Gun Rights Case Could Turn On Civil War-Era Laws
(AP)
A 5-4 Supreme Court decision last year did say that the U.S. Constitution protects an individual right to own a handgun. But the majority opinion never concluded that the Second Amendment applied to states; it didn't say what kind of laws beyond a flat ban are acceptable or unacceptable; it didn't even say what kind of standards lower courts should apply when evaluating anti-gun laws.
One result was to leave lower court judges scratching their heads about which laws were permissible. Another was to create what one pro-gun attorney last week dubbed an "apartheid of civil rights," where gun rights vary by state.
The current case before the justices arose out of Chicago's restrictive gun laws, which prohibit anyone from possessing firearms -- even in their homes -- "unless such person is the holder of a valid registration certificate for such firearm." That's virtually identical to the Washington, D.C. law that the court said was unconstitutional last year, and violations in both cities include criminal penalties.
Deciding whether or not the Second Amendment restricts state and local governments might sound straightforward enough. After all, the First Amendment starts out by saying "Congress shall make no law," but the Supreme Court has interpreted that language to prevent states (and even state universities) from engaging in censorship.
So if much of the rest of the Bill of Rights applies to state governments -- a concept called "incorporation" -- why not the Second Amendment as well?
This topic sounds like one that only a law professor would love, but in the last half-century or so, the Supreme Court has ruled that only "fundamental" rights crucial to "ordered liberty" are incorporated. (A wag might say that the justices were simply picking and choosing portions of the Bill of Rights that they find attractive while ignoring others. Call it the ? la carte school of constitutional law.)
The city of Chicago, in a 43-page brief submitted to the Supreme Court, has argued that the right to own a firearm is not fundamental: "In urban environments, where handgun abuse is so rampant, the protection of a right to handguns simply because they are in common use undermines, rather than guarantees, ordered liberty. It is, instead, the very governmental power to protect residents that is critical to the concept of ordered liberty, since enforcing handgun control laws can make an enormous difference in curbing firearms violence."
In last year's Heller decision, both the majority and the dissenters reviewed the history of ratification of the Second Amendment. This time, when reviewing Chicago's ordinance, they'll likely look to the debate over the 1868 adoption of the Fourteenth Amendment (which is what provides an avenue for the federal Bill of Rights to apply to the states).
Sen. Jacob Howard's speech to the U.S. Senate in 1866 provides a glimpse into what was going through the minds of the people who actually drafted the Fourteenth Amendment. Howard said:
To these privileges and immunities, whatever they may be – for they are not and cannot be fully defined in their entire extent and precise nature – to these should be added the personal rights guaranteed by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right pertaining to each and all of the people; the right to keep and bear arms; the right to be exempt from unreasonable searches and seizures, and from any search or seizure except by virtue of a warrant issued upon a formal oath or affidavit; the right of an accused person to be informed of the nature of the accusation against him, and his right to be tried by an impartial jury of the vicinage; and also the right to be secure against excessive bail and against cruel and unusual punishments. (Emphasis added.)
Stephen Halbrook, a lawyer and historian who has written a book titled Freedmen, the Fourteenth Amendment, and the Right to Bear Arms, has extensively reviewed the debate in the U.S. Congress over extending the right to bear arms to the newly-freed slaves after the Civil War. He concludes: "The framers of that amendment understood from hard experience that the rights to personal security and personal liberty are inseparable from the rights to self defense and to keep and bear arms."
The Fourteenth Amendment was enacted largely to overrule the Supreme Court's infamous Dred Scott v. Sandford (1856) case, which said that if the "large slaveholding states regarded (blacks) as included in the word citizens," then they would be granted rights including the ability to travel freely, the right to speak freely, and "to keep and carry arms wherever they went."
It also was intended to eliminate the notorious black codes, which in some states provided harsher criminal punishments for blacks than whites, regulated domestic relations of blacks, and, in the words of the Supreme Court in a 1964 decision, meant blacks "were not allowed to bear arms." (Justice Antonin Scalia's opinion in the Heller case echoes this, saying: "Blacks were routinely disarmed by Southern States after the Civil War. Those who opposed these injustices frequently stated that they infringed blacks' constitutional right to keep and bear arms.")
There's no guarantee, of course, that the Supreme Court's eventual decision in the current case, called McDonald v. Chicago, will focus on the congressional debates of some 120 years ago. But if you're the betting type, I'd give you good odds that it will.
And here's another bet: If the Supreme Court justices can define a fundamental right to privacy that "is broad enough to cover the abortion decision" and render certain state laws invalid -- even though the words "privacy" and "abortion" appear nowhere in the text of the U.S. Constitution -- would they really want to risk a public outcry by ruling a well-documented right to self-defense is somehow less fundamental?
I'm betting the answer is no. Not even the Supreme Court likes to deviate too much from public opinion and academic consensus, and when you have two-thirds of the states and three-quarters of Americans holding broadly pro-gun views, this would be one grassroots revolt that the justices have no interest in creating.
PS: The next brief from Alan Gura, who is representing the Chicago residents with the help of the Second Amendment Foundation, is due November 16. Chicago's brief is due December 16; the plaintiffs' reply brief is due January 15. Gura said that he expects oral arguments to take place in February 2010.
Declan McCullagh is a correspondent for CBSNews.com. He can be reached at declan@cbsnews.com. You can bookmark the Taking Liberties site here, or subscribe to the RSS feed.
Popular in Politics
- Officials on Benghazi: "We made mistakes, but without malice" 436 Comments
- Anthony Weiner comeback try begins: Running for NYC mayor 105 Comments
- IRS' Lerner: "I have not done anything wrong" 78 Comments
- Major immigration overhaul passes first big test
- Top IRS official to invoke 5th Amendment at congressional testimony 201 Comments
- Will tornado relief funding escape politics?
- U.S. IDs several men possibly responsible for Benghazi attack
- Va. GOP candidate: Planned Parenthood "more lethal" for blacks than KKK 1197 Comments
"A man who won't die for something is not fit to live."
Martin Luther King, Jr.
"How strangely will the Tools of a Tyrant pervert the plain Meaning of Words!"
Samuel Adams
"The liberties of our country, the freedom of our civil constitution, are worth defending against all hazards: And it is our duty to defend them against all attacks."
Samuel Adams
"A general dissolution of principles and manners will more surely overthrow the liberties of America than the whole force of the common enemy. While the people are virtuous they cannot be subdued; but when once they lose their virtue then will be ready to surrender their liberties to the first external or internal invader."
Samuel Adams
"It does not take a majority to prevail ... but rather an irate, tireless minority, keen on setting brush fires of freedom in the minds of men."
Samuel Adams
"If ye love wealth better than liberty, the tranquillity of servitude than the animating contest of freedom, ? go from us in peace. We ask not your counsels or arms. Crouch down and lick the hands which feed you. May your chains sit lightly upon you, and may posterity forget that ye were our countrymen!"
Samuel Adams
I find it tragic that today's quasi-liberals still cling to the KKK-era legacy laws, designed to disarm blacks and other "undesirables."
Like I said, It's a proliferation issue. If there's a buck to be made by moving as much weaponry as possible, scruples go out the window.
Watch "NO GUNS FOR NEGROES" for free at JPFO.org or on youtube!
As for Chicago, you can bet that its handgun ban is completely racially motivated. Whites who want to own guns are in the suburbs -- or nowhere in Illinois at all, given that the state has some of the most restrictive firearms laws of anywhere in the U.S. This handgun ban is all about keeping the black population of the city "in their place," unable to provide for their own security, and aside from the constitutional issue, that's another reason why it must be struck down.
constitutional right to be protected by the state against being
murdered by criminals or madmen." Bowers vs. deVito, U. S. Court of
Appeals, 7th Circuit 686 F. 2d 616 {1982}
The Constitution and the Supreme Court places personal protection directly into the hands and responsibility of the citizen. Without access to firearms, we are nothing more than sheep awaiting the slaughter.
The government has tried to control rather than empower the citizens of America and history has clearly shown that attempts to "control" the people has never worked out for either side...
The second thought is a reminder that the government can not and will not protect the population and can not be a substitute for the right to preserve one's life. As an extension, police are very often as corrupt as the criminals so there is no assumption possible that government is the good guy. Our founding Fathers knew that!
The third thought is that limitations are inherently unfair since we not only have the previously mentioned corrupt cops (and government officials in general) but a large segment of the population who have criminal intent and their weapons can not be removed from their possession and use. If one weapon is removed another takes its place. The honest citizen who surre4nders his right to defend himself is automatically a victim. Of course a citizen who would give up his rights is really a subject and has surrendered all of his rights.
Thus the arguments of government that they are superior to the people are mot. They are not our masters and can not interfere with our fundamental rights.
The potential rulings are irrelevant since the rights are absolute.
I would rather be shot by a "well-meaning but stupid vigilante" than a malicious, evil, violent criminal. How often are well-meaning but stupid vigilantes shooting people and then ask yourself how often criminals are.
Most people that criminals shoot, are people that they know.
Crimes of passion, drug deals gone bad, etc, etc.
It's VERY RARE that someone is shot and killed by a complete and total stranger, for no apparent reason.
If the second amendment were designed to insure the government's keeping a "well regulated militia" then it would have said "the right of the militia to keep and bear arms shall not be infringed". It says "right of the people" for a reason. America had just finished a war for freedom against a government who changed laws at will, refused to listen to its citizens, confiscated private property for use by government officials without compensation, abused its citizens and their families, on and on ad nauseum.
The second amendment SAYS: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
It clearly says that people have the right to bear arms, so that they can act as part of the "citizen militia", to help keep us free. What you on the right don't understand, is that we didn't have a standing military when the constitution was written. Our forefathers relied on CITIZENS to keep the peace, protect us from invaders, etc, etc.
Since we now have NUMEROUS police forces, sheriffs departments, state police / troopes, and a full standing military, the second amendment has been rendered obsolete and irrelevant, since we DO NOT rely on the private citizens, (aka a militia), of this nation to "keep the peace" or "protect us from foreign invaders".