by Chris W. Cox, NRA-ILA Executive Director
A year after the historic Heller decision, the nation's highest court considers its impact on the states.
On September 30, the U.S. Supreme Court opened a new chapter in Second Amendment legal history by announcing it would decide whether the Second Amendment applies to the states. The case, McDonald v. City of Chicago, is one of several that were filed immediately after last year's decision in District of Columbia v. Heller, in which the Court struck down Washington, D.C.'s ban on handgun possession, as well as the capital city's ban on keeping loaded, operable firearms for self-defense in the home.
The follow-up cases were filed by the NRA and others against Chicago and several of its suburbs, as well as against the San Francisco Housing Authority. They were all aimed at the same goal: establishing that the Second Amendment forbids state and local governments (not just federal authorities) from banning handguns.
How We Got Here
IT'S A SURPRISE to many gun owners that the Supreme Court has not yet applied the Second Amendment to the states. To understand why, we have to step back almost 200 years. In the 1833 case of Barron v. Baltimore, the Supreme Court ruled that the Bill of Rights only applies directly to the federal government and that ruling has stood ever since.
After the Civil War, Congress was concerned about how to address oppression of the newly freed slaves. Congress passed a series of civil rights laws to deal with this problem and eventually also passed the 14th Amendment, which says states 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." It's clear that the framers of the 14th Amendment meant to protect the freedmen's Right to Keep and Bear Arms from those who wanted to destroy their freedom. As attorney and historian Stephen P. Halbrook has extensively documented, both supporters and opponents agreed the amendment would do as intended.
Just a few years later, the U.S. Supreme Court ruled that the Privileges or Immunities Clause only protected the kind of "privileges and immunities" that "owe their existence" to the Constitution or to the nature of the federal government. By that reasoning, the clause couldn't apply the Bill of Rights to the states, because the Bill of Rights protected basic human rights that existed before the Constitution was ratified.
This decision, in The Slaughter-House Cases (1873), has been criticized by scholars ever since and U.S. Supreme Court Justice Clarence Thomas has suggested it should be revisited. The decision made the Privileges or Immunities Clause meaningless, contrary to its drafters' clear desire to protect citizens' rights.
The Slaughter-House decision was followed by other cases in the late 19th century that have been misinterpreted to claim the Second Amendment doesn't protect an individual right. United States v. Cruikshank (1876) made clear the Right to Keep and Bear Arms existed before the Constitution, but said the Constitution doesn't even protect the First Amendment against infringement by the states, let alone by private individuals. Presser v. Illinois (1886) and Miller v. Texas (1894) also said the Second Amendment didn't directly protect against infringement by the states, but did not address whether it applied to the 14th Amendment.
Later, however, the Court found a way to protect the Bill of Rights against state action. It did this by finding the 14th Amendment's Due Process Clause protected those rights instead.
The theory of "substantive due process" took hold in the early 20th century, and it has been applied--one case at a time, one right at a time--since the 1920s. That process is known as "incorporation," based on the idea these provisions of the Bill of Rights are now "incorporated" into the Due Process Clause.
Incorporation is such an accepted rule in modern constitutional law that in the Heller decision, the Supreme Court pointed out the 19th century Cruikshank decision "did not engage in the sort of 14th Amendment inquiry required by our later cases."
Today, most provisions of the Bill of Rights have been incorporated. But because the process does take place one case at a time, not all of the provisions have been fully considered, and a few have been rejected.
The Stakes Today
THE SECOND AMENDMENT is the biggest and most important gap in this web of protection. The plaintiffs in the McDonald case are asking the Supreme Court to change that--once and for all. And while they argue that the Court should apply the Second Amendment through the Privileges or Immunities Clause, it makes little real-world difference to gun owners whether the Court does so, or simply applies its traditional due process incorporation theory. As the old saying goes, all roads lead to Rome; either outcome would be a major win for gun owners.
The reason that's true is most of the worst gun laws in America--from bans on large classes of firearms, to micro-stamping and "smart gun" mandates, to convoluted licensing laws and transport-ation requirements--have been passed at the state level. (See "America's Worst Gun Laws," Aug. 2008.) While most states have their own constitutional safeguards for the Right to Keep and Bear Arms, the Second Amendment would provide another layer of protection.
Perhaps more important, some of the states with truly awful gun laws--such as California and New Jersey--have no provisions in their state constitutions to protect the Right to Keep and Bear Arms.
For gun owners in those states, a win in the McDonald case could open new doors.
On the other hand, a ruling that the Second Amendment doesn't apply to the states would leave your freedoms at the mercy of state legislators. Without fear of a Second Amendment challenge, anti-gun groups would shift all their efforts to the state level--and they already have plenty of allies in states where constitutional provisions are weak or non-existent.
IN ILLINOIS, FOR example, the state constitution says that "Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed." In a challenge to the handgun ban in Morton Grove, Ill., that provision wasn't even a speed bump. The U.S. Court of Appeals for the Seventh Circuit said "the right to keep and bear arms in Illinois is so limited by the police power that a ban on handguns does not violate that right." Fortunately, Morton Grove and several other Chicago suburbs saw the writing on the wall and repealed their handgun bans as soon as the NRA filed suit, right after the Supreme Court's Heller decision.
But Chicago has more taxpayer dollars to spend on defending its gun ban. The Chicago law is nearly identical to the Washington, D.C. law struck down in Heller, so it was the most logical target for a case on the incorporation issue. In fact, it was such a logical target that two cases were filed, and then consolidated for appeal.
In June, the Seventh Circuit handed down its ruling in those cases. The opinion, by Judge Frank Easterbrook, was joined by Judge Richard Posner (who wrote a magazine article criticizing the Heller decision), and Senior Judge William Bauer (who wrote the 1982 opinion upholding the Morton Grove handgun ban).
Judges Easterbrook and Posner are well-respected scholars in other areas of the law, but in this case, their scholarship failed them. They skipped doing the kind of 14th Amendment incorporation analysis that the Supreme Court said was "required;" instead, they mistakenly followed the 19th century cases such as Cruikshank that missed the mark.
In addition, their opinion also suggested that states are free to ban self-defense in the home entirely, and handguns could then be banned. Since the Supreme Court said in Heller, "the inherent right of self-defense has been central to the Second Amendment right" (emphasis in the original), the Seventh Circuit judges' suggestion the states could do away with self-defense makes their entire analysis of the case questionable, to say the least.
To make matters worse, the Seventh Circuit judges had an excellent road map that would have shown them a better way. In April, a three-judge panel of the Ninth Circuit ruled on Nordyke v. King, which involved a gun show promoter's challenge to Alameda County, California's ban on firearm possession on county property. In his opinion in that case, Judge Diarmuid O'Scannlain went through exactly the kind of 14th Amendment analysis the Supreme Court requires, and concluded that since "the Right to Keep and Bear Arms is deeply rooted in this Nation's history and tradition," it's therefore incorporated into the 14th Amendment's Due Process Clause and applies to the states. (The Nordyke decision was later put on hold for a hearing before a larger panel; that panel is now waiting for the Supreme Court to resolve the Chicago case.) After the Seventh Circuit ruling, the plaintiffs filed their appeal with the Supreme Court. They have some heavy support; 34 state attorneys general filed "friend of the court" briefs urging the Supreme Court to take the case.
The Next Steps
THE MCDONALD CASE will be argued early in 2010. Alan Gura, who represented the winning plaintiffs in the Heller case, will argue against the Chicago handgun ban and all gun owners should wish him well in that effort. As we await the arguments and decision, NRA members should be grateful to all the scholars and attorneys who have brought the 14th Amendment to the forefront of the debate over the right to keep and bear arms.
NRA members should also be proud of the NRA's efforts to bring this issue to the court's attention, both through the coordination of briefs filed in the Heller case, and through the many lawsuits we filed and funded to overturn local bans on gun ownership and self-defense immediately after Heller. We're looking forward to working even harder in McDonald v. Chicago, to achieve another major victory for gun owners' rights.