In a crucial decision on gun rights, the Supreme Court has ruled against states' and cities' rights to impose handgun bans, and decided the Second Amendment is not merely a matter of federal concern, but is "fully applicable to the States." The case involved one Otis McDonald who sued the city of Chicago for his right to keep a handgun for self-defense. The 5-4 ruling includes well over 200 pages of judicial history, with Justices Scalia and Stevens in an intense back-and-forth over interpretation, democracy, and more.
Justice Samuel Alito, writing for the majority, explains that while "the Bill of Rights, including the Second Amendment, originally applied only to the Federal Government," the Fourteenth Amendment saying "that a State may not abridge 'the privileges or immunities of citizens of the United States' or deprive 'any person of life, liberty, or property, without due process of law'" changed that.
We have previously held that most of the provisions of the Bill of Rights apply with full force to both the Federal Government and the States. Applying the standard that is well established in our caselaw, we hold that the Second Amendment right is fully applicable to the States.
So what does this mean, practically?
- 'A Blockbuster,' Chris Cassidy pronounces the case at Change.org, reviewing it prior to the decision. The 2008 decision in Heller v. D.C. decided the right to bear arms extended to individuals, not just militias, explains Cassidy. Deciding that this individual right also supersedes state regulations has immense consequences, he argues. Now, "expect local gun regulations to fall left and right in a flood of litigation from coast to coast." He's disgusted by the conservative switch from trumpeting "states' rights" to "a conservative federal court telling states and localities how they can and cannot manage gun violence."
- 'Major Win for Gun-Rights Activists,' and Rightly So, thinks The Weekly Standard's Mary Katharine Ham. "Gun-control activists will resort to, as Alito might say, 'doomsday' predictions of the blood that will run in the streets of Chicago because of this ruling. But there is no lack of blood running in the streets, now, in this allegedly gun-free paradise. It's just that law-abiding citizens have no means of protecting themselves against the illegall firearms of the city's criminals."
- 'Probably the Most Important Second Amendment Case in Supreme Court History,' declare Hans von Spakovsky
at the Heritage Foundation. He points out that there are "difficult
cases" to come, since the court "clearly said that some government
regulation of guns is allowed," but didn't specify. On balance, though,
he's a fan of the decision:
The opinion holds that the right to keep and bear arms is among the most fundamental rights necessary to this Nation's system of ordered liberty and is deeply rooted in our history and tradition. Thus, it applies to the states through the Due Process Clause of the Fourteenth Amendment.It is hard to believe that anyone could rationally argue that the Second Amendment does not protect a fundamental right. Yet liberals on the Court, including Justice Stevens whose last day is today, could not even bring themselves to recognize this fundamental right because they don't like the result.
- The Argument Against the Decision In his dissent, Justice Stevens argues that the question of the case "is not whether the Second Amendment right to keep and bear arms (whatever that right's precise contours) applies to the States" through the Fourteenth Amendment, nor even whether there is "a constitutional right to individual self-defense," but rather whether the court should "establish a constitutional entitlement, enforceable against the States, to keep a handgun in the home." Therein, in his opinion, lies the problem (or rather one of the problems):
Of course, owning a handgun may be useful for practicing self-defense. But the right to take a certain type of action is analytically distinct from the right to acquire andutilize specific instrumentalities in furtherance of that action. And while some might favor handguns, it is not clear that they are a superior weapon for lawful self-defense, and nothing in petitioners' argument turns onthat being the case. The notion that a right of self-defense implies an auxiliary right to own a certain type of firearm presupposes not only controversial judgments about the strength and scope of the (posited) self-defense right, but also controversial assumptions about the likely effectsof making that type of firearm more broadly available. It is a very long way from the proposition that the Fourteenth Amendment protects a basic individual right of self-defense to the conclusion that a city may not ban handguns.
This article is from the archive of our partner The Wire.