14th Amendment

Does the Second Amendment Apply in Chicago?

Understanding the stakes in the Supreme Court's next gun rights case

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Last year's landmark Supreme Court decision in District of Columbia v. Heller definitively settled the fact that the Second Amendment secures an individual right—not a collective one—to keep and bear arms. Yet that ruling applied only to the federal government (which oversees Washington, D.C.). Does the Second Amendment apply against state and local governments as well?

Through a series of legal decisions handed down over the past century, the Supreme Court has gradually held that most of the protections in the Bill of Rights apply to the states via the 14th Amendment, which declares, "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." The Second Amendment, however, has been glaringly absent from this process, leaving state and local governments free to systematically violate gun rights.

Until now.

Later this term, the Supreme Court will hear oral arguments in McDonald v. Chicago, a case that centers on whether the Windy City's notorious handgun ban violates the 14th Amendment. As we'll see, it most certainly does. The text of the 14th Amendment, the historical events leading to its adoption, the goals of its framers, and the statements of purpose made both by its supporters and by those who ratified it, all point in the exact same direction: The amendment was designed to secure individual rights—including the right of armed self-defense—against abusive state and local governments.

In the wake of the Civil War, the former Confederate states began passing a series of laws, ordinances, and regulations that robbed the recently freed slaves and their white allies of their political, economic, and civil rights, including the right to arms. Mississippi's 1866 Black Code, for example, declared "that no freedman, free Negro, or mulatto…shall keep or carry firearms of any kind." In other words, America's original gun control laws were designed to disarm African Americans and leave them at the mercy of predatory state governments.

So the Radical Republicans of the 39th Congress responded with the 14th Amendment, which was ratified in 1868, and which was explicitly designed to secure the life, liberty, and property of all Americans from tyrannical state attack. One of the leading figures in this process was Rep. John Bingham of Ohio, the author of the 14th Amendment's first section (quoted above). In a speech before the House of Representatives, Bingham explained that "the privileges and immunities" protected by the amendment "are chiefly defined in the first eight amendments to the Constitution." That quite obviously includes the Second Amendment.

Similarly, Sen. Jacob Howard of Michigan, who presented the 14th Amendment to the Senate, declared that its purpose was "to restrain the power of the States and compel them at all times to respect these great fundamental guarantees," including "the right to keep and to bear arms." As the legal scholar Michael Kent Curtis writes in his masterful history No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights, both Bingham and Howard "clearly said that the amendment would require the states to obey the Bill of Rights. Not a single senator or congressman contradicted them."

For its part, Chicago currently maintains that the Second Amendment should have zero authority over its gun control regime, arguing that the city should enjoy "the greatest flexibility to create and enforce firearms policy" and that "Firearms regulation is a quintessential issue on which state and local governments can 'serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country."' But of course the Supreme Court would never allow Chicago to try a novel "experiment" like banning free speech, so why should the Second Amendment enjoy any less respect than the First Amendment does?

Indeed, as the libertarian Institute for Justice argues in the superb friend of the court brief it filed in the Chicago case, "To enslave a class of people requires three basic things: destroy their self-sufficiency, prevent them from fighting back, and silence any opposition. Southern states did all of those things both before and after the Civil War, and the point of the Fourteenth Amendment was to make them stop."

By striking down Chicago's draconian handgun ban, the Supreme Court has the chance to finally restore both the Second Amendment and the 14th Amendment to their rightful place in our constitutional system. Let's hope the justices get it right.

Damon W. Root is an associate editor at Reason magazine. This article originally appeared at BigGovernment.com.

NEXT: A Moment of Reflection for Bill of Rights Day: We're Screwed

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  1. For its part, Chicago currently maintains that the Second Amendment should have zero authority over its gun control regime, arguing that the city should enjoy “the greatest flexibility to create and enforce firearms policy” and that “Firearms regulation is a quintessential issue on which state and local governments can ‘serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”‘

    I take it they will apply this “principle” universally? That is, if a state or city wants the flexibility to try a firearms policy sans crap like the ’68 GCA, the Brady law, etc., they’ll have no problem with that?

    Yeah, right. It’ll be time for another episode of the statists’ favorite game show “That’s Different!”.

  2. Okay… so what if a state or city wants to give segregation a try? Is that cool with Chicago?

    Seriously, what the hell is wrong with people in Chicago? They have one of the worst police departments in the country, and yet they continually vote to keep themselves utterly dependent on them for their most basic rights (life, liberty, and property).

    1. Okay… so what if a state or city wants to give segregation a try? Is that cool with Chicago?

      Seriously, what the hell is wrong with people in Chicago? They have one of the worst police departments in the country, and yet they continually vote to keep themselves utterly dependent on them for their most basic rights (life, liberty, and property).

      Chicago is a city of the gangsters, by the gangsters, and for the gangsters.

      If there were no gangs, most people in Chicago would not have a job.

    2. They’re stupid, just like all people who live in large cities!

      1. But not as stupid as people who think those who live in large cities is stupid.

    3. Liberalism (liberal social policies) administered by thug polititians will do it every time.

  3. “Seriously, what the hell is wrong with people in Chicago? They have one of the worst police departments in the country, and yet they continually vote…”

    Whats wrong with Chicago voters? They’re dead.

    1. And the one’s that aren’t dead are brainwashed or intimidated by organized crime (err, sorry, the city government).

      1. I’m none of the above. But I only get, like, one vote. Two if I pay extra.

    2. Hey, dead voters help elect Democrats all over the country. Just ask Gov. Christine Gregoire, she’ll back me up.

  4. Does the Second Amendment Apply in Chicago?

    Any other aspect of the rule of law apply to Chicago?

  5. Does the Second Amendment Apply in Chicago?

    Any other aspect of the rule of law apply to Chicago?

  6. Why the hell would anybody want to live there? It’s not a rhetorical question–I’ve been there and cannot for the life of me see a reason.

    1. I’m not even sure why I live in (central) Illinois! Sure, Chi-town is nice to visit. You know, watch a ballgame at Wrigley and get some pizza afterwords, but no way would I ever spend more than a couple days there.

      I’m just hoping that Chicago’s grip on downstate gets loosened sometime so I can enjoy some freedoms without having to leave the state.

    2. I’ll admit that as somebody born and raised in Chicago I’m biased, but I’d never want to live anywhere else. I’ve spent time in D.C., Fort Collins, CO, and Germany and all it taught me was that I want to spend the rest of my life in Chicago (though I’ll note I wouldn’t mind spending more time in Germany). I’ll grant there are three things that suck about Chicago (the winter, the traffic and the politics) but I’m willing to put up with those three in exchange for a city that has all the perks of New York (great entertainment, great food, great economic opportunities, great culture) but few of the negatives (unlike New York, people here are friendly, the cost of living is reasonable, particularly when it comes to housing, and at least in my field of work the hours expected from one’s employer are much less than in NY). Obviously some people don’t like big cities and some people don’t like changes in seasons, and if you fall into that category of course you wouldn’t like Chicago. But hopefully that sheds some light as to why people like me continue to live here (and try–albeit in vain–to change things) despite the political culture of corruption.

  7. “I think that’s how Chicago got started. A bunch of people in New York said, ‘Gee, I’m enjoying the crime and the poverty, but it just isn’t cold enough, let’s go west.'”

    – Richard Jeni

    1. Jeni was great.

  8. No one should have any doubt that the 14th was intended to make the bill or rights apply to the states. But would it have been too much trouble to add something like “privileges and immunities shall include, but are not limited to, the rights protected in amendments 1-8?”
    It has always seemed to me as if the writers of the constitution were just a bit too pleased with their elegant and spare writing. Freedom might have been better served by some clearer and more specific language in various places.

    1. Politicians follow their own special version of the pirate’s code. One of the primary rules is never to tie the hands of future politicians (like themselves two years down the road).

  9. Nice article

  10. “America’s original gun control laws were designed to disarm African Americans and leave them at the mercy of predatory state governments.”

    It isn’t any different now, other than a broadening the base. It just isn’t sound fuckonomics.

    Consider the young bull who says, “Let’s run over there and fuck one of those cows!” And the old bull’s reply, “No, let’s walk over there and fuck them all.”

    1. “America’s original gun control laws were designed to disarm African Americans and leave them at the mercy of predatory state governments.”

      I am surprised no one filed a Romer -like challenge to gun control laws.

      ( Romer v. Evans invalidated Colorado’s Amendment 2 on the basis that it was based solely on animosity towards homosexuals.)

      1. Because it’s politically correct to discriminate against minorities in the service of gun control. See the Chicago registration process.

  11. I find it amusing since the left has a distrust of the police (which is a good thing) but they dont support people defending themselves.

    1. Virtually all left-wing dictatorships on Earth were police states to the boot.

      The left is only distrustful of the police if the police is not serving their interests.

      1. Oh, we’ll still have police… under OUR control.

        Bitches.

      2. basically they distrust the human that wears the uniform… the uniform itself? hard-on…

      3. “”Virtually all left-wing dictatorships on Earth were police states to the boot.”””

        That’s cherry picking. Most dictatorships supported the type of censorship, anti-crime, and anti-immigration policies that the right loves.

        The right and left support greater government power, at the very least to the fringe of dictatorship.

    2. The Democratic Party in Chicago–at least the old guard, white Democrats–don’t have a distrust of police.

  12. I find myself very concerned that SCOTUS chose this case specifically to reinforce Slaughterhouse. I find it hard to believe that they’ll overturn Heller so soon after it was decided, and it seems unlikely they’d deem the 2nd unable to be incorporated, which to me means the liberals on the court will want “compensation” for their vote to incorporate in the form of shooting down the privileges and immunities clause (while incorporating through due process). At least even if that happens, it will still be a small win for liberty.

    1. Incorporation is unconstitutional itself IMO. There is no need to incorporate anything — the words are right there plain and understandable. “The right to keep and bear arms shall not be infringed…” It applies to everyone, not just the federal government. If it had been intended to restrict one part of the government, it would have explicitly said so. Like the First Amendment, which does not apply to the states, but only to Congress. I know this is a minority view (and I think the 1A should be amended to apply to all govt), but it is from the plain meanings of the words.

      1. J., the problem with your argument is mainly that it ignores the context in which the Second Amendment exists: it’s an amendment to the Federal constitution, not to some document limiting powers of the state governments.

        1. That is contradicted by the Tenth Amendment which states:

          “[T]he powers not… prohibited by [the Constitution] to the states are reserved to the states respectively, or to the people.”

          That shows that the Constitution does limit state power. In other words, the states only have the powers that are not already prohibited by the Constitution! The fact that the First Amendment explicitly limits only Congress while the others state inalienable individual rights in a vacuum supports that assessment as far as I see it.

          Incorporation is a legalistic loophole. The Supreme Court didn’t like what the document actually said and chose to “legislate from the bench” (abused phrase, but fitting in this case) rather than let the constitutional amendment process address the issue. I can see an argument for using the “due process” clause to apply the First Amendment to the states, but to selectively not apply it to the others in the Bill of Rights–as in the Second, Fifth and Seventh Amendments which make no qualifications specifying its application to the federal government–is absurd.

          1. Your recitation of the Tenth Amendment is accurate, but misplaced in this argument. The Bill of Rights does not prohibit laws being passed or enforced by the states, but rather by the federal government. The prohibition clause you cite from the Tenth applies to cases like coining money, which are expressedly reserved to the federal government and explicitly denied to the state governments. Thus the Tenth Amendment doesn’t apply in our discussion of incorporation under the 14th Amendment of all of the Bill of Rights.

            1. So you are saying is that the Constitution is explicit when it grants the federal govt powers at the expense of the state government. However, in the 1A it explicitly limits ONLY the federal government (“Congress”), while every other amendment in the Bill of Rights speaks of inalienable individual rights without respect to WHO may (not) violate them. Why be explicit in the one case (coinage), but vague in the other (amendments 2-8)? Why be explicit in the one case (the 1A), but vague in the others (the rest of the Bill of Rights)? It makes no sense unless you accept that it is not “vagueness”, but exactness. In other words, NO body has the right to conduct unreasonable search/seizure, require excessive bail, infringe on the right to bear arms, etc.

        2. So the state police can’t usurp your 4th or 5th amendment rights since they should only apply to federal law enforcement?

          1. Originally, the Founders thought that to rely upon the citizens of the several states was sufficient protection for those citizens’ rights, enumerated in the federal constitution or not. By the time of the Civil War, it had become obvious even to a politician that state governments were regularly restricting the inherent rights of their citizens, as evidenced by the states’ treatment of their black citizens. Further, that the interplay of state and local politics tended to defeat attempts to make the state government recognize those rights. Hence, the 14th Amendment was passed, to incorporate those federally-recognized rights, unenumerated as well as enumerated, into the constitutions of the States, will-they, nil-they. Short answer? No, the state constitutions include via the 14th Amendment all of the rights humans possess, whether listed in the Bill or Rights or not listed.

        3. Perhaps more to the point. If the feds give me the right to arms, and the state usurps that right. How would I ever get to benefit from the right?

          1. As long as you think that a government is able to give you your rights and take them away, you won’t even get to benefit from those rights. Remember the Declaration of Independence: “We hold these truths to be self-evident, that men are endowed by their Creator with certain and inalienable rights”… that means because we’re born human we have political rights, the exercise of which governments may not restrict. Among those rights is the right to bear arms. “Inalienable” in this context means “incapable of being given, taken or sold from the possessor”. How is that so? Think about it. “Government” is a convenient short-hand for all those folks who exercise the Constitutionally-limited powers of federal, state and local governments. “People” and “citizens” and similar words are convenient short-hand expressions for the other folks who do not lawfully exercise governmental powers. Get it? No gods, demi-gods, kings, queens or philosophers. Just two groups of folks, one with governmental powers and one without.

  13. “Okay… so what if a state or city wants to give segregation a try? Is that cool with Chicago?”

    Nobody is seriously going to attempt anything like that, Jordan. The riots would be like nothing we’ve ever seen.

    And for good reason.

    1. The right to bear arms is rather important in such a circumstance.

      -jcr

    2. I’m not sure about that, Libertarian Guy. Take a look at Detroit’s history since about 1976 or thereabouts. Take a look at college fraternities and sororities, dormitories. Take a look at an increasing number of government-sponsored and controlled institutions. Lots of recent – to me; I’m 62 – re-segregation going on there by the governments.

  14. Fingers, toes and eyes crossed on this one.

  15. “Firearms regulation is a quintessential issue on which state and local governments can ‘serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”

    Chicago’s gun control experiment has run for more than twenty years now. Checking out the results, I’d think the conclusion rates a clear Fail.

    1. Larry A: You know, when I was in law school, in a course where we were taught to “argue that black is white and white, black, upon presentment of a suitable fee”, I asked the prof how all the arguments in favor of a particular policy were working out. He asked me what I meant. I replied that I wanted to know if the court’s adopting our lawyerly arguments had done good. He scornfully said, “You need to be majoring in something else, maybe over at the LBJ School of Public Affairs across the street.”

      They don’t want any conclusions, only the continuity of the same tired old con games.

  16. When will Chicago admit that its “novel experiment” is an embarassing failure. People are shot with handguns inside Chicago every day. Chicago POLITICIANS are exempted from the ban and MANY of them own guns themselves. Michael Scott (former Chicago Public Schools chairman) used his handgun to commit suicide!

  17. What David said is the MOST telling:

    The politicians are EXEMPT from their own laws.

    AND they have the armed guards (the police) and often gated communities – but ‘we the people’ are not to have the same.

    Problem identified: They forgot they are SERVANTS.

    Steven

    1. The same can be said for California, Steven. Pelosi would make virtually all guns illegal yet she has personal armed guards protecting her estate.

      Deplorable.

      1. They want the elite to have weapons, not the peasants. I don’t think I’m too far off when I say that was one of the reasons for the 2nd amendment.

        1. You stand exactly with it sir. You are no farther off than your nose is to your face.

      2. IF guns are dangerous and nobody should keep and carry them –
        AND as Police and government agents are people, they should not have them either.
        IF police and government agents are better trained, AND I can show I go to the range more often, hence, better “trained”, then aren’t -I- MORE rightful of keeping and carrying?
        IF police and government agents are “better”, doesn’t that suggest that the door is opened to a return to Jim crow or Slavery? Gun haters should be concerned that this, though unlikely, at least is as possible as anything else?

        At the very least, we must call these people out and state clearly that – if they cannot hold to the principle, that they lie if they claim an adherence to sound logic or principle. I like to then suggest the principle that does hold up logically… they do not like it.. but the truth often is uncomfortable to scoundrels.

  18. Fact is Mr. Daley& Co., if statistics and common sense have any meaning at all YOU are killing innicent people every day with your gun ban! Your personal fetish is antithetical to public safety and must no longer be a basis for public policy.

  19. We pay more and more taxes to support more and more welfare queens who crank ouf more and more illegitimate crackhead thugs who do most of the crimes that overtaxed law abiding gun owners get penalized for.

    The flunkie buffoon law makers and agenda driven judges who are assualting us with ineffective, inappropriate restrictions and threats to our liberty (not to mention our safety) would do well to consider that the French and American revolutions happened because of citizens driven to their limits.

  20. I’ve never figured out why the pro-gun groups filing amicus curiae briefs with the Supreme Court do not also argue that Art. 6 Cl. 3 of the U.S. Constitution requires all State officers and agents to be bound by oath or affirmation to support the U.S. Constiotution. All this legal crap about the Bill of Rights applying only to the federal government is a crock. We’ve been duped by Cruikshank!

    1. SECOND!!!

      Precisely, the part that mentions that the priveleges and immunities [(protection from gun control] of the several states apply to citizens of each state.. ALSO see the part that mentions the Constitution is the “Supreme Law of the Land”..etc etc. and “anything in the state law or constitution” that says otherwise is overruled.
      I apologize that my pocket constitution is out in my car, but it is clear and obvious to any honest man.

  21. Well said.

  22. “It has been said the greatest volume of sheer brainpower in one place occurred when Jefferson dined alone…” John Kennedy

    When we get piled upon one another in large cities, as in Europe, we shall become as corrupt as Europe.

    The democracy will cease to exist when you take away from those who are willing to work and give to those who would not.

    It is incumbent on every generation to pay its own debts as it goes.
    A principle which if acted on would save one-half the wars of the world.

    I predict future happiness for Americans if they can prevent the government from wasting the labors of the people under the pretense of taking care of them.

    My reading of history convinces me that most bad government results from too much government.

    No free man shall ever be debarred the use of arms.

    The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government.

    The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.

    To compel a man to subsidize with his taxes the propagation of ideas which he disbelieves and abhors is sinful and tyrannical.

    Thomas Jefferson

    Thomas Jefferson said in 1802:
    ‘I believe that banking institutions are more dangerous to our liberties than standing armies. If the American people ever allow private banks to control the issue of their currency, first by inflation, then by deflation, the banks and corporations that will grow up around the banks will deprive the people of all property until their children wake-up homeless on the continent their fathers conquered…’

  23. My only point is that if you take the Bible straight, as I’m sure many of Reasons readers do, you will see a lot of the Old Testament stuff as absolutely insane. Even some cursory knowledge of Hebrew and doing some mathematics and logic will tell you that you really won’t get the full deal by just doing regular skill english reading for those books. In other words, there’s more to the books of the Bible than most will ever grasp. I’m not concerned that Mr. Crumb will go to hell or anything crazy like that! It’s just that he, like many types of religionists, seems to take it literally, take it straight.

  24. good luck

  25. I had a misdemeanor d be for the 96 gun law now i will be forced to sell my bussines after 35 years auto salvage yard to abide the law .Because of shells and guns in alot of them in my possesion Clean Record Since.

  26. Another excellent post, thank you, this is why I continue visiting here!

  27. I am really enjoying reading your well written articles

  28. The democracy will cease to exist when you take away from those who are willing to work and give to those who would not. :)))

  29. Later this term, the Supreme Court will hear oral arguments in McDonald v. Chicago, a case that centers on whether the Windy City’s notorious handgun ban violates the 14th Amendment. As we’ll see, it most certainly does. ya right

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