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Second Amendment applied to the states in Supreme Court decision

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.

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  • The Infamous Oregon Lawhobbit

    June 28, 2010 at 1:52 pm

    Not so fast…..all the Supremes did was say that the right was incorporated against the states, and then kicked it back down to the 7th Circuit and the district court for an actual evaluation of the Chicago law in light of the ruling.

    The district court may still well say that the law passes muster.

  • It’s true that the Supremes sent the case back to the lower courts, but I’ll stick with my “by implication” expectation that the law will be overturned. The Chicago law is an outright ban on handguns — that’s going to be hard to square with even the most tortured reading of an incorporated Second Amendment. Now, background checks, registration, permits … Those are a different matter.

  • In practical terms, the ruling won’t change anything where would-be gun owners of the City of Chicago are concerned. That city’s criminal thug mayor has made it viciously clear from day one that he intends to maintain a ban on gun ownership/possession by any non-“law enforcement” [sic] types, even if he has to violate the law to enforce it. Realistically speaking, it will take an act of mass civil disobedience on the part of liberty lovers of Chicago (assuming there are such people) before this decision has any positive impact whatsoever.

  • The Infamous Oregon Lawhobbit

    June 29, 2010 at 7:35 am

    Well, J.D., your interpretation all depends on your political leanings. If you lean hard left, then form is more important than actual function. I’m sure you’re right and the Chicago law, as it stands, will be overturned. That said, will any FUNCTION change – i.e. will people in Chicago be able to freely buy handguns for home protection (personal carry being too much to ask for)?

    Not a chance. Chicago will impose draconian requirements for a license, and those requirements will be so onerous that only a couple of people will ever, in their lifetimes, make it through the process. Chicago taxpayers will, of course, fund the never-ending stream of lawsuits that will come out of this Full Employment For Attorneys decision.

    Smaller towns, without Chicago’s deep pockets, may well throw in the towel on the issue.

  • I think the form vs. function point is a valid one. The handgun ban will very likely be overturned because of its absolute nature. But we’re almost certain to see a replay of the D.C. situation in terms of very stringent restrictions on the ownership of handguns — registration, training and the like. That means another round of litigation, to determine what the courts are willing to tolerate in terms of infringements on the right to bear arms.

    I’m curious, though, as to how far Chicago is willing to go to fight this battle. Chicago residents have always been able to purchase handguns outside the city limits. Bringing them home is illegal, but lots of people don’t give a damn. Now that the city’s restrictions are an obvious attempt to thwart an explicit court ruling, such purchases are certain to be more common, with the city’s legal battle turning into an expensive exercise in spitting into the wind.

  • The Infamous Oregon Lawhobbit

    June 30, 2010 at 12:57 pm

    I agree it’ll be interesting to see how far Chicago will go to fight this. Were I a betting man, though, I’d put a lot of chips on “pretty darned far.”

    I’d be MORE interested to see, after the dust is somewhat settled, how far the Justice Department will be willing to go to kick Chicago in the squirrels if it doesn’t comply. DC sure seems to be getting away with a lot.

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