Petitioners claim that the right to keep and bear arms is one of the “privileges or immunities of citizens of the United States” but the city of Chicago argues that the laws that ban possession of handguns in the home are constitutional because the Second Amendment does not apply to the States.
The Second Amendment protects the right to keep and bear arms for one’s self-defense (District of Columbia v. Heller)
The city of Chicago and Oak Part, a village in a Chicago suburb, have laws similar to the District of Columbia’s that banned the possession of handguns in the home. While the Court held the laws on gun possession of the District of Columbia unconstitutional, Chicago and Oak Part argue that their laws are constitutional because the Second Amendment does not apply to the States. Petitioners claim that the right to keep and bear arms is one of the “privileges or immunities of citizens of the United States.”
Does the Second Amendment right to keep and bear arms for one’s self-defense incorporated in the concept of due process?
Yes. The Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right. This Court ruled in Heller that the Second Amendment protects the right to possess a handgun for one’s self-defense. The right to keep and bear arms is fundamental to “our scheme of ordered liberty” and the right is “deeply rooted in this Nation’s history and tradition.”
The majority posited a wrong question. The proper question in this case is not whether the Second Amendment right to keep and bear arms for one’s self-defense applies to the States because the Amendment has been incorporated into the Fourteenth Amendment. It has never been. The proper question is whether the right asserted by the petitioner applies to the States because of the Fourteenth Amendment itself, “standing on its own bottom.” Firearms have a fundamentally ambivalent relationship to liberty. They can be used for self-defense at home but may be misused for murder or violence, as the history demonstrates. Moreover, The notion of liberty must be assessed in a democratic fashion and the other branches of government have shown themselves capable of, even better at, safeguarding the interest in keeping and bearing arms.
The right to keep and bear arms isn’t enforceable against the States through the Fourteenth Amendment’s Due Process Clause because that clause speaks only to “process.” The majority’s notion that a constitutional provision that guarantees only “process” cannot define the substance of those rights. Instead, the right is a privilege of American citizens that applies to States through the Fourteenth Amendment’s Privileges or Immunities Clause.
Self-defense is one of the most fundamental right. The need for defense of self, family and property is most acute in one’s home and thus, this right applies to handguns because they are “the most preferred firearm in the nation to keep and use for the protection of one’s home and family. Heller demonstrates that this right is deeply rooted in our history and tradition. It noted that the 1689 English Bill of Rights explicitly protected a right to keep arms for self-defense and British’ assessment was shared by the American colonists. Furthermore, the right was deemed fundamental by the Framers of the Fourteenth Amendment and immediately following the ratification of the Bill of Rights, thirteen States adopted state constitutional provisions to protect one’s right to keep and bear arms. A provision from the Bill of Rights apply equally to the federal government and the States, and therefore, the Due Process Clause incorporates the Second Amendment right to possess a handgun.