Mark down Tuesday, March 2 on your calendar. That is the day the case McDonald v. Chicago goes before the Supreme Court. This is a big case any way you look at it. It is to decide whether the Second Amendment, which was found to safeguard an individual right in the 2008 Heller case, applies to States and Local governments.
This would seem obvious, but in the twists and turns of the law, it actually isn’t. Until after the Civil War, the Bill of Rights was not generally considered to limit State and Local governments. It was only after the Civil War and the ratification of the 14th Amendment that State and Local governments became, theoretically, subject to the restrictions of the Bill of Rights. I say theoretically, because the Supreme Court hasn’t held that the Bill of Rights as a whole applies to States and Local governments. Through the doctrine of Selective Incorporation, the Court has applied pieces of the Bill of Rights to the States, but hasn’t applied any of it that hasn’t been specifically applied. The Second Amendment is one of these pieces of the Bill of Rights that has, so far, been ignored by the Court.
That is likely to change this spring. The Court is likely to incorporate the Second Amendment into the 14th, and then apply that to the Chicago gun ban. The gun ban will be gone, but what that will mean to us as citizens will depend on the reasoning that the Justices apply to this incorporation. The 14th Amendment is as follows:
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.
Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Much of it is just functional changes in government structure, but the first section is where the meat of selective incorporation comes in. I have bolded two sections: the clause “abridge the privileges or immunities of citizens of the United States’ and the clause “deprive any person of life, liberty, or property, without due process of law”. The latter clause is how selective incorporation has worked for the last 150 years or so. This is how rights to such varied things as sodomy and abortion have been found in the Constitution. What hasn’t been used is the privileges and immunities clause. McDonald specifically asks the Court to revisit this. If the Court were to find that the Second Amendment should be incorporated through the privileges and immunities clause, well, that will be a big thing. As big as Brown v. Board of Education (ending school segregation) big. That is all the marbles there.
The other issue for civil rights is the degree of scrutiny that the Court applies under judicial review (the act of the Court evaluating the case in question). There are several levels of this. Rational basis, intermediate scrutiny, and strict scrutiny are the three most common terms that you will see. They are in order of stringency, with rational basis being lowest and strict the highest. Strict scrutiny is the highest level of stringency in our judicial system. If the Court uses the privilege and immunities clause, the scrutiny level must still be set. Heller deliberately did not set this bar at any level. The Court may do the same, but we can hope for more.
Privileges and immunities and strict scrutiny are the whole ball of wax. If the Court were to hold that, most if not all gun control laws would be invalidated, at least in theory. It will be a huge milestone. The jurisprudence of the Second Amendment in the United States is mixed, and is very sparse right now. But the momentum of public and scholarly opinion is on our side. It won’t happen tomorrow, or even Tuesday, but the securing of our full Second Amendment rights through the Courts is possible. It may take a great leap forward this spring.
