Blog: Supremes Shoot Down Chicago Gun Ban

Statement

By:  Blake Farenthold
Date: June 28, 2010
Location: Unknown

I received a newsflash on my Blackberry this morning that the Supreme Court ruled that gun possession is a fundamental right. I headed straight home and read the case.

There are a handful of statements my law professors made while I was at St. Mary's. Two of which are:

* If you are relying on the second amendment to win your case, you lose
* The constitution says what the Supreme Court says it says.

The second of those was the only way I could get an intellectual handle on why many of the rights listed in the bill of rights (plus some not even mentioned in the constitution) are "fundamental rights,' but the second amendment right to keep and bear arms was not. The court took a big step in fixing that today in McDonald v Chicago (http://www.supremecourt.gov/opinions/09pdf/08-1521.pdf). The ruling of the court was:

In [District of Columbia v. Heller 554 US __] , we held that the Second Amendment protects the right to possess a handgun in the home for the purpose of self-defense. Unless considerations of stare decisis counsel otherwise, a provision of the Bill of Rights that protects a right that is fundamental from an American perspective applies equally to the Federal Government and the States…. We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller.

That means the almost total ban on owning handguns in Chicago is an unconstitutional law.

I think this is a huge step in the right direction. Often, Supreme Court decisions don't line up with my common sense reading of the constitution, but this one does. It is a shift towards the courts recognizing the second amendment means you can own guns. Period.

Unfortunately, this was a 5-4 plurality ruling. That means that common sense ruling is only hanging on by one vote.. While I doubt a one justice shift will resulting in overturning Heller and McDonald, I am afraid an Obama appointee will immediately start limiting this fundamental right. The court left some wiggle room that will allow courts some leeway in approving state firearms regulation. I'd hope that by declaring that the 2nd amendment right to bear arms is a fundamental right in examining laws banning firearms the Court would subject gun laws to the same strict scrutiny applied to first amendment laws, but I doubt that will happen. The court reiterated its statement in Heller that, "It is important to keep in mind that Heller, while striking down a law that prohibited the possession of handguns in the home, recognized that the right to keep and bear arms is not "a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." 554 U. S., at ___ (slip op., at 54).

Oh, in case you were wondering, in footnotes the court summarized what constitutional rights do and don't apply to the states under the due process:

The following rights DO apply to the states:

12With respect to the First Amendment, see Everson v. Board of Ed. of Ewing, 330 U. S. 1 (1947) (Establishment Clause); Cantwell v. Connecticut, 310 U. S. 296 (1940) (Free Exercise Clause); De Jonge v. Oregon, 299 U. S. 353 (1937) (freedom of assembly); Gitlow v. New York, 268 U. S. 652 (1925) (free speech); Near v. Minnesota ex rel. Olson, 283 U. S. 697 (1931) (freedom of the press).

With respect to the Fourth Amendment, see Aguilar v. Texas, 378 U. S. 108 (1964) (warrant requirement); Mapp v. Ohio, 367 U. S. 643 (1961) (exclusionary rule); Wolf v. Colorado, 338 U. S. 25 (1949) (freedom from unreasonable searches and seizures).

With respect to the Fifth Amendment, see Benton v. Maryland, 395 12With respect to the First Amendment, see Everson v. Board of Ed. of Ewing, 330 U. S. 1 (1947) (Establishment Clause); Cantwell v. Connecticut, 310 U. S. 296 (1940) (Free Exercise Clause); De Jonge v. Oregon, 299 U. S. 353 (1937) (freedom of assembly); Gitlow v. New York, 268 U. S. 652 (1925) (free speech); Near v. Minnesota ex rel. Olson, 283 U. S. 697 (1931) (freedom of the press).

With respect to the Fourth Amendment, see Aguilar v. Texas, 378

U. S. 108 (1964) (warrant requirement); Mapp v. Ohio, 367 U. S. 643 (1961) (exclusionary rule); Wolf v. Colorado, 338 U. S. 25 (1949) (freedom from unreasonable searches and seizures).

With respect to the Fifth Amendment, see Benton v. Maryland, 395

With respect to the Sixth Amendment, see Duncan v. Louisiana, 391 U. S. 145 (1968) (trial by jury in criminal cases); Washington v. Texas, 388 U. S. 14 (1967) (compulsory process); Klopfer v. North Carolina, 386 U. S. 213 (1967) (speedy trial); Pointer v. Texas, 380 U. S. 400 (1965) (right to confront adverse witness); Gideon v. Wainwright, 372 U. S. 335 (1963) (assistance of counsel); In re Oliver, 333 U. S. 257 (1948) (right to a public trial).

With respect to the Eighth Amendment, see Robinson v. California, 370 U. S. 660 (1962) (cruel and unusual punishment); Schilb v. Kuebel, 404 U. S. 357 (1971) (prohibition against excessive bail).

And the following do not

The only rights not fully incorporated are (1) the Third Amendment's protection against quartering of soldiers; (2) the Fifth Amendment's grand jury indictment requirement; (3) the Seventh Amendment right to a jury trial in civil cases; and (4) the Eighth Amendment's prohibition on excessive fines.

We never have decided whether the Third Amendment or the Eighth Amendment's prohibition of excessive fines applies to the States through the Due Process Clause. See Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U. S. 257, 276, n. 22 (1989) (declining to decide whether the excessive-fines protection applies to the States); see also Engblom v. Carey, 677 F. 2d 957, 961 (CA2 1982) (holding as a matter of first impression that the "Third Amendment is incorporated into the Fourteenth Amendment for application to the states").

Our governing decisions regarding the Grand Jury Clause of the Fifth Amendment and the Seventh Amendment's civil jury requirement long predate the era of selective incorporation.