Second Amendment Incorporation through the Fourteenth Amendment Privileges or Immunities and Due Process Clauses
The second amendment, alternately maligned over the years as the black sheep of the constitutional family and worse, and praised as a palladium of the liberties of a republic, since it offers a strong moral check against the usurpation and arbitrary power of rulers, should be recognized by the United States Supreme Court to apply to the several States through the Fourteenth Amendment privileges or immunities clause or, alternatively, through the due process clause.
This article suggests that the issue of Second Amendment incorporation presents a useful contemporary mechanism for the Court to revive the long-dormant Fourteenth Amendment privileges or immunities clause, and that such judicial recognition of the clause is necessary to respect the Framers’ vision, as inspired by the Declaration of Independence and laid out in the amended Constitution, for a government that would serve, instead of rule, the people. Government would exercise its necessary, limited role, and otherwise leave the people alone - with the Constitution standing ever watchful as guardian to assure that government would not overstep its bounds, as governments are apt to do.
Civil Rights and Discrimination | Constitutional Law
Date of this Version
Michael Anthony Lawrence, "Second Amendment Incorporation through the Fourteenth Amendment Privileges or Immunities and Due Process Clauses" (March 24, 2006). bepress Legal Series. bepress Legal Series.Working Paper 1189.