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. “No Free man shall ever be debarred the use of arms.”
    —Thomas Jefferson (Proposal Virginia Constitution, 1 T. Jefferson Papers, 334)

  2. Noah Webster wrote (in support of the Constitution and the 2nd Amendment as we now know it):

    “Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe.”

    The idea here is that the military is something different than the militia and the militia was something to DEFEND against the federal army (military).

    The militia is the collective fire power of the American people separate from the rule of the federal government as the founders knew the most dangerous thing on earth (outside of anarchy) is abusive government which needs to be checked, if necessary, by force BY the people.

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