McDonald v. Chicago: Does 2nd Amendment Apply To States?

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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