Last week, the Supreme Court heard oral arguments in McDonald v. Chicago, a unique gun-rights case that has the potential to change years of bad legal precedent. Not only will the case decide whether the Heller v. D.C. decision in 2008 will apply to states, but also whether it can be via the Privileges and Immunities Clause of the 14th Amendment.
The 14th Amendment, which was added to the Constitution in 1868, was intended to prevent the states from violating individual rights. At the time, the Bill of Rights only bound the federal government, and Southern states and localities in the Reconstruction Era were finding it difficult to treat the newly freed slaves as U.S. citizens or recognize all the rights that that status entails.
The Privileges and Immunities Clause, which is of particular importance in the McDonald case says that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”
One of those privileges or immunities is the 2nd Amendment right to bear arms. But like the Bill of Rights, the 2nd Amendment only applies to the federal government. However, because the Privileges and Immunities clause was grossly misinterpreted only a few years after its ratification, most of the Bill of Rights has had to be incorporated to the states via due process.
But by trying to incorporate the Heller decision to the states through the Privileges and Immunities clause, Alan Gura, the lawyer arguing the case, is trying to restore the clause back to its original intent.
While it appears likely that the people of Chicago will soon be able to obtain handguns, it doesn’t look as though the Supreme Court will embrace the idea of reversing more than a hundred years of bad legal precedent by restoring the Privileges clause. Even Chief Justice John Roberts and Justice Antonin Scalia- who recently restored the freedom of speech with their decision in Citizens United v FEC- seemed skeptical about doing so.
But the questions that are at stake in McDonald v Chicago are more fundamental and philosophical than whether or not a city can ban guns. At its core, the case tests the bounds of federalism.
If the states are sovereign and independent entities that can govern as they see fit, how much can the fed really force them to do? Or in other words, should the federal government be able to force the states to recognize rights? The answer is yes, but only under certain conditions.
For the federal government to be able to force states to recognize a specific right, that right must be fundamental, essential to liberty, and easily identifiable and definable. The test that determines that comes from the 1997 case, Washington v Glucksberg.
In that case, the Supreme Court decided that the right to assisted suicide is not covered by the Due Process Clause. Why? Because assisted suicide is not deeply rooted in our nation’s history. Nor can it be defined with particularity. The Glucksberg test is recognized by both sides of the aisle as being able to determine previously unprotected rights that can be incorporated to the state by due process.
And while it seems that McDonald v Chicago will pass the test in the summer of 2010, the ramifications will last for years. Some fear that if states are forced to rescind bans on handguns, it will only open the floodgates for hundreds of civil rights lawsuits. On the flip side, if Chicago’s gun laws are upheld, what else could cities get away with criminalizing? It is cause for worry for Conservatives who support gun rights, but also believe strongly in states’ rights as well.
Yes, the federal government should force the states to uphold a Constitutionally-recognized right like the right to bear arms, but how far do privileges and immunities go? Do they include things like drug legalization, gay marriage, abortion, affirmative action, or eco-friendliness? Could the federal government start forcing states to allow any of the aforementioned controversial issues?
Most would say no; that those things wouldn’t pass the muster when it comes to the Glucksberg test. They’re probably right, but even the door is opened to frivolous lawsuits, it’s a small price to pay for finally giving the 2nd Amendment the respect and rule of law that it deserves. The only unfortunate part of the McDonald v Chicago case is that the Supreme Court passed up the opportunity to return the 14th Amendment back to its originMcDal meaning.
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Amanda Carey is the Editor of The Tiger Town Observer at Clemson University. She has previously worked for Robert Novak and has been published in Reason Magazine and The American Spectator.
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