This is the fourth and last article in our series of articles previewing upcoming Supreme Court cases. You can read the first here, the second here, and the third here.

Image Credit: Keary O.

For my last Supreme Court preview, I’ll cover a Second Amendment case that bears watching.  The case is McDonald v. Chicago, and it stems from a recent Second Amendment case out of Washington DC, District of Columbia v. Heller, that made some huge Constitutional waves.

Understanding the significance of McDonald and its predecessor case, Heller, requires a bit of knowledge of how Constitutional Law works.

Most of the Bill of Rights applies only to Congress, the President, and the Courts.  For example, the First Amendment only states that “Congress shall make no law abridging the freedom of speech”.  It says nothing about state action.  So why are states subject to the First Amendment? Well, that has to do with the Fourteenth.

The Fourteenth Amendment states that states shall not deprive people of life, liberty, or property.  Over time, the courts have rules that some rights are so fundamental to existence, that they no conceivable process of law is legitimate enough to justify their removal.  This has led to some constitutional rights that by their text apply only to Congress being applied to the states.  Legal scholars refer to these rights as being “incorporated” into the Fourteenth Amendment, and the logical justification is called the Incorporation doctrine.

It’s important to know that only some rights are incorporated into the Fourteenth Amendment.  For example, states are not required to get a grand jury indictment before proceeding with a criminal action, despite that being a right granted in the Fifth Amendment.  State-level civil litigants are also not entitled to a jury trial despite the Seventh Amendment.  Finally, and most importantly for our purposes, the Second Amendment’s right to bear arms was never incorporated against the states.

Part of the reason the Second Amendment hasn’t been incorporated against the states comes from a series of cases construing the Second Amendment as a collective rather than an individual right.  Prior courts have concluded that the preamble to the Second Amendment, (”A well regulated Militia, being necessary to the security of a free State”) shows that the right to bear arms is limited to what is necessary to preserve the nation from an outside invader or internal rebellion.  Since this is the purpose of the Amendment, the logic continues, individuals do not have a right to bear arms absent some connection to the purpose, like membership in the National Guard or something.

Needless to say, this interpretation was controversial for a number of reasons.  For starters, a number of historians point out that many of the weapons used by the militias referred to by the preamble were privately owned and used for many more things by their owners than just protecting the colonies.  Secondly, many argue that the preamble is being read too narrowly: that an individual using a weapon to protect his individual rights is just as necessary to the security of a free state as protecting it from a foreign army or an armed rebellion.

All of this changed recently with a Supreme Court case in 2008 called District of Columbia v. Heller.  The District of Columbia had one of the most restrictive gun laws in the nation, basically banning all handguns within the District, and required that shotguns and rifles be kept unloaded, disassembled, or with a lock preventing the trigger from being pulled.  This law was challenged by several residents of the District.  In its opinion, the Supreme Court ruled that the Second Amendment bestows individuals with a right to own weapons such as handguns for traditional legal uses like self-defense.

The Court didn’t say whether other courts should incorporate this right against the states because it wasn’t necessary.  The District of Columbia isn’t a state; its governed by itself and Congress.  There’s no state government to incorporate the right against.  However, other cities have similarly strict gun laws, including the city of Chicago.  Since Heller, a number of individuals sued to have Chicago’s handgun ban overturned just as DC’s ban was overturned.

Unfortunately for these individuals, Heller cannot be applied directly, and so the Court must decide to incorporate the individual right to bear arms against the states in order to overturn the ban.  However, McDonald also raises an interesting alternate point in which could bypass the entire incorporation question entirely by overturning the decision that required the Courts to use the due process clause of the Fourteenth Amendment instead of the Privileges and Immunities Clause of the same Amendment.  

While its unlikely the Court would do so, it could adopt this line of reasoning, which would completely undo the incorporation doctrine in favor of concluding that the Fourteenth Amendment’s language stating that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States” means that any right a person has that applies to the Federal government also applies to it against a state government.

Personally, I’d love to see a more expansive reading of the Bill of Rights against the states.  Switching from a selective incorporation framework to the privileges and immunities framework seems like a really good step in that direction.  It might be a bit of an overstep: I don’t know if requiring grand jury indictments before criminal proceedings are really necessary for states.  But overall, I can’t say more individual liberties is a bad thing. 

Now, I’ve never been particularly passionate about guns.  The last time I fired one I was 11 or 12.  My father gave me a 12-gauge to fire and it knocked me back 3 feet and killed a blue jay.  But I’m an individualist at heart, and subscribe to a fairly literal reading of the Constitution.  I like the logic of the privileges and immunities clause over the incorporation doctrine.  And the Second Amendment would probably have to be applied against the states in that case.  Is it an outcome I wildly love or hate?  No.  But it’s a sensible one given the laws that can or should be applied.