Building on last year’s Heller decision, the Supreme Court voted 5-4 on June 28 in the McDonald v. Chicago case to incorporate the 2nd Amendment’s protection of gun ownership onto the states via the 14th Amendment. During the Reconstruction Era, relying on the controversial Slaughter-House case, the Cruikshanks, Presser v. Illinois, and Miller v. Texas decisions had expressly stated that the 2nd Amendment did not apply to the various states even though it was binding on the federal government.
The Reconstruction Era Court did not believe that the 2nd Amendment right to bear arms was a privilege or immunity of citizenship as contemplated by the first clause of the 14th Amendment. A plurality of the present Court – Alito, joined by Roberts, Scalia and Kennedy, and with Scalia writing an additional concurrence – navigated around the Reconstruction Era opinions by declaring that the right to bear arms extended onto the states via the Due Process Clause of the 14th Amendment.
The decision to extend using the Due Process Clause is merely a plurality, rather than a majority, because Thomas voted to directly overturn the Slaughter-House-Cruikshanks line and extend the 2nd Amendment via the Privileges and Immunities provision. What this means for us is that, while the Court’s decision to incorporate is binding against the states, there is technically no settled authority on the precise scope of gun regulations that will still pass muster.
Nevertheless, those of us who consider the 2nd Amendment to stand for a defense of individual liberty and self-determination are now more secure in our right to self-defense that was so important to our nation’s founders.
– A.J. SmullenIntern, Center for Effective Justice