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An interesting observation by Prof. Lund
I was reading Prof. Nelson Lund's piece, "Federalism and the Constitutional Right to Keep and Bear Arms," Publius 63 (Summer 2003): he observes that the 2nd Amendment is in a unique position vis-a-vis the 14th Amendment.
The Supreme Court early on held that the federal Bill of Rights did not bind State governments (and in fact the early State governments often penalized freedom of expression -- look at the Slave Codes -- and some had established churches for a time). Then came the 14th Amendment (1868) which forbade the States to deny the "privileges and immunities" of US citizenship, or to deprive citizens of life, liberty or property without "due process of law." Two different prohibitions.
The Supreme Court (as I note below) quickly eviscerated the "privileges and immunities" clause, but in the 20th century began binding States to follow specific Bill of Rights provisions by holding that laws restricting freedom of speech, jury trial in criminal cases, etc. involved deprivation of "due process of law."
Prof. Lund's observation is that the Court's only rulings on 2nd Amendment / 14th Amendment come in 19th century cases over "privileges and immunities." There simply is no Supreme Court ruling on whether a State deprivation of the right to arms denies "due process of law." This makes the 2nd Amendment quite unique. There are "due process" rulings on the other provisions of the Bill of Rights -- expressly holding that deprivation of jury trial in civil cases, and the right to grand jury indictment in criminal ones, do not deny "due process," and holding that deprivations of the remainder of the Bill of Rights does deny it. The 2nd Amendment stands alone in that the Supreme Court has never made a "due process" call one way or the other.
[Update] As the LegalEagle notes, the 3d Amendment (forbidding quartering of troops in private property) is a bit peculiar: it's generated little controversy, due to the invention of barracks.
Prof. Lund also notes:
1. The 2nd Amendment's militia provision is an ablative absolute that does not modfy its right to arms guarantee. His analogy: if a school were to announce that "your instructor being ill, the class is cancelled," the class is still cancelled even if it later discovered that the instructor was healthy and faking his illness.
2. The Patent and Copyright Clause of the Constitution empowers Congress "to promote the progress of science and useful arts" by protecting intellectual property for a limited time. (The "limited time" is presently no less than 99 years in the case of copyright). This is a much stronger link between the explanation of purpose and the operative clause. The Court has held, however, that Congress may extend copyrights retroactively, even though giving unanticipated protection for things already written or invented cannot promote the "progress" of science.
3. His read of the amendment: the original Constitution gave Congress broad militia-related powers. The President was commander in chief when the militia was called out, Congress could define their armaments and drill, and provide for their calling out, etc.. The Bill of Rights was meant to curtail the powers given in the original Constitution (in particular those powers that the antifederalists were saying might be abused, and which the federalists then actually had no intention of abusing). The Second Amendment was simply meant to rule out one possible abuse of the militia powers, namely use to disarm, rather than arm, the militia, the body of all citizens capable of bearing arms.
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Is Professor Lund's piece available anywhere online for the rest of us to read?
You state: "The 2nd Amendment stands alone in that the Supreme Court has never made a "due process" call one way or the other."
That is incorrect. The 3rd Amendment shares this distinction with the 2nd. In fact, the 3rd stands alone as the only one of the Bill of Rights never to be the subject of any decision from the Supreme Court, let alone a due process one. In fact, there has only been one case, Engblom v. Carey, 677 F. 2d 957 (2d Cir. 1982), on remand, 572 F. Supp. 44 (S.D.N.Y.), aff'd. per curiam, 724 F.2d 28 (2d Cir. 1983)in which the 3rd has been at issue.
Threw that in, just to say hi!
You state: The Second Amendment was simply meant to rule out one possible abuse of the militia powers, namely use to disarm, rather than arm, the militia, the body of all citizens capable of bearing arms.
Can't agree more.