Judicial Fireworks

A year after its landmark ruling that the Second Amendment secures an individual, not collective, right to possess firearms, the Supreme Court signaled Wednesday that it will accompany it with another historic decision — whether that right applies to states and localities.

In June 2008, the court ruled 5-4 in D.C. v. Heller that the District of Columbia's ban on private handgun ownership infringed on the constitutional right to bear arms. In doing so, the court affirmed for the first time that the Second Amendment protects an individual right, thus disposing of the argument often made by gun control advocates that the Constitution merely provides for state militias, and thus allows governments broad latitude to restrict, if not prohibit, individual ownership of firearms.

However, Heller applied only to the federal level (including D.C.). It left intact highly restrictive gun laws in places such as New York and Chicago. Now, those regulations face constitutional scrutiny after the court this week chose to hear McDonald v. Chicago. The case will have enormous constitutional consequences, not just for gun rights but also with the court revisiting a 136-year-old jurisprudence regarding the 14th Amendment.

The Bill of Rights originally applied only to the federal government. (Remember, the First Amendment begins "Congress shall make no law ..." abridging freedoms of religion, speech, etc [emphasis added]. It doesn't say that states could not restrict those activities.) However, that was supposed to change with the ratification of the 14th Amendment in 1868.

It includes the Privileges or Immunities Clause that reads: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;" it is followed by the Due Process Clause: "nor shall any State deprive any person of life, liberty, or property, without due process of law."

The questions before the Supreme Court in McDonald are:

1) Does the Second Amendment apply to the states?

2) If so, under which clause of the 14th Amendment?

The legal arguments are sure to provide judicial fireworks.

The Privileges or Immunities Clause would provide the stronger protection. It has a fascinating history in that it was effectively neutered by the court in the Slaughterhouse Cases of 1873 (tinyurl.com/y86ftt8). In a 5-4 decision, the court ruled that the clause protected only a few national rights, leaving the states much leeway to restrict liberty. That seemingly contradicted the intent of the 14th Amendment, which was to ensure that states would not deny freed slaves the liberties afforded everyone else.

In the last hundred years, the court has defined those liberties by taking a piecemeal approach to incorporating most of the Bill of Rights into the 14th Amendment, one precious freedom at a time. Thus the states and localities, like the federal government, are now prohibited from abridging freedom of speech, religion, etc. As they should be.

The right to bear arms should receive the same status. To ensure that it remains a fundamental individual liberty, it must be protected from state control. The Supreme Court should incorporate the Second Amendment into the 14th by reviving the Privileges or Immunities Clause.

REPRINTED FROM THE PANAMA CITY NEWS HERALD.

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