The Second Amendment right to keep and bear arms is incorporated against the states by the Due Process Clause.
Chicago enacted a law limiting firearm possession. Chicago argued that the Second Amendment was not incorporated against the states.
Is the Second Amendment right to keep and bear arms incorporated in the concept of due process?
Yes, the Second Amendment right is incorporated in due process.
Justice Stevens argues that the issue in this case is not whether the Second Amendment is incorporated in due process, but whether the specific right asserted by the petitioners applies to the states because of the Fourteenth Amendment by itself. This would turn on clarifying the concept of liberty, which, he argues, cannot be done through a rigid historical analysis. Instead, liberty involves concepts such as self-determination, dignity, and bodily integrity, and decisions that go to one’s identity. He argues that the asserted right is not supported by the Fourteenth Amendment, because guns can be useful for self-defense but they can also destabilize ordered liberty by causing death. He also supports his conclusion by arguing that the right to possess specific firearms is not critical to autonomy, dignity, or political equality, the way that other rights are. He also cites the fact that many other democracies restrict firearms.
Justice Scalia rebutted several of the arguments that Justice Stevens made in his dissenting opinion.
Rights that are fundamental to our scheme of ordered liberty, or that are deeply rooted in our country’s history and tradition (Washington v. Glucksberg), are incorporated.
In District of Columbia v. Heller, the Court recognized self-defense as the central component of the Second Amendment.
The Court held that the Second Amendment right to keep and bear arms is fundamental to our scheme of ordered liberty, and thus incorporated. The Court discussed the history of the right to keep and bear arms, including post-Civil War systemic efforts to disarm Black people, two acts of Congress intended to protect the right, and the eventual passage of the Second Amendment. The Court rejected Chicago’s argument that the Second Amendment was only intended to prevent discriminatory arms bans, and its argument that the Due Process Clause only incorporates rights recognized by all civilized governments.