Supreme Court Incorporates Second Amendment To The States

Georgetown Law Professor Randy Barnett writes in the Wall Street Journal that there "is a remarkable academic consensus that the original meaning of the 14th Amendment protected an individual right to keep and bear arms against interference by state governments. Yesterday's Supreme Court decision in McDonald v. Chicago affirmed that this is indeed the case. It is, therefore, a great victory for enforcing the original meaning of the Constitution. Thankfully for the rights of Americans, the Chicago gun ban at issue will soon be consigned to the dust bin of history." The AP reports that by "a 5-4 vote, the justices cast doubt on handgun bans in the Chicago area, but signaled that some limitations on the Constitution's 'right to keep and bear arms' could survive legal challenges... Monday's decision did not explicitly strike down the Chicago area laws. Instead, it ordered a federal appeals court to reconsider its ruling. But it left little doubt that the statutes eventually would fall."

Professor Barnett explains the importance of this decision and how it reaches beyond just the Second Amendment as a matter of Constitutional law. Barnett writes that since "the Supreme Court acknowledged in D.C. v. Heller (2008) that the Second Amendment protects an individual right to arms, it was expected that it would eventually enforce that right against state interference. The big debate among observers was how the court would do so. Would it use the 14th Amendment's Privileges or Immunities Clause that says: 'No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States'? Or would it use the Amendment's Due Process Clause that says: 'nor shall any state deprive any person of life, liberty, or property, without due process of law'? The Privileges or Immunities Clause has been virtually a dead letter since 1873, when the court in The Slaughter-House Cases limited its scope to rights of a purely national scope, such as the right to access a foreign embassy or to be protected when traveling on the high seas. It was a preposterous interpretation—these were hardly the rights congressional Republicans in the aftermath of the Civil War were most concerned to protect in the wake of the terrible abuses of free blacks and white unionists by Southern states... But this too should be a headline of McDonald: Only a plurality of the Court relied on the Due Process Clause. The deciding vote was cast by Justice Clarence Thomas, whose concurring opinion rested solely on the Privileges or Immunities Clause. While agreeing 'with the Court that the Second Amendment is fully applicable to the States,' he did so 'because the right to keep and bear arms is guaranteed by the Fourteenth Amendment as a privilege of American citizenship.'... Justice Thomas's analysis summarizes and reflects a consensus of legal scholarship that the Privileges or Immunities Clause does protect at least the rights enumerated in the Bill of Rights against state interference. Because his interpretation of the clause was necessary to reach the outcome in McDonald v. Chicago, it is now very much alive. Put another way, there is no longer a majority of the court willing to use the Due Process Clause in a case in which the Privileges or Immunities Clause is the right clause on which to rest its decision... By declining to take issue with Justice Thomas's impressive 56-page originalist analysis, the other justices in effect conceded what legal scholars have for some time maintained—that the court's cramped reading of the clause in 1873 was inconsistent with its original meaning. Yesterday the lost Privileges or Immunities Clause was suddenly found. And some day it may be fully restored to its proper place as the means by which fundamental individual rights are protected under the Constitution against abuses by states. " Tweet