Right to Bear Arms

Floor Speech

Mr. UDALL of New Mexico. Mr. President, last week, the Supreme Court heard oral arguments in the McDonald v. City of Chicago case.

Despite much of the rhetoric surrounding this case, McDonald v. Chicago isn't a case about gun control. It is a case about our constitutional, fundamental rights as Americans.

Our freedoms in the Bill of Rights--including those of speech and religion and the press--are incorporated by the 14th amendment. They cannot be infringed upon by the states. The Supreme Court ruled on that issue long ago.

The issue in McDonald is whether an individual's second amendment right to keep and bear arms must be protected against State infringement. The case follows the Court's landmark 2008 ruling in District of Columbia v. Heller. In Heller, the Court--for the first time--ruled that the second amendment protects an individual's right to keep and bear arms.

There is precedent dating back more than 100 years that reaffirms that the second amendment applies only to the Federal Government. However, in 1873, the Court began to develop modern incorporation doctrine principles. These principles were used to determine if amendments apply to the States through the due process clause of the 14th amendment.

The Court in McDonald is likely to use the modern incorporation doctrine, rather than simply uphold precedent from its previous second amendment cases.

The Supreme Court in Duncan v. Louisiana summarized the modern incorporation doctrine, stating, ``the question has been asked whether a right is among those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions ..... whether it is basic in our system of jurisprudence ..... and whether it is a fundamental right, essential to a fair trial.''

I believe the second amendment right to bear arms is a fundamental, constitutional right of law-abiding Americans. And, like most of the Bill of Rights, it must also be protected from unreasonable state restrictions.

Since the Heller decision, three appellate courts have addressed whether the second amendment applies to the States. Two of the courts, the Second and Seventh Circuits, followed Supreme Court precedent. They held that the second amendment only applies to the Federal Government. This was not because the judges were in favor of gun control--as many tried to state during Justice Sotomayor's confirmation hearing. Instead, it was because they showed judicial restraint. They recognized that only the Supreme Court should overturn its own precedent. In the third case, the Ninth Circuit failed to follow Supreme Court precedent. Instead, it applied modern incorporation principles. It held that the second amendment is incorporated by the 14th amendment and protected against State infringement. Although I think the Ninth Circuit should have followed precedent, I agree with their analysis.

I would emphasize this: Even if the Court decides that the second amendment does not apply to the States, citizens do not need to worry that people are going to start taking away their firearms.

Forty-four State constitutions contain provisions addressing the right to bear arms. Most of these are much clearer than the Federal Constitution. They were adopted more recently and address specific issues such as concealed carry laws.

New Mexico's Constitution states: No law shall abridge the right of the citizen to keep and bear arms for security and defense, for lawful hunting and recreational use and for other lawful purposes, but nothing herein shall be held to permit the carrying of concealed weapons. No municipality or county shall regulate, in any way, an incident of the right to keep and bear arms.

I am confident that our citizens' right to bear arms will continue, regardless of the McDonald decision. However, I believe that the Court will hold that the second amendment is incorporated by the 14th amendment.

When the Court asks whether the right to bear arms is ``among those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions ..... and is deeply rooted in this nation's history and tradition,'' I have no doubt in the conclusion they will reach.

Source