Let me take this opportunity to congratulate my Chicago-area readers! You can take the gats out of hiding and sport them openly. Well, openly around the apartment, anyway. (Oh, c’mon. I know you windy city types are armed to the teeth, no matter what the law says.) The United States Supreme Court knocked down (by implication, anyway) Chicago’s handgun ban while reaffirming that the Second Amendment is “incorporated” by the Fourteenth Amendment, and applies to state governments as much as it does to the federal government.
Writing for the five-member majority in the case of McDonald v. Chicago (PDF), Justice Samuel Alito pointed out:
Self-defense is a basic right, recognized by many legal systems from ancient times to the present day, and in Heller, we held that individual self-defense is “the central component” of the Second Amendment right.
[I]t is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty.
As a result:
In Heller, we held that the Second Amendment protects the right to possess a handgun in the home for the purpose of self-defense. Unless considerations of stare decisis counsel otherwise, a provision of the Bill of Rights that protects a right that is fundamental from an American perspective applies equally to the Federal Government and the States. See Duncan, 391 U. S., at 149, and n. 14. We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amend-ment right recognized in Heller.
That’s a major decision, reaffirming the right to bear arms as an individual right which no government entity in the United States may infringe (precise boundaries of that right to be determined later, of course, so don’t get too excited) — and also continuing the incorporation of constitutionally protected rights so that they apply against state governments. However, as you can see from the above, Alito followed the Supreme Court’s unfortunate track record of torturing the Hell out of the Due Process clause of the Fourteenth Amendment in order to make it do the job originally intended for the Privileges or Immunities clause, which is a more logical vehicle for protecting individual rights. He knows this, too, acknowledging that “many legal scholars dispute the correctness of the narrow Slaughter-House interpretation” of the Privileges or Immunities clause.
However, he doesn’t change course.
… For many decades, the question of the rights protected by the Fourteenth Amendment against state infringement has been analyzed under the Due Process Clause of that Amendment and not under the Privileges or Immunities Clause. We therefore decline to disturb the Slaughter-House holding. …
Justice Clarence Thomas, while concurring in the case’s result, objects to the court’s ongoing abuse of the Constitution.
Applying what is now a well-settled test, the plurality opinion concludes that the right to keep and bear arms applies to the States through the Fourteenth Amendment’s Due Process Clause because it is “fundamental” to the American “scheme of ordered liberty,” ante, at 19 (citing Duncan v. Louisiana, 391 U. S. 145, 149 (1968)), and “‘deeply rooted in this Nation’s history and tradition,’” ante, at 19 (quoting Washington v. Glucksberg, 521 U. S. 702, 721 (1997)). I agree with that description of the right. But I cannot agree that it is enforceable against the States through a clause that speaks only to “process.”Instead, the right to keep and bear arms is a privilege of American citizenship that applies to the States through the Fourteenth Amendment’s Privileges or Immunities Clause.
Good for Thomas. At least somebody is keeping alive a respect for proper reading of the Constitution. Maybe next time …
But the means matters less to most people than the ends. And in this case, that means yet another decision protecting the individual right to keep and bear arms.