Analysts are predicting at least a partial victory for gun rights after the Supreme Court heard oral arguments Tuesday in McDonald v. Chicago, a case about the city’s draconian hand-gun ban that could have major implications for state and local firearm regulations across the nation. But even some supporters of the right to keep and bear arms have been critical of the strategy pursued.

Attorney Alan Gura, who argued against the ban on behalf of Otis McDonald and others, told the Supreme Court that it should strike down the unconstitutional hand-gun restrictions. He said the Court should force state and municipal governments to respect Second Amendment protections by “incorporating” the right to keep and bear arms using the “privileges or immunities” clause of the 14th Amendment. But this strategy differs from past arguments for incorporating the Bill of Rights against the states in an important way.  

Using just the due process clause of the 14th Amendment would be enough to overturn Chicago’s anti-gun ordinances, argued Gura. But there are other reasons for it as well, he told the justices.

“In 1868, our nation made a promise to the McDonald family that they and their descendants would henceforth be American citizens, and with American citizenship came the guarantee enshrined in our Constitution that no State could make or enforce any law which shall abridge the privileges or immunities of American citizenship,” Gura explained during his opening argument.

In the past, the Supreme Court has usually relied on the “due process” clause of the 14th Amendment to force states to recognize various rights. But for the Court to go along with Gura’s “privileges and immunities” argument, it could have to overturn the landmark “Slaughterhouse-House” rulings that protected a butchering monopoly created by the state of Louisiana and held that the “privileges or immunities” clause affected only rights pertaining to U.S. citizenship.

"The Privileges or Immunities Clause could be used as a source for judicial activism unlike anything America has ever seen," warned the conservative American Civil Rights Union on its website. The non-profit organization, which filed a brief in support of McDonald, argued that while the Court should incorporate the Second Amendment against the states using the privileges and immunities clause, it should not overturn the Slaughter-House decisions as proposed by Gura.

But while some conservatives oppose the idea of reversing that historic decision, an informative Washington Times article about the debate entitled "Gun rights lawyer gives hope to liberal causes" noted that some “progressive” groups are joining with Gura in calling for the court to strike down the Slaughter-House ruling.

"[Progressives] cannot afford to absent themselves simply because the first beneficiary of the demise of Slaughterhouse may be a conservative cause, Second Amendment rights," explained a report from the Constitutional Accountability Center, a liberal organization which filed a brief in support of Gura’s argument. Critics argue that such a reversal could pave the way for the Court to extend all sorts of “rights” including abortion, healthcare, and gay marriage, and that it would disrupt the proper federal-state relationship.

Other analysts are crying foul on the move to strike down Chicago’s hand-gun ban for different reasons.

“The Bill of Rights was never intended to be a list of individual rights, but a list of things the federal government could not do to the states,” explained Jack Hunter in an article entitled "Gunning Down the Constitution" for The American Conservative. “The 2nd amendment does not apply to the Chicago gun ban because the federal government is not involved — nor should it be.” So while the ban may be “ridiculous,” Hunter claims people should oppose the Court striking it down “because this decision would trample the most important right of all — that of the states to limit the power of the federal government.”

But not so, according to constitutional attorney Edwin Vieira, Jr., who has prevailed in three cases before the U.S. Supreme Court.

“Both the original Constitution and the Second Amendment made abundantly clear that ‘the right of the people to keep and bear Arms’ applies to every level of government, without exception, throughout the United States,” he wrote in an analysis of the case for The New American entitled "The Second Amendment, The States, and the People":  “Indeed, the original Constitution actually required both the General Government and the States, not just to protect, but also affirmatively to promote, that exercise. This is because the original Constitution incorporated within its federal structure ‘the Militia of the several States.’”

Vieira argues that the even though a legislative solution would be preferable, “even under the Supreme Court’s misconceptions about the 14th Amendment, ‘the right of the people to keep and bear Arms’ should be held applicable to the States.”

During the hearing, a majority of Justices seemed like they were at least partially swayed by Gura’s arguments. Justice John Paul Stevens, however, was concerned that applying the Second Amendment in full against the states could end up giving people "the right to parade around the streets with guns." Justice Stephen Breyer thought the true issue boiled down to guns versus life. "Here, every case will be on one side guns, on the other side human life," he said.

But regardless of what the public thinks, the Court is widely expected to incorporate the Second Amendment against the states while allowing “reasonable” restrictions to remain intact. What the definition of “reasonable” might be is still not known.

There is good news related to gun rights, too, however. While Chicago continues to defend its infringement upon the unalienable rights of its residents, states across the Union are defying federal government regulations by passing state laws nullifying some of those restrictions. Montana, Utah, and Tennessee have all passed versions of the “firearms freedom act” into law, voiding most federal rules against guns manufactured and kept in their respective states. Many other states are working on it as well. And public opinion is solidly in favor of less gun control, not more.

So while the anticipated Supreme Court decision may represent a partial victory to some, and an unconstitutional infringement on the powers of state governments to others, the future of gun rights in America generally looks brighter than it did just a few years ago. After all, more and more Americans are beginning to appreciate that the right to keep and bear arms is an unalienable gift from their Creator which “shall not be infringed” by government. And that is encouraging news. 

 

 

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Ross Wolf said:

Americans Without Guns Would Be Defenseless Against a Tyrannical Government Without Guns, How Would Americans Resist the Unconstitutional Actions of a Proposed Federal Police Stabilization Force? A recently disclosed NGO Rand Corporation Report provided the U.S. Army might appear to suggest a hybrid military “National Police Stabilization Force.” On its face the Rand report appears directed at protecting national security. But importantly, Citizens without semi automatic weapons would be helpless to defend themselves against a tyrannical federal police rapid deployment Stabilization Force violating their Constitutional Rights. The suggested “National Police Stabilization Force” would appear controlled by the Feds and might incorporate local and state police. In retrospect, Hitler created a “Civilian National Security Force”, the Gestapo the contraction of Geheime Staatspolizei for "Secret State Police." In 1934 the Gestapo was placed under SS leader Heinrich Himmler Chief of German Police. Then in 1939 all German Police agencies were put under the control of the "Reich Main Security Office” the equivalent of U.S. Homeland Security. You might read information about the Rand Report to determine if its suggestions resemble aspects that lead to Nazi consolidation of German local and federal law enforcement and the Secret Police put under its “Main Security Office.” The recently suggested U.S. "National Police Stabilization Force" could potentially be sent into any State, against the wishes of its Citizens? States need to have the power to refuse entry to potential Shock Troops. To better clarify the Rand Corporation report visit: http://www.wnd.com/index.php?fa=PAGE.view&pageId=122533

March 05, 2010

Thomas Puterbaugh said:

... We as Americans do have the right to defend ourselves. We are heading in the direction of most European countries. While middle eastern allow there citizens to keep whatever guns they wish for private use, we are restricting our own people. I feel the government would rather have us over defeated by the arabs.

March 05, 2010

Jody Bourque said:

us vs them Our founding fathers would not even recognize the by the people for the people government they created.Lest we forget all of our problems are created and sustained by a mere 545 people i.e congress, senate ,supreme court and last but not least the Pres.Tell me how we have allowed such a small group of people deliver to the brink of desruction a nation of over 300 million people.If we continue to allow the sytemic destruction of our constitution by electing people who basically lie when they say they will defend the constition and instead ignore it for their own gain i.e. money or power. We as a people whose Life,Libery and the pusuit of happiness is given by God and it can not be infringed upon,we must remember no Government can give you what is already yours Freedom as attested to by the millions of our fighting men & women who have given their lives to maintian this the GREATEST NATION on EARTH.What a mockery to them it would be if we allow our America to be destroyed from the inside.

March 05, 2010

Steve Cunningham said:

... the bill of rights the first 10 amendments are protection from the federal gov't .. if a state wants to ban something that is on the state to decide. in this case the Illinois constitution has defense of this so this problem should have been struck down by the state court & never been made to SCOTUS. if the state decides to make a law then people have the right to move to another state. if the federal gov't puts something into law then where can we go? the supreme court has become waaaay too powerful with interpretation of things that aren't there. by the way the 14th amendment is for freed slaves not the right to kill babies, gay sodemy, or anything else someone deems is a right. California wants to bas cussing .. should we go after them for freedom of speech?! no. Cali can do what they want

March 08, 2010