored the amendment's first section (which I quoted from above). In a speech before the House of Representatives, Bingham explained that the rights protected by the amendment "are chiefly defined in the first eight amendments to the Constitution." Similarly, Sen. Jacob Howard of Michigan, who introduced the 14th Amendment in the Senate and then shepherded its passage, declared that its purpose was "to restrain the power of the States and compel them at all times to respect these great fundamental guarantees," including "the right to keep and to bear arms."
Opponents of the amendment also shared in this understanding of the new limits it placed on state regulatory power—indeed, that's basically why they opposed ratifying it in the first place. As one opponent at New Hampshire's ratification convention argued, the 14th Amendment was "a dangerous infringement upon the rights and independence of the states." Interior Secretary Orville Browning denounced the amendment in similar terms, arguing in a widely circulated 1866 letter that it would "totally annihilate…the authority and control of the States over matters of purely domestic and local concern."
Keep in mind that before the 14th Amendment was added to the Constitution, none of the protections in the Bill of Rights were seen as applicable to the states. The First Amendment, which famously begins, "Congress shall make no law," was quite explicit on that point. So the 14th Amendment altered the federalism component of more than just the Second Amendment. It transformed the entire Bill of Rights into a safeguard against abusive state and federal power.
That doesn't mean federalism itself was abolished, just that the pre-Civil War federalist system was reconfigured. The federal government is still forbidden (at least on paper) from roaming beyond the confines of its constitutionally delegated powers. What's different is that the states are now forbidden from infringing on fundamental constitutional rights, specifically including the right to keep and bear arms.
In light of this evidence, I respectfully dissent from Epstein's judgment.
Damon W. Root is a senior editor at Reason magazine.
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