Friday, September 10, 2010 McDonald" />

On June 28, 2010--two years and two days after declaring that the Second Amendment protects an individual right to possess handguns for self-defense--the Supreme Court of the United States declared just as clearly that the Second Amendment protects that right not just in Washington, D.C., and federal enclaves, but in every state, city and town in America. The decision is a great victory for gun owners--but also highlights the need for us to keep being politically active, now and forever.

The ruling came in the case of McDonald v. City of Chicago, a challenge to handgun bans in Chicago and Oak Park, Ill. The plaintiffs in the case were Chicago residents who wanted to keep handguns in their homes for self-defense, but couldn’t do so under the city’s nearly 30-year-old handgun ban. McDonald and a similar case brought by NRA were consolidated in the Seventh Circuit U.S. Court of Appeals. The Supreme Court made NRA a party to McDonald when it decided to hear the appeal.

In an opinion by Justice Samuel Alito, the Court announced: “We have previously held that most of the provisions of the Bill of Rights apply with full force to both the Federal Government and the States. Applying the standard that is well established in our case law, we hold that the Second Amendment right is fully applicable to the States.”

Joining Justice Alito were Chief Justice John Roberts and Justices Anthony Kennedy, Antonin Scalia and Clarence Thomas. These five justices also made up the majority in District of Columbia v. Heller (2008), in which the Court ruled that the Second Amendment protects a pre-existing, individual Right to Keep and Bear Arms and struck down D.C.’s bans on handguns and operable firearms in the home. Dissenting in McDonald were Justices Stephen Breyer, Ruth Bader Ginsburg and John Paul Stevens, all of whom dissented in Heller, and Justice Sonia Sotomayor, appointed to the Court last year by President Barack Obama.

In McDonald, the Court applied the Second Amendment to states and cities through the 14th Amendment’s Due Process Clause, an argument that former Solicitor General Paul Clement primarily relied on during his oral argument on behalf of NRA. (Justice Thomas also filed a separate opinion arguing that “... the Right to Keep and Bear Arms is a privilege of American citizenship that applies to the States through the 14th Amendment’s Privileges or Immunities Clause.”) The point was also emphasized in NRA’s briefs authored by Second Amendment scholar Stephen P. Halbrook and attorney Stephen D. Poss of the firm Goodwin Procter LLP, which has donated more than 1 million dollars’ worth of its lawyers’ time to Second Amendment litigation.

Under longstanding Supreme Court case law, a right is protected under the Due Process Clause if it is “fundamental” and “deeply rooted in this Nation’s history and tradition.” Looking back to the Heller decision, the Court found that the Right to Keep and Bear Arms easily met both standards. Not only has self-defense been recognized as a basic right since ancient times, but the Right to Keep and Bear Arms was recognized in England and America long before our country existed.

The Court went on to explain that the Right to Keep and Bear Arms was also clearly recognized when the 14th Amendment was adopted to protect the freedmen after the Civil War. 14th Amendment supporters were strong advocates of an armed citizenry. As one House member put it at the time, “Disarm a community and you rob them of the means of defending life. Take away their weapons of defense and you take away the inalienable right of defending liberty.”

The Court completely rejected every argument made by Chicago and its cohorts, as well as those made in the dissenting opinions by Justice Breyer (joined by Justices Ginsburg and Sotomayor) and by Justice Stevens (for himself alone).

First, the Court rejected Chicago’s arguments, including its attempt to rely on foreign law. A right is protected if it is fundamental in our history and tradition--not those of a foreign country. Gun bans and other restrictive laws in England, Australia or Luxembourg can’t be used to undermine the rights of Americans. Further rebuking Chicago, the Court said a right must be protected even if it has “controversial public safety implications” or might lead to “extensive and costly litigation.”

Next, the Court rejected Justice Stevens’ argument that the rights protected against states “. . . need not be identical in shape or scope to the rights protected against Federal Government infringement by the various provisions of the Bill of Rights.”

Former Solicitor General Clement effectively rebutted this call for a “watered down version” of the Second Amendment during his oral argument on behalf of NRA, and the Court agreed: “[I]ncorporated Bill of Rights protections ‘are all to be enforced against the States under the 14th Amendment according to the same standards that protect those personal rights against federal encroachment.’”

The Court also rejected Justice Breyer’s arguments. Breyer first argued that the right to arms should not be incorporated because it is not recog-nized as fundamental by “popular consensus.” As the Court pointed out, there’s no legal rule that requires a “consensus” to support a right--and even if there were, the “friend of the court” brief joined by 58 senators and 251 House members, and another brief by 38 state attorneys general, clearly show a consensus in support of the right.

Second, Justice Breyer argued that the right does not protect minorities or persons neglected by those in power--a strange claim that (as the Court noted) several pro-gun briefs submitted by women legislators and by representatives of minority groups rebutted in detail.

Third, Justice Breyer complained that enforcing the Second Amendment would limit experimentation by states. (Justice Stevens had a similar complaint.) But as the Court said, “... this is no more remarkable with respect to the Second Amendment than it is with respect to all the other limitations on state power found in the Constitution.” The whole point of the Bill of Rights is to stop runaway “experimentation.”

Finally, the Court rejected Justice Breyer’s claim that incorporating the Second Amendment would force judges to assess the costs and benefits of firearm restrictions. On that point, the Court pointed out that it had “specifically rejected” Justice Breyer’s suggestion of an “interest-balancing test” in his dissenting opinion in Heller.

That point is worth a closer look, because it reveals the strategy that opponents of our Right to Keep and Bear Arms plan to use. Justice Ginsburg said in a December 2009 speech that dissenting opinions should be used to guide a “future, wiser” Court--and pointed to the Heller case as an example.

In McDonald, Justice Breyer made clear that this is his plan when he pointed to recent criticisms of Heller by academics who disagreed with the opinion’s analysis of history. He asked, “If history, and history alone, is what matters, why would the Court not now reconsider Heller in light of these more recently published historical views?”

For gun owners, the bottom line isn’t history--it’s politics. If gun owners want to avoid the kind of “future, wiser” Court that would reverse both Heller and McDonald, they need to pay close attention to elections--starting right now.

After all, while the Supreme Court sets itself apart from the “political branches,” the “political branches” that nominate and confirm Supreme Court justices are the branches that NRA members and other gun owners can directly influence. Case in point: NRA members helped elect President George W. Bush. President Bush nominated Chief Justice Roberts and Justice Alito, who held in favor of our Right to Keep and Bear Arms in Heller and McDonald. On the other hand, President Obama nominated Justice Sotomayor, who joined a dissenting opinion in McDonald, saying the Second Amendment right is not fundamental. Clearly, elections matter.

So, while McDonald is a great victory for NRA, gun owners and all who care about freedom, it’s yet another reminder that freedom isn’t free. Without your commitment in the past, this victory would have never happened. Without your energy in the future, it could be reversed. We must remain vigilant in protecting our rights for decades to come.

Second Amendment/Right To Arms Friday, September 7, 2018

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