Gunning for Slaughterhouse? Supreme Court Hears Arguments in McDonald Gun Case

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.

46 thoughts on “Gunning for Slaughterhouse? Supreme Court Hears Arguments in McDonald Gun Case”

  1. Supreme Court Appears Ready To Overturn Chicago Gun Ban:

    “Most of the Supreme Court justices who two years ago said the 2nd Amendment protects individual gun rights signaled during arguments Tuesday they are ready to extend this right nationwide and to use it to strike down some state and local gun regulations.

    Since 1982, Chicago has outlawed hand guns in the city, even for law-abiding residents who sought to keep one at home. That ordinance was challenged by several city residents who said it violated their rights “to keep and bear arms” under the Second Amendment.”

    http://www.chicagotribune.com/news/sc-dc-court-guns3-20100302,0,682706.story

  2. eionbob,

    People don’t realize that the whole constitution thingy, BOR etc, yadda, yadda etc. You have heard someone here either Bob., Esq or rafflaw said something about the floor and ceiling. The Feds states the floor and the states set the ceiling.

    DC is an interesting city to live with respect to laws. Incorporate a business in DC and abide by the terms of the laws and no state can restrict you. DC is the illegitimate child of the Federal Government.

    It is my understanding that DC cannot take a bathroom break without congress giving it approval. All laws apply in DC regardless if they apply in AL or MT.

  3. OpinionWednesday, March 03 2010
    Gunplay
    Supreme Court looks into Second Amendment’s reach
    Enron, torture and gun control are just a few of this week’s coming attractions to the United States Supreme Court. Who ever said the land’s highest court doesn’t hear interesting cases?

    The issue that will affect millions of Americans directly is gun control. The case of McDonald v. Chicago challenges the city’s 28-year-old handgun ban.

    What makes this case so interesting is that two years ago, the Supreme Court struck down portions of the District of Columbia’s gun control law. Now there is a bigger issue at play here than gun control.

    The Supreme Court has this imprudent tendency to apply the Constitution to states and cities. But the Bill of Rights should apply throughout the United States, not just selected venues.

    Remember, America – the Second Amendment allows citizens to bear arms if they so choose. It doesn’t make it a requirement.

    http://www.ubspectrum.com/article/41427

  4. Mespo:

    funny you should mention William Pitt, he and Edmund Burke were buddies actually both were opposed to imposing British will on America. Mr. Burke is very well thought of in “conservative” circles today.

    I am not so sure about Thomas Paine, he had a bit of the totalitarian in him and was very much in favor of the French Revolution. I don’t know what you think about it, but I think it was no child of the Enlightenment and the Rights of Man was in no way evident during that bloody catastrophe.

  5. Rafflaw:

    lower taxes for everyone and reduced spending by government will indeed help our economy. Go read Von Mises or Hyack. Keynes is not correct. Why do you think we had shortages during WWII? We had to ration because government spending does not produce jobs at the same cost as the private sector. We are seeing that today. I get Engineering News Record (ENR) they are definitely for the stimulus because of all the public works projects it is supposed to create. One article was about the cost of jobs, they were not cheap-250k to 500k per job created, I believe they included the indirect jobs as well.

    We are still waiting for bridge building and infrastructure construction, from what I hear it is going to pot hole repair. I think some is going for new projects but nothing like what was promised.

    I guess what I don’t understand about liberalism/progressivism is the reliance on a controlled market place. You want less government in almost every other area of your lives but when it comes to the market you want government control up the wazoo. How do you reconcile political freedom with economic totalitarianism? What am I missing? It is ok to regulate my ability to produce or purchase something but not ok to regulate social/civil interactions. I don’t get it?

    In my mind the 2 are linked, you cant really have freedom/liberty when you are told what car to purchase and what doctor to see. As I said it seems simple to me so I must be missing something.

  6. bLOUISE:

    “Interestingly enough, my conservative friends prefer bar graphs while my liberal friends respond best to pie charts … I have no idea why but there it is.”

    I like both but pie charts are generally easier to read. I imagine that someone with more language skills would like a pie chart while someone with more math skills would prefer a bar chart.

    However is it the same information being presented? Pie charts are good for things like budgets and bar charts are good for say showing levels of spending over a certain period of time.

  7. mespo,

    I am girded with facts and prepared for their reactions … they are all well meaning folk who just seem to be in a perpetual state of fear over anything and everything.

    I can’t remember if it was on this site or another where I read about an article concerning a genetic predisposition toward liberal or conservative thinking i.e hardwired. I have made note that the majority of my conservative friends tend to belong to churches where the ministerial hierarchies are set in stone whereas my more liberal friends tend to be Congregationalists or Unitarians where the ministerial oversight is less dictatorial/didactic. In many other areas I find that my conservative friends seem to respond best to predictable order whereas my liberal friends like fluidity and spontaneity.

    I’m not making a case for political predisposition based on a biological basis but my circle of friends is wide and if I break them down into conservative and liberal groups they do seem to follow very specific guidelines. Thus I have been able to hold successful political discussions with either group by employing certain modes of speech particularly aimed at their predispositions. Interestingly enough, my conservative friends prefer bar graphs while my liberal friends respond best to pie charts … I have no idea why but there it is.

  8. Blouise:

    Thank you Blouise (and rafflaw too), but I would be prepared for the onslaught in your in-box. You are going to here all that Daniel Boorstin clap-trap about the American Revolution really being a respectful conservative rebellion by like-minded Englishmen seeking their lost rights. Balderdash! Here’s Pitt’s take on the history and he lived it:

    ” … American gentry will make officers enough, fit to command the troops of all the European powers. What you have sent there are too many to make peace–too few to make war. If you conquer them, what then? You can not make them respect you; you can not make them wear your cloth; you will plant an invincible hatred in their breasts against you. Coming from the stock they do, they can never respect you.”

    (…)

    “I say again, this country {Britain] has been the aggressor. You have made descents upon their coasts; you have burned their towns, plundered their country, made war upon the inhabitants, confiscated their property, proscribed and imprisoned their persons. I do therefore affirm, my Lords, that instead of exacting unconditional submission from the colonies, we should grant them unconditional redress. We have injured them; we have endeavored to enslave and oppress them. Upon this ground, my Lords, instead of chastisement, they are entitled to redress. A repeal of those laws, of which they complain, will be the first step to that redress. The people of America look upon Parliament as the authors of their miseries; their affections are estranged from their sovereign. Let, then, reparation come from the hands that inflicted the injuries; let conciliation succeed chastisement; and I do maintain, that Parliament will again recover its authority; that his Majesty will be once more enthroned in the hearts of his American subjects; and that your Lordships, as contributing to so great, glorious, salutary, and benignant a work, will receive the prayers and benedictions of every part of the British empire.” (From the address on “American Hostilities”). Pitt’s motion to repeal the Intolerable Acts failed 99-28 following this speech.

    Thomas Paine had the true sentiment:

    “THESE are the times that try men’s souls. The summer soldier and the sunshine patriot will, in this crisis, shrink from the service of their country; but he that stands it now, deserves the love and thanks of man and woman. Tyranny, like hell, is not easily conquered; yet we have this consolation with us, that the harder the conflict, the more glorious the triumph. What we obtain too cheap, we esteem too lightly: it is dearness only that gives every thing its value. Heaven knows how to put a proper price upon its goods; and it would be strange indeed if so celestial an article as FREEDOM should not be highly rated. Britain, with an army to enforce her tyranny, has declared that she has a right (not only to TAX) but “to BIND us in ALL CASES WHATSOEVER,” and if being bound in that manner, is not slavery, then is there not such a thing as slavery upon earth.” (Common Sense)

  9. The Times just reported that the Court is poised to expand the 2d Amendment to the states:
    http://www.nytimes.com/2010/03/03/us/03scotus.html?hp

    If the Court does so vote, it would be another blow to the conservative idea of state sovereignty. The states now have full authority to pass gun regulations to restrict the traffic of arms to criminals and felons. With incorporation, the laws enacted by the democratically elected legislatures of each state would be subject to review by unelected federal judges and Justices.

    If a state tried to restrict gun ownership, for example, by banning street gangs and private militia from amassing arsenals of automatic weapons and artillery, they would have to worry about the federal courts. If there were a ban on gun possession by sex offenders and pedophiles, they could go to court. The decisions of the judges would be inherently subjective.

    The states will just have to get used to another area of federal oversight.

  10. mespo727272

    Byron:

    AY has easily shown several examples of today’s conservatives being very much like their Tory fore-bearers in terms of their attitudes. The conservative soul has at its core, the reluctance to trust its fellow countrymen and a dogged desire to protect the status quo of the ruling privileged class (tax cuts for high wage earners; anti-affirmative action; tough law enforcement against minorities, etc.). It ranks somewhere near tribalism. It is fear of the unknown. This sentiment was shown time and again in the 60’s when Southern conservatives fought against every piece of significant civil rights legislation for African-Americans. You see it today in anti-Latino immigration policies, and overt racism masked as “border defense.”

    This protection of favored class status is the exact rational employed by most of the 18th Century Tories against the American colonies save for only a shining counterexample like Pitt the Elder. The Tory take on the American colonies is best summarized by this: “The colonies were acquired with no other view than to be a convenience to us,” the London Chronicle pointed out in 1764, “and therefore it can never be imagined that we are to consult their interest preferably to our own.”

    ==============================================================

    Thank you for that simple, succinct, explanation. I hope you don’t mind but I copied it and emailed same to several of my conservative friends … I gave you credit.

  11. Byron:

    AY has easily shown several examples of today’s conservatives being very much like their Tory fore-bearers in terms of their attitudes. The conservative soul has at its core, the reluctance to trust its fellow countrymen and a dogged desire to protect the status quo of the ruling privileged class (tax cuts for high wage earners; anti-affirmative action; tough law enforcement against minorities, etc.). It ranks somewhere near tribalism. It is fear of the unknown. This sentiment was shown time and again in the 60’s when Southern conservatives fought against every piece of significant civil rights legislation for African-Americans. You see it today in anti-Latino immigration policies, and overt racism masked as “border defense.”

    This protection of favored class status is the exact rational employed by most of the 18th Century Tories against the American colonies save for only a shining counterexample like Pitt the Elder. The Tory take on the American colonies is best summarized by this: “The colonies were acquired with no other view than to be a convenience to us,” the London Chronicle pointed out in 1764, “and therefore it can never be imagined that we are to consult their interest preferably to our own.”

  12. Swartmore mon,

    Bush and Cheney proved that they were not smart enough to think about more than one thing at a time. Single issue candidates. I wonder how they take a shower, where they have a choice between 2 knobs?

  13. It seems like the only rights most republicans care about these days are gun owner’s rights.

  14. “Whatever happened to conservatives wanting to leave regulatory decisions up to the states?”

    Dual federalism; Fed constitution sets the floor of rights, the state sets the ceiling.

  15. OhNO Agape-
    “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.”

    Texas is the norm. California is one of a few exceptions in terms of carry law. 39 states are “shall issue”, that is, any person who meets the requirements in that state must be issued a concealed carry license; law enforcement has no discretion to reject them. Two more states, Vermont and Alaska, require NO license to carry concealed.

    Only two states ban CC outright. That leaves California as one of the only seven states that are “may issue” — technically, CC permits are possible to get, but in reality are dependent on which county you live in and the whims of law enforcement there. In California, there are counties where virtually no one is granted a license, while in others it is nearly “shall issue”.

  16. AY:

    I would say I agree with 1-3, disagree with 4 and think that sonograms should be provided upon request of the individual and they should be told they are available if one is desired.

    Items 2 and 3 have been proven correct historically. Item 1, they make us present a drivers license here in Virginia to prevent election fraud. I think it is a good idea. Item 4 is definitely a no-no unless it is a private event such as a professional sporting event or a concert. I don’t think you can demand someone have a sonogram but what is the harm in having one available if someone wants one?

    I agree that a private clinic can do whatever they want in that regard and it is no business of the states.

  17. Bryon,

    Try this for some party claiming to be conservative:

    Proposition 1. Each registered voter must present a photo ID to vote

    Proposition 2. GOP says we need to control government growth via additional budget restrictions

    Proposition 3. Stop government stimulus and instead cut Federal Income Taxes

    Proposition 4. The GOP wants to force all of us to acknowledge God at public events

    Proposition 5. The party wants to demand sonograms be shown to every woman who elects to have an abortion.

    The propositions are NOT on the ballot of the Democrat Primary.

  18. Mespo:

    But that assumes conservatives today are the same as they were in 1776 to 1787. Conservatives today are the ones getting involved with “Tea Parties” and trying to, in their opinion, return to an original intent of the Constitution interpretation.

    Can you give me an example of why you think conservatives would be unhappy with an expansion of individual freedoms? I genuinely ask because I have my reservations about some conservatives and their motives. For example “compassionate conservatism” is a code word for give me your money and liberty.

    But other conservatives would welcome a return to an originalist view of the Constitution.

    I read some things about the Slaughterhouse case and disagree with that finding on a number of different levels. I think most “real conservatives” would welcome an “overturning” of that case.

Comments are closed.