SCOTUS and the Second Amendment

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The Supreme Court heard arguments in the MacDonald v Chicago case this morning. McDonald is the first case to examine if the Second Amendment rights secured for citizens in federal jurisdictions also apply to citizens in the various states.

In 2008, the Court held in District of Columbia v Heller that the Second Amendment protects an individual’s right to possess a firearm unconnected with service in a militia. But the narrow interpretation of that ruling meant the decision applied only to federal enclaves.

Some of the rights secured in the Bill of Rights are extended to the states through the Due Process Clause of Privileges or Immunities Clause of the Fourteenth Amendment. Prior to passage of the Fourteenth Amendment in 1868, individual states secured rights for their citizens in different ways. For instance, the Bill of Rights forbids the establishment of religion in the First Amendment, but state-sponsored religion was still tolerated. By 1833, Massachusetts severed its ties to the state church, ending established state churches in America. The most prominent example of differing state treatment of individual rights center around the institution of slavery; the Fourteenth Amendment was passed as a remedy.

But the 1873 Slaughter-House Cases ruled that the extension of rights via the Fourteenth Amendment did not necessarily restrict the actions of a state or local government entity. Since then, individual rights have been applied selectively through state legislative action and court decisions.

Court watchers are wondering if the Justices’ comments during questioning foreshadow the decision. McDonald is the only case challenging local gun laws that is focused on extending all Constitutional rights through the Fourteenth Amendment. As Wikipedia summarizes:

McDonald is unique among post-Heller gun cases in that it is asking the court to overturn the 1873 Slaughter-House Cases. Slaughter-House determined that the 14th Amendment’s Privileges or Immunities Clause did not apply the Bill of Rights to the actions of states (and by extension, local governments). If overturned, the Selective Incorporation process would be moot and unnecessary, as the entire Bill of Rights, including the 2nd Amendment, would be applied against the states.

In attempting to overturn Slaughter-House, this case has garnered the attention and support of liberal legal scholars interested in its potential application in areas outside of firearms law. Their interest is that if Slaughter-House is overturned, it is possible that constitutional guarantees such as the right to a jury in civil cases, right to a grand jury in felony cases, and other parts of the Bill of Rights, as well as future court rulings and existing federal precedent, not universally guaranteed in actions by the states, would be applied against the states automatically

The Cato Institute’s Robert A. Levy was instrumental in bringing Heller to the Court, and the issue of how the Court decides the case is as important to Cato as the decision itself. After today’s hearing, Cato.org comments:

From the initial questioning through the end, it was quite clear that those living in Chicago — and, by extension, New York, San Francisco, and other places with extreme gun restrictions — will soon be able to rest easy, knowing that they will be able to have guns with which to protect themselves. Unfortunately, the Court did not seem inclined to adopt the arguments propounded by petitioners’ counsel Alan Gura (and supported by Cato) that the Privileges or Immunities Clause was the way to go. Chief Justice Roberts expressed reluctance at having to overturn the 1873 Slaughterhouse Cases and other justices joined in concerns over how activist judges would use the Clause if the Court revived it — even if that were the path that hewed more closely to the constitution’s true meaning.

This turn of events is unfortunate because reviving the Privileges or Immunities Clause, far from giving judges free reign to impose their policy views, would actually tie them closer to the text, structure, and history of the Constitution. As it stands now — and as it seems will be the case after McDonald is decided — many of our most cherished rights are protected only to the extent that judges are willing to label them as sufficiently “fundamental” to warrant such protection. That is an unprincipled jurisprudence and one that hurts the rule of law.

It appears the Second Amendment rights secured to citizens in federal territory will be applied to the citizens of the various states, but only through Selective Incorporation. This will be a narrow decision, then, that applies only to the Second Amendment, and not to other rights secured in the Constitution.

Cross posted to FrankHagan.com