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Second Amendment, Right to Bear Arms: “fully applicable to the states”

McDonald v. City of Chicago, USSC No. 08-1521, 6/28/10

Two years ago, in District of Columbia v. Heller, 554 U. S. ___ (2008), we held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense, and we struck down a District of Columbia law that banned the possession of handguns in the home. The city of Chicago (City) and the village of Oak Park, a Chicago suburb, have laws that are similar to the District of Columbia’s, but Chicago and Oak Park argue that their laws are constitutional because the Second Amendment has no application to the States. We have previously held that most of the provisions of the Bill of Rights apply with full force to both the Federal Government and the States. Applying the standard that is well established in our caselaw, we hold that the Second Amendment right is fully applicable to the states.

The tally is 5-4 in favor of applying the 2nd to the states, with 4 votes in favor of the incorporation doctrine and 1 in favor of the Privileges and Immunities Clause. It’s where you end up, not how you get there, right? (And by the way, the clairvoyant Tom Foley called it months ago.)

Inquiring minds want to know: when will we see judicial invalidation of felon-in-possession? Not so fast. From the lead opinion:

… We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as “prohibitions on the possession of firearms by felons and the mentally ill,” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Id., at ___–___ (slip op., at 54–55). We repeat those assurances here.Despite municipal respondents’ doomsday proclamations, incorporation does not imperil every law regulating firearms.

For its part, the dissent stresses the very limited impact of the result (while nonetheless positing the literal destruction of “our Nation’s communities and … constitutional structure”): “Thankfully, the Second Amendment right identified in Heller and its newly minted Fourteenth Amendment analogue are limited, at least for now, to the home.” Slippery slope greased with paranoia. But it’s not as if the gun-control scheme at issue (Chicago’s ban on virtually all private handgun ownership) was preventing, to coin a florid phrase, the literal destruction of our Second City: “Ten people were killed and at least 44 others were shot across the city Friday night into early Monday, including a baby girl who suffered a graze wound to the neck when gunfire erupted at a Near West Side barbecue.”

But now that you know there’s a basis for asserting the 2nd A, there’s no reason not to. If nothing else, you’ll help prove Doug Berman correct (“I can already predict one of its likely (and most consequential?) impacts:  lots of state court litigation over state criminal laws concerning the possession and use of firearms”). Ditto, Steven Calabresi (“The McDonald holding will lead to a slew of additional challenges against state and municipal laws around the country regulating or restricting the firearms rights of law-abiding citizens.” Law-abiding citizens: that is a bit of a catch, no?)

What about CCW? Post-Heller challenges haven’t fared well, e.g., Garber v. Superior Court, Cal App, 5/13/10. Still, it is worth recalling that our supreme court upheld the CCW ban on the basis it was a “reasonable” regulation, State v. Phillip Cole, 2003 WI 112, ¶¶20-27, whereas Heller rejects the idea that a “core (constitutional) protection (may be) subjected to a freestanding ‘interest-balancing’ approach.” Whether Cole may be reconciled on this score with Heller remains to be seen. But, and it is a very big but, the “core” protection was gun-ownership in the home. Transporting the argument, along with the concealed weapon, outside the home won’t be easy and isn’t made easier by stories such as this one. And that is before considering scholarly views such as Adam Winkler, Scrutinizing the Second Amendment (“the Second Amendment’s individual right to bear arms is appropriately governed by a deferential, reasonableness review under which nearly all gun control laws would survive judicial review”).

the Second Amendment’s individual right to bear arms is appropriately governed by a deferential, reasonableness review under which nearly all gun control laws would survive judicial review
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