[After the Supreme Court determined that the Second Amendment applied in a challenge to a handgun ban in Washington, D.C., several lawsuits were filed against the cities of Chicago and Oak Park, challenging their gun bans and arguing that the Second Amendment applies to the states.]
The Second Amendment is incorporated through the Due Process Clause of the Fourteenth Amendment and applies to the states.
[The United States Supreme Court decided the case of United States v. Heller, 554 U.S. 570 (2008), holding that the Second Amendment applied to a handgun ban enacted in the District of Columbia because it was enacted under the authority of the federal government and that the ban violated the Second Amendment. Following this ruling, several lawsuits were filed against the cities of Chicago and Oak Park challenging their gun bans and claiming that the Second Amendment also applies to the states. The district court dismissed the suits, Plaintiffs appealed and the appellate court affirmed. The United States Supreme Court granted certiorari.]
Does the Second Amendment apply to the states?
(Alito, J.) Yes. The Second Amendment is incorporated through the Due Process Clause of the Fourteenth Amendment and applies to the states. The Second Amendment is not incorporated through the Privileges or Immunities Clause. In Heller, the Court held that the right to self-defense is “fundamental to the Nation’s scheme of ordered liberty” and “deeply rooted in this Nation’s history and tradition.” Congress has held this right to be a fundamental right throughout our nation’s history. The analysis does not turn on whether any civilized society can exist without recognizing this as a fundamental right, but rather whether ours can. If the protections found in the Bill of Rights were required to be accepted by all civilized societies before they were considered incorporated by the Due Process Clause, many of the criminal protections would not apply to the states. The Second Amendment right recognized in Heller is a fundamental right, and is incorporated into the Due Process Clause of the Fourteenth Amendment.
(Stevens, J.) The real issue here is whether the Second Amendment guarantees individuals a fundamental right, enforceable against the states, to possess a personal firearm inside the home. The issue of incorporation was already decided in the late 19th century and is the reason the majority is correct in determining that the Second Amendment is not incorporated through the Privileges and Immunities Clause. This leaves only the determination of whether the right to bear arms applies to the states through the Fourteenth Amendment under the idea of “liberty.” Firearms are not only helpful to homeowners to protect liberty; they are also helpful to criminals to restrict it. Also, owning a handgun is not essential to living with autonomy, dignity, or political equality. Other advanced democracies place stricter restrictions on gun ownership than our country does; contradicting the argument that gun ownership is intrinsic to ordered liberty. Finally, the Court’s creation of a national standard is unwise, gun control matters should be left to states and localities where citizens can decide through the democratic process whether certain gun control measures are prudent or not.
(Breyer, J.) Nothing in the Second Amendment’s text, history, or purpose shows the possession of personal weapons for self-defense to be a fundamental right. Nothing in the Constitution allows the transfer of regulatory authority over firearms from the legislative branch to the judicial branch or from the states to the federal government. The Fourteenth Amendment does not incorporate the Second Amendment’s right to keep and bear arms.
(Scalia, J.) It is not established that the Court should base its decision in substantive due process. However, the majority’s decision in this case is supportable because the Court’s approach of incorporating certain guarantees from the Bill of Rights is long established and narrowly tailored.
(Thomas, J.) The Court is correct in finding that the Second Amendment applies to the states, but not by incorporation through the Due Process Clause of the Fourteenth Amendment. The right is instead incorporated through the Privileges or Immunities Clause. The framers of this clause and the public at the time the Fourteenth Amendment was ratified knew that the right to keep and bear arms was essential. The Due Process Clause guarantees only process before a deprivation of life, liberty or property occurs. It does not create or protect the substantive rights not mentioned in the Constitution. The right to keep and bear arms is, however, a privilege of American citizenship that is guaranteed by the Privileges or Immunities Clause of the Fourteenth Amendment.
Most legal scholars agree that the Bill of Rights was adopted as a check on federal, not state, authority. When the Fourteenth Amendment was ratified in 1868, the Supreme Court began to hold that rights from the Bill of Rights may be incorporated through the Due Process Clause. In this case, the Court held that only the portions of the Bill of Rights considered “fundamental to our scheme of ordered liberty” and “deeply rooted in this Nation’s history and tradition” are incorporated. This holding served as a restriction on the application of the Due Process Clause.