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.