McDonald v. Chicago: Does 2nd Amendment Apply To States?
January 26, 2010
McDonald v. City of Chicago is about the right of citizens to keep and bear arms in Chicago, right? Just as District of Columbia v. Heller was about the right of the citizens to keep and bear arms in Washington, D.C. Right? Well, the answer is a resounding YES……and NO!
Heller was a victory for gun rights as the ruling declared that the Second Amendment did guarantee an individual, not a state-run militia, the right to keep and bear arms. But it didn’t answer the question as to whether the states and the cities and towns within those states, have the right to limit or restrict gun ownership based on a degree of sovereignty from the federal government. Hopefully, this is what McDonald v. Chicago will answer for us.
But hold on. It’s not quite that simple. The Second Amendment, which is the one most Americans believe guarantees them the right to own a gun, says: “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.” We know that everybody and his brother have twisted, spun, manipulated, redefined and reprocessed the Second Amendment hoping they could convince the people what they think the Second Amendment is “meaning” to say. We now know from Heller, that Justice Scalia’s majority opinion stated very clearly that the Second Amendment guarantees an individual that right.
McDonald, however, is a bit more complicated. Lawyers for McDonald are hoping to convince the Supreme Court that the Second Amendment, as defined by Scalia’s Heller decision, has to be applied to the states because of the Fourteenth Amendment, which, as it might apply to McDonald, says: “Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.”
Whether we like it or not or agree, over the years the Due Process Clause of the Fourteenth Amendment has been used repeatedly to apply our rights under the Constitution. I have often asked why the Second Amendment cannot stand along and have never received what I would call a satisfactory answer. Nevertheless, McDonald will ague accordingly in hopes that the Supreme Court will agree.
I have repeatedly stated that I thought the use of the Fourteenth Amendment to apply the Second Amendment to the states comes at us as a bit of a two-edged sword. I still think I’m right in that analysis. States are scrambling around finding ways of reestablishing their sovereignty. Because the Fourteenth Amendment utilizes the power of the Federal Government to apply a Constitutional right, isn’t that somehow calling upon the authority to exert the power one is seeking to get out from under?
Ken Klukowski for Townhall, makes a stab at trying to explain how lawyers for McDonald will use the Fourteenth Amendment to win their case.
The lawyers for Otis McDonald and his co-plaintiffs are libertarian activists, who are pushing an aggressive and potentially risky constitutional theory to the Court. Without getting too much in the legal weeds, McDonald is arguing that the Court should extend gun rights to the states through the little-known Fourteenth Amendment Privileges or Immunities Clause, and overrule a venerable precedent from 1873 called the Slaughter-House Cases, which protects state sovereignty by limiting the reach of Congress and the courts.
The National Rifle Association, considered a “respondent” in this case, has been granted time on the floor to argue their side of this case in hopes to keep the court focused on gun rights and not allow the “Privileges and Immunities Clause” argument to become so broad based the court balks on making any ruling. The NRA would like to use the Fourteenth Amendment to only apply to the Second Amendment in this case.
The NRA’s argument therefore stresses that the Court should apply (or “incorporate”) the Second Amendment to the states through the Fourteenth Amendment Due Process Clause. Although this approach is beset with problems from a conservative legal perspective, it’s nonetheless how the Court has always tackled these issues and so it becomes the safest route for extending gun rights to the states.
On March 2, 2010, the Supreme Court is scheduled to hear oral arguments in this case. How focused it will be remains to be seen. Potentially, this ruling, as it might pertain to our Second Amendment, could be huge. In this modern era of gun laws and battles over gun rights, each step taken to define our right to own guns is monumental. We must remember that the Supreme Court has tended to shy away from Second Amendment interpretations. Should the Court opt to define for us the powers of the states in forcing gun laws, would be historical.
Tom Remington
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Nope, it applies to the federal monster to never touch my guns. The states created the federal monster and put very heavy restraints upon that federal monster which it has tried to break free from ever since. The individual states also have Constitutions protecting the right to bear arms. The 14th Amendment is not a part of the Constitution, it never was. The ratification process was violated which is specifically a Constitutional obligation to follow, it was not done. This nation was still suffering from the Civil War era, the Southern States were broken, under martial law, and the Congressmen of the Southern States did not vote on the Amendment in their destroyed legislature houses. The 14th is a fraud. It always will be fraud. The Constitution gives the government limited rights, to not mess with me.
The right to keep and bear arms as a part of English and American law antedates not only the Constitution, but also the discovery of firearms. Under the laws of Alfred the Great, whose reign began in 872 A.D., all English citizens from the nobility to the peasants were obliged to privately purchase weapons and be available for military duty.This was in sharp contrast to the feudal system as it evolved in Europe, under which armament and military duties were concentrated in the nobility. The body of armed citizens were known as the fyrd.
The communists would not allow us a wooden staff if that were the only weapon of choice. This charade in Chicago is just another bunch of fools playing games, so was Heller. We have two hundred thirty seven years of lawful history which defines the meaning of that second amendment. I don’t need a court full of catholic pompous fat asses to explain it to me at all.. Those fools would never make a white head zit on the founding writers arses.. NUFF SAID.
The second amendment argument doesn’t make sense to me.
Where did the 2nd come from ? It came from the states.
Imposing a law on the FEDS as enacted by the states but the states aren’t subject to the law that they implemented? They wouldn’t have implemented the amendment if the states weren’t subject to it as well, so this should be an astounding yes. The states are absolutely bound to it.
Any law that infringes the right to keep and bears arms is unconstitutional PERIOD. We may see this being fought in Mass pretty soon now too.
Mike – I agree with you. Unfortunately there are too many people who don’t and that’s why it has come down to a Supreme Court hearing in 2010 to make that determination.
Part of the reason for that is that none of this has ever really been addressed because the SCOTUS wasn’t interested in taking on such cases. They left it up to the states. Now the states, like Illinois and specifically Chicago, have said you can’t own guns because the Second Amendment can’t be forced on us.
If you will recall the debates I brought up back during the Sotomayor confirmation hearings, is Justice Sotomayor is one of those who believes the Chicago way.
The states are the people under the tenth amendment. We are the state of Idaho. The document clearly is a restraint against government of any kind. We don’t have constitutional rights, the government does, and those rights of government are spelled out in the first ten amendments. The government is the slave wearing restraints. Once they turn this around, which they have, then we find ourselves defending our Constitutional Freedoms.. Just as they wish, and then they slowly take them away, which they are doing. It has all been turned upside down. They are supposed to be defending our inherent rights instead of attempting to banish them. They are in violation of the governmental rights they have been allowed, not us.
Red Beckman’s Fully Informed Jury Training Part 5 >>>>
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Great explanation, Greg! Golly, this is all wrong for those that don’t believe there is a God!
Interesting observations and propositions, both to Tom and Greg with his Red Beckman course…..Of course, as Tom stipulates, none of these truths apply only to those who have no understanding of what truth is, and therefore no belief or understanding of God. In their case, anarchy is as good as one or the other, and any argument has no evidence of truth…because their truth is relevant only to their own desires.
I learned something in this….and as I have always known it, because it is an inherent truth from God instilled in the very nature of men…and that is that freedom is God’s greatest gift, and one of the fundamental truths of our preamble of the constitution….one which is taken for granted, but one which is never fully realized until it is lost…..The dignity of each and every man and his freedom to choose God’s ways or his own mistakes, is what God is all about…For in His love, He did not condemn us but gave us an opportunity to learn from the mistakes we have made in life. That is what the Word is about as well: a moment of recognition, of the right and wrong in our life…and the freedom to rightly divide the difference.
Only in putting God first, and the individual second, and the government third, is one able to understand what “inherent rights” and “self evident truths” are all about….
And if we apply these amendments to the individual states, as we intended in the first place, as laws that enforce these inherent rights, then we shall find that, we still are “endowed” with the right to bear arms and defend ourselves and our families and our land and our people, from all who would deny us these rights, These rights that so many of our forefathers have fought and died for, in our stead.
Exceptionally well written!
Are you a Sovereign Yet Part 3
http://www.youtube.com/user/Edgrot#p/u/6/dxUt9RMdPKI
Are you a Sovereign Yet Part 4
http://www.youtube.com/user/Edgrot#p/u/9/rsaRs21smZg
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right on, gents.