Does the 2nd Amendment govern states & localities?

(CCU Faculty) In 2008, in the case of District of Columbia v. Heller, the Supreme Court decided that the highly restrictive gun control laws of Washington, D.C. were in violation of the 2nd Amendment of the Constitution. In so deciding, the Court issued a somewhat narrow opinion stating that the 2nd Amendment was offended by the decision of the federally-administered District of Columbia. What went unanswered was the extent to which the 2nd Amendment applies to all state and local government ordinances.

Immediately following the Heller decision, opponents of two very restrictive laws in Chicago and its neighboring suburb Oak Park, Illinois were challenged. The case, which will be argued on Tuesday before the Supreme Court, will focus on this very straightforward question: does the Second Amendment apply to state and local laws, or just to those passed by Congress or the federal establishment of Washington, D.C.?

To many, this may seem like a silly question. When most people consider the Bill of Rights, which includes our protections concerning speech, press, religion, speedy trials, jury of peers, etc., we have great confidence that each item listed in the Bill of Rights is secure, regardless of whether we are operating under federal, state or local ordinances. This interpretation was not, for much of our nation’s history, the understanding of our Bill of Rights.

In 1833, the U.S. Supreme Court issued an opinion in the case of Barron v. Baltimore, in which it established a precedent of “dual citizenship.” Briefly, the case had to do with a local wharf in the Baltimore Harbor where Mr. Barron co-owned land. The wharf had been open to ships docking and loading/unloading goods. In the process of constructing roads, the city of Baltimore diverted local streams which led to a buildup of sand and debris, making Mr. Barron’s wharf unusable by many ships. In response, Barron sued the mayor of Baltimore, arguing that a “taking” of his rights had occurred, in violation of the 5th Amendment protection concerning eminent domain, and that he must be given compensation for this. In a unanimous opinion, the Supreme Court rejected Mr. Barron’s argument, stating that the Bill of Rights applied to Federal Government actions and not the states: “amendments contain no expression indicating an intention to apply them to the State governments. This court cannot so apply them.”

Based upon this ruling, states need not guarantee Bill of Rights protections unless their individual state constitutions included such protections. All of this began to gradually change following the passage of the 14th Amendment to the Constitution, specifically Section 1 which states: “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.”

Following this amendment’s addition to the Constitution, the Supreme Court began the gradual process of “selective incorporation.” By this, the Court has interpreted the phrases concerning “privileges and immunities” and “due process of law” to require that specific components of the Bill of Rights be protected not just by the Federal government, but also by state and local officials. Gradually, over the course of more than one hundred years, the Supreme Court accepted individual cases and “selectively incorporated” the protection. Cases familiar to many include Gitlow v. New York (1925, Free Speech), Near v. Minnesota (1931, Free Press), Mapp v. Ohio (1961, Search and Seizure) and Miranda v. Arizona (1966, Access to Counsel). These have all been cases where the Supreme Court has “incorporated” Bill of Rights protections using the 14th Amendment to require state and local governments to protect these liberties.

What to this day has not been incorporated, even with the Heller opinion, is the 2nd Amendment. In fact, lower court rulings, including some from the 7th Circuit Court of Appeals in which the current Illinois cases originate, have found the opposite: that the 2nd Amendment does not speak to state and local ordinances concerning gun control. Rather, it applies exclusively to the Federal Government.

The Case of McDonald v. Chicago presents the Supreme Court with the opportunity to correct these lower court decisions and to ensure that the 2nd Amendment protection of “keeping” arms should not be infringed by any level of government.

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