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The Supreme Court has incorporated the Second Amendment. But the party of government power will continue its efforts to disarm the American people.
There is now a class of people in this country who at every turn seek to increase the power of government at the expense of the people’s freedom, who in practice have largely inverted the meaning of the Constitution, who hold in contempt the beliefs on which this country was founded and prospered, and who aim to break and retrain American civil society, with themselves in the saddle.
They have rampaged nearly unchecked since the 2008 elections.
It is a thing of beauty, then, when these forces are thrashed and an emphatic victory is won for constitutionalism and the rights of a free and independent people. The case of McDonald v. City of Chicago, decided by the Supreme Court at the end of June, is such a victory.
In McDonald, the Court held that the Second Amendment protects the right of the people to keep and bear arms not only against usurpations by the federal government, but also against infringement by states and localities. Disarming the American people is, of course, a central goal of the party of boundless government power. An armed people, determined to retain their guns in private hands, is a forbidding obstacle to oppressive government. Although this court decision will make it harder for them to disarm us, opponents of our constitutional freedoms will relentlessly continue their efforts to choke off, ban, and criminalize gun ownership.
Throughout most of the history of the republic, the Second Amendment’s guarantee of the right to keep and bear arms was considered clear and uncontroversial. We were free American citizens; of course we had the right to own rifles, pistols, and shotguns; and the Constitution confirmed that right.
Then an odd thing happened. Principally in the latter third of the 20th century, Congress and many states and cities began imposing increasingly stringent regulation on firearms ownership and use. Confronted by such restrictions, and even by outright gun bans, the courts proved to be of surprisingly little use in protecting the right to keep and bear arms under the Second Amendment.
There were two main devices by which the courts undermined the Second Amendment’s straightforward command that “the right of the people to keep and bear arms shall not be infringed.” First, the courts sometimes held that the right protected by the Second Amendment was not a right of individuals to own and use firearms. Instead, these courts held it to be an amorphous “collective” right relating to militia service — which in practice meant no right at all. Second, some courts held that the Second Amendment applied only to bar infringements of gun rights by the federal government, and did not prevent similar infringements by states and cities. Thus, the Second Amendment was watered down by many courts to afford little or no protection for gun ownership.
The United States Supreme Court, however, had never squarely addressed either of these theories in recent times. The Supreme Court’s decision in the McDonald case and its decision in District of Columbia v. Heller, decided in 2008, together have created a revolution in Second Amendment law. Heller involved a challenge to the nearly total ban on handguns imposed by the District of Columbia in the mid-1970s. The District argued that its ban could not be challenged by a private citizen who wanted to own a handgun, because the Second Amendment embraced only a collective right related to militia service. The Supreme Court disagreed, and held for the first time in its history that individuals have a Second Amendment right to own handguns in their homes for purposes of defense.
Because the District of Columbia is a federal enclave, Heller necessarily did not address whether this individual Second Amendment right protects against infringements by states, counties, and municipalities. That’s where the McDonald case comes in.
A LITTLE LEGAL BACKGROUND is necessary to understand the arguments in that case. As originally ratified, the Bill of Rights, including the Second Amendment, limited only the powers of the federal government. After the Civil War, however, the 14th Amendment was adopted. Among other things, that amendment prohibited the states from abridging the “privileges or immunities” of citizens of the United States. In a separate clause, it also denied to states the power to deprive any person of “life, liberty or property without due process of law.”
But what rights, exactly, did these two clauses in the 14th Amendment protect against state invasion? In a series of cases called The Slaughter-House Cases, decided in 1873, the Supreme Court essentially turned the privileges or immunities clause into a dead letter. Beginning in the late 19th century, however, the Court began to examine whether certain provisions of the Bill of Rights should be considered to be “incorporated” into the 14th Amendment’s due process clause, and thus become enforceable against states and localities. By the 1960s, the Court had held that nearly all of the provisions of the Bill of Rights were incorporated by the due process clause.
But there was one conspicuous exception: the Second Amendment’s protection of the right to keep and bear arms.
McDonald challenged the almost complete ban on handgun ownership and possession that was imposed by the city of Chicago in 1982. Actually, three lawsuits were filed: one by plaintiff Otis McDonald, the Second Amendment Foundation, and several other plaintiffs against the City of Chicago; and two suits by the National Rifle Association and several private individuals against the City of Chicago and the Village of Oak Park. The trial court entered judgment against the plaintiffs in all cases on grounds that the Second Amendment was not incorporated by the Fourteenth Amendment, and thus did not apply to the municipal defendants. The federal court of appeals consolidated the cases, and upheld the trial court’s action on similar grounds.
The Supreme Court initially granted review only in the McDonald case, but the NRA parties also appeared and filed briefs on the merits as respondents in support of petitioners. Oral argument time for the pro-gun parties was divided between the two groups. The McDonald parties’ main argument was certainly audacious: that the Slaughter-House Cases ought to be overruled, and that the Second Amendment should be applied to states and cities under the long-defunct privileges or immunities clause. The NRA parties, by contrast, concentrated on urging the Court to extend incorporation to the Second Amendment under its well-established due process jurisprudence.
During oral argument, counsel for the McDonald parties ran into immediate trouble. About a minute into his presentation, he was interrupted by Chief Justice Roberts, who noted that the privileges or immunities argument was “contrary to the Slaughter-House Cases, which have been the law for 140 years….” Three other justices chimed in right away, with Justice Scalia asking the attorney why he would rely on the privileges or immunities clause “unless you’re bucking for [a] place on some law school faculty—.”
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