U.S. Supreme Court to Hear Key Second Amendment Case

By: Andrew McRoberts, Editor. This was posted Friday, October 2nd, 2009

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This week, the U.S. Supreme Court announced the cases it would hear in its fall term. The case of most interest to state and local governments is McDonald v. City of Chicago.

The McDonald case is much more significant to state and local governments than last term’s District of Columbia v. Heller, ___ U.S. ___, 128 S.Ct. 2783 (2008), which applied the Second Amendment to federal regulations of conduct in the District of Columbia. There, the Supreme Court held that the Second Amendment guaranteed a personal right to bear arms that was infringed by a federal ban on handgun ownership in the District of Columbia. At issue now is whether that holding in Heller should be extended to an individual right to bear arms against infringement by state and local government regulations.

On its face, the Second Amendment only applies to protect rights against intrusions by the federal government. But then again, so does most of the Bill of Rights. The only two amendments in the Bill of Rights not to be extended to the states under the due process clause of the Fourteenth Amendment are the Fifth Amendment (requiring indictment by grand jury) and the Eighth Amendment (ban on excessive bail).

The specific question presented in the writ in the McDonald v. City of Chicago case is “Whether the Second Amendment is incorporated into the Due Process Clause or the Privileges and Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home.” The City of Chicago has an ordinance very similar to the federal ban on handguns in D.C., which was overturned in the Heller case.

Many legal scholars believe there is a five-vote majority of justices to extend the Second Amendment to the 50 states and their political subdivisions, the local governments, including of course the City of Chicago.

Given the very restrictive language in the Virginia Code regarding local gun regulation and the powerful force of the Dillon Rule in Virginia, there are fewer local gun ordinances in Virginia than in some states. This is some good news. However, if the Supreme Court rules as many expect, this may open the door for lawsuits in federal court challenging state statutes (and some local ordinances) that deal with who may own guns and under what conditions. An example is the Commonwealth’s “five day waiting period.” So the state and local governments may have to prepare for the litigation to ensue.

Another issue in McDonald v. City of Chicago which is perhaps of even greater interest to state and local governments is how the U.S. Supreme Court may extend the Second Amendment to apply to them. As noted above, all but two of the early amendments of the U.S. Constitution have been applied to the states by means of the Due Process Clause of the Fourteenth Amendment. Some Supreme Court watchers have called for the Court to instead use the Fourteenth Amendment’s Privileges or Immunities Clause, which states that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Both portions of the Fourteenth Amendment are raised in the question presented.

On the other hand, some other Supreme Court watchers are asking, “Whatever happened to the Tenth Amendment?” It has been perhaps the most famously ignored of the original Bill of Rights. The Tenth Amendment says, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

As the U.S. Supreme Court hears this and similar issues in the near future, it will be shaping the future course of state-federal relations and determining the 21st century life of federalism and states’ rights. These issues have framed many critical debates since our republic’s earliest days. It will be interesting to watch as this debate unfolds.

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