Writing in Defining Ideas, Peter Epstein, and anti-federalist, argues that the Second Amendment imposes no limits on the states. Epstein believes that the Supreme Court erred in both the Heller and MacDonald cases which restricted the ability of state and local governments to regulate firearms. Damon Root responded at the libertarian Reason.com, arguing that Epstein is incorrect in that “gives too little weight to the text and history of the 14th amendment.” Both men have missed the mark.
Often those who seek to divine the meaning of the Constitution become like evangelicals scouring the Scriptures for a passage to support their bias. Clever arguments are raised and all discussion is diverted from the thing that matters to all manner of considerations that do not. If you can't find what you are looking for in Scripture itself then hie yourself off to the commentaries in search of an authority to lend support to your case. Rather than shed light on a question of constitutional meaning such arguments serve more to put up a cloak of obfuscation and a veneer of complexity that undermines the average citizens trust. Leave it to the experts because you can't possibly understand the constitution unless you have studied the history of the times and read everything ever written by Madison, Hamilton, Jefferson, Jay, etc. It is this misdirection that Mr. Epstein engages in to make his case. Unfortunately, Mr. Root takes the same approach in his refutation.
That there was a tension between those advocating for a strong central government and those who feared one is beyond dispute. Mr. Epstein belongs to the latter camp and constructs an elaborate scaffolding to support his notion that the second amendment only prevents the federal government from infringing upon the right to keep and bear arms. Mr. Epstein believes that the states are free to infringe upon the right to keep and bear arms as much as they choose. There is only one problem with his venture into intellectual auto-eroticism: It is as wrong as it is unfruitful.
The second amendment includes no limitation to which organs of government it applies. It is an unequivocal statement that the right to keep and bear arms shall not be infringed. It does not say that the right shall not be infringed by the federal government. To reach his conclusion Epstein declares “...it is necessary to plow through a set of gritty and interconnected constitutional provisions.” In other words, he must construct a rickety scaffold of diversion to support his argument. The fact is that, to reach his conclusion, Epstein must consider everything but the plain meaning of the words.
If there is any doubt that second amendment is a limitation only on the federal government one need only read the preceding amendment.The first amendment explicitly states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” If the framers and ratifiers had wanted the second amendment to bind only congress they would have said so. They clearly knew how to do so. Mr. Epstein can plow through as many gritty and interconnected constitutional provisions as he would like but doing so won't change that simple, indisputable, fact.
While Mr. Root has reached the correct understanding of the second amendment he unfortunately presents a flawed argument. Mr. Root contends that 14th amendment, which prevents the states from “making or enforcing laws that abridge the privileges and immunities of citizens of the Unites States.” prevents states from infringing upon the right to keep and bear arms. Mr. Root's argument is circular. It is unnecessary and it is ineffective.
If the second amendment, as Mr. Epstein contends, does nothing more than restrict congress, then it does not establish, or recognize, a privilege or immunity for citizens of the United States. If that is the case then the 14th amendment says nothing about the right to keep and bear arms and Mr. Epstein is correct that states can enact restrictions. On the other hand, if the second amendment establishes a citizen's right to keep and bear arms then the 14th amendment is unnecessary to enforce the right. Moreover, the term “privileges and immunities” is not defined and cannot arbitrarily be consider to include the right to keep and bear arms.
The constitution is not an arcane document the meaning of which can only be divined by historians, lawyers, magicians, and other fools. Common people can understand it. When it was intended to refer to congress it used the word as in “Congress shall make no law.” When it was not it did not. And when it meant that something shall not be infringed it said, quite simply “shall not be infringed.”