ACRU Senior Legal Analyst Ken Klukowski wrote this column appearing on Townhall.com on June 29, 2010.
On June 28, the Supreme Court handed down the most consequential decision of this term in the historic gun-rights case, McDonald v. Chicago. Now the Second Amendment right to own a gun extends against every level of government, in a complex 5-4 decision that shows President Obama is using the Supreme Court to push a gun-control agenda.
After the 2008 Heller case holding that the Second Amendment secures an individual right, the biggest question for anyone working in constitutional law was simple: Does the Second Amendment provide a right only against the federal government, or does it also provide a right against state and local governments?
When the Bill of Rights went into effect in 1791, it only secured rights against the federal government. When the Fourteenth Amendment was ratified in 1868, it extended many federal rights—including most of the Bill of Rights—against the states and states' subdivisions (counties and cities).
But the states are separate sovereigns. In the following decades, the Court held that only those rights that are fundamental rights can trump state sovereignty, limiting the power of state and local governments.
The city of Chicago has a gun ban as restrictive as the one the Court struck down in DC. So in McDonald the Court was finally confronted with whether the right to keep and bear arms is one of these fundamental rights.
In a lengthy opinion (totaling over 200 pages), the Court held in a narrow 5-4 decision that the right to keep and bear arms is a fundamental right. As a result, the Chicago gun ban has suffered the same fate as DC's, but that's where agreement ends.
Contrary to many press reports, the Court could not agree on why the Second Amendment applies to the states. The Court agreed that the right to own a gun is fundamental, and so applies to the states. Because it applies to the states, the city law that bans all guns—such as the law in Chicago—cannot stand.
But that's the end of the Court's holding. In an opinion written by Justice Sam Alito, four justices went the straightforward route argued by the NRA that the Second Amendment is part of the Fourteenth Amendment Due Process Clause, which is the approach that the Court has used since 1897.
Justice Clarence Thomas, the most conservative justice on the Court, declined to go along with that approach. The Due Process Clause route, called substantive due process, is at root a liberal activist theory contradicted by the history and original meaning of the Constitution. Justice Thomas instead argued that the Court should apply the right to bear arms through the Fourteenth Amendment Privileges or Immunities Clause, which was the way the Framers of the Fourteenth Amendment designed it.
The four liberal justices dissented in what should be a shocking move. Given how the Court extended First Amendment rights such a free speech and religious freedom, Fourth Amendment rights against search and seizures, and Fifth Amendment rights against self-incrimination, the Second Amendment should have been a foregone conclusion.
The four liberal justices nonetheless set forth elaborate arguments as to how and why the right to own a gun is not fundamental, and therefore cities and states should be free to regulate them in any fashion, or even completely ban them. Justice Stevens wrote his own dissent for his last day on the bench. Justice Breyer wrote another dissent, which Justice Ginsburg and Justice Sotomayor joined in full.
What's interesting about that is it contradicts what Sonia Sotomayor said during her confirmation hearings just last year. In response to the question of whether it is settled that the Second Amendment secures an individual rights, Sotomayor told Judiciary Committee Chairman Pat Leahy, "Yes, sir."
Really? How does that square with the dissent? The one that said, "I can find nothing in the Second Amendment's text, history, or underlying rationale ... to protect the keeping and bearing arms for private self-defense purposes." Although that statement only concerned whether the right to own a gun is fundamental, the dissent also said that the Court should consider overruling Heller altogether.
Those statements are consistent with the decisions Sonia Sotomayor joined when she was an appeals judge on the Second Circuit. Those were the decisions that led defenders of the Second Amendment to oppose her confirmation to the Supreme Court.
Heller and McDonald are only the beginning. There are many important questions remaining about the meaning of the Second Amendment. Those questions will be answered by whoever sits on the Supreme Court over the next thirty years. McDonald is a reminder that the biggest battles over the Second Amendment will now be won or lost in the courts.
That being the case, senators should ask some very serious questions about the Second Amendment during Elena Kagan's confirmation hearings this week.