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Opinion

Opinion

Gun control case could have broad impact

March 8, 2010

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— It is said, more frequently than precisely, that the reasons the Supreme Court gives for doing whatever it does are as important as what it does. Actually, the court’s reasons are what it does. Hence, the interest in the case the Supreme Court considered last week.

It probably will result in a routine ruling that extends a 2008 decision and renders dubious many state and local gun control laws. What could — but, judging from the justices’ remarks during oral argument, probably will not — make the ruling momentous would be the court deciding that the two ordinances at issue violate the 14th Amendment’s “privileges or immunities” clause. Liberals and conservatives submitted briefs arguing, correctly, that this clause was intended to be a scythe for slicing through thickets of state and local laws abridging fundamental liberties.

The Second Amendment says: “A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” Until 2008, the court had never clarified whether the prefatory clause makes this right conditional: Does the amendment protect an individual’s right to own firearms, or does it protected that right only in connection with a state’s right to organize a militia?

In 2008, the court struck down a District of Columbia law that effectively banned possession of handguns even in an owner’s home — it banned all guns not kept at businesses, or disassembled or disabled by trigger locks. The court held, 5-4, that the Second Amendment protects individuals’ rights.

But the court answered only the question then posed, which concerned the federal enclave of D.C. Left unanswered was whether the amendment protects that right against severe restrictions by state and local laws.

The oral argument concerned ordinances in Chicago and suburban Oak Park that are indistinguishable from the D.C. law. The court probably will overturn those ordinances by holding that another part of the 14th Amendment — the guarantee that no state shall deny liberty “without due process of law” — “incorporates” the Second Amendment. The justices evinced scant interest Tuesday in resurrecting the “privileges or immunities” clause by revisiting an incoherent decision rendered in 1873.

To the drafters of the 14th Amendment, the phrase “privileges or immunities” was synonymous with “basic civil rights.” But in 1873, the court held that only some of the rights enumerated in the Bill of Rights restrict states by being “incorporated” into the 14th Amendment’s “due process” clause.

Since 1897, the court has held, with no discernible principle, that some rights enumerated in the Bill of Rights are sufficiently fundamental to be “incorporated” but others are not. This doctrine bears the oxymoronic name “substantive due process.” Substance is what process questions are not about.

If the court now “incorporates” the Second Amendment right via the“due process” guarantee, that will be progress because it will enlarge the sphere of protected liberty. And even Justice Antonin Scalia, who recognizes that “substantive due process” is intellectual applesauce, thinks it is too late to repudiate 137 years of the stuff. Still, three points argue for using the “privileges or immunities” scythe against the two gun ordinances.

First, protecting the individual’s right to keep and bear arms for self-defense was frequently mentioned by those who drafted and ratified the 14th Amendment, the purpose of which was to protect former slaves and their advocates from being disarmed by state and local governments determined to assault their security and limit their autonomy.

Second, the central tenet of American political philosophy is that government is instituted not to bestow rights but to protect pre-existing rights, aka natural rights — those essential to the flourishing of our natures. In its 2008 decision, the court affirmed that the Second Amendment did not grant a right to keep and bear arms, it “codified a pre-existing right.”

Third, “privileges or immunities” are all those rights that, at the time the 14th Amendment was ratified, were understood to be central to Americans’ enjoyment of the blessings of liberty.

Liberals might hope and conservatives might fear that a revivified “privileges or immunities” clause wielded by liberal justices would breed many new “positive rights” — to welfare, health care, etc. But conservatives know that “substantive due process” already has such a pernicious potential. And they believe that if — a huge caveat — it remained tethered to the intent of its 19th-century authors, the “privileges or immunities” clause would be useful protection against the statism of the states.

— George Will is a columnist for Washington Post Writers Group. georgewill@washpost.com

Comments

BubbaJones 4 years, 1 month ago

Gun control case could have broad impact. An impact? Such as acknowledging the full constitutional rights of the citizens of Chicago. Welcome to the country.

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knowledgeispower 4 years, 1 month ago

It has amazed me since I was a child, that people could get past elementary English class and imagine that the prefatory clause in any way limits the body of the statement "the right of the people". Taken into account with the fact that you can call the National Guard a "militia" all you want but the 1789 word "militia" in context of the time it was written meant every able bodied male who could carry a weapon in defense of country (there's nothing in the Federal ammendment that implies anything about State militias). When you join both of those concepts to the power of Congress "To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years". There was no desire to have a standing Army except during war but to have the Militia ready to go when needed, while armies could be raised. To that end, every one of the people had the right to keep and bear arms, so that a functional ... well-regulated ... militia, funded by congress but under officers assigned by the States, could be brought together to defend the country.

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RobertMarble 4 years, 1 month ago

It's noteable that the Second Amendment issue has the rare distinction of actually transcending the typical partisanship that pollutes other issues. While many of the more zealous extremists on the left still cling to their anti 2nd Amendment freedoms rhetoric, it's becoming common to see some of them can now fathom that this is actually a fundamental rights issue. It's very encouraging to see such an increasing degree of bipartisan support on an important issue for a change.

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Ray Parker 4 years, 1 month ago

What part of a right that shall not be infringed is so hard to understand? The Second Amendment is our ultimate protection from malevolent, interfering, abusive, centralized federal authority running amok and trampling our other rights. We sure need that right today.

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