Tomorrow the U.S. Supreme Court will hear arguments in a historic gun rights case. In McDonald v. City of Chicago, the justices will hear arguments as to whether the Second Amendment right to keep and bear arms is applicable (or is “incorporated”) to the states through the Fourteenth Amendment.
When the Bill of Rights was adopted in 1791, it only secured rights of American citizens against actions of the federal government. When the Fourteenth Amendment was ratified in 1868 after the Civil War, the Fourteenth Amendment extended most—but not all—of the Bill of Rights against the states (and against cities, since cities aren’t sovereign, and instead are just political subdivisions of the states).
Although both conservatives and libertarians agree that the right to bear arms should be incorporated, this case also shows a deep split between the two camps. Conservatives argue that the Court should incorporate either through the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment, but that the Court should only go through the latter route if it can do so without overruling a huge 1873 case called the Slaughter-House Cases. The libertarians are arguing that the Court should definitely go through Privileges or Immunities, and should overrule the Slaughter-House Cases, which would open the door to fundamentally and forever change the entire federal-state system of government in this country.
So the split here is whether this case should be about gun rights, or instead reworking our entire system of government in a way that empowers federal judges to start striking down all sorts of state laws that have nothing to do with guns.
McDonald v. Chicago is as big as it gets. I’ll be at oral arguments at the Court on March 2, and will file a report Tuesday afternoon.
Ken Klukowski is a fellow and senior legal analyst with the American Civil Rights Union, and covers the U.S. Supreme Court for Townhall.com.