On March 2, the Supreme Court heard arguments on whether the Second Amendment applies to states, or instead is only a right against the federal government. Although it looks like America’s gun owners are going to win this case—largely thanks to the National Rifle Association—there’s some big questions as to exactly how the Court is going to decide this case, and what it means for all of us.
The U.S. Supreme Court heard arguments today in McDonald v. City of Chicago. It follows on the heels of the 2008 District of Columbia v. Heller decision, where by a 5-4 vote the Court struck down D.C.’s absolute ban on handguns and other readily-usable firearms. McDonald is a challenge to the Chicago gun ban, which—although not quite as severe as the ban in Heller—is nonetheless for all practical purposes a complete ban on guns, even in the home.
So the question in McDonald is whether the Second Amendment right to bear arms applies to the states. When the Bill of Rights was adopted in 1791, it originally only secured rights against the federal government. When the Fourteenth Amendment was adopted in 1868 after the Civil War, it extended most—but not all—of the Bill of Rights to also apply to the states, and political units of the states, such as cities. The legal term is that the Fourteenth Amendment “incorporates” rights against the states.
As the federal capital city, Washington, D.C. is directly under federal law, so Heller did not involve incorporation. So incorporation is instead the question before the Court today concerning Chicago.
What was so interesting in the argument today is how the pro-gun camp is split on this case. The traditional route for incorporating rights is through the Fourteenth Amendment Due Process Clause, which is why the NRA—which was also a party in this case—argued for this approach.
But the libertarian activists arguing this case for Otis McDonald and his co-plaintiffs were instead arguing for the Court to incorporate the right to bear arms through the little-used Privileges or Immunities Clause of the Fourteenth Amendment, and in doing so to overrule one of the biggest Supreme Court decisions of all time, called the Slaughter-House Cases, from 1873. These activists made clear that they also support incorporation through the Due Process Clause, but devoted the vast bulk of their briefs and argument time to pushing Privileges or Immunities.