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Next summer the United States Supreme Court will hear the case of McDonald v. Chicago, which is a challenge to the constitutionality of the city of Chicago’s gun ban. Similar to the most recent gun rights ruling of District of Columbia v. Heller, in which the Supreme Court declared D.C.’s ban unconstitutional and that the Second Amendment guaranteed an individual right to keep and bear arms, the ruling did not define to what extend the states and their local governments can impose their own gun laws.
We have read of late that a Ninth District Federal Appeals Court reaffirmed that the Fourteenth Amendment “incorporates” the Second Amendment, meaning that the 14th Amendment spells out again that the Privileges or Immunities Clause grants the rights of the Bill of Rights to all legal and lawful citizens. It’s a shame that somehow became necessary.
Jacob Sullum, today in his Townhall article, “From Guns to Butter” gives us his interpretation of how the Supreme Court Justices should see the McDonald v. Chicago case while applying the Fourteenth Amendment.
Last week, the Court agreed to hear a Second Amendment challenge to Chicago’s handgun ban. Since that law is very similar to the Washington, D.C., ordinance that the Court declared unconstitutional last year, it is bound to be overturned, assuming the Court concludes that the Second Amendment applies not just to the federal government (which oversees the District of Columbia) but also to states and their subsidiaries.
We know that at least one Justice does not see the Second Amendment as applying to the states. Justice Sonya Sotomayor, the newest member of the court, in previous rulings and statements has openly said that the federal government does not have the power to force Second Amendment rights onto state and local governments.
As Sullum points out, he believes that it was clearly understood during the ratification process of the Fourteenth Amendment what the intent of such an amendment was for.
They perceived the amendment as a remedy for the oppressive policies of Southern states that sought to deprive freedmen of their basic liberties.
The right to weapons was one of the liberties frequently cited by the 14th Amendment’s backers, since disarmed blacks were defenseless against attacks by Klansmen and local officials. As reflected in post-Civil War legislation that the amendment was intended to reinforce, its supporters also were concerned about economic liberty: the right to own and exchange property, make and enforce contracts, and work in the occupation of one’s choice — all freedoms the Southern states tried to deny former slaves.
McDonald v. Chicago has the potential of being an even bigger case than District of Columbia v. Heller. It would certainly appear to me that any ruling will be a two-edged sword. Should the Court rule as Sullum suggests, this would appear to bode well on those seeking enforcement of the rights guaranteed by the Constitution. However, to some, the downside would be that the ultimate power is given back to the federal government. Where does this leave states in the bid to reclaim state sovereignty?
Some say this is why the Tenth Amendment is so important. The Tenth Amendment is supposed to limit the authority of the Federal Government to only what it is granted under the Constitution. But we know that our Congress has for decades overstepped their authority in the creation of laws far exceeding anything granted them by law.
History has shown us that not always will the High Court in our land rule according to the law. It is always easy to second guess what the Court will do and why and we can only hope that the system of interpreting the laws of the land is upheld.
*Update* For more on the Fourteenth Amendment, see Greg Farber’s “Fourteenth Amendment Summary“.