Citation. 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010).
Following the Heller decision, petitioners filed suit against their respective municipalities. The petitioners argued the ban on handgun in private residences violated their right to keep and bare arms.
The Second Amendment is incorporated through the Due Process Clause of the 14th Amendment and additionally applicable to state and local governments.
Chicago and the village of Oak Park banned the possession of handguns in the home. Petitioners challenged the bans, following the Supreme Court’s decision in District of Columbia v. Heller. In Heller, the Court struck down the District’s handgun ban because it violated the Second Amendment. The Court found the Second Amendment was applicable because the ban was enacted under federal government authority. Here, the petitioners argued the Second Amendment should also apply to the states under either the Privileges or Immunities Clause or Due Process Clause of the 14th Amendment.
Are the municipal ordinances in violation of the Second Amendment?
Yes because the 14th Amendment’s Due Process Clause incorporates the Second Amendment right to keep and bear arms.
The incorporation question was long-settled in the late 19th century. Rather, we should be answering whether the Constitution “guarantees individuals a fundamental right… to possess a function, personal firearm.” It is a different, more difficult inquiry.
To that end, the right to possess a firearm is a different kind of liberty interest than those previously recognized under the Due Process Clause. Firearms have an ambivalent relationship to liberty. Owning a gun is not fundamental to leading a life of autonomy, dignity, or political equality.
The historical accounts provided by the Court are flawed. There is no consensus that the private defense right described in Heller is fundamental. Legislatures are better suited to be making state gun laws because they are democratically-elected bodies and can answer empirical questions. We should also be concerned about the harm that may come from striking down gun regulations. Broader constitutional objects are not protected by favoring the Court’s incorporation theory.
Due Process speaks only to “process.” The right to keep and bear arms is a privilege of American citizenship protected under the Privileges or Immunities Clause of 14th Amendment.
The Court held the Second Amendment applies to the states, protecting the right to keep and bear arms for the purpose of self-defense. The Second Amendment is incorporated through the Due Process Clause of the 14th Amendment because the Framers counted the right to keep and bear arms as a right fundamental to the nation’s system of ordered liberty.
Incorporation does not mean zero regulations on firearms, however. Like in Heller, restrictions on firearms possessed by felons and the mentally ill, restrictions on carrying firearms in sensitive places like schools and government buildings, and additional laws imposing conditions and qualifications on the sale of firearms are permissible.