The Second Amendment
“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.“
Section 1 of the Fourteenth Amendment
“Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
As Robert has mentioned in past posts, the Supreme Court’s gun control cases cause agitated discussions within the Pierce household. This agitation is centered in Robert’s inability to make a personal interpretation of the Second Amendment. In the end, he throws up his hands and cannot decide what the words of that amendment mean in practice. Mira is a good listener and reminds Robert of how things ought to be.
On June 28, the Supreme Court issued a decision in McDonald et al. v. City of Chicago, Illinois, et al. The Court ruled that the Fourteenth Amendment makes the Second Amendment right to keep and bear arms fully applicable to the States. This means that a State or local government, as well as Congress, may not infringe your right to keep and bear arms.
The McDonald case was brought by the gun lobby against the City of Chicago’s handgun control ordinances. It is the logical follow-on to the Heller decision issued by the Supreme Court two years ago. In the Heller case, the Court made the core holding that the Second Amendment prevents Congress from infringing an individual’s right to keep and bear a handgun for the purpose of personal safety. This is what the gun lobby had been moving toward for years. McDonald now holds that States and local governments are equally restricted. Both Heller and McDonald address points of constitutional law that the Federal courts had done their best to avoid since the Bill or Rights was written.
You can read the McDonald opinion here.
Here are some portions of the syllabus of the case.
“(d)
The Fourteenth Amendment makes the Second Amendment right to keep and bear arms fully applicable to the States. Pp. 19–33.
(1)
The Court must decide whether that right is fundamental to the Nation’s scheme of ordered liberty, Duncan v. Louisiana, 391U. S. 145, 149, or, as the Court has said in a related context, whether it is “deeply rooted in this Nation’s history and tradition,” Washington v. Glucksberg, 521 U. S. 702, 721. Heller points unmistakably to the answer. Self-defense is a basic right, recognized by many legal systems from ancient times to the present, and the Heller Court held that individual self-defense is “the central component” of the Second Amendment right. 554 U. S., at ___, ___. Explaining that “the need for defense of self, family, and property is most acute” in the home, ibid., the Court found that this right applies to handguns because they are “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” id., at ___, ___–___. It thus concluded that citizens must be permitted “to use [handguns] for the core lawful purpose of self-defense.” Id., at ___. Heller also clarifies that this right is “deeply rooted in this Nation’s history and traditions,” Glucksberg, supra, at 721. Heller explored the right’s origins in English law and noted the esteem with which the right was regarded during the colonial era and at the time of the ratification of the Bill of Rights. This is powerful evidence that the right was regarded as fundamental in the sense relevant here. That understanding persisted in the years immediately following the Bill of Rights’ratification and is confirmed by the state constitutions of that era, which protected the right to keep and bear arms. Pp. 19–22.
(2)
A survey of the contemporaneous history also demonstrates clearly that the Fourteenth Amendment’s Framers and ratifiers counted the right to keep and bear arms among those fundamental rights necessary to the Nation’s system of ordered liberty. Pp. 22–33.
(i)
By the 1850’s, the fear that the National Government would disarm the universal militia had largely faded, but the right to keep and bear arms was highly valued for self-defense. Abolitionist authors wrote in support of the right, and attempts to disarm “Free-Soilers” in “Bloody Kansas,” met with outrage that the constitutional right to keep and bear arms had been taken from the people. After the Civil War, the Southern States engaged in systematic efforts to disarm and injure African Americans, see Heller, supra, at ___. These injustices prompted the 39th Congress to pass the Freedmen’s Bureau Act of 1866 and the Civil Rights Act of 1866 to protect the right to keep and bear arms. Congress, however, ultimately deemed these legislative remedies insufficient, and approved the Fourteenth Amendment. Today, it is generally accepted that that Amendment was understood to provide a constitutional basis for protecting the rights set out in the Civil Rights Act. See General Building Contractors Assn., Inc. v. Pennsylvania, 458 U. S. 375, 389. In Congressional debates on the proposed Amendment, its legislative proponents in the 39th Congress referred to the right to keep and bear arms as a fundamental right deserving of protection. Evidence from the period immediately following the Amendment’s ratification confirms that that right was considered fundamental. Pp. 22–31.
(ii)
Despite all this evidence, municipal respondents argue that Members of Congress overwhelmingly viewed §1 of the Fourteenth Amendment as purely an anti discrimination rule. But while §1 does contain an anti discrimination rule, i.e., the Equal Protection Clause, it can hardly be said that the section does no more than prohibit discrimination. If what municipal respondents mean is that the Second Amendment should be singled out for special—and specially unfavorable—treatment, the Court rejects the suggestion. The right to keep and bear arms must be regarded as a substantive guarantee, not a prohibition that could be ignored so long as the States legislated in an evenhanded manner. Pp. 30–33.
