THE 2ND AMENDMENT AND STATES' RIGHTS

March 3, 2010

Now we have a problem! Tuesday, the Supreme Court heard oral arguments in a historic gun rights case. In McDonald v. City of Chicago, the justices listen to debate as to whether the Second Amendment right to keep and bear arms is applicable (or is “incorporated”) to the states through the Fourteenth Amendment.

When the Bill of Rights was adopted in 1791, it only secured rights of American citizens against actions of the federal government. When the Fourteenth Amendment was ratified in 1868 after the Civil War, the Fourteenth Amendment extended most—but not all—of the Bill of Rights against the states (and against cities, since cities aren’t sovereign, and instead are just political subdivisions of the states).

Although both conservatives and libertarians agree that the right to bear arms should be incorporated, this case also shows a deep split between the two camps. Conservatives argue that the Court should incorporate either through the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment, but that the Court should only go through the latter route if it can do so without overruling a huge 1873 case called the Slaughter-House Cases. The libertarians are arguing that the Court should definitely go through Privileges or Immunities, and should overrule the Slaughter-House Cases, which would open the door to fundamentally and forever change the entire federal-state system of government in this country.

So the split here is whether this case should be about gun rights, or instead reworking our entire system of government in a way that empowers federal judges to start striking down all sorts of state laws that have nothing to do with guns.

The Court appeared poised to issue a ruling that will expand to the states the high court's historic 2008 ruling that individuals have a federally protected right to keep and bear arms.

If so, the decision would mark another hallmark victory for gun rights advocates and likely strike down Chicago's handgun ban that is similar to the Washington D.C. law already invalidated by the justices.

The biggest questions before the court seemed to be how, rather than whether, to issue such a ruling and whether some regulation of firearms could survive. On the latter point, Justice Antonin Scalia said the majority opinion he wrote in the 2008 case "said as much." 

Chief Justice John Roberts said that the extent of gun rights are "still going to be subject to the political process." Roberts was in the majority in 2008. 

Tuesday's lively hour-long argument featured lawyer Alan Gura, the same man who argued and won the 2008 case. He now represents Otis McDonald who believes Chicago's handgun ban doesn't allow him to adequately protect himself. 

Gura argued that the 2008 decision, which only applied to Washington D.C. and other areas of federal control, should equally apply to Chicago and the rest of the country.

With regard to the Fourteenth Amendment Gura told the court "In 1868, our nation made a promise to the McDonald family that they and their descendants would henceforth be American citizens, and with American citizenship came the guarantee enshrined in our Constitution that no state could make or enforce any law which shall abridge the privileges or immunities of American citizenship."

The discussion over "liberty" was a major philosophical theme of the arguments. Gura and National Rifle Association lawyer Paul Clement argued that the rights articulated in the Second Amendment are fundamental freedoms and would exist to all Americans even if there was no law specifically saying so.

James Feldman, lawyer for the City of Chicago, defended his city's handgun ban and argued why the 2008 decision doesn't comport with the view that it represents a vital protection of liberty that needs to be expanded to the states.

Feldman's argued that "The right it protects is not implicit in the concept of ordered liberty."  He went on to tell the court that states and local governments have been the primary locus of firearms regulation in this country for the last 220 years. "Firearms unlike anything else that is the subject of a provision of the Bill of Rights are designed to injure and kill," he said.

Justice Ruth Bader Ginsburg, who dissented in the 2008 ruling, wondered why the right to bear arms was necessary to extend to the states. She asked if "the notion is that these are principles that any free society would adopt, well, a lot of free societies have rejected the right to keep and bear arms."

There's a good chance Tuesday's case will result in a 5-4 outcome similar to the 2008 ruling. All of the members of that majority are still on the court and at least one of them would have to rule against extending the Second Amendment protection in order for the opposing side to prevail. Most likely the decision will be handed down at the end of the court's term in late June.

We believe that the Constitution of the United States speaks for itself. There is no need to rewrite, change or reinterpret it to suit the fancies of special interest groups or protected classes.