Former Supreme Court Justice: 14th Amendment Covers Gay Marriage, Not Second Amendment

Send to Kindle

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?

{ 26 comments… add one }
  • Jim August 7, 2017, 8:46 am

    I’m a purist when it comes to the Constitution. The second amendment is very clear in it’s meaning as is every other amendment. The government has exactly zero right to control arms. Any man portable arm is totally out of the control of any government, and yes this includes state and local. Every gun control law on the books is a direct violation of shall not be infringed.
    As far as Government in marriage goes I fail to see why anyone thinks they should be involved. Marriage is a function of the church. Outside of the church it’s nobody’s business who marries who or what. You should not have to ask permission and pay a tax to be married anymore than you should have to ask permission and pay a tax to carry a gun.

  • LiberalGeorge March 27, 2017, 4:47 pm

    I, too knewJustice Stevens from my days in law practice, and Justice Breyer from laws chool; they are both fine legal minds and superb people. What is there about this site tat draws looney-tunes like ants to a picnic?

  • Bullseye September 4, 2016, 2:47 pm

    As gun rights advocates, many of us keep getting sidetracked with these rope-a-dope gun use arguments. It really doesn’t matter what the federal or state governments think you need a gun for. The argument has seemingly morphed from one of “fully automatic weapons being too dangerous in the wrong hands” to “what is necessary for one to deer hunt or protect ones home”.

    Personally, my formost purpose for owning firearms is to defend my liberties from a tyranical government that has run amok. I don’t believe I am alone, and I believe that is what has government entities scared and convinced that society must be disarmed. As they say, an armed society is a polite society.

  • Steven Kaspar August 12, 2015, 8:50 pm

    This is the reason why I think the supreme court should be abolished. We don’t need senile old idiots ruling on our Constitutional Rights. We should be following what the Constitution states.

  • Old Wolf August 11, 2015, 11:13 pm

    Dunno… I think the argument in the house and senate pretty well covered that, and settled the intent of the law. This was part of the reasoning behind the 2010 McDonald v. Chicago case.
    ” In debating the Fourteenth Amendment, the 39th Congress referred to the right to keep and bear arms as a fundamental right deserving of protection. Senator Samuel Pomeroy described three “indispensable” “safeguards of liberty under our form of Government.” 39th Cong. Globe 1182. One of these, he said, was the right to keep and bear arms:

    “Every man … should have the right to bear arms for the defense of himself and family and his homestead. And if the cabin door of the freedman is broken open and the intruder enters for purposes as vile as were known to slavery, then should a well-loaded musket be in the hand of the occupant to send the polluted wretch to another world, where his wretchedness will forever remain complete.” Ibid.

    Even those who thought the Fourteenth Amendment unnecessary believed that blacks, as citizens, “have equal right to protection, and to keep and bear arms for self-defense.” Id., at 1073 (Sen. James Nye); see also Foner 258–259.[Footnote 25]

    Evidence from the period immediately following the ratification of the Fourteenth Amendment only confirms that the right to keep and bear arms was considered fundamental. In an 1868 speech addressing the disarmament of freedmen, Representative Stevens emphasized the necessity of the right: “Disarm a community and you rob them of the means of defending life. Take away their weapons of defense and you take away the inalienable right of defending liberty.” “The fourteenth amendment, now so happily adopted, settles the whole question.” Cong. Globe, 40th Cong., 2d Sess., 1967″

  • Where's Common Sense? August 11, 2015, 1:00 am

    Yes, Mr. Blannelberry, I do not believe you are a constitutional scholar or lawyer, and I do not profess to be either one of those myself. But it doesn’t take a scholar or a lawyer to understand what the fundamentals of the Constitution or the Amendments mean. And your interpretation, where marriage is concerned, is completely off the mark as was the Supreme Court’s political ruling. Marriage is nowhere to be found directly or even indirectly in the Constitution. THE SAME FIVE JUSTICES that provided the specious majority ruling stating that the states have no right to determine the SSM issue and that SSM should be the law of the land are THE SAME FIVE JUSTICES in just 2013 who overruled the Defense of Marriage Act (DOMA) saying that it was not the federal government’s role in settling the issue but the states’ sovereign right to do so. So which is it?

    I reject your thesis that the 14th should allow concealed/open carry as much as I reject that the 14th allows the federal government (the not-so-supreme court) to re-define marriage as a monarchy. As for issues of concealed/open carry, the 2nd Amendment is good enough for me.

    • mtman2 November 22, 2016, 6:08 am

      WCS:
      YOU areabsolutely correct in you post as to the varacity of this author’s article.

      “Libertarians” like to tightrope walk the middle to have their cake and eat it too.

      Truly marriage is waay out of scotus pervue. 31 one times 30 states held referendums on SSM w/Ca. twice and all 31 times “WE the People” stated NO.

      News flash – “survey says”-
      that THE PEOPLE said no = NO every time.
      Here’s the deal People- the congress has the power to impeach and that means scotus too. The 3 female justices(all unqualified for Consent by the senate) privately performed SSM marriage ceremonies prior to taking this up.
      This means personal predudice and should have Recused themselves.
      The scotus is not a rule or law making body that can legislate from the bench= un-Constitutional.
      Congress is gutless and has not represented the intent of OUR Constitution nor “WE the People” correctly.

      This has all come about for truky the “sleeping giant” – made up of the “silent/moral majority” slumbered in OUR civil duty for over 100 yrs now as watch dogs of the Republic= allowing the rats to infest the land.
      Half never even vote.

      Congress could have passed a law way back making it mandatory to vote for anyone over 21 or face fines and for voting to take place on Saturday’s like Ecuador has- which would have changed everything from where it is now(why would socialist/statist politicians wanna do that?).

      Yes- the 2nd-Amendment and ALL the writings from the Founders on the subject make it clear= stay out..
      re- The SECOND AMENDMENT Primer
      by Les Adams or Wallbuilders.com.

      Tho queers forced by court opinion into and at odds with the first two structures in the 1st-Amendment are waay beyond 9 wannabe kings+queens in OUR Republic to even discuss as in their venue.
      Tho it has been allowed to just be waltzed right in to American society against the will of the Sheople without a serious problem. It is not OK with the majority and the serious infringement and legal repercussions have barely begun.
      The day will come if a child goes to school a says their parents fon’t agree SS will;
      1) remove them from the parents
      2) put them in a queer foster home
      3) indict the parents for a hate crime
      4) forcing them to re-education centers run by queers to perhaps never getting their children back if they choose not to conform and give up their God given 1st-Amendment RIGHTS.

      This is no joke People= you ain’t seen nothin’ yet ~!

  • Rich Zellich August 11, 2015, 12:47 am

    Stevens is an idiot, and certainly not a Constitutional History scholar. One of the main reasons for the 14th Amendment was specifically to assure coverage of the 2nd Amendment for black citizens, telling the states they had to stop disarming them via racist state laws (thereby extending them some protection from the Ku Klux Klan, and others).

  • Grey Beard August 10, 2015, 5:03 pm

    We all know Stevens and give his rants “all due respect” when the source is considered.
    What needs to happen is that the institution of “Marriage” needs to be returned to the Church. It’s a Religious ceremony taken over by the secular government for the purpose of allowing non-religious “ceremonies” and of splitting up the tax benefits of individual citizens. Civil Unions are fine for anyone not interested in a Religious ceremony, but Marriage is different.

    • asdasd213 August 10, 2015, 8:01 pm

      I agree fully.

  • Kalashnikov Dude August 10, 2015, 3:59 pm

    I am a self described gunophile. I am attracted to AK variants, of the full auto variety. I am in several relationships and the right one will come along eventually. When she does, I expect no guff from the federal government as to my loving relationships, or the full auto nature of my intended. I am now part of a protected class of US citizens. I believe in open relationships so there could be many different but equally lovely machine guns involved. As this judge pointed out, these relationships are explicitly delineated within our Bill Of Rights and US Constitution. These statutes are clearly established in case law and judicial as well as executive interpretation/implementation has rendered them the law of the land. Thank you for this Your Honor……….

  • Rollin L. August 10, 2015, 1:34 pm

    Here’s the problem with Stevens’ argument: it is historically ignorant. That is not natural ignorance to which I refer, but deliberate ignorance of the worse magnitude. The 14th Amendment was written, debated and passed at a time when every state had laws against sodomy. Homosexual behavior was not only considered sinful, it was illegal. So to argue that the Amendment clears the way for gay marriage is intellectually dishonest, and that’s the nicest thing I can say about it. As for the author here and his libertarian view of gay marriage, then I hope he is okay with his wife/girlfriend having plenty of affairs with other men and women, so long as she doesn’t transmit any STDs to him. After all, he can’t claim he is being hurt by such behavior. There’s no law against adultery anymore either. It’s perfectly acceptable among many in America today. Let’s just live and let live, shall we? Nothing is wrong, so long as nobody gets hurt, just like he says.

    • John Isbell August 7, 2017, 9:22 pm

      Judge Stevens subscribes to the doctrine that the Constitution is a “Living Breathing Document”. To him he is not lying or embracing a contradiction. To Judge Stevens the constitution must change with the times. He believes that having to wait to get it amended would take too long and that might cost lives. He therefore believes that he is doing the greater good by redefining the constitution rather than waiting for it to be amended. I disagree with him, but I just wanted to point out why and how he thinks. Doing what judge Stevens is doing perverts the rule of law so much so, that know one can know what the law really is. That’s my take on this.What do you think?

  • Mark Tercsak August 10, 2015, 12:33 pm

    We all know in Life, in the real world, Not everyone is equal, some are good looking, some are not so good looking, some are paid a hell of a lot of money and they deserve it, while others did nothing to earn it, than there are those that make enough and there are those that struggle, If everything was fair it would be a very boring world ! We would all either be broke and live in absolute squalor or we would all be rich beyond belief. But as I said in the Real World not everything is fair or equal, But what should be fair and equal is that everyone can have their say and have an equal opportunity to better themselves that is what the Constitution gives us. Marriage is not a Constitutional right , it’s not mentioned , quite frankly I view marriage as a religious right , and the government has no business being involved in marriage,it is a clear violation of the separation clause of the First Amendment, This decision violates in my view the separation clause and the state is setting it’s~self up as a religion also violating the separation Clause That is not their job, The Constitution is pretty specific on what the Federal Governments Duties are. the rest is reserved for the “States” and “We The People”, To be perfectly blunt I truly believe there are people out their who think marriage is just about “Sxrxwing”, I have news for you Its a not. I am not a very religious person, I do believe in God though and it was God not man who created the Religious Right of Marriage, he created Adam and he saw one day Adam needed a companion, thus he created Eve, not Billy, or Willy or Teddy, but Eve a women and yes they had relations and from those relations the couple had Children, that is the big part of marriage, children and there is no way on God’s Green earth a gay couple can produce children ! Now does that mean that a gay couple should be denied the same legal status as a married couple, of coarse not. There was a resolution to this issue CiVil UnIoN! This i’am ok with the government performing. The fact is the Bolsheviks on the Court are attacking America’s Moral Foundation. No one wonder we have the violence we have today, out of control drugs, the crime rate out of control, out of control sexual disease the failing of the public education system and the drop out rates and children raising children!

  • q23ew August 10, 2015, 12:25 pm

    I’ve wrote this before, but basically what these guys are saying is correct. It’s our collective ignorance that’s the problem.

    The Constitution does NOT protect the Natural Rights of Citizens and Persons, as they have none. What it does protect are Man and People. Remember: We the People … ordained and established the Constitution FOR (not of) the United States; and that all Men are created equal (not persons!). Now read the 4th amendment: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens…” So the Government created the Citizen, who are by definition “subject to the jurisdiction thereof.”

    The Creator is the Master of its creation. Thus the People are the masters of the government and government are the master of its citizen (slaves). So Citizens! When will you act upon your inherent title (People), instead of a title you receive from an unkind master?

    Person comes from the word persona, which are those masks wore by the Greeks in their outdoor amphitheaters. So a person is the MASK (or title) by which men may act.

    Person, Black’s Law 4th edition definition on page 1300:
    “Persons are the subject of rights and duties; and, as a subject of a right, the person is the object of the correlative duty… … not every human being is necessarily a person, for a person is capable of rights and duties, and there may well be human beings having no legal rights, as was the case with slaves in English law.”

    this is just the tip of the ice berg folks! get studying! and fighting! Pick up the Constitution and READ it!!!

    • JCRuger August 10, 2015, 6:03 pm

      Dude, you need to get an updated version of Black’s Law. It now states: “A man considered according to the rank he holds in society, with all the rights to which the place he holds entitles him, and the duties which it imposes. 1 Bouv. Inst. no. 137. A human being considered as capable of having rights and of being charged with duties; while a “thing” is the object over which rights may be exercised.”

    • mtman2 November 22, 2016, 6:50 am

      YES- and therein lies the crux -overlooked by all but the \”legal\” profession. and faux un-Constitutional court systems under Admiralty Law bypassing the Continental Constitutional \’Law of the Land\’ by calling us \”persons\”(instead of People) they can substitute codes and pseudo regulations over all that allow it= and the People slept on.
      There is yet time to learn and legally take America back to the Founders intent by uncovering the scam foisted on Americans by federalized incorporations and block grant oversight of 95% of county governments via the illegal.
      Federal Reserve and their foreign owned IRS thugs allowing the Globalist banksters like Rothchild to have a personal worth of 300-TRILLION dollars who is now attempting a Coup over OUR IMF masters for bankrupting the U.S. for the 4th time.
      GOT ALL YOUR ATTENTION YET-?????
      see-
      annavonreitz.com
      krisannehall.comeThese are REAL Patriots that get it and are at the front llnes and legal trenches of who WE relly are ~!
      \”My people perish for a lack of knowledge\”PS- the Trump Team if aware can take the bully pulpit and awaken WE the-
      \”Sleeping Giant\” of the \”Slent+Moral Majority\”.All privately owned Godless political factions(R+D etc) do not want this to be uncovered ruining their illegal scams over \”WE the Sheople\”
      They laugh your/OUR stupidity…

  • Dave McDaniel August 10, 2015, 10:41 am

    I know this is a little off topic but I’ve always had an issue with open carry, especially in public places. I’m from deep country Arkansas and grew up with open carry in the country. Because it was a “hunting area” and a small community, no one had an issue with open carry, including me. But when you open carry in a crowded area and you’re not the police, it sends a mixed signal. Some are intimidated and wonder what the gun carrying individual is up to. It unnecessarily puts others on edge and no one knows when or who the next “mass shooter” is going to be. Besides it also makes the open carrier a possible target of a nervous concealed carrier as well for a committed criminal. If I was a criminal and committed to doing whatever it takes to “do the job”, the first thing I would do is shoot or disarm the open carriers as they would be the first obvious threat to my intentions. Just a thought….

    • mtman2 November 22, 2016, 6:44 am

      YES- and therein lies the crux -overlooked by all but the \”legal\” profession. and faux un-Constitutional court systems under Admiralty Law bypassing the Continental Constitutional \’Law of the Land\’ by calling us \”persons\”(instead of People) they can substitute codes and pseudo regulations over all that allow it= and the People slept on.
      There is yet time to learn and legally take America back to the Founders intent by uncovering the scam foisted on Americans by federalized incorporations and block grant oversight of 95% of county governments via the illegal.
      Federal Reserve and their foreign owned IRS thugs allowing the Globalist banksters like Rothchild to have a personal worth of 300-TRILLION dollars who is now attempting a Coup over OUR IMF masters for bankrupting the U.S. for the 4th time.
      GOT ALL YOUR ATTENTION YET-?????
      see-
      annavonreitz.com
      krisannehall.comeThese are REAL Patriots that get it and are at the front llnes and legal trenches of who WE relly are ~!
      \”My people perish for a lack of knowledge\”PS- the Trump Team if aware can take the bully pulpit and awaken WE the-
      \”Sleeping Giant\” of the \”Slent+Moral Majority\”.All privately owned Godless political factions(R+D etc) do not want this to be uncovered ruining their illegal scams over \”WE the Sheople\”
      They laugh your/OUR stupidity…

  • Jim Williams August 10, 2015, 10:17 am

    Not to defend these assholes like Cuomo that run New York with an iron fist but I have a ccp and it is really not dificult in NY to obtain one if you have a clean record , go through a background check and want to wait up to 4 months for it to be processed. Now, talk about the ‘SafeAct’ if you really want tot piss me off!

  • Stephen Challis August 10, 2015, 9:59 am

    The argument regarding the 14th Amendment is in my opinion superflous. Most gun laws are infringements of the right to keep and bear arms.Therefore they breach the Second Amendment. As the awakers have no problem in infringement of of the cornerstones of our Bill of Rights,we can hardly expect them to adhere to any other Amendment. Constitution law is a tricky animal,and is full of re-definements from SCOTUS. Few would argue that hardened criminals and young children should have restrictions on gun ownership ,imposed upon them. However the 2Adoes not exempt them specifically.

    Stephen Challis
    Author Debarred the use of Arms

  • Veritas August 10, 2015, 5:15 am

    Stevens is another senile, black robbed, idiot, who knows better than the founding fathers. I’d trust Mexican tap water more than Steven’s legal opinions on anything.

  • Mark N. August 7, 2015, 2:08 am

    Justice Stevens is adamantly opposed to the rights guaranteed by the Second amendment, contending that it protects the rights of a militia but not individuals, and that the Heller Court got it wrong. If I recall correctly, I think he has gone so far as suggesting that the Second ought to be repealed. So his statements are not surprising given that he thinks the Second should not be protected at all.

  • George B. August 6, 2015, 2:59 pm

    I knew Justice Stevens when he was practicing law; He is one of the best!

    • uwotm89 er August 10, 2015, 8:00 pm

      By looking at his recent comments, I think it’s quite clear that he is not “one of the best”. Maybe at one point in his career, but he’s a 95 year old man now, and he’s fallen quite dramatically to the left in his old age.

  • Aaron August 6, 2015, 1:12 pm

    It is precisely because of the logic cited by this author that I contend liberal States have seceded from the union.

    They negate human rights to self defense. They are not Americans.

Leave a Comment

Send this to a friend