I’m not a constitutional scholar or lawyer, but a plain reading of the Constitution suggests that states are limited as to what they can impose when it comes to the fundamental rights and immunities of its citizens.
The 14th Amendment reads:
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Recently, the Supreme Court struck down state bans on gay marriage, justifying that decision by referring, in part, to the protections of the 14th Amendment.
“These [guaranteed] liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs,” wrote Justice Anthony Kennedy in the majority opinion.
Personally, I thought it was the right call. I don’t have a problem with gay marriage, legally, morally or otherwise. I’m a Libertarian, live and let live so long as one doesn’t hurt another. But I digress.
The real point of this article is that if the 14th Amendment covers gay rights, it most certainly covers gun rights as well. Think about it. The freedom to carry a firearm for self-defense is central to one’s autonomy and not only informs but reinforces one’s identity and beliefs about personal responsibility (Many of us firmly believe that we are responsible for our safety — not the government or state). “I’m a gun owner” is as every bit a declaration of identity as “I’m a gay.”
Beyond that, the term “immunities” in the text specifically refers to the Bill of Rights, which of course includes the Second Amendment.
Yet, retired Justice John Paul Stevens disagrees. At a recent luncheon Stevens said he was unconvinced that the 14th Amendment protects gun rights.
I endorse the Court’s holding that the Due Process Clause of the 14th Amendment protects an individual’s right to choose his or her spouse but I remain unpersuaded that that Clause also protects an individual’s right to use a gun. The dissenters have things backward when they argue that it protects the latter but not the former.
I don’t see why it wouldn’t protect both. If we have the freedom to love and marry who we want without state interference, we ought to have the freedom to (conceal) carry what we want without state interference. Unfortunately, certain states (California, New York) still impose restrictions on our right to bear arms that effectively bans concealed/open carry. How can the 14th Amendment protect one and not the other?