Supreme Court to Decide Whether Second Amendment Applies to the States


For the record, our position on gun control is to use both hands, relax, and control your breathing. But let’s talk about the law.

Last year, the Supreme Court historically decided that the Second Amendment gives individuals a constitutional right to possess firearms. The ruling, in District of Columbia v. Heller, was that the right of the People to bear arms was an individual right (so it wasn’t limited to militias or the military), and that it was a pre-existing right (recognized by the Constitution, and not created by it). The Court said there’s room for reasonable regulation, but an outright ban is unconstitutional.

The District of Columbia, however, is not a state. The Heller decision only directly applies at the federal level, which includes D.C. Whether the same rule applies to the states hasn’t been formally decided yet. And what counts as reasonable regulation at the state level is also an open question.

Obviously, there are plenty of folks who would like these things to be decided. Some want this to remain strictly a federal issue — the Bill of Rights originally did not apply to the states, and only gradually over the years have most (but not all) of the individual rights therein been incorporated by the Fourteenth Amendment. The Second, Third and Seventh Amendments have not yet been held to apply to the states.

Others, of course, want this individual right to be incorporated by the Fourteenth Amendment’s “privileges and immunities clause.” (That clause is what gives individuals the Bill of Rights protections from governmental intrusions, at the state and local level, by virtue of their national citizenship. So it protects you from your local cops’ infringement of speech, unreasonable search and seizure, etc.)

The Circuits are split on the issue. The Ninth Circuit ruled earlier this year that the Fourteenth Amendment incorporates the Second Amendment to the state level. But the Seventh Circuit said no, it doesn’t. So it’s certainly a ripe issue for certiorari.

Any number of cases have been percolating in the system, really, to give the Supreme Court a chance to decide the issue. The NRA alone filed five cases on the issue in Illinois alone. So it hasn’t been so much a question of whether the Court would decide it, but which case it would choose to hear.

Well, this morning, the Supremes announced the case. McDonald v. Chicago (08-1521) involves pretty much the same issues as Heller. Chicago’s gun-control laws are practically identical to those D.C. had, so it really is a good case to narrowly decide whether the rule should be extended to the states. (The various court filings can be found here.)

The Court’s calendar is full for the rest of the year, so oral arguments won’t be scheduled until January at the earliest.

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3 Responses

  1. blackjh1989 says:

    So how do you think a ruling that the Second Amendment does not apply to the States would impact other firearms issues? Currently, there is a legal battle brewing between the ATF and two states. Both Montana and Tennessee have passed laws stating that Federal regulation is not applicable to firearms that are made, sold and used solely within that state’s borders. I would think that if the Second Amendment doesn’t apply to states (which I believe is wrong) , then other types of Federal Regulation would also no longer apply.

  2. Administrator says:

    Well, there are two different issues here, a 2nd/14th Amendment issue and a Commerce Clause issue.

    The 2nd/14th Amendment issue is whether the 2nd Amendment’s individual right to bear arms is one that the 14th Amendment says applies at the state and local level. It’s about a specified freedom from governmental intrusion on individual liberties.

    The Commerce Clause affects whether federal authorities can regulate the manufacture, sale and use. If something affects interstate commerce, the feds can regulate it. For a long time, this meant what it said. But ever since the heady days of FDR, the Commerce Clause has been held to cover pretty much everything. Someone growing vegetables in their back yard for their own personal consumption is considered to be affecting interstate commerce, because they otherwise could have bought a vegetable that was trucked in from somewhere else. Seriously, it’s read that expansively. And it’s the basis for pretty much all federal regulation these days, and is why the feds can regulate pretty much anything.

    Individual rights protected by the Bill of Rights are separate and distinct from the federal government’s power to regulate interstate commerce. So a Supreme Court ruling on one will have no effect on the other.

    That said, if anyone were to challenge Montana and Tennessee’s laws all the way up to the Supreme Court, I don’t believe those laws would survive. The way the law is now, the feds can regulate you making a firearm for your own personal use within a single state’s borders, because otherwise you could have bought a gun made in Connecticut or wherever.

  3. blackjh1989 says:

    I just think the two are connected, although not clearly. To me, if you make the argument for one, then you have to make the argument for both.

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