After the Supreme Court decided that the Second Amendment protected an individual right to gun ownership (if in a case narrower than many might think, including its focus on use of them for individual self defense at home and leaving open various categories of allowable regulations), it was just a matter of time before it was applied to the states. This was so even though some noted various provisions of the Bill of Rights have not be applied to the states. Making it an individual right, not one a federalist concern, made it that much unlikely that the Second Amendment would join the diminishing number.
Other than never coming up Third Amendment, the only other provisions not "incorporated" were certain jury provisions. This basic left use of civil juries and grand juries within state discretion and allowed states to have non-unanimous juries / juries of less than twelve members. Only two states actually have the former. The only other provision, arguably, is the fines provision, but there is so much overlap there with due process and cruel and unusual punishments that is really is semantics. So, the ruling in McDonald v. Chicago was not surprising and Stevens' dissenting opinion noting states and the federal government are treated differently pursuant to the Bill of Rights not really convincing. The only place they really are is regarding juries.
The ruling ultimately only decided that the Second Amendment applied to the states, but since the regulation was another handgun ban at home in a heavily populated urban area, the ultimate result is self-evident. The argument was curious -- the Supreme Court, though it was under no obligation to do so, asked the petitioners to discuss the Privileges or Immunities Clause of the Fourteenth Amendment. It had no desire to actually deal with the matter though Thomas went his separate way on the point. It purposely asked someone to also brief them on the due process argument. Justice Alito's summary of his opinion can be found here along with Breyer's summary of his dissent.
The oral summary on decision day (text provided too) basically does justice to each opinion. Justice Breyer's dissent for three justices doesn't convince me, but along with Stevens more seminal dissent (fittingly written right before he retired), it is well reasoned and warrants my respect. The basic concern is that guns are different from the other rights since they threaten life by definition (not sometimes) and given the mixed history (one that is pro-regulation), a novel recognition of a general national constitutional right is unfounded. As with Stevens, if more so, he supports local discretion in the area. It is unclear if he would oppose a national law that too broadly set forth a "one size fits all" legislation in place. Heller, involving a D.C. ordinance, simply is not a typical Second Amendment concern.
Though I admit the issue as to regulation is somewhat close, however, applying basic Breyer approaches, I would find the nation does recognize a basic right to own firearms. As to the "non-discrimination" principle of the privileges or immunities of federal citizenship, I think this misses a key point. "Equal rights" assumes both rights and an equal application of them. And, gun ownership is one such right. It is only a minority viewpoint that it is not; the debate is over scope. Minorities, including those without money for security guards, are protected.
And, it does advance broad liberty principles. Stevens' separately admits as much when he notes that there is a real argument here (if not one that applies the whole amendment to the states) as to defense of the home. In other areas, such as abortion, local discretion is limited. And, if guns are less "private," they also protect privacy and bodily autonomy. The differences warrant "regulation" but so does the Fourth Amendment speaking of "reasonable" searches and seizures. It is unfortunate that some core agreement couldn't have been reached here. An acceptance of some right to gun ownership but a debate over the breadth.
I have covered this ground before, but this post is inspired by reading Stevens' long solo dissent in full. It is interesting reading. Again, I don't really find his sentiments about different approaches as to state and federal applications convincing. Other than juries, this simply was not done in respect to the Bill of Rights in recent times. Citing Justice Harlan is fine, but does this mean Stevens doesn't think the First Amendment should be applied the same way? I see no evidence of this fact. There is an argument to be made that the Second Amendment and/or guns in general (given their reach) can be treated differently. Fine. That's a separate argument and more convincing.
The opinion is ultimately a paean to a flexible application of substantive due process, which Scalia concurred separately to dismiss (he's stuck with it as precedent, but doesn't like it, so he applies it basically without much respect). Stevens cites evidence that substantive due process is clearly proper. He spells out the common law fashion of its application, including how past history is not the only determinant (Breyer agrees, thus his dissent didn't focus on 1868; again, I would have appreciated a Kennedy opinion, which is tempered originalism). And, Stevens actually suggests he would be willing to accept some form of a liberty interest to self-defense, including in some context that involved firearms.
It is impressive but the thumb he puts on the scales [the relevant section can be read to get a sense but the narrow acceptance of the self-defense component, cf. Thomas' concurrence, is not seen in other areas, including areas like abortion where others recognize the right but are open to more regulation than he] against the evidence for at least a limited right to own a firearm at home does hurt his case. But, each side has problems in that regard. And, I find the opinion more convincing on the point that his often abbreviated selective use of history in Heller. Still, when the Bill of Rights started to be applied to the states, fairly easy cases were handled first. The right for a heavy populated urban area to ban certain firearms being decided when the amendment is just being covered is akin to an obscenity case being decided in the 1920s before one involving political speech. I think it really is a close call on some level and an unfortunate way of starting out.
Meanwhile, interesting interview of Justice Black can be heard here.
Other than never coming up Third Amendment, the only other provisions not "incorporated" were certain jury provisions. This basic left use of civil juries and grand juries within state discretion and allowed states to have non-unanimous juries / juries of less than twelve members. Only two states actually have the former. The only other provision, arguably, is the fines provision, but there is so much overlap there with due process and cruel and unusual punishments that is really is semantics. So, the ruling in McDonald v. Chicago was not surprising and Stevens' dissenting opinion noting states and the federal government are treated differently pursuant to the Bill of Rights not really convincing. The only place they really are is regarding juries.
The ruling ultimately only decided that the Second Amendment applied to the states, but since the regulation was another handgun ban at home in a heavily populated urban area, the ultimate result is self-evident. The argument was curious -- the Supreme Court, though it was under no obligation to do so, asked the petitioners to discuss the Privileges or Immunities Clause of the Fourteenth Amendment. It had no desire to actually deal with the matter though Thomas went his separate way on the point. It purposely asked someone to also brief them on the due process argument. Justice Alito's summary of his opinion can be found here along with Breyer's summary of his dissent.
The oral summary on decision day (text provided too) basically does justice to each opinion. Justice Breyer's dissent for three justices doesn't convince me, but along with Stevens more seminal dissent (fittingly written right before he retired), it is well reasoned and warrants my respect. The basic concern is that guns are different from the other rights since they threaten life by definition (not sometimes) and given the mixed history (one that is pro-regulation), a novel recognition of a general national constitutional right is unfounded. As with Stevens, if more so, he supports local discretion in the area. It is unclear if he would oppose a national law that too broadly set forth a "one size fits all" legislation in place. Heller, involving a D.C. ordinance, simply is not a typical Second Amendment concern.
Though I admit the issue as to regulation is somewhat close, however, applying basic Breyer approaches, I would find the nation does recognize a basic right to own firearms. As to the "non-discrimination" principle of the privileges or immunities of federal citizenship, I think this misses a key point. "Equal rights" assumes both rights and an equal application of them. And, gun ownership is one such right. It is only a minority viewpoint that it is not; the debate is over scope. Minorities, including those without money for security guards, are protected.
And, it does advance broad liberty principles. Stevens' separately admits as much when he notes that there is a real argument here (if not one that applies the whole amendment to the states) as to defense of the home. In other areas, such as abortion, local discretion is limited. And, if guns are less "private," they also protect privacy and bodily autonomy. The differences warrant "regulation" but so does the Fourth Amendment speaking of "reasonable" searches and seizures. It is unfortunate that some core agreement couldn't have been reached here. An acceptance of some right to gun ownership but a debate over the breadth.
I have covered this ground before, but this post is inspired by reading Stevens' long solo dissent in full. It is interesting reading. Again, I don't really find his sentiments about different approaches as to state and federal applications convincing. Other than juries, this simply was not done in respect to the Bill of Rights in recent times. Citing Justice Harlan is fine, but does this mean Stevens doesn't think the First Amendment should be applied the same way? I see no evidence of this fact. There is an argument to be made that the Second Amendment and/or guns in general (given their reach) can be treated differently. Fine. That's a separate argument and more convincing.
The opinion is ultimately a paean to a flexible application of substantive due process, which Scalia concurred separately to dismiss (he's stuck with it as precedent, but doesn't like it, so he applies it basically without much respect). Stevens cites evidence that substantive due process is clearly proper. He spells out the common law fashion of its application, including how past history is not the only determinant (Breyer agrees, thus his dissent didn't focus on 1868; again, I would have appreciated a Kennedy opinion, which is tempered originalism). And, Stevens actually suggests he would be willing to accept some form of a liberty interest to self-defense, including in some context that involved firearms.
It is impressive but the thumb he puts on the scales [the relevant section can be read to get a sense but the narrow acceptance of the self-defense component, cf. Thomas' concurrence, is not seen in other areas, including areas like abortion where others recognize the right but are open to more regulation than he] against the evidence for at least a limited right to own a firearm at home does hurt his case. But, each side has problems in that regard. And, I find the opinion more convincing on the point that his often abbreviated selective use of history in Heller. Still, when the Bill of Rights started to be applied to the states, fairly easy cases were handled first. The right for a heavy populated urban area to ban certain firearms being decided when the amendment is just being covered is akin to an obscenity case being decided in the 1920s before one involving political speech. I think it really is a close call on some level and an unfortunate way of starting out.
Meanwhile, interesting interview of Justice Black can be heard here.