A couple months ago, I wrote about what I consider to be a compelling argument for incorporating the Second Amendment as a restriction on the power of not only the federal government, but on that of the states, as well--through the Fourteenth Amendment. The argument I used was one shamelessly plagiarized from DW at We Are The Militia. To (very briefly) summarize: DW points out that the text of the First Amendment begins with "Congress shall make no law . . . ." This would seem to be only a restriction on the federal government (because it's federal laws that are made by Congress). The Second Amendment, in contrast, simply describes a right that shall not be infringed--with no limits placed on by whom it shall not be infringed.
If interpreted literally, the 1st Amendment only restricts Congress from violating the rights enumerated within it. It makes no mention of other branches of the government nor of other citizens or foreign powers for that matter. Quite literally, it only protects those rights from Congress.DW thus makes a pretty good case for the Second Amendment imposing an obligation on the federal government to protect the right to keep and bear arms--from anyone who would infringe on it.
In contrast, the 2nd Amendment appears to be a firmly worded commandment to the Federal Government to prevent anyone from infringing the right of the people to keep and bear arms. It appears that the right is protected against any infringement by any government or individual.
As things stand now, of course, the Second Amendment is not incorporated through the Fourteenth Amendment for enforcement against the states. My recent reading leads me to wonder how that could be. Between Bryan Wildenthal's "Nationalizing the Bill of Rights: The Rise, Fall, and Rise of the Fourteenth Amendment Incorporation Doctrine (Book Project), Introduction and Chapters 1 and 2," and Chapter 5, "Freedmen, Firearms, and the Fourteenth Amendment," of Stephen Halbrook's That Every Man Be Armed, there would seem to be little room for doubt that the intent of the Fourteenth Amendment was the application of the first eight amendments of the Bill of Rights to the state governments.
An example from page 112 of That Every Man Be Armed:
When he introduced the Fourteenth Amendment in Congress, Senator Jacob M. Howard (Republican of Michigan) referred to "the personal rights guaranteed and secured by the first eight amendments to the Constitution; such as freedom of speech and the press; . . . the right to keep and bear arms. . . ." That state legislation failed to guarantee these rights rendered adoption of the Fourteenth Amendment imperative. "The great object of the first section of the amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees."On page 146, Halbrook provides us another example (in truth, the chapter is packed with them--I have merely chosen a couple that were easy to work with in this format). Here, he quotes Representative John A. Bingham (R-OH), who drafted the 14th Amendment:
Mr. Speaker, that the scope and meaning of the limitations imposed by the first section, fourteenth amendment of the Constitution may be more fully understood, permit me to say that the privileges and immunities of citizens of a State, are chiefly defined in the first eight amendments to the Constitution of the United States. These eight amendments are as follows:Not very ambiguous, is it?
[ . . . ]
These eight articles I have shown never were limitation upon the power of the States, until made so by the fourteenth amendment. The words of that amendment, "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States," are an express prohibition upon every State of the Union. . . .
Incidentally, the same chapter, despite its focus being the incorporation issue, pretty effectively demolishes the argument that the right to keep and bear arms, as guaranteed by the Second Amendment, is contingent on formal enrollment in an organized, government-sanctioned militia. When militias in formerly Confederate states engaged in a campaign of first disarming black people (along the lines of early "gun-control" laws), and then terrorizing them, laws were proposed that would disband and disarm the militias, in order to stop these atrocities. In the end, it was decided that while disbandment of such militias was permissible, disarming of the members of said militia would violate the Second Amendment. I'll explore this more fully in another blog post.
In the end, although the formal case for incorporation of the Second Amendment (and indeed, all of the first eight amendments of the Bill of Rights) would seem quite strong, the argument seems rather simpler than that, to me. I believe the rights protected by the Bill of Rights to be fundamental and inalienable. As far as I'm concerned, there's no point in a right being inalienable, if it can be "aliened" by the state, or by any other unit of government.