Supreme Court has taken up a Second Amendment case, the outcome will surely create changes in the way Americans are allowed to acquire firearms, what rules will be in play and what role cities and states will have in the right to own a gun.
In part the Second Amendment reads; a well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.
Not only was this right given to all citizens of the U.S. for self-defense, but also the founding fathers wanted its citizenry to never fear their government.
The case currently before the High Court, McDonald verses Chicago, will take on the issue that states can regulate the ownership of handguns. McDonald a retired military man was stripped of his rights to own a handgun because Chicago passed stringent gun ownership rules. He is fighting back.
“It’s a basic question,” says the plaintiff Otis McDonald. “If these 12-13-year-olds can walk up and down the street with guns, I should be able to own one. I’ve paid my taxes and I have worked all my life. I have been open to governments and I’ve served my country in the Army. Why is it I can’t own a hand gun to protect my home?”
Many say this case has been a controversial issue the Supreme Court has not wanted to open for more than 200 years, but the pendulum of change is swinging in America.
The stakes are high and anyway you look at it the rules in the second Amendment will change.
Think of it as building a house. First you have to dig a hole, this is what the Heller case did when it ruled; “The Court recognized in the Heller case that the Second Amendment protects an individual right of a U.S. citizen in a federal enclave, so it is no stretch that a U.S. citizen would enjoy that same right anywhere in the United States,” according to Gun Owners of America who follow gun rights cases.
This case set up the pouring of the cement phase or foundation phase that now resides in the Supreme Court’s hands known as the McDonald case. All that is left is the architectural design or what the house will look like. The Court will first determine if the rights exist and then they will set up the regulations gun owners and states must abide by.
Activists behind McDonald explain that the reason they are pushing the Supreme Court to overrule another case called Slaughter-House has nothing to do with guns. Instead, these activists want to advance a libertarian agenda, in which federal judges could sit in judgment of state and local laws involving labor, employment, business regulations and other economic issues having nothing to do with guns.
Currently the Constitution is silent on these matters and Court members could be ruling in the favor of activists who want the courts to start declaring constitutional rights against such things, therefore giving federal judges the power to strike down laws of this sort that the judges don’t agree with.
While most agree the make up of the court assures at least a 5-4 ruling in favor of McDonald, Clayton Cramer, an expert in gun laws says this issue will come down to the 14th Amendment.
The dilemma with this approach is it could endanger gun rights. Most attorneys agree the narrower your focus when arguing a case, the Justices are more likely to rule in your favor. The consensus with the McDonald case is to keep the focus on the gun ownership issue.
Groups like the National Rifle Association will argue this is about the right to keep and bear arms “This is quite a lot to swallow under the best of circumstances. In a situation such as this, where the narrowest argument you can make is still a broad one with serious ramifications, pushing a much larger agenda than necessary starts to run the risk that the Court will choke on the whole thing.”
For this reason, the NRA is working hard to keep the focus of this case where it belongs, on gun rights. Whether the Second Amendment gives 300 million Americans a right against state or local laws that ban guns is a monumentally important issue for personal liberty, and so the NRA’s argument presents, only that issue before the justices.
Their argument stresses that the Court should apply (or “incorporate”) the Second Amendment to the states through the 14th Amendment Due Process Clause. Although this approach is beset with problems from a conservative legal perspective, it’s nonetheless how the Court has always tackled these issues and so it becomes the safest route for extending gun rights to the states.
Yet the Constitutional Accountability Center, a liberal advocacy group with ties to members of the Obama administration, is urging the justices to strike down the Illinois gun bans. The center says the case allows the court to correct a poor constitutional interpretation from the late 19th century and that establishing a federal right to self-defense could open the door to progressive readings of individual rights in future cases.
The attorney arguing McDonald’s case is Alan Gura, a conservative, and he is aiming to have the Supreme Court strike down the Illinois gun ban. He also says that a victory in gun cases could pave the way for future rulings that will bolster property rights and limit government power.
“This case will restore those (gun rights) to all with certain caveats,” Gura said in a Fox News interview. “The Bill of Rights protects an individual rights in this country.”
Paul Helmke, President of the Brady Center to Prevent Gun Violence, observed the oral argument in the case of McDonald v. City of Chicago. He said, “In the two years since the Heller decision, courts throughout the country have rejected the arguments of gun criminals and the gun lobby that the Second Amendment enshrines their ‘any gun, anywhere, any time’ agenda.”
“The arguments seemed to indicate a consensus around the Court’s strong language in the Heller decision that reasonable restrictions on gun ownership are ‘presumptively lawful,” Helmke said. “The Supreme Court should maintain the limitations it set out in the Heller decision and defer to the judgments of our elected officials in protecting the public from gun violence.”
Taking the McDonald case one step further is Denis Henigan of the Brady Center. “I think there is broad legislative authority to reduce the risk from the right to own a gun and we hope the Court gives similar assurances in this case.”
Gura fired back and said, “The Supreme Court is a court of law, not a social science experiment and under the laws and the right in our Constitution is the right to keep and bear arms.”
An ardent supporter on the bench is Justice Scalia who wrote the majority opinion that invalidated Washington D.C.’s handgun ban, however he went a step further an stated that the Second Amendment, “if properly understood, there is no limitation upon arms control by the states.”
Justice Scalia wrote a book in 1997 titled, “A Matter of Interpretation,” where he viewed “the Second Amendment as a guarantee that the federal government would not interfere with the right of the people to keep and bear arms.”
Now the McDonald case before the court sees the city of Chicago and their claims contrary to the Second Amendment and that it does limit arms control by the states.
Gun Owners of America argues that the U.S. Supreme Court should recognize a robust individual right to keep and bear arms that prohibits states and their subdivisions from infringing on that right. GOA urges the Court to guarantee citizens the right to keep and bear arms as a “privilege or immunity” of national citizenship under the Privileges and Immunities (P&I) clause of the 14th Amendment.
GOA also urged the Court to avoid reliance on the 14th Amendment’s Due Process Clause and its so-called Incorporation Doctrine. The Incorporation Doctrine was invented by judges manipulating the Due Process clause, but P&I is based on the actual words of the Constitution.
The Court has already recognized in the Heller case that the Second Amendment protects an individual right of a U.S. citizen in a federal enclave, so it is no stretch that a U.S. citizen would enjoy that same right anywhere in the United States. P&I will protect the rights of citizens who constitute the government – the same persons called “the people” in the Second Amendment, GOA contends.
Moreover, P&I would not be subject to erosion over time as justices on the court change, as has proven true with Due Process incorporation. There is little risk that the Supreme Court would later use the P&I clause to create new constitutional rights, such as for health or housing. If the McDonald decision relies on the Due Process clause, the result could be a weakening of the right to keep and bear arms as well as the invention of new rights – something that has already been done using that clause.
The NRA is also actively involved in the Supreme Court case and was allowed to present their argument for 10 of the 30 minutes to the Justices.
“As a party to the case, NRA argued before the U.S. Supreme Court today that the Second Amendment protects the fundamental, individual right to keep and bear arms no matter in which city or state one resides. We are optimistic the Court will hold that the Second Amendment applies to state and local governments through the Fourteenth Amendment and that handgun bans, like those in the City of Chicago and the Village of Oak Park, are unconstitutional under any standard of judicial review,” said Wayne LaPierre and Chris Cox of the NRA.
“This view is shared by a bipartisan group of 309 members of Congress from both chambers, 38 state attorneys general and the majority of the American people. We look forward to the decision by the Court later this Term.”
Just as history proves the United States is an ever-evolving country and through political parties the justice system moves like a pendulum. The economic upheaval has caused many to get back to basics. It appears that the pendulum is swinging from the left to the right.
One thing is certain in uncertain times Americans want the right to protect themselves. The McDonald case is 200 years in the making and the decision facing the Supreme Court is the fact that it is either a federal government right or a state’s right to apply the right to own a gun.
The rules de jour often embedded in our leaders are based on personal political beliefs rather than the personal individual needs of citizens.
There is now doubt America faces a different “wild west” scenario, but there is also no doubt the founding fathers made is very clear – Americans have the right to keep and bear arms.
This is part one in a series.