Today, the Supreme Court will take up the potentially historic case of McDonald v. Chicago on gun rights. There is more at stake than just the application of the Second Amendment to the states, as I discussed in today’s column in Roll Call below:
Across the country, city and state officials are watching nervously as the Supreme Court takes up a case today that could effectively gut many gun control laws.
At issue in McDonald v. Chicago is whether the court’s earlier recognition of an individual’s right to bear arms applies not just to the federal government but also to the states. Since most rules affecting gun ownership are municipal and state laws, the decision could make it difficult to ban outright possession of handguns and other types of weapons. However, there is an even more significant constitutional question in the case that could have ramifications far beyond gun rights — an issue that has divided both the liberal and conservative alliances in the case.
The most immediate issue in the McDonald case is the viability of thousands of gun laws across the country. Many gun owners were in for a rude awakening after the 2008 decision in District of Columbia v. Heller. Gun owners were ecstatic after the court ruled that the Second Amendment protects not just the right of states to maintain militias but the right of individuals to possess firearms. They then learned, because of a long-standing interpretation of the Bill of Rights under the Slaughterhouse Cases from the 19th century, that the court’s ruling would bind only the federal government.
To apply to the states, the court has to make the separate determination that this right is so fundamental that it should apply to the states. The court’s selective incorporation of some, but not all, rights in the Bill of Rights is one of the longest-standing controversies in constitutional law — almost as long as the controversy over the meaning of the Second Amendment itself.
That issue has divided both the liberal and conservative communities — much like the recent Supreme Court decision in Citizens United on campaign finance.
While gun control is usually a reliable rallying point for the right and left, there is a major complication in the case over the court’s practice of picking and choosing which rights in the Bill of Rights are applied to the states. Many civil libertarians are not thrilled over gun rights but want the court to use the decision to finally rule that all of the rights contained in the Bill of Rights apply to the states with no exceptions. Conversely, many conservatives want the gun rights but do not want the expansion of rights that apply to the states under the Bill of Rights.
Any way this case goes, it will be historic. Even under current case law, the court is likely to find that Second Amendment right does apply to the states. It would certainly make it harder for states to restrict gun ownership. It will not mean that states can place no restrictions on gun possession or ownership. Even First Amendment rights have some limitations. The incorporation of the Second Amendment would make the right of gun ownership comparable to the right of free exercise of religion.
The court should go further, however, and change not just the status of gun rights but rights generally. The court should remove the current firewall between the application of federal rights to the states — creating a unified base of rights for all citizens. This is why some conservatives want to change the status of gun rights but not the Bill of Rights. They fear that future federal rulings could favor gay couples or other groups and then bind the states.
While this concern is overblown (because the expansion of such fundamental rights would likely be incorporated to the states under the current rule), it is true that full incorporation of all rights would create one definition of rights for all citizens regardless of where they live.
Many briefs in the case are gunning for the overturning of the Slaughterhouse Cases where the court in 1873 gave itself the role of determining which rights would apply to the states.
If the court overturned the Slaughterhouse Cases (as requested by many civil libertarians), it would be a victory for one of the greatest justices in the court’s history, Hugo Black, who fought for full incorporation. Black was right, and, more than 60 years after his defense of the Bill of Rights and 136 years since the ruling in the Slaughterhouse Cases, we should finally get it right.
Moreover, conservative justices could prove that they have a broader vision of individual rights that goes beyond the barrel of a gun. The right to gun ownership should apply to the states not because it is more important than other rights but because it is part of the Bill of Rights. We should no longer follow a constitutional version of the law of “Animal Farm” that all animals are equal but some animals are more equal than others. All rights of the Bill of Rights should be equal and no rights more equal than others.
A ruling overturning the Slaughterhouse Cases would show liberals that the court is not simply handing insular victories to favored groups but carrying out a more deep-seated jurisprudence. The Bill of Rights is part of the privileges of all citizens and no state should be able to abridge those rights.
After all, the Bill of Rights is what defines us as a people. We carry it with us like a membership card applicable at any time in any state. While we can disagree on the meaning of the Second Amendment, we should agree that all citizens — whether in Alabama or New York or Texas — should receive the full benefit of all the rights contained in the Bill of Rights because they are all (first and foremost) Americans.
Jonathan Turley is the Shapiro professor of public interest law at George Washington University and a frequent witness before Congress on constitutional matters.
Byron:
“What do you mean by that statement? How is the Bill of Rights “non-conservative”?”
***********************
The whole American Revolution was a liberal revolt against the conservative establishment of the British crown, and its denial of basic individual rights in favor of monarchical prerogative. The Bill of Rights may be the most liberal document ever written against the forces of the status quo and governmental control. It is no accident that the Tories (the conservative party of their day and the precursor to the modern Conservative Party in Britain) were in direct opposition to the American Revolution on purely philosophical grounds. Many left after the war, and went to other areas of the empire.
I was talking to a few gun enthusiast today and even though Texas has the right to carry. They seemed to not understand that outside of Texas that same right did not exist. A friend of mine that has a home in California and a home North of Dallas stated that nah, he has the right to purchase where ever he wanted and as a matter of fact he had Purchased a few in Oklahoma.
I then stated that if he did not have a Texas, AR, LA or some other state with a compact with Texas DL or ID that the store was in violation of FFL. He then admitted that the owner sold out of his private collection.
He still does not believe that a state can restrict his right to own a hand gun. He then went into a tirade about DC and that case settled the matter. I guess he will find out soon enough when the decision is rendered in McDonald.
“The GOA/GOF brief argues that the privileges or immunities clause of the 14th Amendment is the correct basis for ruling that the Second Amendment protects the individual right of all Americans, not just those living in Washington, DC.”
Yep.
Happen to catch a memeber of this orginization on the car radio just now giving his opinion on above topic,this is just from their website:
HomeLitigationProjectsBooksContributeAbout2007 Annual ReportSearchContact
Mcdonald v Chicago Litigation
Chicago gun ban McDonald v Chicago On Monday, November 23, 2009, Gun Owners of America and Gun Owners Foundation filed a friend-of-the-court brief in the United States Supreme Court in support of four Chicago residents who are seeking to invalidate a city ordinance prohibiting them from owning or possessing a handgun in their own home. The GOA/GOF brief argues that the privileges or immunities clause of the 14th Amendment is the correct basis for ruling that the Second Amendment protects the individual right of all Americans, not just those living in Washington, DC. This brief also points out the pitfalls of using the due process clause to reach this conclusion.
http://www.gunowners.com/mcdonald.htm
Mespo:
“Time and conservatism have shown that even great men can be wrong. Bring on the Bill of Rights – it’s decidedly nonconservative!”
What do you mean by that statement? How is the Bill of Rights “non-conservative”?
I honestly don’t understand that one unless you mean the whole religious/gay marriage and other issues that are near and dear to a fundies heart.
I personally will enjoy an extra breath of that stuff Emma Lazarus talked about. It is about time we got some of it back.
My money’s on the Court ruling that the holding in Heller must be applicable to the states via the 14th. They don’t need to touch on the Slaughterhouse cases for one simple reason; once you’ve declared that American citizens residing in a Federal District have certain rights, the 14th Amendment demands that all American citizens have the same rights.
p.s. – Thanks for your excellent column in Roll Call today. Hopefully at least a few Justices will be on board.
I watched oral argument from the second row of the SCOTUS bar section. Here are my immediate reactions:
Unfortunately, Scalia, Roberts, and Alito seemed quite uninterested in reaching the Privileges or Immunities issue. (Scalia openly said that he thought substantive due process was wrong, but he indicated that he was on board with it regardless; he showed no interest in looking at Privileges or Immunities.) None of these Justices attacked Privileges or Immunities on the merits; but they all expressed stare decisis concerns.
Thomas was silent. (In the middle of argument, he handed one of his clerks a note; the clerk ran off and returned a few minutes later with some papers. This led me to think Thomas was getting ready to ask a question, but he never did.) Regardless, I expect him to be on board for Privileges or Immunities in light of what he wrote in Saenz. Plus he usually favors originalism over stare decisis.
Kennedy and Ginsburg asked some interesting questions about Privileges or Immunities, many of which were genuinely probative. To be sure, they had some problems with where the theory might lead, but I wouldn’t describe them as hostile. It’s *possible* that either Justice might write separately about it, though I don’t think either will sign on to an originalist version of the theory.
An interesting sidenote is that Ginsburg showed no interest in bailing out Feldman (Chicago’s attorney) when he started getting into trouble with some of the other Justices. Not sure which way she’s leaning overall, but she didn’t outwardly display much disdain for gun rights.
Sotomayor, Breyer, and Stevens seemed hostile to gun rights in general. Can’t guarantee they’ll actually vote against incorporation, but they seemed to be looking for a way to do so.
Those sitting on the Supreme Court are no better than the elected national figures roaming the halls of the Capitol Building. Whether to extend all of the Bill of Rights to the States is an issue that will stretch the purely political minds of these Justices to the breaking point. I hold up Clarence Thomas as the poster boy example for bother this Court and the elected officials who appointed it and rest my case.
I have a right to maintain a well armed militia. If the government takes that right away from me what will I be labeled?
No doubt that is a major case and not everyone will be happy with the way it goes. 😉
There is another case working its way up that may be as important as the asbestos, tobacco, and gun cases.
It is a suit against oil and chemical companies over global warming.
It was filed in Mississippi where the federal judge dismissed the case by landowners against big oil for damage to their property via global warming.
The three-judge panel reversed the district court, now the en banc court will re-hear the case.
http://blogdredd.blogspot.com/2010/03/case-of-big-oil-vs-climate-change.html
I believe that the Supreme Court will,as usual, dodge the real issues involved. I believe that it will be a partial victory for both those that believe, as I do, that the Bill of Rights extends to all Americans everywhere in the nation all of the time. They will also though hand down a Standard of Review that will please hoplophobes and control freaks also. In other words they will duck incorporation…
Remember, this is pretty much the same court that upheld the ex post facto portions of the Lautenberg Act by simply ignoring it…
The compulsory pregnancy folks are probably apoplectic over the possibility of having to re-litigate all of the restrictive State laws regulating abortion. Unintended consequences indeed.
“It will not mean that states can place no restrictions on gun possession or ownership.” I’m confused as to why it is that the states have authority to usurp ANY of our constitutional rights whether it is the second amendment or any other. As for the second amendment, the language seems pretty clear: “…the right of the People to keep and bear Arms, shall not be infringed.” I find it notable that many, if not most, of the discussions of this right never broach the subject of why the right was given constitutional protection in the first place. The framers of the Constitution certainly were not ambiguous about it’s purpose. Recommended reading: James Madison and the Struggle for the Bill of Rights Richard Labunski (Author)
More from Chicago:
Chicagoans hope stories will help overturn gun ban
By DON BABWIN
Associated Press
2010-03-02 11:28 AM
A couple worries that burglars who tried to break in when the wife was home alone will return. A retiree fears the drug dealers and junkies just outside his window will attempt _ again _ to steal what he spent a lifetime earning. And a businessman wants to protect himself as he could when he was a police officer.
Together, they are the face of the most serious challenge yet to Chicago’s 28-year-old handgun ban.
On Tuesday, the four will take their seats inside the U.S. Supreme Court as their attorneys argue a lawsuit that bears their names: David and Colleen Lawson, Otis McDonald and Adam Orlov.
The four plaintiffs are not stereotypical gun rights advocates. They don’t represent the agenda of any national group or organize rallies. Instead they represent average Chicagoans _ the kind of people that opponents of the city’s ban say should be allowed to protect themselves from gun violence.
http://www.etaiwannews.com/etn/news_content.php?id=1192870&lang=eng_news&cate_img=logo_world&cate_rss=WORLD_eng
“A ruling overturning the Slaughterhouse Cases would show liberals that the court is not simply handing insular victories to favored groups but carrying out a more deep-seated jurisprudence”.
And when, as I expect, they do not overturn Slaughterhouse will that be proof enough that Roberts/Alito/Scalia/Thomas ARE simply handing out victories strictly to favored groups? What then?
I think this Court will extend all of the Bill or Rights to the States and give the conservatives their largest dose of unintended consequences ever. Ironically, James Madison thought that these constitutional amendments were unnecessary; their ideals preserved in state constitutions and their principles so embedded in the national character no despot could ever erode them. Time and conservatism have shown that even great men can be wrong. Bring on the Bill of Rights – it’s decidedly nonconservative!
5-4 or 6-3 depending on how Sotomayor votes upholding the right to have guns in your home. Public Safety Measures aside.