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Supreme Court rules Second Amendment applies to states

By Hillary Stemple

[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday ruled [opinion, PDF] 5-4 in McDonald v. Chicago [Cornell LII backgrounder; JURIST report] that the Due Process Clause of the Fourteenth Amendment makes the Second Amendment [texts] right to bear arms applicable to the states as well as the federal government. The case arose over a city of Chicago ordinance effectively banning the possession of handguns. The US Court of Appeals for the Seventh Circuit upheld the handgun ban [opinion, PDF; JURIST report], emphasizing that the Supreme Court had not directly ruled on the application of the Second Amendment to the states. Justice Samuel Alito, delivering the opinion of the court, cited the court's 2008 opinion in District of Columbia v. Heller [opinion, PDF; JURIST report] and reversed and remanded the case for further proceedings, stating:

In Heller, we held that the Second Amendment protects the right to possess a handgun in the home for the purpose of self-defense. Unless considerations of stare decisis counsel otherwise, a provision of the Bill of Rights that protects a right that is fundamental from an American perspective applies equally to the Federal Government and the States. We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller.

Justice Clarence Thomas wrote a concurring opinion, in which he argued for incorporation under the Privileges and Immunities Clause of the Fourteenth Amendment rather than the Due Process Clause. Justice Antonin Scalia also wrote a concurring opinion. Justice John Paul Stevens wrote a dissenting opinion, arguing that the question of incorporation was previously settled by the court and that the only remaining question is whether the right to bear arms is a fundamental right. Justice Stephen Breyer, joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor, also dissented.

Based on Heller, the court's ruling was somewhat expected. In Heller, the court ruled that the Second Amendment bestows upon citizens, an individual right to own firearms for lawful purposes, but that the right is not unlimited. Chicago's mayor has previously defended the law [AP report] and indicated that the city would continue trying to limit gun possession in a constitutional manner. During oral arguments, counsel for the city of Chicago, argued against application [JURIST report] of the Second Amendment to the states on the basis that state and local governments have historically been "primary locus" of gun control.

Full post as published by JURIST - The Paper Chase on June 28, 2010 (boomark / email).