Side Arms and the Second Amendment

Today the United States Supreme Court heard arguments in the case McDonald v. Chicago. This is the second in two fundamental cases on 2^nd Amendment rights.

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

In D.C. v. Heller (2008) the Court found that the 2^nd Amendment guarantees the right of citizens to own and possess firearms, including handguns, and to keep them ready to use for self-defense.

But the District of Columbia is a federal territory. The city government has only such powers as Congress allows it to have. So the decision only explicitly protected this right against the Federal Government.

That raises the issue of incorporation. The Court has long held that the due process clause of the 14^th Amendment incorporates most of the Bill of Rights and applies them to the state governments. Consider the 1^st Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The text says "Congress," not "Congress and the States". But the 14^th Amendment says this:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The incorporation doctrine, a Court-generated rule, holds that the latter text in effect means that the State Governments are bound by the 1^st Amendment and other parts of the Bill of Rights, including for example 4^th Amendment protections against unreasonable search and seizure. That's why South Dakota can't establish a church and why South Dakota police cannot ignore the Miranda Rule.

But the Court has never said that the entire Bill of Rights (the first ten amendments to the Constitution) applies to the states. In today's case, a handgun ban in the city of Chicago is under review. Chicago derives its legislative authority from the state of Illinois, just as D.C. does from the Federal Government. So the question in McDonald is whether the rule announced in Heller applies to the states. If it does, then there is a general constitutional right to own and possess working handguns.

Almost everyone thinks that the Court will find that the 2^nd Amendment does apply to the states. The phrase "right of the people" in the Constitution always refers to rights possessed by individual citizens. I can see no reason why "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" in the 4^th Amendment should apply to the states, but "the right of the people to keep and bear Arms" should not.

I think the Court was right in Heller. The Constitution is, as many liberal jurists have declared, all about human dignity. The Founders clearly thought that the right to keep and bear arms was part of that dignity. If you disagree, fine. Lobby Congress to amend the Constitution. But until the 2^nd Amendment is repealed, this right is part and parcel of the liberties protected under the Constitution. I trust that the Court will recognize this.

Comments

[Stace Nelson]

Spot on; however, I think that it will be a close ruling like the D.C. case. Let's hope and pray that the close ruling is in favor of Mr. McDonald. God bless..