SCOTUS and the Second Amendment

By Frank Hagan | Related entries in Guns and Ammo

The Supreme Court heard arguments in the MacDonald v Chicago case this morning. McDonald is the first case to examine if the Second Amendment rights secured for citizens in federal jurisdictions also apply to citizens in the various states.

In 2008, the Court held in District of Columbia v Heller that the Second Amendment protects an individual’s right to possess a firearm unconnected with service in a militia. But the narrow interpretation of that ruling meant the decision applied only to federal enclaves.

Some of the rights secured in the Bill of Rights are extended to the states through the Due Process Clause of Privileges or Immunities Clause of the Fourteenth Amendment. Prior to passage of the Fourteenth Amendment in 1868, individual states secured rights for their citizens in different ways. For instance, the Bill of Rights forbids the establishment of religion in the First Amendment, but state-sponsored religion was still tolerated. By 1833, Massachusetts severed its ties to the state church, ending established state churches in America. The most prominent example of differing state treatment of individual rights center around the institution of slavery; the Fourteenth Amendment was passed as a remedy.

But the 1873 Slaughter-House Cases ruled that the extension of rights via the Fourteenth Amendment did not necessarily restrict the actions of a state or local government entity. Since then, individual rights have been applied selectively through state legislative action and court decisions.

Court watchers are wondering if the Justices’ comments during questioning foreshadow the decision. McDonald is the only case challenging local gun laws that is focused on extending all Constitutional rights through the Fourteenth Amendment. As Wikipedia summarizes:

McDonald is unique among post-Heller gun cases in that it is asking the court to overturn the 1873 Slaughter-House Cases. Slaughter-House determined that the 14th Amendment’s Privileges or Immunities Clause did not apply the Bill of Rights to the actions of states (and by extension, local governments). If overturned, the Selective Incorporation process would be moot and unnecessary, as the entire Bill of Rights, including the 2nd Amendment, would be applied against the states.

In attempting to overturn Slaughter-House, this case has garnered the attention and support of liberal legal scholars interested in its potential application in areas outside of firearms law. Their interest is that if Slaughter-House is overturned, it is possible that constitutional guarantees such as the right to a jury in civil cases, right to a grand jury in felony cases, and other parts of the Bill of Rights, as well as future court rulings and existing federal precedent, not universally guaranteed in actions by the states, would be applied against the states automatically

The Cato Institute’s Robert A. Levy was instrumental in bringing Heller to the Court, and the issue of how the Court decides the case is as important to Cato as the decision itself. After today’s hearing, Cato.org comments:

From the initial questioning through the end, it was quite clear that those living in Chicago — and, by extension, New York, San Francisco, and other places with extreme gun restrictions — will soon be able to rest easy, knowing that they will be able to have guns with which to protect themselves. Unfortunately, the Court did not seem inclined to adopt the arguments propounded by petitioners’ counsel Alan Gura (and supported by Cato) that the Privileges or Immunities Clause was the way to go. Chief Justice Roberts expressed reluctance at having to overturn the 1873 Slaughterhouse Cases and other justices joined in concerns over how activist judges would use the Clause if the Court revived it — even if that were the path that hewed more closely to the constitution’s true meaning.

This turn of events is unfortunate because reviving the Privileges or Immunities Clause, far from giving judges free reign to impose their policy views, would actually tie them closer to the text, structure, and history of the Constitution. As it stands now — and as it seems will be the case after McDonald is decided — many of our most cherished rights are protected only to the extent that judges are willing to label them as sufficiently “fundamental” to warrant such protection. That is an unprincipled jurisprudence and one that hurts the rule of law.

It appears the Second Amendment rights secured to citizens in federal territory will be applied to the citizens of the various states, but only through Selective Incorporation. This will be a narrow decision, then, that applies only to the Second Amendment, and not to other rights secured in the Constitution.

Cross posted to FrankHagan.com


This entry was posted on Tuesday, March 2nd, 2010 and is filed under Guns and Ammo. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

15 Responses to “SCOTUS and the Second Amendment”

  1. frankhagan.com » SCOTUS and the 2nd Amendment Says:

    [...] Cross posted to Donklephant [...]

  2. kranky kritter Says:

    Chief Justice Roberts expressed reluctance at having to overturn the 1873 Slaughterhouse Cases and other justices joined in concerns over how activist judges would use the Clause if the Court revived it — even if that were the path that hewed more closely to the constitution’s true meaning.

    That’s kind of lame isn’t it? I wasn’t aware that originalist philosophy included an exception whereby you’d try to avoid hewing to original meaning when it might provide an opening for activists.

    Roberts is perhaps not an originalist per se (I know he thinks precedents deserve simply because they gather force with time and becomes bases for other precedents). But what hope do originalists have if a conservative darling like Roberts is unwilling to rule on the clear meaning of the bill of rights as something designed to protect all Americans everywhere from future legislative whims on the matters concerned.

  3. Frank Hagan Says:

    I agree, Kranky. I’m surprised at Roberts’ assertion that overturning Slaughter-House and applying the 14th Amendment to state actions would enable “activists”. Protection from government was the primary reason for the Bill of Rights in the first place; certainly our state and local governments are larger and more intrusive than ever, with our states becoming larger than entire countries.

  4. Gun Control | Scott Showers Says:

    [...] Donklephant » Blog Archive » SCOTUS and the Second Amendment [...]

  5. gerryf Says:

    Well, it doesn’t matter what precedent is, what is “right” or what is common sense. If Citizens United taught us anything about this court, it’s that if it’s good for corporations, too bad for the rest of us.

    The actual judicial hearing before the court will be little more than a puppet show.

  6. kranky kritter Says:

    Citizens United taught me no such thing. I always thought McCain-Feingold had unconstitutional elements. SCOTUS got it right. Most folks with an legal acumen have known this all along.

    It’s regrettable that we can’t do more to constrain big moneyed interests within constitutional confines. Its not that McF’s goals were wrong-hearted. It’s that the constitution doesn’t allow certain approaches.

    And I think folks are being ignorant whiny babies about that. If we want to constrain free speech not to include big powerful moneyed interests, we need to put that into the constitution. This is a far better approach than to bebop and scat around the parts we don’t like. Granted, that may on occasion be necessary, but it inevitably leads to unintended consequences later on.

    I could see changing the rules so that only individual direct contributions are allowed. Then big interest groups would have to operate independently, instead of in concert with politicians. Free speech rights would be preserved, but collusion wouldn’t be allowed.

  7. Frank Hagan Says:

    Restricting rights is serious business, and should be avoided. The limits on speech that McF represented, like the restrictions on federal rights that cases like Slaughter-House represent, are detrimental to our democracy.

    Campaign finance reform was a sham, as evidenced by the rise of 503C groups to take the place of direct corporate funding. It made the process less transparent, rather than more. Can anyone say the reforms of McF helped in the last three elections?

    I agree that changing the rules so only individuals can give, in any amount they want to give, would probably pass constitutional muster (but it does seem to violate the idea of Assembly, doesn’t it?) You could also probably require immediate donor identification; that restricts “anonymous free speech”, but I’m think that would be OK.

    Its hard to argue that the protections of citizens in federal jurisdictions shouldn’t be secured for citizens of all the states. We’ve established that state’s rights shouldn’t extend to enslaving black people; its time to extend all rights to all of our citizens and limit the reach of state government just as we do the federal government.

  8. gerryf Says:

    People have rights; corporations do not–at least they didn’t until this SC gave them rights.

    To say that most folks with an legal acumen have known this all along is to ignore what a corporation is–a entity chartered by a state and given many legal rights as an separate from its owners.

    The owners have rights–the corporation only has what we give it and we do not have to grant it personhood. Doing so is not legal acumen; it is legal lunacy.

    The mere fact anyone can make such a statement is frightening and shows how far away from the constitution we’ve come.

    The owners have constitutional rights and if you wish to defend their rights without limits, I’m there with you, but the minute you start creating rights for entities….damn….no wonder we’re so messed up as a country.

  9. kranky kritter Says:

    A corporation is an organization composed of people with rights. There is nothing in the bill of rights that says that free speech rights are proscribed from an organization of people, whether its a union or corporation or non-profit or whatever.

    This ruling didn’t “extend” speech rights to anyone or anything. It said that existing rights can’t be proscribed in the way that was attempted.

    To say that most folks with an legal acumen have known this all along is to ignore what a corporation is–a entity chartered by a state and given many legal rights as an separate from its owners.

    As previously described, this point is not salient. Existing free speech rights don’t proscribe organizations of people. But my point in mentioning “what was known all along” is call attention to the simple fact that the constitutional objections to Mc-F were widespread and quite defensible for quite awhile prior to its passage.

    These concerns are in no sense a boutique or fringe or outlandish point of view, as you seem to describe. Further, the fact that SCOTUS found is it did tends to prove that, since there isn’t currently a conservative domination of the court. It’s Pretty evenly split with a dew members who swing either way from time to time. Undoubtedly, if there were a few more liberals on the court, they’d have found some sort of precious reasoning that allowed the preferential stifling of political speech. But that doesn’t mean that the current court is in the pocket of corporations.

    And that’s what i really object to, this penchant for losing your mind and invoking tragic hyperbole every time some outcome doesn’t go as you want. Most reasonable folks have known for some time that McF took a lot of time in effort in trying to tread a fine line precisely because of constitutional concerns that were well worth considering. It was bound to come before SCOTUS sooner or later, and I’m surprised it took this long.

    And it was bound to be a close call if it were to be upheld. Personally, I would not have been that surprised by a 9-0 ruling striking it down.

    And I say that as someone who really despises the influence of big money in politics. I despise regular assaults on free speech just as much, and really hope we don’t go down the European road of dictating more and more about what kinds of speech are allowable.

  10. Frank Hagan Says:

    Kranky, I think the reason McF didn’t bubble up sooner is simply that it helped incumbents by providing barriers to entry from everyone except millionaires, and allowed all the money to flow to incumbents anyway. And the loopholes to get around the restrictions provided some cover as well; it was harder to determine the Citizens for Responsible Widgets PAC donating millions in soft money to the Entrenched Party was a group formed by the Widget Corp. There were a few pols who opposed it on principle, but a scenario where every politician benefits takes a while to unravel.

  11. gerryf Says:

    Most reasonable people? Really. How do you define that? 80 percent of the country agrees that this is a terrible ruling, so I guess by most reasonable folks you mean people who agree with you.

    How you can say this ruling does not extend speech rights is incomprehensible when just about every source commenting on this ruling says otherwise.

  12. Frank Hagan Says:

    I sometimes feel like I’ve been transported to another world where the concept of “topics” doesn’t exist. The evidence of the alien nature of the Donklephant comments section is evidenced by the curious argument here concerning the ruling on McCain-Feingold, when the original post was about one of the most highly charged issues in the country: Second Amendment rights. How did this happen?

    Oh yeah, poisoning the well. Well, I suppose it is easier than discussing an issue on its merits.

  13. kranky kritter Says:

    Most reasonable people? Really. How do you define that? 80 percent of the country agrees that this is a terrible ruling, so I guess by most reasonable folks you mean people who agree with you.

    Well, first let me make something clear, since it appears to escape you. Whenever I say something like “most reasonable people think that…” it’s implicit that I am stating what my personal impression is. It gets exhausting always trying to qualify everything I say to bolster it against the kinds of petty objections some folks can’t resist raising.

    So, 80 percent, huh? Where’d that come from, I’m curious. One thing I constantly wonder about issue polls is whether they ask folks how much they know about the issue, how familiar they are with it. One hallmark of reasonability (at least for me, since I apparently need to be clear to you that I’m only stating my view…) is that when you feel you lack familiarity with an issue, you acknowledge this. So you might say something like “I am not familar with the deatils, but off the top of my head… .)

    So, I find myself wondering what portion of that 80% would be able to give me a good explanation the constutional issue(s) involved and an understanding of the arguments on each side.

    Here’s the thing. Folks who think this is “a horrible ruling” are probably reacting mostly to the perception that big money interests are less precluded from political influence due to this decision. And As I’ve previously stated (possibly more than once ion this thread alone IIRC), I think it’s regrettable that we have yet to find a good constitutional way to control the impact of big moneyed interests on the political process. So I agree that it’s possible that this ruling could have a horrible effect. But I don’t think that it’s a horrible ruling because my educated understanding of the role of SCOTUS is that their first responsibility is to the constitution and the precedents that have sprung from it.

    The ruling itself is. at the very least, quite defensible, even if the results are undesirable. IMO, of course. I truly do feel that if one has dug into the issues, it’s unreasonable to think that the correct decision to have made was quite clear and that SCOTUS got it wrong. So yours feels like a very silly point of view to me.

    BTW Frank, Gerry was the one who brought up citizens united. I couldn’ t let his comments pass. My bad for that I guess.

  14. gerryf Says:

    You’re right Frank, I made reference to the value of precedence with this court and then allowed myself to get caught up in another discussion and never returned to address the substance of your post.

    I actually realized this this afternoon and was going to make a post to that effect, but just returned from a long day.

    I apologize for hijacking your post.

  15. Warren Hathaway Says:

    Restoring privileges and immunities is not the answer. Realizing that there are two citizens under the Constitution of the United States since the adoption of the Fourteenth Amendment is.

    In the Slaughterhouse Cases, the Supreme Court held that citizenship of a State was separate and distinct from citizenship of the United States; that a citizen of a State was separate and distinct from a citizen of the United States:

    “Of the privileges and immunities of the citizen of the United States, and of the privileges and immunities of the citizen of the State, and what they respective are, we will presently consider; but we wish to state here that it is only the former which are placed by this clause (Section 1, Clause 2 of the Fourteenth Amendment) under the protection of the Federal Constitution, and that the latter, whatever they may be, are not intended to have any additional protection by this paragraph of the amendment.” Slaughterhouse Cases: 83 U.S. (16 Wall.) 36, at 74 (1873).

    That there are two citizens; a citizen of the United States, and a citizen of a State who is not a citizen of the United States, is shown in the following case of the Supreme Court of the United States, Sun Printing & Publishing Association v. Edwards (194 U.S. 377):

    “As Delaware must, then, be held to have been the legal domicil of Edwards at the time he commenced this action, had it appeared that he was a citizen of the United States, it would have resulted, by operation of the Fourteenth Amendment, that Edwards was also a citizen of the State of Delaware. Anderson v. Watt, 138 U.S. 694. Be this as it may, however, Delaware being the legal domicil of Edwards, it was impossible for him to have been a citizen of another State, District, or Territory, and he must then have been either a citizen of Delaware or a citizen or subject of a foreign State. In either of these contingencies, the Circuit Court would have had jurisdiction over the controversy. But, in the light of the testimony, we are satisfied that the averment in the complaint, that Edwards was a resident ‘of’ the State of Delaware, was intended to mean, and, reasonably construed, must be interpreted as averring, that the plaintiff was a citizen of the State of Delaware. Jones v. Andrews, 10 Wall. 327, 331; Express Company v. Kountze, 8 Wall. 342.” Sun Printing & Publishing Association v. Edwards: 194 U.S. 377, at 381 – 383 (1904).

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