Taking Liberties
November 17, 2009 1:08 PM

Second Amendment Protects All Americans, Supreme Court Told

By
Declan McCullagh
Topics
Gun Rights
(WCBS)
Gun rights advocates have sketched out arguments they hope will convince the U.S. Supreme Court that no state can be a Second Amendment-free zone.

In a 73-page legal brief filed on Monday, the groups representing four Chicago residents asked the Supreme Court to overturn the city's extremely restrictive firearms laws, some of the most severe in the nation.

"It is unfathomable that the states are constitutionally limited in their regulation of medical decisions or intimate relations, because these matters touch upon personal autonomy, but are unrestrained in their ability to trample upon the enumerated right to arms designed to enable self-preservation," says the brief, written by attorneys Alan Gura of Alexandria, Va. and David Sigale of Lisle, Ill. on behalf of the Second Amendment Foundation.

Translation: Even though abortion is not mentioned anywhere in the U.S. Constitution, courts have nevertheless declared it to be a fundamental right. Shouldn't the Second Amendment, which originally was requested by more states than the First Amendment was, receive at least equal treatment?

Much of the brief -- the vast majority, in fact -- reads more like a history textbook than appellate writing. Gura and his co-counsel use that space to recount, in exhaustive detail, how the post-Civil War measure called the Fourteenth Amendment was designed to protect anyone's fundamental rights from being infringed by state governments. Their argument, which I wrote about last month, traces the Fourteenth Amendment's "privileges or immunities" concept through American history and offers contemporaneous evidence that it protects gun rights against infringements by states and municipalities.

Some background: the Second Amendment, of course, says that Americans' right to "keep and bear arms" shall not be infringed. Last year's decision in D.C. v. Heller applied that prohibition only to the federal government and federal enclaves like Washington, D.C., but left open the question of "incorporation" -- that is, what state laws were permissible or not.

As a result, in the wake of Heller, anti-gun court decisions have proliferated. There's the Maryland appeals court that concluded residents enjoy no constitutional gun rights (Maryland's constitution is silent on the topic), a similar New Jersey ruling, and another one from Illinois.

Because the Supreme Court already has specified that the Second Amendment protects an individual right, the current case will center on the original meaning of the Fourteenth Amendment. Stephen Halbrook, a lawyer and historian who has written a book titled Freedmen, the Fourteenth Amendment, and the Right to Bear Arms, has 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."

At some level, gun rights are like abortion rights: Every justice likely has an opinion on the Second Amendment, meaning attorneys for the city of Chicago and the Second Amendment Foundation won't be persuading as much as offering arguments that members of the court can adopt as their own. (Justice Sonia Sotomayor appears to hold the same not-very-gun-friendly position as David Souter, whom she replaced.)

Neither side expects a revolutionary outcome. Laws barring felons and the mentally ill from owning firearms will stay on the books. The majority opinion won't emphasize a constitutional right to manufacture or purchase fully-automatic weapons.

But those are examples on the extremes, and many state and local ordinances target law-abiding gun owners planning to buy something less powerful than, say, a Solothurn S-18/1000 anti-tank gun. Which laws will stand, and which won't? Assuming that the justices agree that the Second Amendment applies to states, the most important sentence from the opinion will be the one instructing lower courts on where, exactly, to draw the line.
Declan McCullagh is a correspondent for CBSNews.com. He can be reached at declan@cbsnews.com and can be followed on Twitter as declanm. You can bookmark Declan's Taking Liberties site here, or subscribe to the RSS feed.

  • Declan McCullagh is the chief political correspondent for CNET. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.

Add a Comment See all 20 Comments
by kd7ouy November 28, 2009 10:17 PM EST
There you go, another bone head drowning in his own self proclaimed intelligence, or should I just call it what it is, "stupidity" I get so tired of these pedant, idiots! You spew out all of this nonscense about muskets and ammunition limitation, and as usual, like all "anti gunners", you miss the reason for the second ammendment by a google plex. The right to bear arms was really created as a means for the people of this country to protect themselves from a tyrannical government! Which, if you think about it, seems our government's disposition on gun ownership is a little fishy. Why else would the Govnmt. be so set on taking our guns away if complete control wasn't their eventual agenda, given all the reports on gun crimes, foriegn gun sales (to places like South America), and the rest of the Govmnts. rhetoric. It is very well known (by the Govmnt.), to be exactly that, "rhetoric"!! Every single one of those reports, surveys, and thier associated figures, are negativly exagerated to the extreme, by the Government, and sadly supported, and thus grotesqly mis-reported by the Media. The truth about guns is this, In the hands of the good law abiding citizen, they are an effective deterrent to violent crimes, like assault, rape, and home invasion, which is much higher in places like Chicago. And in the hands of the legal gun owner, guns can and do save lives. The other truth about guns, is that criminals will always have access to them through the black market, oh, and in case you didn't know, criminals don't obey any of those gun laws you guys keep coming up with, that are supposed to help stop gun crime. Those laws are only obeyed by the law abiding gun owners. We all know the result of the law abiding citizens leaving thier legally owned weapons at home, while attending school in Virginia. one or more of them lost thier lives along with many others, at the hand of a murderer, who chose to ignore your life saving gun laws! Wow, what a shock. By the time you anti-gun, anti commen sense people figure out the cost of your stupidity, it will be too late. We will be living within a dictatorial society plagued with violent crime, that will make the crime of today look like a joke, and stripped of our contitutional right to own the only weapon that would have effectivly allowed us to protect ourselves, and our loved ones. You and your brainiac buddies need to step out of fantasy land and step into reality land, before you rationalize us all into a hole we can't dig our way out of. Funny, I don't remember anyone I attended my University with, being so pusilanamous
Reply to this comment
by Master Tom November 25, 2009 6:51 PM EST
If a conservative decides not to buy or own a firearm..they don't buy one!

If a liberal decides not to own or buy a weapon...they want to BAN EVERYONE from gun ownership.
Reply to this comment
by jpr9954 November 23, 2009 6:58 PM EST
I think Declan must have been reading John Ross's "Unintended Consequences". Otherwise, I doubt he would have made reference to a Solothurn S-18/1000. Unfortunately, as Ross's protagonist Henry Bowman would tell you, the Solothurn is classified as a destructive device subject to the National Firearms Act.
Reply to this comment
by djartz-2009 November 18, 2009 12:31 PM EST
"Assuming that the justices agree that the Second Amendment applies to states, the most important sentence from the opinion will be the one instructing lower courts on where, exactly, to draw the line." Whoever actually expects this question to be answered is bound to be disappointed. In the first place, the question of where to draw the line isn't properly before the Court, just as it wasn't before the Court in Heller. Once the Court has determined that the Second Amendment is or is not enforceable against the States, its job is completed. Indeed, in McDonald v. City of Chicago, the gun regulation at issue is, just as it was in Heller, a complete ban on the possession of all guns, it doesn't take much to reach the conclusion that such a Ban violates the Second Amendment. Anything else the Court says (like Scalia said in Heller) about not casting doubt on laws which prohibit felons or minors or mentally unstable people from owning guns is simply dicta added to make opponents feel less horror at the idea that people might be allowed to own guns. The line drawing will be left to many, many lower court cases, and is likely to drag on for years.
Reply to this comment
by bruce691 November 18, 2009 8:06 AM EST
I am a democrat and I love President Obama. I also support the 2nd amendment. Pres. Bush and the tea-baggers have taught me how important it is. I am a pro-gun democrat. I would never hunt animals though.
Reply to this comment
by bubbadubba November 18, 2009 7:54 AM EST
<<<I don't see a problem with limiting ammunition.>>>

Great point. They could limit cell phone batteries and computer monitors as a way to censor communication too!
Reply to this comment
by bubbadubba November 18, 2009 6:50 AM EST
The US Constitution protects all of it's Citizens it was written for?
Really?
I thought the government could pick and choose who it applies to and when like Bush did.
I guess you learn something new every day.
Reply to this comment
by alliberty November 18, 2009 11:49 AM EST
I didn't know the terrorist KSM was a US citizen. Has Bush gathered all muslims and put them in internment camps like FDR did to Japanese Americans in WW2?
by MikeSettles November 18, 2009 6:48 AM EST
Will the Justices of SCOTUS have the intestinal fortitude to overturn bad precident and Progressive Political Correctness and return to the Constitution and Bill of Rights?
THAT is the $64 question!
Reply to this comment
by tmittelstaed November 18, 2009 3:32 AM EST
I don't see a problem with limiting ammunition. Back in the 1700's when the US Constitution was written, guns were muskets, and people cast their own bullets and loaded their own guns. The brass and bullet is a modern invention and people don't have to use it, they can go buy black powder guns and load them themselves. Or, they can reuse their brass and cast and reload their own bullets.

Of course, doing it this way would limit gun ownership to people who actually CARE enough about their guns to understand how they work, and cut out the white trash beer and trailerpark crowd.
Reply to this comment
by alliberty November 18, 2009 12:15 PM EST
There were no modern printing press either; all were hand cranked. There was no TV or internet. So you must agree that the modern printing press, TV, and the internet can be censored by the state? Only whites had a vote back then too. So it's okay to disqualify minorities and woman the right to vote? There was no 14th Amendment during the signing of the Constition so only the US Congress can't censore but any state can under the 1st Amendment.

Where is the US Constitution that says the gov. can limit ammunition? Nowhere.

Unlike you the Founding Fathers knew that gun technology was constantly improving. While their fore fathers used match lock muskets the militia and the Continental army used flint lock muskets that had either smooth bore or the much more accurate Kentuckey rifled bore. Without the evolution of rifling the Founding Fathers would not have been able to shot at a longer range then the British Redcoats who fired from smooth bore muskets.
by bobrobertsrepair November 25, 2009 3:29 PM EST
I find your comment moderately offensive. I support the individual right of law abiding Americans to own and use firearms as provided by the second amendment of our constitution. I have a 4-year degree and some graduate education. I have reloaded my own ammunition on occasion. I lived in poverty in a trailer park (due to medical hardship after a bad accident). Their were "trashy" people in my trailer park, and some of them were NOT white. Others among us were merely suffering economic hardship. Esp. retired people. Generalizations and prejudice are not helpful.
by brianbwb-2009 November 18, 2009 2:03 AM EST
Gun nuts are an inconsistent lot, when the federal government tries to regulate, they scream "states' rights", but when a state does the same, they scream for federal protection.

Let us apply the common limit of mentally ill, that should cover those who support our current pointless, wars, as well as the ethnically and religiously intolerant.

About a good 85% of all Americans would then be unable to own guns.
Reply to this comment
by nextgenman09 November 18, 2009 4:43 AM EST
Same with Anti-abortionists. Its the typical Stoopid American. They hate big government interference until they love big government interference. The latest hoot bumpkin episode was when the Town Hall Tea Baggers were screeching about how they hated Government Socialized Medicine until they were screeching in DEFENSE of Government Socialized Medicine in the form of Medicare!!
by declanm-2009 November 18, 2009 11:02 AM EST
"Gun nuts" may be inconsistent if they followed your line of reasoning, but I suspect they instead say: The U.S. Constitution exists. That is a good thing. In general the Constitution limits the power of the federal government but in some cases it limits the power of the states. Now, let's follow it.

Of course then the debate shifts from (alleged) inconsistency to constitutional interpretation.
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