Monday, June 28, 2010

Second Amendment Limits State And Local Restrictions On Guns

The U.S. Supreme Court by a very narrow 5-4 decision authored by Justice Samuel Alito, McDonald v. Chicago, has once again struck a blow for the right of Americans to possess guns under the Second Amendment of the U.S. Constitution. Today's decision voids a Chicago ordinance that bans its citizens from possessing handguns. Two years ago, the Supreme Court ruled in a 5-4 decision, D.C. v. Heller, a similar D.C. ordinance violated Americans' rights to keep and bear arms under the Second Amendment. That decision left open whether laws enacted by state and local governments were subject to the same restriction imposed on the federal government. Four justices in the Heller decision said the Second Amendment only applied to a person's right to keep and bear arms in connection with service in a government militia. Internet traffic on the SCOTUS blog must be overwhelming today. I've not been able to get a connection to the site since the ruling was handed down. It is interesting that the Court's four most liberal judges, Stevens, Ginsburg, Breyer and Sotomayor, in the case of the Second Amendment, find themselves in the position of arguing that the Second Amendment does not apply with the same force to the states as the other rights enumerated in the Bill of Rights. They typically rely on the Fourteenth Amendment to extend the rights afforded by the Bill of Rights to have similar force and effect when applied to the states.

Justice Antonin Scalia offers a stinging criticism of Justice Stevens' dissenting opinion in his own concurring opinion on what provisions of the Bill of Rights the 14th Amendment does or does not incorporate and apply to the states:

Rights that pass his test include not just those“relating to marriage, procreation, contraception, family relationships, and child rearing and education,” but also rights against “[g]overnment action that shocks the conscience, pointlessly infringes settled expectations, trespasses into sensitive private realms or life choices withoutadequate justification, [or] perpetrates gross injustice.” Not all such rights are in, however, since only “some fundamental aspects of personhood, dignity, and the like” are protected. Exactly what is covered is not clear. But whatever else is in, he knows that the right to keep and bear arms is out, despite its being as “deeply rooted in this Nation’s history and tradition,” I can find no other explanation for such certitude except that JUSTICE STEVENS, despite his forswearing of “personal and private notions,”, deeply believes it should be out.

5 comments:

Indy Student said...

What I want to know is if this will encourage our CCC to lift the ban on citizens to carry their handguns in city parks.

Advance Indiana said...

Nope. I'm sure they will see that as a reasonable restriction permitted by the Court. People can still rely on the Indiana Constitution, which has a differently worded but equally distinguishable fundamental right to possess a gun.

Michael said...

Darn that pesky Constitution!!!

Cato said...

Great news. Some of the statements in the dissent are terrifying. Liberals truly are horrible people. They act nice, I suppose, but when they speak with their true voice, the most horrible things are said.

Marv said...

As much as I hate gun control I hate the over reaching application of the 14th Amendment even more.

The founding fathers did not intend for the Bill of Rights to be a check on the powers of state and local government, rather only on the power of Congress to regulate freedom of religion, speech, right to bear arms, etc. However, the 14th Amendment and the Supreme Court's interpretation of it has turned the Founder's intentions upside down.


What many "so called conservatives and libertarians" forget is that any federal government powerful enough to ban abortion or gay marriage or to tell state and local governments they can not pass laws that impede gun ownership is a federal government powerful enough to say abortion or gay marriage is a right or that the right of the individual to own arms does not exist. These are issues best left to be addressed and regulated at the local level.