In a 5-4 decision, the United States Supreme Court has effectively struck down Chicago’s gun law and extended its earlier ruling on the Second Amendment to all states as a fundamental right. It is the decision that some of us anticipated as consistent with past rulings on fundamental rights. The impact will be considerable as all states will now have to respect the individual right of gun ownership under the Second Amendment.
Justice Sam Alito wrote the majority opinion. I discussed the case in a column in Roll Call that addressed a little discussed aspect of the controversy involving The Slaughter House Cases. Some of us wanted the conservatives to overturn or at least expand the narrow ruling of The Slaughter House cases. As noted in this column, I viewed it as the intellectually honest thing to do — rather than selectively incorporate gun rights. The Court should have adopted a broader notion of the Privileges or Immunities Clause. We were disappointed again:
We see no need to reconsider that interpretation here. For many decades, the question of the rights protected by the Fourteenth Amendment against state infringement has been analyzed under the Due Process Clause of that Amendment and not under the Privileges or Immunities Clause. We therefore decline to disturb the Slaughter House holding.
The opinion is somewhat fractured. Alito is joined by three Justices in finding the Second Amendment right of gun ownership is incorporated through the Due Process Clause. Justice Clarence Thomas agrees the Amendment is incorporated, but not under Due Process. This may be a slight disappointment. When Warren forged rulings like Brown and Miranda, he struggled to guarantee a solid if not unanimous voice of the Court. This is a landmark conservative ruling, but lacks that solidity in rationale.
The opinion itself directly deals with the prohibition on firearms in the home. That leaves room for future cases to explore other restrictions such as possession of guns on the street or particularly locales. There are no true absolute rights in the Bill of Rights. Even speech and religion can be limited under some circumstances. The same will be true for gun rights.
Alito points out (correctly) that the majority was not subtle in the earlier Heller decision in how the right to bear arms was viewed as fundamental, even if it did not directly rule on that question:
Our decision in Heller points unmistakably to the an-
swer. Self-defense is a basic right, recognized by many
legal systems from ancient times to the present day,15 and
in Heller, we held that individual self-defense is “the
central component” of the Second Amendment right. 554
U. S., at ___ (slip op., at 26); see also id., at ___ (slip op., at 56) (stating that the “inherent right of self-defense has been central to the Second Amendment right”). Explaining that “the need for defense of self, family, and property is most acute” in the home, ibid., we found that this right applies to handguns because they are “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” id., at ___ (slip op., at 57) (some internal quotation marks omitted); see also id., at ___ (slip op., at 56) (noting that handguns are “overwhelmingly chosen by American society for [the] lawful purpose” of self-defense); id., at ___ (slip op., at 57) (“[T]he American people have considered the handgun to be the quintessential self-defense weapon”). Thus, we concluded, citizens must be permitted “to use [handguns] for the core lawful purpose of self-defense.” Id., at ___ (slip op., at 58).
Notably, the Court does not expressly strike down the Chicago law and instead leaves that to the later decisions from the lower courts. Indeed, Alito gives little guidance to lower courts which are left to grapple with the decision.
Here is the opinion: 08-1521
One fascinating aspect of this case is the victory of so-called Brandeis briefs — briefs from amicus with data and statistics designed to push the Court to a particular result. The first two footnotes in the opinion rely on statistics from amicus briefs as opposed to the trial or appellate record. While these briefs have argument and not just statistics, the Court continues to rely on such briefs. I have been a longtime critic of Brandeis briefs.
It will be interesting (and likely) to see the decision raised today in the Kagan hearings. Kagan previously stated that she is not sympathetic with gun rights claims. She may be asked if she would view this matter closed under principles of stare decisis now that a decision has been rendered. Notably, since Justice Stevens wrote one of the dissents, Kagan would not have changed the result.
This is a developing blog entry.
“Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.”
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.“
Interesting decision. I saw a good write up from the guys who seem to be the experts: http://www.renzullilaw.com
“The NRA got what they paid for.”
The ability to hunt deer with AK-47’s.
Don’t get me wrong. I’m a staunch believer in the 2nd Amendment as a bulwark against tyranny, but you can kill bad men with a pistol (indeed, killing men is the primary design function of pistols and yes I know some people hunt varmints with them – doesn’t change their design parameters), a shotgun or a rifle just as dead as you can with a fully automatic assault rifle (designed for one thing – wholesale massacre of humans with minimal precision).
Urban and county militias can now breath a sigh of relief. The NRA got what they paid for.
I think this was expected, but I expect it’ll not change the tyrants insistent on disarming the populace. Also, the brave folks who wrote it wrote that the people should have “all the terrible implements of war” to resist government tyranny.
You and only you are responsible for the protection of you and yours. If you don’t want the best protection possible for your family, fine. But leave me the hell alone as I protect me and mine.
@Maverratick-
“A gun in your house is more likely to kill someone who lives there than invading “armed thugs””.
Please spare me your “concern” for all the little “wingnuts”. Anytime that happens your first thought is probably something along the lines of “good, that’s one less gun nut we have to worry about” and/or “good, maybe this will win more fence sitters over solidly to our side”.
Shit happens, and the main point is, a gun in my house is more likely to make me able to blow an armed thugs shit away when the need arises. I’ll take care of me and mine, that’s my responsibility, not yours, you just take care of yourself and leave me and mine out of your “concern”.
AY et al.
This is a fine ruling and I commend the 5 justices. I refer you to Professor Turley column, “Do Laws Matter”. They do indeed. Therefore, anyone who comments a deadly offense with a firearm must receive the ultimate sentence—the death penalty or life without parole—depending on a State’s law.
A gun in your house is more likely to kill someone who lives there than invading “armed thugs”.
PatrickKelley
“Good. The Justices that voted for the majority understand the constitution. … Just remember, in the event your home is invaded by armed thugs-when seconds count, the cops are mere minutes away.”
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Or if your home is invaded by armed cops ……..
I think it’s obviously time to repeal this fucking amendment.
“that silly, inconvenient clause, with it’s clear intention of applying to state militias not individuals, will be blacked out for good.”
Good, it should be.
This is all part of our plan for world domination! You see, it used to be that doctors would return home from war zone hospitals and use their battle-hardened techniques to save the lives of people who had been shot in our domestic ERs. Today, our ER docs develop new techniques for treating massive gunshot traumas here in our domestic ERs and then implement those techniques to treat people shot up in wars around the world! It’s just a military R%D project!
But seriously… I wonder how much of a difference this will make here in Chicago? As a peer out from my office window, down upon the gray, gritty streets of the city(*), I know that many cars, purses and armpits are concealing handguns right now. Lots of people currently flaunt the ban on both ownership and concealed carry of handguns in the City. Lots of people shoot each other every day here. Has the ban had much effect?
My guess is that if the ban were fully removed, the effect wouldn’t be so much on street/gang violence – they already all have guns anyway. Rather it would be an increase in successful suicides and deadly domestic violence incidents as households that wouldn’t previously have violated the ban start getting their own guns.
(* Acutally, it’s a beautiful day in Chicago. Puffy little white clouds dot a blue sky, the sun is shining brightly and pleasant breezes blow off the lake. My office window looks down on the Oak Street shopping area, populated by bronzed, surgically enhanced folk.)
Separately, when is the official ceremony? As Chief Justice, I assume that Roberts will have the honor of actually doing it. I’m talking about the moment when the opening clause of the 2nd amendment is officially crossed out with a Sharpie marker. They’ll open the heavy glass case that protects the Bill of Rights, the cap of the pen will be popped off, and “skreeeeech” – that silly, inconvenient clause, with it’s clear intention of applying to state militias not individuals, will be blacked out for good.
Good. The Justices that voted for the majority understand the constitution. The proper place for the four in the minority is at the end of a hangman’s noose. Call me intolerant, I don’t care, in fact, you would happen to be correct. Anybody that denies individual rights under the Second Amendment needs to make their home in Britain and France, so they can join in the laughter. Just remember, in the event your home is invaded by armed thugs-when seconds count, the cops are mere minutes away.
Does this mean that as I travel from state to state I no longer have to run and hide from hordes of rampaging teabaggers and gangs of “cops gone wild” but instead I may just shoot them?
We only kill 30,000 per year by guns and wound over 70,000 per year. This ruling should surely add to this total. Since the end of WW II over 1 million (1,000,000) men, women and children have been killed internally by guns. We are the laughing stock of the world. We have killed more people internally than all the wars combined! Enough is Enough! Thank George W. Bush for stacking the Supreme Court so that this carnage can continue!
And now I assume the States Rights crowd will complain loudly about Federal interference in local matters . . . right?
From a results perspective this is an acceptable decision. That said, I previously wrote that selection incorporation of these rights should be ended. That has not happened here and is disappointing.
One for which side, I am not sure. FF LEO, what say you?
I think we can look forward to a time when everyone will have a sixgun strapped to his hip, and just walking down the street might cause a shootout at the OK corral.