Supreme Court to Decide Whether Second Amendment Applies to States

Brian Doherty | September 30, 2009

When they decided to actually start thinking about the Second Amendment again after decades of neglect, looks like this Supreme Court was serious. Hot on the heels of 2008's Heller case in which they declared that the Second Amendment does indeed protect an individual right, they have now agreed in their coming season to consider the case of McDonald v. Chicago. The gist from the Washington Post:

The Supreme Court on Wednesday said it would decide whether an individual's right to own guns for self-defense -- as articulated by the high court in 2008 when it struck down the District of Columbia's ban on handguns -- also covers states and other cities with gun-control laws.

The question of whether the Second Amendment only applies to the federal government and federal enclaves like the District is one that was not addressed in the decision in Heller v. District of Columbia.

More details from the stupendous ScotusBlog on the various cases the courts could have used to take on this issue:

The Court had three cases from which to choose on the Second Amendment issue — two cases involving a Chicago gun ban, and one case on a New York ban on a martial-arts weapon.  It chose one of the Chicago cases — McDonald v. Chicago (08-1521) — a case brought to it by Alan Gura, the Alexandria, VA. lawyer who won the 2008 decision for the first time recognizing a constitutional right to have a gun for personal use, at least in self-defense in the home (District of Columbia v. Heller).  A second appeal on the Chicago dispute had been filed by the National Rifle Association (NRA v. Chicago, 08-1497).  Presumably, the Court will hold onto that case until it decides McDonald; the same is likely for the New York case, Maloney v. Rice (08-1592) — a case in which Justice Sonia Sotomayor had participated when she was a judge on the Second Circuit Court.

Past Reason writings from me and from Damon Root on the buildup to this case and on the controversy over the meaning of the 14th Amendment and whether it can or should be used to thus stymie states from restricting weapons possession rights. A July Reason interview with super gun rights lawyer Alan Gura on the Chicago case and other gun rights issue moving through America's court, post-Heller.

And for the full, full story of Heller itself, check out my book Gun Control on Trial.

Comments

Warty|9.30.09 @ 12:46PM|#

I'm much more confident of winning this one than Heller.

Ryan M|9.30.09 @ 12:49PM|#

I think they'd have to do quite some legal gymnastics to rule against this without overturning Heller, and I don't see them overturning Heller. Unless Sotomayor tips the balance. But I doubt that will happen.

|9.30.09 @ 12:53PM|#

call me naive but if this was the first amendment, would anyone say that it doesn't apply?

Phantom Limb|9.30.09 @ 12:53PM|#

I'm no Constitutional Scholar, but I thought the Constitution and specifically the Bill of Rights was the supreme law of the land. I.e. no state law can trump any rights guaranteed by the first ten amendments?

|9.30.09 @ 12:55PM|#

"The question of whether the Second Amendment only applies to the federal government and federal enclaves like the District... "

Isn't this a popular income-tax-evasion argument?

JB|9.30.09 @ 12:57PM|#

This very well might be my line in the sand.

|9.30.09 @ 12:58PM|#

Phantom, would that were true.

Through the Civil War and beyond, it has been argued that the Bill of Rights imposes limits only on the national government. The idea that it applies to the states as well is known as the "incorporation doctrine". Most of the BoR has been incorporated against the states, but not (yet) the Second Amendment.

|9.30.09 @ 1:08PM|#

Most state constitutions have always had statements identical to the U.S. Constitution's 2nd Amendment.

So most Americans already have gun-rights absolutely guaranteed by their own state ... without any real need for duplicate Federal guarantees.

Of course.... getting state governments, the Federal government and SCOTUS to obey their constitutions is an entirely different issue.

Phantom Limb|9.30.09 @ 1:11PM|#

Thanks for clearing that up R C. I'll read up on the incorporation doctrine.

|9.30.09 @ 1:13PM|#

Does the 13th and 14th amendment just apply to the Feds and DC?

Random Dude|9.30.09 @ 1:24PM|#

I thought it was generally accepted that the whole of the "privileges or immunities" of the Bill of Rights was incorporated to the states by the 14th amendment?

Or is the 2nd amendment the last shoe to drop?

(Honest question)

|9.30.09 @ 1:25PM|#

Based on the wording of the first and second amendment, I have always thought that the fact that the first was incorporated and the second wasn't, to not make any sense at all.

The first says "congress shall make no law". The second specifies no restricted entity. So, if the first restricts entities other than congress, than the second certainly should.

|9.30.09 @ 2:14PM|#

I thought it was generally accepted that the whole of the "privileges or immunities" of the Bill of Rights was incorporated to the states by the 14th amendment?

No, its been done piecemeal, rather than in toto, and its been done, bizarrely, through the due process clause rather than the privileges and immunities clause.

|9.30.09 @ 2:23PM|#

Re: Aelhues,

The second specifies no restricted entity. So, if the first restricts entities other than congress, than the second certainly should.

The First Amendment restricts Congress from issuing any law or regulation that restricts freedom of speech, the press or establishes a national religion. This Amendment is supposed to restrict only Congress, because it explicitly mentions it. The IX and X Amendment make it quite clear that any powers not delegated to Congress (which is the only national government body that can make laws) are the exclusive responsibility of the States, which means that the States CAN restrict freedom of speech, the press and impose a State religion.

The Second Amendment establishes the restriction upon ALL governments, whether national or local, on any regulation or restriction on the people's right to bear arms, as established IMPLICITLY by the sentence "SHALL NOT BE INFRINGED". This also applies to the III, IV and V Amendments, which establish protections for people's rights without restricting the responsibility to Congress exclusively. It is implicit that the protection these Amendments provide are for all the people. The same logic applies to the Second Amendment.

One argument used to attack this Amendment by freedom-fearing judges is that the Amendment purportedly establishes a collective right, that is, the right to bear arms pertains to a national guard or national forces. This argument is totally absurd and fallacious, since nowhere in the Constitution are "collective rights" ever defined or set, the reason being because there is NO such thing as a "collective right": Only individuals exist on this earth, not "collectives".

The other restrictions stem from "reasonable protections or provisions" to protect the people from potential actions by other people. For instance, the classic example of not being allowed to yell "Fire" in a crowded theater. This argument seems cogent except for the fact that this assumes intentions, instead of restricting actions that harm others. What if yelling "Fire!" inside the theater is something people already expect? What if it is part of the show? The law maker cannot account for every possible scenario and thus his law will be dangerously vague or sweeping. The same goes with arguments to restrict people's right to have, and carry, firearms.

The counterargument then is that the lawmakers cannot possibly know the intentions for a person's use of his or her property, in this case the firearm, and thus beg the question when issuing laws that restrict the use of firearms purportedly to protect others. There already exist laws that protect people from the aggressive actions of others (such as "you shall not kill, you shall not steal, you shall not rape", and variations of them) which are meant to protect a person's individual rights. But laws that restrict a person's use of a firearm because he may harm himself or herself clearly establishes the premise that the lawmaker can actually know the future, and determine that people WILL harm themselves. Even if they DID, since this has not happened yet, the presumption of knowledge is fallacious, and begs the question.

Laws that are purported to "protect" the people from themselves rest on a legal and philosophical position called "legal positivism", which states in a nutshell that lawmakers can legislate goodness. This is totally contrary to the idea that laws are meant to establish the protection of people's rights, not to impose a particular etiquette.

robc|9.30.09 @ 2:40PM|#

powers not delegated to Congress (which is the only national government body that can make laws) are the exclusive responsibility of the States

Or the people.

It doesnt say how to decide, but the other powers belong to the states or the people, not just the states.

MNG|9.30.09 @ 3:04PM|#

When will they decide this?

I'm sure all the states righters/local government boosters are crossing their fingers hoping Chicago wins this. All we need is more federal meddling in local matters, right? I mean, if people don't like the law of a state or locality they can move, but my goodness they will be screwed if the Court federalizes this area of law!

MNG|9.30.09 @ 3:05PM|#

Ditto for all the haters of activist judges and boosters judicial restraint, I guess you're all hoping for deference to the elected legislatures who've enacted these measures!

MNG|9.30.09 @ 3:06PM|#

"I have always thought that the fact that the first was incorporated and the second wasn't, to not make any sense at all"

Until the court held the 2nd was an individual right this issue really couldn't come up.

|9.30.09 @ 3:08PM|#

Maybe I wasn't clear. I was saying that if the first amendment has been determined to be enforceable against all government entities, than the second amendment, which has no specific entity mentioned, should absolutely be held to mean that the state and local governments can't abridge the stated rights.

It seems to me that the supreme court has effectively inverted the entities these two amendments apply to, allowing state and local governments to infringe on our right to bear arms.

MNG|9.30.09 @ 3:13PM|#

But if the 2nd Amendment was a right of the people to have state militias (whatever that would mean) then it would be hard to have a case to incorporate it (and the Court decided to go case by case in incorporation). Essentially someone would have to sue their state for not having a militia, or something.

But I actually agree with you I think. It's hard to see how this grant to "the people" could not be incorporated once an individual right is recognized.

|9.30.09 @ 3:14PM|#

MNG, I think you miss not only the intent, but also the spirit of most states rights type people. I would consider myself a states rights proponent. However, this is within the framework laid out by the constitution. The reason I push for states rights, is not to help the states restrict my rights, but to restore balance to the power structure in this nation, with the sovereign states restricting federal power. Further, your point makes no sense if taken in context that we're not fighting to do something outside the mandate built by the constitution.

MNG|9.30.09 @ 3:17PM|#

Essentially you're for states rights when it does good, but not when it does bad, or rather for it when it expands liberty but for federalization when that expands liberty. So why not chuck the whole "states rights" stuff and just say you are for expanding liberty.

"your point makes no sense if taken in context that we're not fighting to do something outside the mandate built by the constitution"

Of course it makes sense. Do you think it better and proper for local governments to make these decisions or should there be a federal standard that applies to all? In this case you think the latter. I bet you think that in many other areas too. My point being that there really are no "states rights" people, there are people that for whatever reason seem to think states rights will promote whatever actual values they have better than federalization would.

MNG|9.30.09 @ 3:19PM|#

And it doesn't help to say "well, i'm only for federalization when the Constitution calls for it!" Because then you're not for states rights again, you're really a Constitutionalist (whats important is not whether state/local governments make decisions but that the Constitution be followed).

States rights=bullshit of course....

MNG|9.30.09 @ 3:20PM|#

My favorite "states righter" is TAO who says he's all for the right of states to be able decide matters, expect for some really important fundamental areas, where of course we need federalization ;)!

MNG|9.30.09 @ 3:26PM|#

Think of the cases that have most riled the right in the past few years, in nearly all of them the right was urging for federalization of the law, for local and state governments to have measures enacted by their elected representatives overturned by judges using federal rights! (Kelo, the affirmative action case, Heller, etc). Yeah, judicial restraint! Down with activist judges! States rights! Yee-haw!

It's hilarious stuff.

|9.30.09 @ 3:30PM|#

So, I can't be a states rights proponent if I think the feds have the right to make decisions on anything? How silly. As I said, I push for states rights because I believe that the balance of power has sung very far towards federal control, leaving the states in the position of beggars. I don't believe that is the way it was designed, nor do I think that is the best situation. It doesn't mean that I think there isn't a roll in the law for the feds here and there.

I am a constitutionalist, who thinks the feds have way more power than is constitutional, hence, I'm for increasing states rights and decreasing federal power.

|9.30.09 @ 3:33PM|#

I certainly don't hold with a lot of the cases that have riled the right in recent years. As you said, many of them increase the federal role, which is already much to large as is.

JB|9.30.09 @ 3:46PM|#

States don't have rights, individuals do.

|9.30.09 @ 3:50PM|#

Most state constitutions have always had statements identical to the U.S. Constitution's 2nd Amendment.

So most Americans already have gun-rights absolutely guaranteed by their own state ... without any real need for duplicate Federal guarantees.

Let me quote the Illinois state constitution:

SECTION 22. RIGHT TO ARMS
Subject only to the police power, the right of the
individual citizen to keep and bear arms shall not be
infringed.
(Source: Illinois Constitution.)

|9.30.09 @ 3:58PM|#

States rights=bullshit of course....

Then why have (or allow) the existence of states? Why not just rename the "United States" to "Middle North America"?

Ryan M|9.30.09 @ 3:59PM|#

@wayne: do you know if anyone has ever challenged the chicago ban on state constitutional grounds? I'm not familiar with the details of the case going before SCOTUS, but it seems to me it was challenged on federal constitutional grounds, hence why it's headed to SCOTUS.

|9.30.09 @ 4:48PM|#

Ryan,

I don't know if Chicago's gun ban has been challenged on state constitutional grounds; it certainly seems to me to violate the Illinois constitution, not that that makes any difference to Illinois cops, judges, legislators, etc.

I am a "state's rights" guy, but I also believe that the US constitution rules supreme, i.e. I believe 2A guarantees the RTKBA to all US citizens. I understand the incorporation doctrine, though it makes no sense to me.

Ryan M|9.30.09 @ 5:01PM|#

@wayne: I get the impression you interpreted my question as a challenge. I didn't mean it that way, I was just genuinely curious. It seems to me that we can't very well expect the federal government to obey their constitution if the states don't obey theirs (and perhaps vice versa as well).

I'm a "rule of law" guy. I think the the US constitution creates a federal gov't of limited and enumerated powers, so if it's not in there, it belongs to the states or people (so you can say I'm pro states rights). The 14th amendment, to my reading, incorporates all the bill of rights against the states through the priviliges and immunities clause, and I'm fine with that (I'm also ok with them using the due process clause, but that seems like a hack around a bad decision they made before). Even if I didn't approve of those _rights_ being forced onto the states (I do approve because they coincide with my desire for more liberty), I'd still have to approve of them being legally applied that way, since that's the way the law is written.

|9.30.09 @ 5:21PM|#

Ryan,

I'm sorry if I gave the impression that I was combative; I did not mean it that way.

I think your position and mine are in complete accord.

MNG|9.30.09 @ 5:55PM|#

"I am a constitutionalist, who thinks the feds have way more power than is constitutional, hence, I'm for increasing states rights and decreasing federal power."

But not in this case. Or that one. Or the other one...And....

MNG|9.30.09 @ 5:57PM|#

"I am a "state's rights" guy, but I also believe that the US constitution rules supreme"

Like I said, "I believe the states should have more say and the federal government should have less. Except for where it should be the other way around."

Every states righter says this, which is why I find the philosophy, as an empirical matter, to be bullshit.

Michael Ejercito|9.30.09 @ 6:57PM|#

And it doesn't help to say "well, i'm only for federalization when the Constitution calls for it!" Because then you're not for states rights again, you're really a Constitutionalist (whats important is not whether state/local governments make decisions but that the Constitution be followed).

States rights=bullshit of course....

The United States Constitution is the supreme law of the land, boy.

|9.30.09 @ 7:24PM|#

Re: MNG,

But if the 2nd Amendment was a right of the people to have state militias (whatever that would mean) then it would be hard to have a case to incorporate it (and the Court decided to go case by case in incorporation).

The 2nd Amendment does not give the right to the people to have state or other kind of militias. The Amendments were written to protect already existing rights from detrimental actions by Congress. So people and the States have a right to raise militias whenever they feel like. This means: the right already exists; the 2nd Amendment just assures that it will not and cannot be infringed.

Essentially someone would have to sue their state for not having a militia, or something.

Nope. That's not it. By the way, the confusion stems from the PREAMBLE in the 2nd Amendment, which is basically a reason given as to why the right to bear arms will not be infringed, that is the right of the people to make militias. That's A reason given, not THE reason - clearly, the Framers did not have to list any other obvious reason for the people to possess arms - hunting, self defense, target shooting, the simple love for guns, hobby, you name it - only what they considered as an important reason for a free republic, which is the right to form militias.

|9.30.09 @ 7:27PM|#

Re: MNG,

Every states righter says this [I believe the states should have more say and the federal government should have less. Except for where it should be the other way around.], which is why I find the philosophy, as an empirical matter, to be bullshit.


All generalizations are bad.

;-)

Michael Ejercito|10.1.09 @ 11:01AM|#

Why is it that so many people who claim that the U.S. Constitution protects the right to an abortion even though there is a lack of explicit text deny that the U.S. Constitution protects the right to keep and bear arms despite explicit text?

Bill|10.1.09 @ 6:44PM|#

Re: the privileges and immunities clause: read the Slaughterhouse Cases. SCOTUS effectively emasculated the privileges and immunities clause, despite a very clear legislative history. When you look at the floor debates upon introduction of the Reconstruction amendments, it is clear that the intent, at a minimum, was to make all of the B of R apply to the states - i.e., prevent the states from infringing upon rights that the federal government could not infringe upon. SCOTUS read that out of the 14th with it's cramped reading of the privileges and immunities clause.

In order to rule in favor of incorporation under the P&I clause, the court will essentially have to overrule the Slaughterhouse Cases, which there seems to be general agreement among legal scholars it should do, and in fact, that it is long overdue. Most today agree that the Slaughterhouse Cases was wrongly decided.

I saw a Federalist Society discussion here in Richmond, VA at the Univ. of Richmond law school a week or two ago, at which Alan Gura spoke, along with the Commonwealth's Attorney for the City of Richmond, Michael Herring. They both said they were highly confident that the Court almost certainly would find that the 2A is incorporated - whether it does it by the P&I clause or the due process clause. Alan Gura said he is inviting them to do it via the P&I clause and to overruled Slaughterhouse.

Anyhow, they both seemed to think it was a reasonably safe bet that the Court will incorporate the 2A, in light of Heller.

Bill|10.1.09 @ 6:51PM|#

Saying the Constitution is "the supreme law of the land" is a generality. It does not explain how it applies or what it requires. As a general truism, it is correct that it is the supreme law of the land. But what does that supreme law require?

At the time the Constitution was ratified, and for decades thereafter, it always was understood that the Bill of Rights were limitations on the power of the FEDERAL government only. Each state retained its own degree of sovereignty (see the 10th Amendment), and therefore the people of the state could determine for themselves what power to yield to their state government and what rights to guarantee as against the power of their state government.

Take a look at the history of the Reconstruction amendments - the 14th in particular. The legislative history is clear: states were legally denying rights that would be protected as against the federal government. Specifically, freed slaves were being denied the right to arms, and other such inequitable circumstances existed. The intent of the 14th was to make sure the states recognized at least the same rights protected by the Bill of Rights - because up until then, the Bill of Rights did not limit the states, only the federal government.

Because of the Slaughterhouse Cases, and the invention of the oxymoronic doctrine of "substantive due process", which gave rise to "selective incorporation", the court empowered itself with the ability to decide which of the rights were incorporated against the states. Over a period of a several decades (with a spurt of activity in the 1960's), the Court has ruled that most of the B of R are incorporated against the states. But it has never decide on the 2nd. Now it will.

boomstck man|10.22.09 @ 10:58AM|#

i am an avis member of the NRA. guns are good, soo is drinking. homos are bad