This case is based upon the 1982 law in which Chicago enacted a handgun ban, along with other firearms regulations, because “the convenient availability of firearms and ammunition has increased firearm related deaths and injuries” and handguns “play a major role in the commission of homicide, aggravated assaults and armed robbery.” Chicago City Council, Journal of Proceedings, Mar. 19, 1982, at 10049. Under Chicago’s ordinance, “[n]o person shall . . . possess . . . any firearm unless such person is the holder of a valid registration certificate for such firearm,” and no person may possess “any firearm which is unregisterable.” Unregisterable firearms include most handguns, but rifles and shotguns that are not sawed-off, short-barreled, or assault weapons are registerable. Registerable firearms must be registered before being possessed in Chicago and registration must be renewed annually. Failure to renew “shall cause the firearm to become unregisterable.”
The case has been narrowed to a question of whether the 14th amendment “privileges and immunities” and “due process” clauses incorporate the 2nd amendment. At it’s core, the issue is whether the states rights overrule the Federal regulations. The Slaughter-house decision of 1873 is very prominent. The point in the Slaughter-house decision is: “the distinction between citizenship of the United States and citizenship of a state is clearly recognized and established” The Petitioners counsel argues “SlaughterHouse’s illegitimacy has long been all-but-universally understood. It deserves to be acknowledged by this Court. Because SlaughterHouse rests on language not actually in the Constitution, contradicts the Fourteenth Amendment’s original textual meaning, defies the Framers’ intent, and supplies a nonsensical definition for Section One’s key protection of civil rights, overruling this error and its progeny remains imperative. No valid reliance interests flow from the wrongful deprivation of constitutional liberties. The reliance interest to be fulfilled remains Americans’ expectation that the constitutional amendment their ancestors ratified to protect their rights from state infringement be given its full effect.”
The Petitioners case is based upon the incorporation of the 2nd amendment into the 14th amendment. They claim that “the right should be deemed a privilege or immunity of national citizenship even under the test set forth in The Slaughter-House Cases. Thus, even if the Court declines to incorporate the Second Amendment through the Due Process Clause of the Fourteenth Amendment, it should still incorporate it through the Privileges or Immunities Clause. Their argument is centered upon the rights of the individual as seemingly incorporated across the history of the United States.
Many, myself included, are opposed to giving the Federal government the power to impose regulatory oversight on the States, for the same reasons that I would oppose giving the United Nations the power to impose regulatory standards on the U.S. I believe that states should be able to determine what is best for the individuals living within the state regardless of the desire of the Federal Government. This presents opposition to Gura’s argument based upon the 14th amendment and I would rather see the argument made based upon the merits of the 2nd amendment alone.
The respondents case is focused on the first sentence of the 14th amendment. "All persons born and naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State where they reside" The question is whether the right "to keep and bear arms" is a "privilege" of citizenship or is part of the "liberty" protected by the 14th Amendment. The Respondents claim that “neither the Court’s selective incorporation doctrine under the Due Process Clause nor the Privileges or Immunities Clause provides a basis for imposing the Second Amendment on the States and establishing a national rule limiting arms regulation.” Respondents claim “local differences are to be cherished as elements of liberty rather than extirpated in order to produce a single, nationally applicable rule,” and “[f]ederalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon.”
They infer that the terms incorporate severance rather than inclusivity. In other words, the states have the right to infer regulations which are more or less restrictive than Federal regulations. Neither argument, in my opinion, considers the rights of the individual wqhich is the basis for the decision o in DC vs. Heller.
In DC vs. Heller, which only 2 years ago ruled in favor of the 2nd amendment, the question of whether the states have the right to restrict gun ownership was left unanswered. This is the question which McDonald is seeking to answer. Perhaps it will require the incorporation of the 14th amendment to make the case. If so, I hope that the ruling is limited to the priviledges and immunity clause rather than including the due process clause as well. This will identify the right to “keep and bear arms” as a right of the individual and not a right bestowed by the Federal or State government to the people. I worry that expanding the decision to include the “Due Process” clause will open the door to Federal expansion and limit both the rights of the state and of the individual.
The case has been narrowed to a question of whether the 14th amendment “privileges and immunities” and “due process” clauses incorporate the 2nd amendment. At it’s core, the issue is whether the states rights overrule the Federal regulations. The Slaughter-house decision of 1873 is very prominent. The point in the Slaughter-house decision is: “the distinction between citizenship of the United States and citizenship of a state is clearly recognized and established” The Petitioners counsel argues “SlaughterHouse’s illegitimacy has long been all-but-universally understood. It deserves to be acknowledged by this Court. Because SlaughterHouse rests on language not actually in the Constitution, contradicts the Fourteenth Amendment’s original textual meaning, defies the Framers’ intent, and supplies a nonsensical definition for Section One’s key protection of civil rights, overruling this error and its progeny remains imperative. No valid reliance interests flow from the wrongful deprivation of constitutional liberties. The reliance interest to be fulfilled remains Americans’ expectation that the constitutional amendment their ancestors ratified to protect their rights from state infringement be given its full effect.”
The Petitioners case is based upon the incorporation of the 2nd amendment into the 14th amendment. They claim that “the right should be deemed a privilege or immunity of national citizenship even under the test set forth in The Slaughter-House Cases. Thus, even if the Court declines to incorporate the Second Amendment through the Due Process Clause of the Fourteenth Amendment, it should still incorporate it through the Privileges or Immunities Clause. Their argument is centered upon the rights of the individual as seemingly incorporated across the history of the United States.
Many, myself included, are opposed to giving the Federal government the power to impose regulatory oversight on the States, for the same reasons that I would oppose giving the United Nations the power to impose regulatory standards on the U.S. I believe that states should be able to determine what is best for the individuals living within the state regardless of the desire of the Federal Government. This presents opposition to Gura’s argument based upon the 14th amendment and I would rather see the argument made based upon the merits of the 2nd amendment alone.
The respondents case is focused on the first sentence of the 14th amendment. "All persons born and naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State where they reside" The question is whether the right "to keep and bear arms" is a "privilege" of citizenship or is part of the "liberty" protected by the 14th Amendment. The Respondents claim that “neither the Court’s selective incorporation doctrine under the Due Process Clause nor the Privileges or Immunities Clause provides a basis for imposing the Second Amendment on the States and establishing a national rule limiting arms regulation.” Respondents claim “local differences are to be cherished as elements of liberty rather than extirpated in order to produce a single, nationally applicable rule,” and “[f]ederalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon.”
They infer that the terms incorporate severance rather than inclusivity. In other words, the states have the right to infer regulations which are more or less restrictive than Federal regulations. Neither argument, in my opinion, considers the rights of the individual wqhich is the basis for the decision o in DC vs. Heller.
In DC vs. Heller, which only 2 years ago ruled in favor of the 2nd amendment, the question of whether the states have the right to restrict gun ownership was left unanswered. This is the question which McDonald is seeking to answer. Perhaps it will require the incorporation of the 14th amendment to make the case. If so, I hope that the ruling is limited to the priviledges and immunity clause rather than including the due process clause as well. This will identify the right to “keep and bear arms” as a right of the individual and not a right bestowed by the Federal or State government to the people. I worry that expanding the decision to include the “Due Process” clause will open the door to Federal expansion and limit both the rights of the state and of the individual.
The justices were surprisingly animated and seemed skeptical of any attempt to restrict the rights of the individual. They seemed to wonder, based upon their questions, why they should reconsider their finding in DC vs. Heller, that the rights granted in the 2nd amendment flowed to the individual. It will be interesting to see how the opinion comes down, but my guess is that there will probably be another five/four vote to reverse the decision of the Chicago court and affirm the individual right to own firearms without addressing the question of the 14th amendment Due Process and priviledges clauses
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