I should have mentioned that the 5th Amendment states: "…
[N]or be deprived of life, liberty, or property, without due process of law. "
That is the same terminology used in the 14th. The 14th was intended to apply the 5th to the States, not to apply the whole Bill of Rights.
I am at a loss to understand as to what your response is meant to be drawn in contrast. You stated that 1) Cecil incorrectly stated the first nine amendments applied to the states, and 2) that the selective incorporation of the provisions contained in those amendments into the 14th amendment was the result of a liberal interpretation by the Supreme Court. I countered that 1) Cecil didn’t say what you had said he did, he had said what you also asserted, and 2) the selective incorporation of some of the guarantees of the ‘Bill of Rights’ into the 14th amendment was not a ‘liberal’ interpretation of that amendment, because it actually followed a more expansive reading of the meaning of the fourteenth amendment’s due process clause, making the selective incorporation a relatively conservative interpretation.
With what are you in disagreement?
There is little support for this statement, both in terms of legislative history in the Congress, or in terms of contemporary writings by those who commented on the issue. Some legal theorists considered it to be limited to checking procedural due process (as does the Fifth Amendment), but others felt it acted as a check on state actions that infringed on any fundamental right. The tension regarding this issue played out on the Supreme Court from 1873 through 1885, by which time the viewpoint that substantive due process was protected had won the day.
Therefor, viewing the due process clause as merely a restatement of the procedural clause in the Fifth Amendment, only applied to states as opposed to the federal government, is not supported by the actual history of the amendment.
Nota Bene:
To contribute to an ultimately sterile point, let me differ from DSYE in the following:
(1) My understanding is that historically state militias at the time of the writing of the Constitution still featured substantial quantities of “arms” such as pikes and the like.
(2) Insofar as the word is used in connection with militias in the clause, and given the historical use at the time, it seems reasonable to guess that the usage could well be understood as not being intended to be restricted to firearms per se.
But, we’re not in the late 18th century to clarify.
Cecil said, inter alia, “[gun control advocates state]Almost any state or local gun-control action is fine; the Second Amendment does not apply. On the federal level, only laws interfering with state militias are prohibited.
This is a crock. The legal precedents in almost every other aspect of law the Bill of Rights has been broadly construed to restrain the states as well as the federal government.”
I don’t see why ipso facto it’s a lot of crock. It was a liberal interpretation of the 14th Amendment that has applied the first 8 amendments to the States, and the SC did it piecemeal. You state that the fact they did it piecemeal means it wasn’t a liberal interpretation. I say that’s a lot of crock.
It’s apparent to me, and I would guess to every reasonable person, when the exact language of the 5th Amendment is incorporated into the 14th Amendment, the drafters of that amendment intended that the 5th amendment be so incorporated. If they wanted all of the 1st 8 amendments to apply, why didn’t they say so? It was the SC that so broadened the 14th Amendment, for the amendment itself was limited to the 5th. The SC has not incorporated the 2d Amendment and until it does so, it does not apply to limit the ability of the States to govern “the right to bear arms.” Cecil said that’s a lot of crock. Who is Cecil or anyone else to predict how the SC will rule?
Maybe not, but it seems to expressly state that states cannot deprive people of property (any property?)without due process of law.
I wonder why a firearm isn’t considered property? Especially since the ownership of many (not all) types of firearms is perfectly legal in all 50 states?
A firearm is a personal property, but that doesn’t preclude a government from legislating to prevent you from obtainng it, or to obtain it upon certain conditions. If you don’t have it, that provision doesn’t say that you can have it. If you have a firearm legally any subsequent legislation would not be able to take it away; i.e., your firearm would be grandfathered in. That would be true even if there weren’t a Bill of Rights.
Also, “without due process of law” is a factor. Because you have it, doesn’t mean the gvt can’t take it away, but they have to use due process: e.g., condemnation proceedings to acquire land.
Also, with all the other Bill of Rights, there may be a superseding state inteest that trumps your personal right.
The recent posts from barbitu8 and bordelond make me think some basic understanding of the concept of ‘substantive due process’ needs to be provided. Trust me when I say that I am no great fan of expansive interpretation of the federal Constitution. However, the concepts put forth by barbitu8 are historically inaccurate and somewhat too rigid to be allowed to stand unchallenged.
The clause in the Fifth Amendment that “No person shall … be deprived of life, liberty, or property, without due process of law; …” clearly has an application to the procedures by which life, liberty or property are taken. Thus, as barbitu8 notes, “Because you have it, doesn’t mean the gvt can’t take it away, but they have to use due process.” A good example would be criminal judicial procedings; the concepts of unanimous juries, reasonable doubt equating to a “not guilty” determination, evidentiary rules, etc. all spring from the idea that the procedure used to take away your liberty should be a proper one. This idea of what process was due a person existed for some time before the writing of the Constitution, springing out of English jurisprudence extending back in some situations centuries prior to the Revolution.
But, contrary to barbitu8’s implication, the idea that “due process” also meant that government had certain constraints on what liberties could be restricted pre-existed the Supreme Court’s interpretation of the 14th Amendment. There grew in the 16th and 17th centuries a governmental philosophy that man was endowed with certain “natural rights,” which rights could not be impaired by a governmental body. The idea was expressed in the Declaration of Independence with the phrase, “that they are endowed by their Creator with certain inalienable rights … [t]hat to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” Thus, each person has certain rights which government can’t take away, because if it attempts to so do, it exceeds the social compact by which people have established the government in the first place.
The concept that the guarantor of “natural rights” should be the judiciary pre-existed the formation of the federal government. The issue was explored in certain liberal states, for example, Virginia. The debate broke out in the Supreme Court of the United States in 1798, when Justice Chase espoused the position eloquently in his opinion in the case Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798). His position was opposed by Justice Iredell, who made a plea in his opinion for what we now call “judicial restraint.” Justice Iredell felt that the restraint on a government which violated the natural rights of the people was the ability of the people to select new leaders, and that no valid theory of law established the right of the judiciary to overturn the expressed will of the people as shown through the acts of the people elected into the legislative and executive branches. The opinions make interesting reading, because they essentially set forth the main tension that has existed on the Supreme Court during its entire existence.
In form, the Supreme Court usually has professed to follow the views of Justice Iredell. In actuality, the court has repeatedly applied some form of the theory of Justice Chase. Thus, even from the earliest days of the court, the idea that the provisions of the Constitution place a substantive limit, as well as a procedural limit, on the federal and state governments has had some adherence.
This brings us back to the issue raised by barbitu8. From shortly after the drafting of the Constitution, a procedural check existed upon the federal government, in the form of the “due process” clause of the Fifth Amendment. However, it was rarely argued at the federal level that this clause included a substantive restriction on government. Mostly, this is due to the fact that several substantive restrictions were expressly written into the Constitution with the Bill of Rights. However, at the state level, the concept began to gain support, when the same phrase found in several state constitutions was interpreted. One of the most well-known and clearest such examples occurred in Wynehamer v. People of New York, 13 N.Y. 378 (1856). In that case, the New York Court of Appeals (in New York, that is their equivalent of what is usually called the Supreme Court elsewhere) ruled that a prohibition statute violated the state’s due process clause because it applied to liquor owned prior to the passage of the statute. This improperly interfered with the vested property rights of the owners, in contravention of the social compact between the government and the citizens of the state of New York. There were similar cases in a number of other jurisdictions. One treatise on the rise of the concept is Liberty Against Government by Professor E. Corwin (1948).
Probably, the concept would have grown faster at the federal level if it wasn’t for its application in the famous Dred Scott v. Sandford case (60 U.S. (19 How.) 393 (1857)). While the format of the decision in Dred Scott makes it difficult to be sure of any precedent represented by the decision (there are eight separate opinions filed in the case, with nothing even close to a majority opinion), the opinion of Chief Justice Taney suggests that a majority of the justices agreed that the Missouri Compromise violated the “due process” clause by depriving slave owners of their property without Congress having the power to do so. Between the opprobrium with which this decision was received in the North and the intervention of the Civil War, the development of substantive due process was significantly delayed.
But, with this history, we see that, prior to the writing of the Fourteenth Amendment in 1866, there was a well-established, if not universally accepted, idea that “due process” in the United States included both procedural and substantive limits. The words “deprived of life, liberty, or property, without due process of law” had been interpreted to mean that government could not infringe on certain basic rights, such as property rights, contract rights, etc. through laws that affected such rights. Because of this history, no one can say with any degree of accuracy that the insertion of the phrase in the Fourteenth Amendment was intended only to apply to the states the procedural restrictions found applicable to the federal government under the Fifth Amendment. Indeed, the author of the original legislation that resulted in the amendment, Representative John Bingham, as well as other of the drafting legislators, made express statements that the clause intended to apply the “Bill of Rights” to the states, although it is generally thought that this was because the amendment would require the states to conform to “natural law” rather than the specifically enumerated rights of the first eight amendments. As my old Con Law text put it,
Constitutional Law(2d. ed.), Nowak, Rotunda & Young (1983) p. 621
One last note: barbitu8 suggests that “If you have a firearm legally any subsequent legislation would not be able to take it away; i.e., your firearm would be grandfathered in. That would be true even if there weren’t a Bill of Rights.” This is not a true statement of law today. While it accords with the concept adopted by the New York Court of Appeals in the Wynehamer case mentioned above, that theory has been discarded subsequently. Government could not arbitrarily deprive you of your property, but government can (and does) change its mind about the legality of ownership of things, and you are not protected by the fact you once owned such a thing legally. Of course, there might be issues regarding just compensation… 
So the OP asks “Does the second amendment cover the right of ownership of all sorts of weapons?”
Legal eagle DSYoungEsq answers: “No one knows”.
Does this mean that in the long history of the USA no court decision has ever addressed the issue? I find that astonishing.
I quote from DSYoungEsq’s earlier post: "The main case that sets forth some guidelines is United States v. Miller, 307 U.S. 174 (1939). This case is of questionable value, because the respondent, Miller, didn’t appear before the Court, having received a trial court determination that the law used to prosecute them violated the Second Amendment. For some reason, they saw no need to stick around and argue the (for them) theoretical correctness of that decision.
In Miller, the Court held that the purpose of the Amendment was to ensure the ability to provide a well-regulated militia. Therefor, the second clause, the one about the actual right, had to be interpreted with this in mind. In the opinion of the Court, if the weapon in question had no reasonable relationship to the effort to preserve an efficient militia, the right to keep and/or bear it was not preserved by the Amendment. Amazingly enough, the Court didn’t think a sawed off shotgun fell into the category of protected arms."
Assuming that the 14th Amendment refers to “substantive rights,” i.e., natural or inalienable rights, is the right to bear arms such a right? I think not. I think that this is one of the Bill of Rights that would not be encompassed by the 14th Amendment’s liberal interpretation.
I realize that barbitu8. What I meant is “has no court decision ever addressed the issue of exactly what weapons are permitted by the second amendment”? If not at the Supreme Court level, you would think that some state court or a federal court of appeals might have made a reference to the second amendment in their decision to forbid ownership of a certain type of weapon.
Arnold, you aren’t paying attention. Probably some dreamy recollection or a momentary brain vacation.
As I stated in my first post, the Supreme Court HAS addressed this issue, in the Miller case. To distill the principle for easy consumption: the right does not extend to possession of a weapon not designed to be used by a well-regulated militia member. Not surprisingly, the Supreme Court didn’t consider a sawed-off shotgun to qualify.
The question that exists regarding the issue springs from the fact Miller may not be good law on the subject. This is because 1) the Court didn’t have an opposing party before it arguing against the government’s interpretation, 2) the Court based its decision on a theory regarding the nature of the right that is losing favor rapidly among legal scholars (even Larry Tribe has modified his opinion to reflect growing concensus that the right is a personal one), and 3) the decision is old and the rule of law it espouses may not be particularly workable in a day when the modern army uses nuclear tactical weapons and a variety of hand-held arms that can do considerable damage.
The fact that the amendment’s meaning hasn’t been addressed by many courts isn’t surprising. First of all, no state court is going to address the issue (pay attention here, Arnold {administering sharp rap to knuckles}) because the amendment doesn’t apply to the states. And as to federal courts, well, let’s just say that people avoid Second Amendment interpretation like they avoid plague, baths, and sex with good-looking models (although I suppose I might have the cause and effect relationship of the last of these screwed up…). While it is possible that some federal district court has addressed the issue, such decisions have little value because they aren’t precedent. As to federal circuit courts of appeal, I haven’t seen any citations to decisions from them which address specific claims that some particular form of ‘arm’ is protected, or any decision that asserts that Miller should not be followed. I’ll look a little deeper, but I’m not expecting much luck.
P.S. to barbitu8: I tend to agree that, even to the extent the right is personal, rather than a state right, it doesn’t seem to be the sort of right that should be considered ‘inalienable’, but I think that some would disagree.
DSYoungEsq - I may not be the sharpest knife in the drawer, but I had previously read and thought I understood everything you said.
Let me phrase my questions more precisely
The Supreme Court never addressed the issue “is having a bazooka or a tank legal?” Those would seem to me to be obviously weapons “designed to be used by a well-regulated militia member”. It seemed to address the issue “having a weapon that doesn’t belong in a militia can be forbidden”, but not the reverse, i.e. “is the ownership of any militia weapon a fundamental right?” That’s the question that interests me.
As far as state courts go - You say “the amendment doesn’t apply to the states”. In your sentence, “the amendment” means “the second amendment” I presume. But above you had said:
«Because of this history, no one can say with any degree of accuracy that the insertion of the phrase in the Fourteenth Amendment was intended only to apply to the states the procedural restrictions found applicable to the federal government under the Fifth Amendment. Indeed, the author of the original legislation that resulted in the amendment, Representative John Bingham, as well as other of the drafting legislators, made express statements that the clause intended to apply the “Bill of Rights” to the states, although it is generally thought that this was because the amendment would require the states to conform to “natural law” rather than the specifically enumerated rights of the first eight amendments.»
Wasn’t that supposed to mean that because of the language in the 14th amendment it would be possible to construe the bill of rights as pertaining to states (in which case I would expect that a lawyer arguing in a state court might use this as a premise for a legal argument)? That’s how I read your sentence. I might not have understood what you were trying to say, which would mean either that I have poor reading skills or perhaps you are not expressing yourself clearly enough for the general public.