Some States argue that the Second Amendment that protects the right to keep and bear arms for the purpose of self-defense does not apply to the States and that their laws that ban the possession of handguns in the home should be held constitutional.
Most of the provisions of the Bill of Rights apply with full force to both the federal government and the States. The Second Amendment right is fully applicable to the States.
The Court in Heller held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense and the District of Columbia’s law that banned the possession of handguns in the home was held unconstitutional. Chicago had a similar law to that of Columbia and argued that its laws are constitutional because the Second Amendment has no application the States.
Is the Second Amendment right to keep and bear arms incorporated in the concept of the due process?
Yes, the Second Amendment right to keep and bear arms is incorporated in the concept of the due process because the right is fundamental to our scheme of ordered liberty and is deeply rooted in the Nation’s history and Tradition. Thus, the Second Amendment right applies equally to both the federal government and the States.
Stevens: The Second Amendment right to keep and bear arms is not incorporated into the Fourteenth Amendment. However, firearms have a fundamentally ambivalent relationship to liberty and the right to possess a firearm of one’s choosing is different in kind from the liberty interests we have recognized under the Due Process Clause.
Breyer: There is no popular consensus that the private self-defense right described in Heller is fundamental. Unlike the First Amendment’s rights of free speech, free press, assembly, the private self-defense right does not comprise a necessary part of the democratic process that the Constitution seeks to establish. The Framers did not write the Second Amendment to protect a private right of armed self-defense.
The majority’s substantive due process framework fails to account for both the text of the Fourteenth Amendment and the history that led to its adoption. The original meaning of the Fourteenth Amendment offers a superior alternative. While the Second Amendment is fully applicable to the States, the right to keep and bear arms is guaranteed by the Fourteenth Amendment as a privilege of American citizenship.
The right to keep and bear arms was considered no less fundamental by those who drafted and ratified the Bill of Rights. Those who were fearful that the new federal government would infringe traditional rights such as the right to keep and bear arms insisted on the adoption of the Bill of Rights as a condition for ratification of the Constitution. This understanding had persisted in the years following the ratification of the Bill of Rights. Under our precedents, if a Bill of Rights guarantee is fundamental, that guarantee is fully binding on the States and thus limits the States’ ability to devise solutions to social problems that suit local needs and values.