SCOTUS Clarifies that 2nd Amendment Applies to States

This is sure to make the left blow an empty gasket with an orange plastic tip: The Supreme Court of the United States has clarified that the second amendment right to bear arms applies to the states and local governments, as well as the federal government. In so ruling, the Court struck down Chicago's gun ordinance, the most restrictive gun law in the country.

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?

Flip-flopping Away

Barack Obama was for the D.C. gun ban before he was against it. Now that the Supreme Court has said the obvious -- that the ban was unconstitutional -- and now that Obama is running for president, he is all of the sudden in favor of the right to bear arms.

Though he markets himself as a deity rather than a politician, his amition is such that he will say anything, reverse any position to get elected. Obama uses his oratorical skills to parse words in a way that looks more and more Clintonian.

Last year, Obama took the position that D.C. gun ban was constitutional:

In a story entitled, "Court to Hear Gun Case," the Chicago Tribune's James Oliphant and Michael J. Higgins wrote ". . . the campaign of Democratic presidential hopeful Barack Obama said that he '...believes that we can recognize and respect the rights of law-abiding gun owners and the right of local communities to enact common sense laws to combat violence and save lives. Obama believes the D.C. handgun law is constitutional.'" (Emphasis added.)

Now, the Obama camp backpedals:

"That statement was obviously an inartful attempt to explain the Senator's consistent position," Obama spokesman Bill Burton tells ABC News.

"Inartful"? That is the one adjective that can never be applied with a straight face to Obama.

Five Dead in Shooting at Henderson, KY Plastics Plant

Our prayers go out to five families who lost loved ones this morning at a shooting rampage in Henderson, Kentucky. The gunman was an employee of Atlantis Plastics, where he shot four co-workers before committing suicide. Two others were shot but transferred to a local hospital, according to the New York Times.

The shooter had argued with his supervisor earlier in his shift. After leaving the plant to take his break, the shooter returned with a handgun.

Kentucky's concealed gun statute allows employees to keep guns in their cars at work.

The names of the victims and the shooter have not been released. Atlantis is scheduled to hold a press conference at 3:00 p.m. today.

The shooting comes just as the U.S. Supreme Court is expected to hold that the second amendment right to bear arms applies to individuals, not just militias. That will form the basis for the Court affirming the D.C. Circuit's decision that the D.C. gun ban -- the strictest in the nation -- is unconstitutional.

The Supreme Court should release its opinion in the Heller case sometime this week, possibly as soon as today. Justice Antonin Scalia, who has not written a majority opinion this Term, is expected write it.

Heller, because it arose in the District of Columbia, probably will not address the question of whether the second amendment applies to the states, by being incorporated into the due process clause of the fourteenth amendment.

Those who oppose gun rights, consequently, will argue that Kentucky employers can -- and should -- ban employees from keeping guns in their cars at work. That will be a hard question. We allow employers to force their workers to forgo certain constitutional rights -- such as the right to free speech, when they sign a confidentiality agreement. So perhaps the employer similarly can condition employment on not exercising the second amendment right to bear arms.

In addition to the human loss, the Henderson shooting reaffirms stereotypes about Kentucky and rural America generally. Barack Obama undoubtedly feels vindicated that at least one bitter person did cling to his gun this week.

Just as bad facts should not make bad law, the Henderson shooting should not be extrapolated to reflect all Kentuckians. The Henderson shooting is an aberration. That's why it is such big news. The District of Columbia, on the other hand, has started to resemble Baghdad, complete with check points. Thirty years of the most stringent gun control law in the country made the District more dangerous, by disarming the citizenry. It is no model for Kentucky.

Update: The death toll is now six.

Update: The U. S. Supreme Court has issued three opinions, but Heller was not among them. If the Court had planned to hand down Heller today, I'm glad they didn't.

Thoughts on the Right to Bear Arms

The National Rifle Association held a continuing legal education workshop in Louisville today that drew lawyers from across the country. I don't own a gun and don't particularly like guns. But I went to this CLE (the best I've ever attended) because the second amendment is part and parcel of the Constitution -- unlike the nonexistent constitutional amendment that guarantees a right to abortion.

The rule of law requires us to give effect to all of the constitution, rather than picking and choosing among its provisions. Next month, the U.S. Supreme Court will rule on the meaning of the second amendment for the first time in seventy years; this is an area of the law that is unearthing tremendous research and primary sources about an amendment that most courts chose to ignore.

Ultimately, the second amendment is about freedom. Certainly that's why the Framers included the right to bear arms immediately after the first amendment right to free speech. Those philosophers who most influenced the Framers -- Locke, Montesquieu and Blackstone -- believed that there is a God-given natural right to self-defense. They did not distinguish between oppression by the government and oppression that the government fails to prevent.

America is one of the only countries in the world that guarantees the right to bear arms; it is an explanation for American exceptionalism.

The history of gun regulation in our country, however, reveals discrimination and oppression of unpopular races and ideologies. The earliest gun codes were intended to prevent slave insurrections. After the Civil War, free blacks were prohibited from bearing arms, but the Ku Klux Klan was not. Consequently, the Congress that passed the Civil Rights Act (Sec. 1983) and the 14th amendment did so, in part, to ensure blacks could bear arms.

More recently, the poor of New Orleans saw their own police department seize legal guns after Hurricane Katrina. Police confronted law-abiding citizens at gun-point and confiscated even registered guns. A NRA class action seeks an injunction to prevent that constitutional violation from recurring. But to this day, New Orleans police have not returned those weapons to their owners. At at time when government at all levels failed its citizenry, those same citizens were denied the right to protect their homes and stores from looters.

This CLE didn't make me want to take up hunting or buy a gun. But it did give me a tremendous respect for what the NRA does to advance the cause of freedom. Because even though I choose not to bear arms, I'm grateful that I have the right.