Several years ago, the Supreme Court -- which had not considered the second amendment in nearly a century -- held in Heller that the right to bear arms applies to private citizens, not just "militias."(See previous posts here.) That case involved a statute in the District of Columbia. It therefore remained unclear whether the holding was limited to federal enclaves or applied, by incorporation, to the various (real) states. It seemed obvious to many of us that the second amendment applies to the states every bit as much as the first amendment.
The majority was 5-4. Note that Justice John Paul Stevens dissented, so the outcome probably would have been the same even if Elena Kagan had already replaced Stevens.
Given the liberal distaste for anything related to guns, the battle now shifts to what limits may be imposed upon the second amendment right. Just as the first amendment is not limitless --pornography is not protected, for example -- the litigation will now turn for defining the limits of the right and the standard of review of government efforts to regulate gun use and ownership.
One wrinkle in the Court's reasoning for all the con-law geeks out there. The Court used the due process clause of the fourteenth amendment to incorporate the second amendment, thereby rejecting an opportunity advanced by some of the litigants to use the privileges or immunities clause of the fourteenth amendment.
Tea Partiers will like result of the case but be disappointed that its reasoning does not give them a foothold for more expansive property rights. Will Rand Paul pick up on this distinction? Moreover, will Paul note that the Court has implicitly rejected his contention that the fourteenth amendment was intended to apply only to former slaves?
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