SCOTUS Takes a Second Look

Supremes Take a Second Look

By Jeff Knox

(October 2, 2009) On September 30, the Supreme Court announced that they were going to review the Second Amendment case McDonald v. City of Chicago and decide whether the Second Amendment applies at the state and local level.  Application of the Bill of Rights to the states has been a long and convoluted battle with the Second Amendment being the last major article left out in the cold.

As originally proposed and applied, the Bill of Rights was an expression of universal, natural rights, but was considered directly enforceable only on the federal government – except that it was a statement of principles to which all of the states in the union agreed.  Over the years there has been wrangling between states and the federal government regarding recognition of these rights, particularly in the years surrounding the Civil War as debates raged over the definition of a citizen and the rights such citizens enjoyed.  Chief Justice Taney presents these rights of citizenship – privileges and immunities – in a clear and unequivocal fashion in his infamous decision in Dredd Scott v. Sanford.  Part of the debate was over whether a person recognized as a citizen by one state was automatically a citizen of the United States and fully possessed of the privileges and immunities of such citizenship.  Justice Taney described these privileges and immunities to include, “the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.”

After the Civil War and passage of the 12th,13th, and 14th Amendments, the battles between Congress and the Supreme Court continued.  First the Reconstruction Congress was defending civil rights and the application of the Bill of Rights to the states while the slower moving Supreme Court fought such moves.  Later it was the Court which was leading the charge against discrimination after Democrats from Southern states came back into power and worked to retain “Jim Crow” laws and block efforts to allow federal interference in state affairs.  In the end, an ungainly structure was cobbled together from bits and pieces like a child’s tree-fort.  This structure is called the “Incorporation Doctrine.”  Under the Incorporation Doctrine, the plain language concerning “privileges and immunities” in the 14th Amendment is basically ignored while selected portions of the Bill of Rights are “incorporated” into the “Equal Protection” clause of that same amendment.  The applicable portion of the 14th Amendment states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

At this point the Supreme Court can go in several directions.  They could simply incorporate the Second into the Fourteenth as has been done with most of the rest of the Bill of Rights. (The most likely outcome.)  They could declare that the “Privileges and Immunities” clause of the Fourteenth Amendment does apply the Bill of Rights directly to the states. (Which would open up a very interesting can of worms, and is thus unlikely.)  Or they could declare that since the Second Amendment – unlike the First – does not include any limiting language about “Congress shall enact no law,” it is directly applicable to the states without need of any other supporting structure. (Also unlikely.)  They could also rule that the Second Amendment does not apply to the States in which unlikely event there could be rioting in the streets and declarations of secession from some of the Western states.

The case should be argued in February or March with a decision announced in June.  No one knows what the outcome will be, but whatever it is, it will not keep the efforts to restore liberty from rolling forward.

 

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