In District of Columbia v. Heller (2008) the Supreme Court ruled that the Second Amendment requires that people be allowed to have functional handguns in the home for self-defense. They rest their case on the Second Amendment because it’s the only one that mentions a right to “keep and bear arms.”
I’ve pointed out in two previous blog posts that the Second Amendment concerns the states’ right to have a militia to defend itself against the federal government overstepping its constitutional bounds. Individuals have a right to keep and bear arms only insofar as this is needed for the state to have a functioning militia. The Amendment has nothing to do with and individual right of self-defense.
But this doesn’t mean that we lack such a right. We have lots of rights that aren’t mentioned by name in the Constitution. Equal protection aside, there are two sources of such additional rights. The Fourteenth Amendment, ratified in 1868, says that no state can “deprive any person of life, liberty, or property without due process of law.” This Due Process Clause seems to mean that proper procedures must be used before any individual is deprived of life, liberty, or property.
It would violate due process if a person were convicted of breaking a law, and his liberty reduced, when the conduct at issue wasn’t illegal at the time of the individual’s actions. In such a case, the state didn’t use the proper process when it impaired someone’s rights to life, liberty, or property.
But starting in the late nineteenth century, the Supreme Court expanded the reach of Due Process to disallow economic legislation that the Court deemed unreasonable. In Lochner v. New York (1905) the Court declared unconstitutional a New York statute that didn’t allow bakers to work more than 60 hours a week. The Court decided that this law violated the freedom of contract, thereby violating people’s liberty, even though the process of its enactment was proper. This is called substantive due process, but actually has nothing to do with process.
Substantive due process was repudiated in the 1930s during the Great Depression because it was being used to declare unconstitutional many economic regulations needed to improve the economy. Substantive Due Process was just a way of the Court justifying its imposition on society of its own policy preferences in place of the policy preferences of elected representatives.
Yet, some rights justified originally on this ground are still popular today, such as the right of parents to guide the upbringing of their children. This isn’t mentioned in the Constitution, but parents have traditionally had this right and it seems that they ought to have it. It was announced by the Court in two cases during the era of substantive due process without any more support in the Constitution than the right to freedom of contract.
The second source of individual rights not mentioned in the Constitution is the Ninth Amendment: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” This is more constitutionally sound because, unlike the Due Process Clause, the Ninth invites the Court to honor additional substantive rights.
Along with the right of parents to guide the upbringing of their children, it would seem that the right of self-defense is among the rights that people have had all along. Although not enumerated in the Constitution, it’s a fundamental right that should not be denied by the state. There’s no reason to shoe-horn the right into the Second Amendment when it fits perfectly in the Ninth.
But no right is absolute. Your right to raise your children as you wish doesn’t include the right to abuse them or to deprive them of life-saving medical attention. Similarly, your right to have firearms doesn’t include the right to carry a loaded gun on a plane or near the President. Your rights are always limited because they can come into conflict with the rights of others. We have a right to firearms, but exactly what that right includes is decided by duly elected legislators.
The Second Amendment concerning militias has played a large role in debates about gun ownership, even though the Ninth Amendment is a better fit, because conservative justices fear that liberals on the Court may use the Ninth Amendment to find rights that conservatives don’t want people to have, such as rights to healthcare or to a clean environment.
Conservatives may have a point. Do we want justices to “find” new rights in the Constitution, thereby limiting what legislation can become law? On the other hand, legislative majorities may deprive people of basic rights guaranteed by the Constitution. Don’t we want the Court’s protection? But which rights are basic – same-sex marriage, possession of AR-15s?
You can address this or any of my blog posts at wenz.peter@uis.edu, and I’ll try to reply.
Comments