Supreme Court Extends Second Amendment to the States

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.

87 thoughts on “Supreme Court Extends Second Amendment to the States”

  1. stan: Sorry, but are not thinking clearly.

    Now, mind you, I’m not advocating anything specific here, I’m just extrapolating.

    Most people know where cops, judges, lawyers, and soldiers live. And they don’t all have tanks, missiles, and grenades.

    Think about it. And think clearly.

    ONLY unarmed innocent citizens are subject to mass government slaughter.

  2. The notion that individual gun ownership is some kind of bulwark against totalitarianism is pretty insane. You can’t fight against the modern industrial state with any weapon an individual can own. The authoritarian state has so many tools at its disposal, it would take a well-organized, well-equipped and well-led army to defeat it. In addition to all sorts of modern weapons, the state also has incredible surveillance capabilities, infiltrators and informers, the best than money can buy. Even a dedicated and skilled survivalist like Eric Rudolph, and a brilliant loner like John Kosinski eventually gets caught, and their ability to raise havoc is very limited. Oklahoma City has should have shown us that the Turner Diaries is science fiction. Both Buford Furrows and von Brunn shot up some Jewish sites in hopes it would start and uprising against the ZOG, but they’re both dead, and the State lives on.
    Individuals need guns to protect themselves, their families and their homes; they are useless against the modern state.
    bigkoala@verizon.net

  3. Jason,

    considering the amount of guns in the world, and considering the steady decline to totalitarianism in so many places (including US) where guns thrive too, it is my contention that the 2nd amendment isn’t helping jack sh!t as a bulwark against tyranny.

    You must be kidding.. right?

    Try a people capable of critical thinking…, which, ofcourse, we don’t have…

  4. I was a pretty strong gun control guy for most of my life, until about a year ago, when a very smart pro-gun friend began sending me all sorts of studies, showing that widespread gun ownership did not lead to an increase in gun violence. Lots of people carrying guns may have kept the Wild West from being a lot more wild. And it does make sense, given that it takes the cops a while to respond to a 911 call, for homeowners to have access to guns for self-defense. What the Founders meant by the 2nd Amendment is open to discussion and interpretation; they clearly included the phrase about the well-regulated militia for a reason. This would not have been necessary if they were simply talking about individual gun ownership. And this was written at a time when an expert shooter could get off perhaps a couple of shots in a minute; who knows how they would have written the Amendment if they’d foreseen an Israeli-made gun that can shoot about 10 rounds a second.
    We do have the notes of the Constitutional convention, where the issue was discussed, and it’s clear that the Founders were divided on the issue. There are well-meaning people on both sides. Clearly there will have to be some limitation on weaponry that a citizen can own. No one wants their neighbor to have a nuclear device they’re testing in their patio. If we’re going to be successful at keeping these weapons out of the hands of Al Qaeda, it doesn’t make a lot of sense to let them be bought by just any ol’ clown. Isn’t it bad enough that the Pakistanis have them, and the North Koreans and Iranians aren’t far behind?
    The individual attacks between correspondents on this site is pretty discouraging. Whether the Welsh and French laugh at us or not, we have to work together to protect ourselves, both as individuals, and as a nation.
    bigkoala@verizon.net

  5. Jason,

    You and I are not as far apart as you think.

    I meant what I said about the difference between accuracy and precision. If you disagree on terminology, that’s your right. No matter how accurate, fully automatic weapons compensate for poor marksmanship by quantity of bullets fired. Simple fact – they make killing indiscriminately require less skill. A good marksman with a .32 can take out a spaz with .357, but a spaz with an Uzi? That’s a different story.

    “Most people don’t have the ability to make custom loads.” That’s a logical error called the fallacy of division. What is true for the part is not true for the whole. Those who cannot make custom loads can go to a good gun shop and get loads made to spec. I’ve done it myself. As to safety rounds, you apparently define self-defense as killing. Coming from a martial arts background, my goal is always to end a confrontation with the minimal damage possible. So yeah, that ends that part of the conversation. However, I was thinking of “less than lethal” shotgun loads, not Glazers or birdshot. Hell, hollowpoints are far better than Glazer rounds in re stopping power and because of their nature have far less penetration than full metal jacket ammo. However, there is no such thing as a non-lethal load – even blanks can kill as evidenced by the on-set death of 80’s actor John Eric Hexum when he shot himself in the head with a pistol loaded with blanks after yelling something along the lines of “Hey! Look at me!” (because he was a moron). Even beanbags can kill, but they will certainly stop someone with a lesser chance of death. Same goes for rubber bullets although they have a greater chance of being lethal than a beanbag. But hollowpoints and light grain load in a pistol are no more dangerous a load than your AR-15.

    As to me making an ass out of myself? I really don’t care what you think of my methods. I also know perfectly well what suppressive fire is too, sport. I know you don’t have to have a fully automatic weapon to do it either. Thinking you do would be you making an ass out of yourself, so that makes us even in the ass department. Feel free not to care.

    As to the issue of militarized weapons and crime, the constant militarization of our police forces since the time of Darryl Gates in LA has been sold and justified as “our guys are just outgunned”. You provided a good example yourself. The aftermath of North Hollywood was again a call for more access for patrol officers (not just SWAT) to fully automatic weapons. That episode created the trend of using your apparent gun of choice, the AR-15, to arm police in this country. So instead of limiting access, flood the market. Oh yeah, that makes sense. Like no criminal has ever stolen or modified a gun. What will happen now? Criminals will seek better armaments, ammo and armor. It’s the nature of escalation.

    As to your assertion that “So called assault weapons are used in a very very tiny percentage of gun crime for the same reason all long guns make up a small percentage – they are harder to conceal and acquire” is unfounded and mere supposition and opinion as even the FBI doesn’t breakdown their crime statistics by assault rifle, but merely by handguns, rifles, shotguns, and firearms type unknown (in addition to other knives/cutting weapons and manual attacks). If you’d like to look for yourself, http://www.fbi.gov/ucr/cius2008/index.html. Of these categories, there is no data collected on the firing mechanisms and all the types listed can be fully automatic including machine pistols and rifles (although I will stipulate fully automatic shotguns are rare in the extreme, the only one I know of is the AA-12). That handguns make up the bulk of the crime stats does reflect ease in acquisition and concealment, but I never said I had a problem with handguns despite their design function is primarily killing people. Personally, I prefer shotguns. My issue is any weapon capable of being modified to full auto, from machine pistols to assault rifles. Guns make killing easy enough, but overkill is overkill.

    As one familiar with hunting if not a hunter yourself, you are familiar with baiting. PK there represents the dangerous fringe that the gun culture harbors. Although I threw the bait at you, he hit it. Even you acknowledge that he’s the lunatic fringe (or a troll, either of which is fair game). Tired or not, the put down (more accurately a confrontational stance) drew a loon out into the open. While you may be a responsible gun owner, I wouldn’t trust people like that guy with a slingshot. I don’t worry about a responsible target shooter. My concern is the mentally unstable. I’m not saying you shouldn’t be able to target shoot with reasonable or even very powerful guns, only that certain types of weapons are not appropriate for anyone not on a battlefield because of their ROF potential. I’m also against most (not all) extended magazines for the same reason – overkill. The danger they represent to the general public in the wrong hands (like PK) simply outweighs their utility as self-defense/entertainment when other alternatives exist. Which they do.

    But foremost and above all I believe in this principle: the best way not to get in trouble is not to be there when it starts.

    As to your stance on habeas corpus, good show. We need more people screaming about that.

  6. “Apologist gun nut nonsense that keeps criminals in heavy artillery that’s easily modified from the civilian versions.”

    Flat wrong. So called assault weapons are used in a very very tiny percentage of gun crime for the same reason all long guns make up a small percentage – they are harder to conceal and acquire.

    “Minimal precision means exactly that, not accuracy, but the ability to flood a target with bullets no matter how much of a shitty shot you are despite your protestations to the contrary.”

    If I’ve got a choice between being shot at by someone who is aiming and someone who is spraying, I’ll take the latter. You might remember the North Hollywood shootout, the most well known machine gun incident in modern memory. The bad guys fired 1300 rounds, and while they did injure some, not one innocent person was killed. You might also want to inform the many military and police organizations that use the M-16/M-4 that it is only “minimally precise”. It’s a gun made to be accurate, not to indiscriminately hurl lead downrange.

    “Just get in the neighborhood. As to penetration, ever hear of custom loads? That not ringing a bell? You can make any gun safer in a home environment by altering the size (or indeed type) of projectile and/or the grain load.”

    What the Christ are you babbling about? Most people don’t have the ability to make custom loads. We buy ammunition at sporting goods stores and do so based on effectiveness and other factors. It is a fact that the standard round used in the AR platform will go through fewer walls than a typical home defense shotgun load or pistol round. Any round that is sufficient for self defense by definition will completely penetrate a human body (at least going by FBI criteria). If you are talking about using stuff like birdshot or Glazer safety rounds, then we can go ahead and drop this part of the argument, because it’s further evidence that you have no idea what you are talking about.

    “And “keeping heads down”? Laughable horseshit unless you mean “blowing heads off”.”

    You are making an ass out of yourself. Look up the term “suppressive fire”.

    “Guns have limited utility. Other than for hunting and self-defense – for which pistols, traditional rifles and shotguns are perfectly adequate? Guns are for little boys trying to compensate for something and/or criminals.”

    Out come the tired put downs. Come on, seriously? The gun/penis bit?

    “Speaking of “ceasing to be an issue”, I don’t hear a lot from the gun zealots being upset about the suspension of habeas corpus, another fundamental Constitutional right.”

    I’ve been screaming about it since Bush began his rape of the Bill of Rights. I’ve continued to scream about it under Obama. Perhaps I’m not enough of a zealot though; I voted for Obama and regret it because he isn’t “liberal” enough.

    PatrickKelly-
    If you aren’t a troll (and I think there’s a good chance you are), and you care at all about this issue, please shut up. People like you define the term “gun nut”. Most people who own guns are not nuts, but we get grouped with people like you because your type gets the attention.

    Most gun owners do not revel in or crave violence like you seem to. The thought of using my gun on anything but paper targets is nauseating.

  7. Make of me what you will. I never said I didn’t like communists, hell some of my best friends are communists, at least they’re not hypocrites like most Democrats. Homosexuals, no problem there either, as long as they’re conservative or independent minded. I don’t even mind black SUVs or those sinister government agents that drive them.

    I actually admire some judges, specifically the judges that voted the right way on this issue, if that helps you out. Its the traitorous leftist fucks in black robes, and the leftist politicians that appoint them, who purposely misrepresent the constitution including but not limited to the second amendment, whom I would like to see tried for treason and hanged by the neck until dead. I never said I intended to snatch them up and hang them myself outside the law like one of your fucks tried to imply I did, but hey, I’ll tell you what, if they are ever tried and sentenced to death by firing squad, I will happily and gleefully pull the trigger, then I’ll go back to fucking my family members while you cheese and whine eaters fly to London, Munich, or gay Paree to be with your own kind.

  8. Ol’ so PK doesn’t like leftists, judges, homosexuals, the government, black SUV’s, tolerant people, ignorant violent redneck thugs (self-loathing?), the military, communists, Kagan, Souter, pacifists, and, I suspect, a partridge in a pear tree. If you can judge a man by those he admires, what must you make of PK and the fact he admires no one at all?

  9. You are doing a fine job of illustrating exactly how crazy you are without any help from me.

    “You see, madness, as you know, is like gravity. All it takes is a little push!”

    Okay. Maybe I helped a little.

  10. You’re not interested in reason period as exemplified by your behavior.

  11. Former Federal LEO-

    If I want your advice, I’ll ask for it. You handle these fruits your way, I’ll handle them my way. I don’t have any intention of playing nice with a group of freaks who accuse me of threatening judges because I think they should be hanged by the neck until dead, after they’ve been tried and convicted of treason. If you want to try to reason with people that try to twist your words around, have at it. I’m not interested in reasoning with them.

  12. Perhaps you missed this part –

    “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).”

    Or this part –

    “While I might agree with today’s ruling on legal grounds, idiots like you make me want to oppose it.”

    Meaning, since you don’t read very well, that both mespo and I AGREE with the ruling, numbnuts.

    So “my side” won too, genius.

    But if you want to keep humping your sister, your secret is safe with me.

    And everyone else on the Internet, you violence prone redneck.

    BTW, if you see a bunch of black Suburbans, go ahead and shoot and see how that works out for you. Because you are clearly a dangerous whack job of the type the FBI like to visit. Or maybe the U.S. Marshall Service.

    In the future, don’t mistake someone being a pacifist for someone not willing or able to kick your ass if you offer them no other choice.

  13. I don’t give a rats ass about the murder rate in England, Wales, and France compared to the higher rate here, that’s right, and I’ll repeat, if you don’t like it here, you know where to go.

    I have no worries about anything. My side won this battle. Remember? You’re the one that’s all tore up because mean old nasty redneck wing nuts like me won this round, you know we’re happy about it, and its eating freaks like you and the phony little shit grinning Buddha up inside. I’m the one laughing at you, just in case you’re not quick enough to catch on.

    I just happened on here because I heard about the decision and am interested in researching the ins and outs of both sides of the equation. My main concern is in the next election and the one in 2012, making sure to what extent I can that this country elects people that I don’t have to worry about appointing and confirming leftist black robe freaks like Kagan, Souter, and the other knee-jerk leftist usual suspects. Not just because of this issue, though its important, but on a variety of issues.

    As far as me being violent, I don’t appreciate leftist turd wagons like you and other pacifist freaks that want to control the whole country through oppressive government laws and regulations and then have the temerity to pretend you’re doing it in the name of democracy and freedom. People like you turn those words into an obscenity.

    So no, while I wouldn’t act in a violent way against you due to just your beliefs or politics, if for some reason I happened across the information that somebody else blew your shit away-their secret’s safe with me.

  14. PatrickKelley,

    Outrageous people like you harm the Second Amendment. You stand as one of the catalysts that make the anti-gun folks more resolute in their opposition to gun ownership. If most gun owners were as cockeyed as you are, I could understand their anti-gun reasoning; fortunately, you are definitely on the fringe.

    I am virtually an absolutist regarding Second Amendment rights; however, I want people to know that most of us lifelong gun owners disdain people of your ilk.

  15. rofl

    Yeah, but we’d have to worry about bullshit seeking missiles diverting to Congress.

    As to BP? That’s actually been a hot topic of discussion around here. How long until some swamp rat decides that since his life and livelihood have been ruined, he’s going to go shoot a few BP executives. I know last week I had that conversation at least five times and only started it once. I hear varied estimates on the time frame, but pretty much everyone agrees it will happen at some point unless BP seriously gets their act together.

  16. BIL:

    Poke

    Poke

    Poke

    Come on! Dance, monkey, dance!
    **************

    There you went and spoiled it. Now Lancelot Link here knows we’re playing with him and we’ll never get to find out why his family tree doesn’t branch out. Thanks!!

  17. You know Buddha, if we heavily armed all the residents of the gulf, do you think BP could come up with a oil capping plan before August? On a pleasant mental exercise, I ‘d like to arm all the folks PK dislikes or who dislike him (and there’s lots of ’em I would guess) with a bullshit seeking missile and see how long this biggest badass in the neighborhood would last.

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