By Lawrence Rosenthal, Professor of Law, Chapman University School of Law. Professor Rosenthal filed an amicus brief on behalf of the U.S. Conference of Mayors in McDonald v. City of Chicago in support of Chicago.
In its 2008 decision in District of Columbia v. Heller, a closely divided Supreme Court, applying what the majority characterized as "the original understanding of the Second Amendment," invalidated D.C.'s prohibition on the possession of handguns. Relying on eighteenth-century sources, the Court defined the Second Amendment right to "keep and bear arms" as "the individual right to possess and carry weapons in case of confrontation," and held that a prohibition on handguns was unconstitutional. The Court cautioned, however, that the Second Amendment is only a limitation on the powers of Congress, and reserved decision on the question whether it also applied to state and local governments by virtue of the Fourteenth Amendment. The Court noted that its nineteenth-century decisions had refused to apply the Second Amendment to state and local laws, but added that these cases "did not engage in the sort of Fourteenth Amendment inquiry required by our later cases."
The Court will now confront the applicability of the Second Amendment to state and local laws in McDonald v. City of Chicago. At issue is the constitutionality of Chicago's handgun ban. Chicago and its amici rely on the approach to incorporation of the first eight amendments within the Fourteenth that the Court has taken for nearly a century - asking whether a particular right is "implicit in the concept of ordered liberty." Under this approach, many of the rights in the first eight amendments have been incorporated within the Fourteenth Amendment's Due Process Clause - but not all.
Chicago and its amici argue that gun control is a classic example of the argument for federalism. Although the benefits of widespread firearm-ownership in terms of sport, self-defense, and other legitimate pursuits are experienced widely, its costs are concentrated in big cities, which face enormous risks of firearms violence. Urban street gangs, for example, frequently establish territorial drug distribution monopolies enforced by the violence. Firearms are essential to gangs in this endeavor - they enable gangs to police their turf and defend themselves against rivals. Indeed, the crime wave that hit major cities in the late 1980s and early 1990s was largely a function of firearms violence produced as gangs competed to control emerging crack cocaine markets. Since then, a series of studies has demonstrated that police crackdowns targeting those who carry firearms at "hot spots" of urban crime are effective at combating violent crime; New York City has been a particularly conspicuous success. Handgun bans in particular inhibit urban gun markets with surprising success. Recognizing a right to keep and bear arms in the central cities, however, could grant gangs effective immunity from these tactics, imperiling efforts to fight urban crime.
The petitioners in McDonald, supported by the National Rifle Association and other amici, spend little time considering the implications of a right to keep and bear arms for the nation's cities. Instead, they focus on evidence that the authors of the Fourteenth Amendment intended to protect the Bill of Rights against the states under the Fourteenth Amendment's Privileges or Immunities Clause, which protects the "privileges or immunities" of citizens. They attack the Supreme Court's 1872 Slaughter-House decision as incorrectly limiting the scope of the Fourteenth Amendment. Many conservatives cheer this proposed reinvigoration of the Privileges or Immunities Clause, hoping that it will produce constitutional protection for nineteenth-century conceptions of freedom of contract and limited government. Many liberals cheer this same proposal, hoping that it will supply textual grounding for unenumerated constitutional rights they favor, such as the right to abortion.
The history of the Fourteenth Amendment is notoriously untidy. Although there is good evidence that a few of its authors intended its Privileges or Immunities Clause to protect the Bill of Rights, most legislators ignored the issue. There is little evidence that the ratifying states understood the Fourteenth Amendment to incorporate the Bill of Rights; the ratification debates focused on discrimination against the newly freed slaves. Leading legal scholars of the era did not understand the Fourteenth Amendment to incorporate the Bill of Rights; nor did the Supreme Court in its Reconstruction-era decisions.
In embracing originalist constitutional interpretation in Heller, the Court explained that what is critical is not the intent of the drafters, but rather "the public understanding of a legal text." Whether the public developed an incorporationist understanding of the meaning of Privileges or Immunities Clause is, however, open to great doubt. Just as the Court in Brown v. Board of Education termed the evidence of the original meaning of the Fourteenth Amendment "inconclusive" when it came segregation, the conflicting historical evidence on incorporation, coupled with nearly a century's worth of precedent taking a nonoriginalist approach to incorporation, may well lead the Court to reject the historical evidence as a basis for decision.
If the Court deems history inconclusive, it will have to decide whether to deem the Second Amendment an aspect of "ordered liberty." Most observers seem to think that the same five justices who embraced a strong conception of firearms rights in Heller will apply those same rights to the states in McDonald. Still, in McDonald, unlike Heller, federalism will come into play. If the Court is convinced that gun control is one of those issues best resolved at the local level, McDonald could produce an outcome strikingly different from Heller.
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