2nd Amendment: Gun rights and Chicago’s ban
Supporters of gun control are understandably disappointed by Monday’s Supreme Court decision dooming a ban on handguns adopted by the city of Chicago. But the legal rationale for the 5-4 ruling is correct. If every individual has the right to keep and bear arms — as the court unwisely held two years ago in invalidating a similar ban in the federal enclave of Washington, D.C. — then it can’t be taken away by states and cities.
We criticized the Washington, D.C., decision, arguing that the more natural reading of the 2nd Amendment was to limit the right to bear arms to the formation of a “well regulated militia.” But once the court determined that every individual had the right, it seemed to us inevitable that, like the 1st Amendment’s ban on an establishment of religion or the 4th Amendment’s protection against unreasonable searches, that right would have to be honored by the states.
And it will be under Monday’s surprisingly close decision, which returns the Chicago case to a lower court for a final decision. The ruling reaffirmed decades of precedent in which the important protections of the Bill of Rights, which originally applied only to the federal government, were applied to states by being “incorporated” in the 14th Amendment. Justice Samuel A. Alito Jr., joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia and Anthony M. Kennedy, said the incorporation of the right was accomplished by a clause in the 14th amendment preventing states from denying persons “life, liberty or property” without due process of law. That is the traditional ways rights have been incorporated. Justice Clarence Thomas focused on a different provision in the amendment prohibiting states from abridging the “privileges or immunities” of citizenship.
Either way, the doctrine of incorporation is well established. So why did the court’s four liberals dissent? Justice John Paul Stevens opposed incorporation, among other reasons, because “firearms have a fundamentally ambivalent relationship to liberty.” Justice Stephen G. Breyer, joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor, complained that the right isn’t “fundamental.” It’s hard to escape the suspicion that their aversion to the proliferation of firearms — an aversion we share — overrode their commitment to precedent and consistent law.
The saving grace of Monday’s decision is that it reiterates that a right to bear arms doesn’t preclude laws denying gun ownership to felons and the mentally ill, forbidding the carrying of guns near schools or imposing restrictions on the sale of firearms. We wish states and cities were able to do even more to prevent gun violence, but if the federal government is to be constrained by the court’s reading of the 2nd Amendment, so must they. Better that than a selective enforcement of the Bill of Rights.