Last year, the U.S. Supreme Court ruled the Constitution protects the right to keep and bear arms from oppressive federal gun bans under the Second Amendment. Now, the Court is considering whether the Constitution also protects that right against local gun bans under the Fourteenth Amendment. As before, the Goldwater Institute has weighed-in by filing an amicus brief in support of the right to armed self-defense. But this time, our argument is aimed at persuading the academic left and “strict constructionist” right to adopt a position on gun rights based on genuine constitutionalism.
An academic cadre on the left has long argued that the Fourteenth Amendment guarantees all civil rights, including the right to armed self-defense, through its prohibition on states “abridge[ing] the privileges or immunities of citizens of the United States.” This presents an unusual opportunity for finding common ground, but many on the right believe the left’s endgame is not so much aimed at securing gun rights, as transforming the Fourteenth Amendment into a mandate for forcing states to facilitate federal social welfare policies. Because of this perception, gun rights are threatened by “strict constructionists” who refuse to strike down local gun bans under the Fourteenth Amendment to avoid opening a “Pandora’s Box” of federal judicial activism.
In an effort to heal this divide and find common ground, our brief acknowledges that the Fourteenth Amendment changed the balance of power between the states and the federal government by guaranteeing civil rights against oppressive state and local laws. But we show that the Amendment’s “privileges or immunities” clause actually guarantees freedom—not free stuff from the federal government—and that this understanding actually promotes judicial restraint. We also show that protecting gun rights from local gun bans is fully consistent with the Tenth Amendment because federalism is not an end-in-itself; it is meant to protect rightful liberty—including the right to armed self-defense.
In short, the Goldwater Institute has appealed to genuine constitutionalists to protect the right to armed self-defense from state tyranny. We will soon know how many on the Supreme Court are open to the message.
Nick Dranias holds the Goldwater Institute Clarence J. and Katherine P. Duncan chair for constitutional government and is the director of the Institute's Dorothy D. and Joseph A. Moller Center for Constitutional Government.
Goldwater Institute: McDonald v. Chicago Amicus Brief
U.S. Constitution: 14th Amendment
U.S. Supreme Court: D.C. v. Heller decision