October 2002 | Volume 53, Issue 5
Should Mick Jagger get off of his cloud? And make room for Red Cloud? Was the Architect of Liberty a lousy architect? And who let the poodles out? Our fifth annual survey puts them all in their place.
Never has a subordinate clause caused such trouble. The 13 opening words, qualifying the right, might as well be written in invisible ink, they are so frequently forgotten. The National Rifle Association and the gun lobby generally insist that the rights are individual, not collective for the purpose of protecting the community, and they seem now to have the support of the Attorney General in objecting to restrictions on the ownership of guns of any kind. Historically I see the Second Amendment as weasel words, a compromise between the Federalists, who insisted on a standing army, and the antiFederalists, who feared it would be used to suppress States’ Rights. In the end a small standing army was agreed to, with the proviso that “a well regulated Militia” could be organized at the local level for local protection and to Supplement the national army in a time of threat. The amendment limited only federal power; it left states free to regulate the use and possession of arms. And even as applied to the federal government, the prohibition has been watered down by the courts with more weasely words. The arms that the people have a right to keep and bear are only those that the militia of the day might keep and bear, not sawed-off shotguns, machine guns, and other means of mayhem our day may contrive.
Underrated “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.”
I quote only the first paragraph of this most pregnant amendment, the others having less relevance today. The Fourteenth has been the battleground of the most profound struggles for freedom and justice against all manner of coercion, but, lawyers apart, it is not on everyone’s lips as are the First and Second amendments. We just take it for granted. If the Second Amendment is distinguished by 13 prefatory words that incite instant amnesia, the Fourteenth demonstrates the potency in four words: due process and equal protection. There were several decades in the early part of the twentieth century when reactionary judges saddled up on those four words as horsemen of the apocalypse, using the concept of liberty of contract to strike down anything that smacked of interference with the company’s property rights in its workers; a congressional law banning the employment of children under 14 was ruled unconstitutional in 1918. Modern courts have reversed the priorities. The Fourteenth has been deployed to extend the protections of the Bill of Rights against oppressive actions by states or corporations or individuals.
Not only that. It has been the means of enhancing the rights for new situations. The struggles will continue between those who would see the Fourteenth Amendment as incorporating the entire Bill of Rights and the partial incorporationists, but the Fourteenth is the reason “all persons” can look for protection over a vast range of civil liberties: racial and sexual discrimination in work, in housing; voting rights; fair trial; child labor; workmen’s compensation; minimum wages; bureaucratic harassment; free speech. The arguments about the exact meaning of the Fourteenth are sure to go on. It is that important.