Supreme Court Holds That the Second Amendment Applies to the States

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In the case of McDonald v. the City of Chicago, the Supreme Court of the United States ruled that the Second Amendment applies to the states.  Read the decision here.  The decision was 5-4 which is absolutely stunning since I think that there was no intellectually respectable argument to be made that the Second Amendment does not apply to the states.

The bill of rights applies to the States due to the Fourteenth Amendment.   In the opinions written by the majority justices, emphasis is given to the importance that the drafters of the Amendment placed upon the rights of freed slaves after the Civil War to keep and bear arms for their defense.  A good day for the Constitution at the Supreme Court.

Update: Scalia’s concurring opinion is a treat to read.  I especially like this going away present to Justice Stevens:

The next constraint JUSTICE STEVENS suggests is harder to evaluate. He describes as “an important tool for guiding judicial discretion” “sensitivity to the interaction between the intrinsic aspects of liberty and the practical realities of contemporary society.” Post, at 24. I cannot say whether that sensitivity will really guide judges because I have no idea what it is. Is it some sixth sense instilled in judges when they ascend to the bench? Or does it mean judge sare more constrained when they agonize about the cosmic conflict between liberty and its potentially harmful consequences? Attempting to give the concept more precision, JUSTICE STEVENS explains that “sensitivity is an aspect of a deeper principle: the need to approach our work with humility and caution.” Ibid. Both traits are undeniably admirable, though what relation they bear to sensitivity is a mystery. But it makes no difference, for the first case JUSTICE STEVENS cites in support, see ibid., Casey, 505 U. S., at 849, dispels any illusion that he has a meaningful form of judicial modesty in mind.

JUSTICE STEVENS offers no examples to illustrate the next constraint: stare decisis, post, at 25. But his view of it is surely not very confining, since he holds out as a “canonical” exemplar of the proper approach, see post, at 16, 54, Lawrence, which overruled a case decided a mere 17 years earlier, Bowers v. Hardwick, 478 U. S. 186 (1986), see 539 U. S., at 578 (it “was not correct when it was decided, and it is not correct today”). Moreover, JUSTICE STEVENS would apply that constraint unevenly: He apparently approves those Warren Court cases that adopted jotfor-jot incorporation of procedural protections for criminal defendants, post, at 11, but would abandon those Warren Court rulings that undercut his approach to substantive rights, on the basis that we have “cut back” on cases from that era before, post, at 12.

16 Responses to Supreme Court Holds That the Second Amendment Applies to the States

  • Apropos of our discussion a few weeks ago regarding Justice Scalia’s view that “tradition” should inform the Court’s “substantive due process” jurisprudence, note that this was key to the Court’s decision. (See also Justice Scalia’s concurrence, in which he masterfully dissects Justice Stevens’ dissent.)

    I think Justice Thomas’ privileges or immunities clause analyisis is the better argument from both an originalist and textualist standpoint. But, given that that ship has already sailed, and given the need to limit the Court’s “substantive due process” jurisprudence to those rights that actually have some grounding in the text of the Constitution and the history and tradition of our nation, I can’t say that I blame the majority for relying on the due process clause rather than privileges or immunities, and using this case as a vehicle for defining the limits of “substantive due process”.

  • One gets the feeling that, should a case that hinges upon the question “Does the Constitution require that there be a House and Senate?” make its way to the SCOTUS, the vote would come down five votes to four. Sadly, no one seems able to predict whether the five would be for or against.

    Those of you who think “we are a nation of laws” will find yourselves confounded by the caprice of five untouchables in black robes.

  • I agree. The vote should have been 9 – 0.

    One, “the right of the people to bear arms shall not be infringed.” Can the four dissenting read?

    Two, I bet “dollars to donuts” that the four dissenting (plus Kagan) will affirmatively vote (hallucinating) that the constitution gives a woman the RIGHT to have taxpayers pay a medico to exterminate her unborn babies.

  • Incorporation through the 14th has been piecemeal. The court had never adopted a blanket doctrine of incorporation. But I agree that if we’re going to incorporate at all, the 2nd amendment has to be included.

  • I’m with restrainedradical. The incorporation doctrine is hardly an obvious feature of our constitution, but there is no coherent basis for excluding the 2d amendment from its ambit once it has been applied to the other enumerated rights.

  • T. Shaw, I think the four dissenters are right in insisting that the clause you quote–“the right of the people to bear…”–is qualified, and rendered more precise in its intent, by the prior clause, establishing the need for militias. On an originalist reading of this text, the right to bear arms for, eg. the purposes of hunting or personal protection, simply does not exist.

  • WJ,

    That issue was decided and rejected in the Heller case. They had already lost on that. And don’t pretend that your argument is originalist. Calling it such doesn’t make it so.

  • wj:

    I think the four dissenters do not believe we the people should be free people. I doubt they believe in individual liberty.

    You may read the commentaries, minutes, and statements of the “state” conventions, and all the drafters/founders. At no time was the right of US citizens to individually keep and bear arms questioned until around the time the federal government instituted the income tax (they needed to amend the Constitution) and Federal Reserve System.

    But, you’re right. Once the Obama regime packs the court. [I’m ‘chanelling’ Thomas Jefferson here] We’re likely to devolve into slaves to the state.

  • wj:
    Your is a common argument. The problem is that it does not withstand the scrutiny:

    http://www.guncite.com/journals/vanalful.html

    Van Alstyne is one of the leading con law scholars of our time. Although a liberal to the core, he is ruthlessly principled in his constitutional reasoning. for instance he is pro choice as a policy matter, but believes Roe was a terrible decision.

  • I’m aware of van alstyne and heller etc and disagree with the findings of both. You can disagree with heller precisely on originalist grounds; which is not to say you must–just that you can as a matter of interpretation. Both heller and van alstyne perform any number of impressive exegetical contortions to escape what to my mind is the clear intent of the sentence in question. But maybe you’re right that the four dissenters are motivated less by interpretive scruple and more by policy preference.

  • Fair enough, Wj. For what it is worth I have no great interest in gun regulation as a policy matter, and really don’t care if guns are outlawed. But I find Van Alstyne’s exegesis if the 2d Amendment air tight. Moreover, I have known Bill for almost 30 years; he is immune to exegetical contortion. I have no opinion on the motivations of the four dissenters. I just don’t think there exists a reasonable argument for sparing the 2d Amendment from the incorporation doctrine.

  • Way too much education wasted here on a rather simple issue. Where in the Constitution is any branch of the federal government given authority to disarm either the states or the people? The ninth amendment applies. The critical issue here, and the reason many oppposed incorporation of “the Bill”, is that the amendment did not create the right, though it is now treated as if it had; it only acknowledges the right. No one ever would have written the second amendment as it was written to make sure that states allowed their militia to keep arms at their homes (the point of mobilization). To say they would have is simply dishonest. So it comes down to this; you are either for, or against the Constitution. There are no nuances here that merit consideration.

  • I’ve heard estimates that 90,000,000 Americans own firearms.

    “The beauty of the Second Amendment is that it will not be needed until they try to take it.” Thomas Jefferson

    “Laws that forbid the carrying of arms…disarm only those who are neither inclined nor determined to commit crimes…such laws make things worse for the assaulted; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.” Thomas Jefferson 1764

    “No free man shall ever be debarred the use of arms.” Thomas Jefferson proposed Virginia constitution 1776

    “The Constitution preserves ‘the advantage of being armed which Americans possess over the people of almost every other nation…(where) the governments are afraid to trust the people with arms.'” The Federalist #46

    “…arms discourage and keep the invader and plunderer in awe, and preserve order in the world as well as property…Horrid mischief would ensue were the law-abiding deprived the use of them.” Thomas Paine Thoughts on Defensive War 1775 – proof positive in all the states that infringe the Second Amendment.

    “The Constitution shall never be construed to prevent the people of the United States who are peaceable citizens from keeping their own arms.” Samuel Adams 1788: During Massachusetts’ Constitution ratification convention.

    “Guard with jealous attention the public liberty. Suspect every one who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are ruined.” Patrick Henry: during Virginia’s ratification convention (1788)

    “Arms in the hands of individual citizens may be used at individual discretion…in private self-defense.” John Adams 1788

    “A militia when properly formed are in fact the people themselves…and include all men capable of bearing arms…To preserve liberty it is essential that the whole body of the people possess arms.” Richard Henry Lee Additional Letters From The Federal Farmer 53 (1788)

    “I ask sir, what is the militia? It is the whole people…To disarm the people is the best and most effectual way to enslave them.” George Mason: Virginia’s US Constitution ratification convention (1788)

    “To secure the blessings of liberty to ourselves and our posterity.” US Constitution

    “Government is not reason; it is not eloquence; it is force; like fire, it is a dangerous servant and a fearful master.” George Washington, Farewell Address

  • That Washington quote has to be the best. Seems our Presidents went downhill from there.

  • Kevin, nobody reads the 9th Amendment as you do because it would be ridiculous to do so. The 9th was intended merely to clarify that the Bill of Rights shouldn’t be interpreted to prohibit all other rights. It doesn’t ensure any rights. It only ensures that absent a law prohibiting it, you have the right to do it.

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