A Majority for Incorporation of the Second Amendment

Judging from today's oral arguments in McDonald v. Chicago, there are at least five votes for applying the Second Amendment to the states. Four members of the majority in Heller v. D.C., the 2008 decision that struck down the District of Columbia's handgun ban, indicated that the right to keep and bear arms is "fundamental," meaning it should be among the rights "incorporated" by the 14th Amendment. The fifth member of the Heller majority, Justice Clarence Thomas, did not say anything during the arguments (as is his custom), but there's little doubt about his position on this question. Assuming the Second Amendment is incorporated, Chicago's handgun ban will be overturned, since it is very similar to the D.C. law that the Court struck down in 2008. The only real suspense concerns the possibility that the Court will incorporate the Second Amendment by way of the long-neglected Privileges or Immunities Clause, which would have important implications for other areas of constitutional law, or take the usual route through the Due Process Clause.

Justice John Paul Stevens, who dissented in Heller and can be expected to dissent in this case as well, suggested that the freedom protected by the Second Amendment should be restricted to keeping guns in the home, which was the focus of the 2008 case. That position would be inconsistent not only with "the right to keep and bear arms" but with what Stevens himself saw as the implications of Heller:

Given the presumption that most citizens are law abiding, and the reality that the need to defend oneself may suddenly arise in a host of locations outside the home, I fear that the District’s policy choice may well be just the first of an unknown number of dominoes to be knocked off the table.

I will have more on the right to carry guns outside the home in my column tomorrow. The transcipt of the oral arguments in McDonald is here (PDF). More on the case here.

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  • Old Mexican||

    Be prepared for smug and utterly stupid comments and non sequiturs from snobbish dolts in the European and Latin American media - you know, those places where people are forbidden to even fight back aggressors, never mind shooting them.

  • ||

    Thank God for the 2nd Amendment and the Castle Doctrine.

  • Old Mexican||

    That's why I am here. In Mexico, the very Mexican constitution makes it clear one is a mere tenant in his own country, not a property owner (Article 27). Protecting your land from illegal homesteaders? Fugged' abou'it!

  • ||

    I would all things considered, be very happy living in the UK, except for the fact that I couldn't own a gun and the first time I beat the shit out of some yob breaking into my house I would end up in prison. No thanks.

  • Michael Ejercito||

    I would all things considered, be very happy living in the UK, except for the fact that I couldn't own a gun and the first time I beat the shit out of some yob breaking into my house I would end up in prison. No thanks.


    How did the UK end up like that?

    They voted away the freedoms that Hitler tried to take from them seventy years ago.

  • ||

    The notion of self-defence has been under attack in the UK since the twenties.

    http://www.cato.org/pubs/policy_report/v26n2/cpr-26n2-1.pdf

    I have read of cases of people being arrested or warned about fighting back when they were attacked as early as the early fifties. Being armed or improvising any kind of weapon, in the case of one women with even a hatpin, can result in being charged.

  • jester||

    Commandante Marcos has a gun, doesn't he? Whatever happened to him? A B-movie actor maybe?

  • Rich Texan from "The Simpsons"||

    Yee haw! Yee haw!

  • wayne||

    If SCOTUS incorporates 2A then I expect the right to carry (...and bear) fight to really get ugly and take many years to resolve.

  • TickleStick||

    Why? If the court rules that the right of the people to keep and bear Arms, shall not be infringed., then isn't that game, set and match?

  • ||

    What, the same way that there's never any First Amendment issues?

  • TickleStick||

    I can openly carry a newspaper anywhere.

  • Almanian||

    FIRE!!!!

    **sound of people running to theatre doors**

  • TickleStick||

    Well obviously every ammendment is open to interperation by the courts, what matters to me is that if the courts rule in his favor, who is it that can prevent Mr. McDonald from keeping a loaded handgun on his property?

  • TickleStick||

    Because I really identify with this guy. 3 teens were shot in my neighborhood this weekend. Two boys on a bus were wounded and in a separate incident, a young girl was shot dead because the piece of shit gangbanger that (yes that not who) live in my neighborhood like to fire into crowd for intimidation's sake.

    http://www.startribune.com/loc.....3LGDiO7aiU

  • TickleStick||

    add the letter s as needed.

  • ||

    who is it that can prevent Mr. McDonald from keeping a loaded handgun on his property?

    The city will pass a new gun control law that they claim is slightly less oppressive of the right to bear arms, and it will be litigated again.

    In politics, you don't just "win." Your opponents, if motivated, don't just accept that they lost and go home. Rights are ever fought over, ever under attack.

  • Me||

    If there's an actual fire in the theatre, this is perfectly acceptable.

  • wayne||

    Given the presumption that most citizens are law abiding, and the reality that the need to defend oneself may suddenly arise in a host of locations outside the home, I fear that the District’s policy choice may well be just the first of an unknown number of dominoes to be knocked off the table.

    Stevens stipulates that most citizens are law abiding, and realizes that the need to defend oneself might arise at any time and place... and he STILL dissents in recognizing the plain language of 2A. What a total ass!

  • J. P. Stevens||

    How dare you call me an ass! I swear, if I had my gun...

  • ||

    My favorite bit of all time from the Simpsons was when Homer went in to buy a gun and the guy told him there was a 10 day waiting period. Homer says "Ten days??? But I'm mad now!!!"

  • ||

    Thanks for the laugh.

  • EscapedWestOfTheBigMuddy||

    Company policy s to hand over the money.

    Another employee quietly suggested that I segregate my tips and not carry those up to the door...

    There may be a lesson in moral hazard in there somewhere.

  • ||

    That is absolutely tarded and funny as hell.

  • Fist of Etiquette||

    "When I held that gun in my hand, I felt this incredible surge of power, like God must feel when He's holding a gun."

  • ||

    Unsurprisingly, the ole' pragmatist Justice Breyer wanted to bring up the statistical argument and decide on the basis of that, and formalist Justice Scalia rebutted that one forcefully (making an analogy to Miranda) without really letting Gura say anything.

  • Mad Max||

    'I fear that the District’s policy choice may well be just the first of an unknown number of dominoes to be knocked off the table.'

    Speaking of Domino's (or Papa John's), would Justice Stevens deny that the right to bear arms includes the right of pizza-delivery drivers to carry arms for protection against robbers?

  • MNG||

    This is actually a very instructive comment.

    "Since well regulated militias are essential to the protection of a free government, pizza delivery guys have a right to carry guns to protect themselves from threats."

    Do you people not see how amazingly clumsy this "individual right of self protection" is alongside the militia language in the Amendment.

    Because you know, those pizza delivery guys should be armed in case, you know, an armed insurrection must be put down while they are delivering that extra cheese Meat Lovers...

  • ||

    Actually, given that two pizza delivery guys were visciously gunned down after being lured into an ambush by a pair of thrill kill seekers in Sussex County NJ..........Maybe pizza delivery guys carrying guns for their own protection isn't that far fetched

  • ||

    You can bet that, in the unlikely envent of Obama replacing a justice from the conservative wing, liberals will suddenly forget about stare decisis.

  • MNG||

    Didn't you hear? Robert's concurrence in Citizens United suggested that really, really closely decided precedents don't really deserve stare decisis protection, so, since this case, as well as Heller, were really, really closely decided the Court can just use that if Kennedy gets replaced...

  • ||

    Robert's concurrence in Citizens United suggested that really, really closely decided precedents don't really deserve stare decisis protection

    Really, really closely decided precedents that contradicted other, older precedents.

  • MNG||

    Let me get this straight: the 2nd Amendment plainly has something to do with militias or else that prefatory language is superflous nonsense. That clause seems to strongly imply that not only does the entire amendment have "something to do with militias" but that it has as it's central aim the protection of militias.

    And from this we get a fundamental right of individual armed self-protection?

    And we get this from self-proclaimed opponents of judicial activism?

    Hello Bizarro World!

  • ||

    Let me get this straight: the 2nd Amendment plainly has something to do with militias or else that prefatory language is superflous nonsense. That clause seems to strongly imply that not only does the entire amendment have "something to do with militias" but that it has as it's central aim the protection of militias.

    Sorry, you don't have it straight. There is a great amount of textual evidence and scholarship disputing that claim; you can even ask Lawrence Tribe.

    It's a preface indicating one use of the right, but, like the Preamble of the Constitution, doesn't exhaustively list everything.

  • ||

    MNG, are you also one of those people who believes that the government can seize any property it wants without restitution, so long as it's doing it for the purely private benefit of some rich person? After all, by your logic, "nor shall private property be taken for public use, without just compensation" doesn't say that private property can't be taken for some other private use.

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