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March 19th, 2010


Capitol DomeBy Nathan Tucker

Should state and local governments obey the Second Amendment? That is the question the Supreme Court must decide after it heard oral arguments recently in a lawsuit challenging the constitutionality of Chicago’s gun laws. That seemingly simple question doesn’t necessarily have a correspondingly simple answer.

Nearly two years ago in the Heller case, the Court struck down the District of Columbia’s gun laws as too restrictive and, in so doing, ruled that the Second Amendment guarantees individuals the right to own a gun for private use. Answer solved, right? Simply determine if Chicago’s laws are too restrictive and, if so, rule them unconstitutional.

Unfortunately, it isn’t that simple. On their face, the Bill of Rights, including the Second Amendment, do not restrict state and local governments, only the federal government. These first ten amendments to the Constitution were passed as a compromise by our Founders in order to ensure the document’s ratification.

Without the Bill of Rights, it is doubtful that the new government would have been formed due to fears over the powers the federal government would possess. These amendments were only intended to restrict the power of the federal government over the individual, and in fact begin with the words, “Congress shall make no law…” The Supreme Court affirmed this understanding early in our history in the Barron case.

But how is it that we constantly hear about all kinds of state and local laws being challenged for violating the Constitution? Every year there are reports about a school board being sued in one town for saying a prayer before its session, a student suing his school board for denying his free speech rights in school, or a strip club filing suit against a local ordinance it believes violates its free speech rights. And, of course, there are the litany of criminal rights—Miranda, for instance—that restrict the actions of local law enforcement.

It is because the Court, beginning in 1897, has selectively chosen which provisions in the Bill of Rights it believes should be “incorporated” against state and local governments. The 14th Amendment prohibited States from denying individuals the due process of the law, and the Court has used this clause to make most, but not all, of the Bill of Rights binding on state and local governments.

One of the few remaining rights that has not yet been “incorporated” is the Second Amendment, and that is what this case, McDonald v. Chicago, is all about. It is extremely likely that the justices will never decide (at least in this round of appeals) whether or not Chicago’s laws are too restrictive under the Second Amendment. Instead, the only question is whether the Second Amendment applies to Chicago at all.

The Court’s ambiguous criteria for selective “incorporation” against state and local governments is that the particular right at issue be fundamental to ordered liberty. Clear as mud, isn’t it? But why is it then that the Second Amendment has been left out when it is the only provision of the Bill of Rights that declares its own essential link to liberty and a free society? Its preamble clearly states this right is “necessary to the security of a free state.”

If we are going to make the Bill of Rights binding on the States, we should do so with all its enumerated rights. Not some of them. Not most of them. But all of them. If the Founders determined that these rights were essential enough to be included in the first ten amendments, then they certainly should be essential enough to apply to the States as well.

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About the Author

Nathan W. Tucker
Nathan W. Tucker is a Davenport attorney and author of We The People: The Only Cure to Judicial Activism. He can be contacted at [email protected]

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